[Federal Register Volume 59, Number 110 (Thursday, June 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13942]
[[Page Unknown]]
[Federal Register: June 9, 1994]
_______________________________________________________________________
Part III
Department of Transportation
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Federal Aviation Administration
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14 CFR Parts 13 and 16
Rules of Practice for Federally Assisted Airport Proceedings; Proposed
Rule
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 13 and 16
[Docket No. 27783; Notice No. 94-18]
RIN 2120-AF-43
Rules of Practice for Federally Assisted Airport Proceedings
AGENCY: Federal Aviation Administration (FAA), (DOT).
ACTION: Notice of proposed rule (NPRM).
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SUMMARY: This NPRM proposes to establish rules of practice for the
filing of complaints and adjudication of compliance matters involving
Federally assisted airports. The proposed rule would address
exclusively airport compliance matters arising under the Airport and
Airway Improvement Act (AAIA) of 1982, as amended; certain airport-
related provisions of the Federal Aviation Act of 1958, as amended; the
Surplus Property Act; as amended; predecessors to those acts; and
regulations, grant agreements, and documents of conveyance issued or
made under those acts. The proposed rule is intended to expedite
substantially the handling and disposition of airport-related
complaints, and to provide an efficient process for the agency to
resolve disputes between air carriers and airport proprietors regarding
whether airport fees and charges comply with Federal requirements. The
NPRM would also amend the FAA's existing complaint and adjudication
procedures, 14 CFR Part 13, ``Investigative and Enforcement
Procedures,'' to remove from the coverage of part 13 the airport-
related matters that would be handled under the new part 16.
DATES: Comments must be received on or before August 8, 1994.
ADDRESSES: Comments on this notice may be mailed, in duplicate, to:
Federal Aviation Administration, Office of the Chief Counsel, Attn.:
Rules Docket (AGC-10), Docket No. 27783, 800 Independence Avenue, SW.,
Washington, DC 20591. Comments delivered must be marked Docket No.
27783. Comments may be examined in room 915F weekdays between 8:30 a.m.
and 5 p.m. except on Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Barry Molar, Airport Law Branch (AGC-610), Office of the Chief Counsel,
(202) 267-3473, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they desire. Comments relating to the economic effects that might
result from adoption of the proposals contained in this notice are
invited. Communications should identify the regulatory docket or notice
number and be submitted in duplicate to the address listed above.
Commenters wishing the FAA to acknowledge receipt of their comments on
this notice must submit with those comments a self-addressed, stamped
postcard on which the following statement is made: ``Comments to Docket
No. 27783.'' The postcard will be dated and time stamped and returned
to the commenter.
All communications received on or before the closing date for
comments will be considered by the Administrator before taking action
on the proposed rule. The proposal contained in the notice may be
changed in light of comments received. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report
summarizing each substantive public contact with DOT/FAA personnel
concerning this rulemaking will be filed in the docket.
Availability of NPRM
Any person may obtain a copy of this NPRM by submitting a request
to the Federal Aviation Administration, Office of Public Affairs,
Attention: Public Inquiry Center, APA-430, 800 Independence Avenue SW.,
Washington, DC 20591, or by calling (202) 267-3464. Requests must
identify the notice number of this NPRM. Persons interested in being
placed on the mailing list for future NPRM's also should request a copy
of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking
Distribution System, which describes application procedures.
Background
In addition to its plenary responsibility for aviation safety, the
Federal Aviation Administration (FAA) is responsible for administering
Federal laws that impose certain economic requirements on the operation
of airports in the National Aviation System. These laws include the
Airport and Airway Improvement Act of 1982, as amended, (AAIA) which
provides for Federal grants to airport sponsors and imposes conditions
on the grants in the form of assurances by those sponsors; the Surplus
Property Act, which provides for the transfer of Federal property to
local governments for airport use and, like the AAIA, requires specific
assurances from the sponsor for the use of the property; section 308(a)
of the Federal Aviation Act of 1958, as amended (FAAct), which
prohibits an airport operator from granting an exclusive operating
right at an airport that has received Federal funds; and the Anti-Head
Tax Act, section 1113(a)-(d) of the FAAct, which prohibits local taxes
on air travel but expressly permits the imposition of reasonable fees.
The FAA, concurrently with the publication of this NPRM, has
published for public comment a notice of proposed policy on the
standards for determining whether airport rates and charges are ``fair
and reasonable'' within the meaning of the above statutes. The FAA will
refer to that policy statement, as revised after review of the comments
received, in the implementation of these laws and in adjudicating
complaints brought before the agency involving airport rates and
charges.
The Secretary of Transportation and the FAA Administrator have the
authority and responsibility to receive complaints and adjudicate
matters of compliance with these statutes. Typically, complaints
received by the FAA involve an allegation of economic discrimination
toward an airport tenant or a claim that an exclusive right has been
granted by the airport operator. However, two recent disputes between
airlines serving a major airport and the airport operator indicate that
the FAA may soon receive cases involving more complex rates and charges
issues. In both cases, the airlines filed suit in court but did not
file an administrative complaint with the FAA. In Northwest Airlines,
Inc., et al. v. County of Kent, Michigan, the airline tenants at the
Grand Rapids Airport challenged various aspects of a new rate structure
at the airport. The Supreme Court issued a decision substantially in
favor of the airport operator in January 1994. ________ U.S. ________,
62 U.S.L.W. 4103 (1994). In 1993, the Air Transport Association and
tenant airlines at Los Angeles International Airport filed suit in U.S.
District Court to challenge a substantial increase in landing fees at
the airport. The District Court for the Central District of California
dismissed the airline complaint in February 1994, citing among other
things the lack of a private right of action for complaints under the
Anti-Head Tax Act.
Even though no administrative complaint was filed in the Los
Angeles case, the Department of Transportation became involved after
the City announced that airlines that did not pay the new fees would be
barred from operation at the airport. In November 1993, Secretary of
Transportation Federico Pena convened the parties to the dispute in
Washington, DC, to assist in a settlement of the controversy. The
product of the ensuing discussions was an agreement by the parties that
permitted continued litigation of the issues without the threat of
interruption of air service to the traveling public.
Shortly after the Los Angeles discussions, Secretary Pena issued a
letter, dated December 10, 1993, outlining the Department's prospective
policy on involvement in airport-airline fee disputes. The Secretary
noted the significant potential impact on air travelers and on the
national air transportation system of unresolved airport-airline
disputes. While reaffirming the Department's historic reliance on good
faith negotiations and agreement by the local parties, the Secretary
announced a more active and engaged approach to disputes that could not
be resolved at the local level. The letter included the Secretary's
direction to the FAA to streamline the procedural rules for handling
airport-airline fee disputes. In keeping with the approach announced by
the Secretary, and the expressed need for a more effective, streamlined
enforcement and adjudication procedure, the FAA proposes the adoption
of a revised and updated procedural rule adapted specifically to the
investigation and adjudication of airport-related complaints within the
jurisdiction of the FAA.
Existing FAR Part 13
At present, enforcement of the requirements imposed on airport
proprietors as a condition of the acceptance of Federal grant funds or
property is accomplished through the administrative procedures set
forth in 14 CFR part 13. Requirements include, without limitation: (a)
The obligation to provide access to the airport on fair and reasonable
terms without unjust discrimination; (b) the prohibition on grants of
exclusive rights; (c) the obligation to use all airport revenue on
capital or operating costs of the airport, the sponsor's airport system
or other transportation projects directly related to air
transportation, consistent with 49 U.S.C. App. 2210(a)(12); (d) the
obligation to make the airport as self-sustaining as possible; (e) the
obligation to ensure that, to the maximum extent practicable, at least
10 percent of concession businesses are small business concerns owned
and operated by socially and economically disadvantaged businesses
(DBE's); and (f) the obligations pursuant to section 505(d) of the AAIA
that at least 10 percent of AIP funds shall be expended with DBE's.
The application of part 13 procedures to enforcement of airport
grant agreements began in 1979, largely as the result of the enactment
of a civil rights statute, Section 30 of the Airport and Airway
Development Act, as amended (ADAP). Section 30, reenacted as section
520 in the AAIA, as amended, is similar to Title VI of the Civil Rights
Act (CRA), but is not an amendment to the CRA. For this reason, the
Title VI administrative process provided in 49 CFR part 21 does not
cover section 520 cases, and it was necessary to provide another avenue
of administrative process for compliance matters.
Accordingly, the FAA added ADAP to the list of statutes in part 13
under which the Administrator conducts investigations. In 1988, the FAA
amended the applicability provisions of part 13 to refer to the Airport
and Airway Improvement Act of 1982 (AAIA) and to the Airport and Airway
Safety and Capacity Expansion Act of 1987.
While the scope of part 13 was thereby enlarged to accommodate a
range of airport enforcement matters, no attempt was made to revise the
complaint or hearing procedures to address the particular requirements
of airport cases. In the late 1980's, the number and complexity of
complaints from aeronautical users regarding airport sponsor compliance
with grant assurances and other Federal obligations began to increase.
In 1987, an amendment to the AAIA compressed the time available to the
agency to reach a final decision in a case in which grant funds could
be withheld. In effect, section 519 of the AAIA, as amended in 1987,
prohibits the Secretary from denying a grant of entitlement funds or
from withholding payments under a grant for more than 180 days without
providing opportunity for a hearing and issuing a determination of a
violation. Using the complex formal hearing procedures of subpart D of
part 13, it would be practically impossible to meet the 180-day
deadline in the statute for completion of the entire hearing and final
decision process. The difficulty of meeting the 180-day deadline arises
from a number of characteristics of part 13:
There are no explicit deadlines for completion of the
investigative phase of a complaint.
There is no guidance or direction on the processing of
complaints that are treated as reports of violations under Sec. 13.1.
The absence of procedures for processing such cases has led to delays
in disposition of cases, confusion as to the status of regional
determinations under Sec. 13.1 as judicially appealable final agency
orders, and confusion over the procedures and standards for obtaining
FAA headquarters review of regional determinations under Sec. 13.1.
The lack of more streamline adjudicatory procedures has tended
to encourage the practice of submitting out-of-channel appeals and
pleas for action directly to the Administrator and Secretary of
Transportation. The submission of these requests diverts agency
resources from investigations and leads to confusion regarding the
contents of the administrative record.
Some elements of part 13 today do not facilitate an expedited
and definitive finding on compliance. For example, multiple,
potentially duplicative an drawn-out hearings and the current
administrative review process for hearing officer's decisions under
subpart D make timely decisionmaking exceedingly difficult.
FAA experience with part 13 indicates that some provisions
permit parties to prolong litigation once the FAA has initiated formal
proceedings. Subpart D of part 13 includes, for example, open-ended
subpoena provisions, and permits discovery and motions practice without
time limit if the hearing officer chooses to allow it. Also, part 13
places no clear limits upon the successive filing of dispositive
motions under Sec. 13.49 by all parties.
Part 13, in short, does not provide a structure that regularly
facilitates the final administrative disposition of airports-related
cases within prescribed time limits, and cannot be relied upon to
afford expedited resolution of disputes that may be needed in major
airline-airport cases. For these purposes, and consistent with the
Secretary's direction for a more streamlined process, a new procedural
rule is necessary to focus exclusively on airport matters; to avoid
duplicative and unnecessary steps; and to offer expeditious treatment,
especially in cases with substantial potential impact on air
transportation. In support of these objectives, the rules proposed here
would:
1. Require parties to undertake serious attempts at informal
resolution of their dispute prior to the filing of a complaint.
2. Focus administrative resources as a priority on resolving
complaints which, if not expeditiously resolved, may result in
substantial adverse impact on air transportation.
3. Provide for a single complaint procedure, rather than for formal
and ``informal'' complaints as in part 13. This will avoid duplicate
complaints and investigations on the same subject.
4. Limit ``standing'' to persons directly and substantially
affected by the specific dispute at issue, i.e. persons with a
substantial actual and present interest in the outcome of an issue that
is ripe for decision. Part 16 could not be used to obtain advisory
opinions on speculative actions or academic questions.
5. Set clear time limits on the actions of all parties, including
the agency, from the time a complaint is filed through final agency
decision.
6. Provide procedural flexibility, e.g., to shorten time limits and
eliminate procedural steps in a particular proceeding, consistent with
fairness to those affected, where circumstances require special
expedition.
7. Promote the likelihood of informal resolution of cases by the
affected air carrier and airport parties without expensive formal
hearings, by rendering a public initial agency determination of
compliance in a short time frame.
8. Limit the number of formal pleadings and require that the
documentary evidence relied upon by the parties be submitted promptly
with the pleadings.
9. Require that parties serve all pleadings and documents on each
other and the FAA, and use overnight or hand-delivery when the need for
expeditious resolution of the matter is particularly acute.
10. Provide for an expedited process for investigatory hearings
that will provide a full record, without undue complexity, regarding
proposed increases in airport rates and charges in cases of particular
significance.
11. Provide hearing procedures that permit the scope of each
hearing to be tailored to the complexity and circumstances of the
particular case, and rely on briefing and oral argument where there are
no genuine issues of material fact in dispute.
12. Clearly establish the burden that each party must carry to make
its case.
13. Limit amicus participation to the filing of briefs.
14. Prohibit interlocutory appeals and requests for
reconsideration, and focus instead on an effective appeals process.
Subparts A through I of the proposed rule set forth a comprehensive
procedure for the filing, investigation, and adjudication of complaints
filed with the FAA against airports, and for appeal of agency decisions
regarding such complaints. Subpart J of the proposed rule includes a
special procedure for the receipt and investigation of complaints by
airlines against an airport alleging that an airport fee increase is
unreasonable or unjustly discriminatory.
The normal complaint procedure would result in an initial
determination by the agency, within approximately six months of the
filing of a complaint, whether the airport was in violation of its
Federal obligations. This time period would include two round of
responsive pleadings by the complainant and respondent, and a
reasonably expeditious investigation and preparation of decision by the
FAA.
The special subpart J procedure would result in an initial
determination within 120 days of the complaint. Typically, this
determination would be whether the challenged rate was fair and
reasonable within the meaning of the relevant statutes. Under subpart
J, the agency would appoint a presiding officer who will act
independently to conduct an expedited investigatory hearing on the
complaint. The presiding officer would then prepare a report of
investigation for transmittal to the Assistant Administrator for
Airports, who would consider the hearing record and report in issuing
the initial determination of compliance.
Both the investigatory hearing under subpart J and the adjudicatory
hearing under subpart F would provide an open and fair process for
efficient and expedited consideration of complaints involving Federally
funded airports. In both procedures, the time allowed for issuance of a
compliance decision represents a considered balance between the
interest in expedited resolution of disputes and the need for adequate
time for investigation and deliberation before issuing agency decisions
in these potentially complex cases. In subpart J, for example, the
relatively short time provided for an interim determination on a
complaint is sufficient to allow for oral investigatory hearing.
Within the constraints imposed by the effort achieve expedition,
the investigatory hearing would provide complainants and airports the
opportunity to develop the record before the FAA through streamlined
procedures that permit cross-examination, adversary process, and
limited discovery. In the atypical case in which an adjudicatory
hearing would be held (under section 519 of the AAIA or section 1002 of
the FAAct), the proposed hearing procedures are intended to permit the
FAA to complete compliance hearings within 180 days, while assuring
that a sponsor receives a fair hearing and opportunity to present
evidence and argument to support its position. That process would
provide substantial procedural safeguards, although it would not
conform in every respect to the provisions of the Administrative
Procedure Act (APA). The hearings mandated by section 519 of the AAIA
and section 1002 of the FAAct are not an ``agency adjudication required
by statute to be determined on the record after opportunity for an
agency hearing'' within the meaning of section 554 of the APA.
Accordingly, provisions of section 554 of the APA do not apply to the
adjudicatory hearing proposed in this rule.
Description of the Proposed Rule
Subpart A--General Provisions
Subpart A would include provisions of general applicability to
proceedings brought under part 16, definitions of terms used in the
regulation, and a provision on separation of functions.
The regulation would apply to complaints, investigations and
adjudications regarding compliance by airports with the following:
(a) Sections 308 and 1113 of the Federal Aviation Act of 1958, as
amended, 49 U.S.C. App. 1347 and 1513;
(b) Obligations contained in grant-in-aid agreements (grant
assurances) issued under airport financial assistance legislation
enacted over the years, and obligations directly imposed by that
legislation (including obligations relating to use of disadvantaged
business enterprises); and
(c) Obligations contained in deeds of transfer for property
transferred from the United States to airport proprietors (proposed
section 16.1(a)).
The proposed regulation would also specify that if a grant
assurance concerns a requirement that is within the authority of
another Federal agency, that agency's administrative processes should
be used and that the FAA would defer to the other Federal agency's
authority (proposed Sec. 16.1(b)). For example, the grant assurances
require compliance with the Davis-Bacon Act relating to the payment of
union-scale wages on Federally funded construction projects.
Allegations of violation of the Davis-Bacon Act would continue to be
adjudicated by the Department of Labor, not by the FAA under proposed
part 16.
The proposed definitions (proposed section 16.3) are for the most
part derived from the definitions of like or similar terms in 14 CFR
part 13. The proposed definition of agency attorney would specify the
FAA attorneys who can be responsible for investigating and prosecuting
complaints. To assure compliance with the proposed rules on separation
of functions in cases that go on to hearings under proposed subpart F,
attorneys holding certain positions and working in certain offices of
the FAA would be precluded from functioning as agency attorneys at any
stage of the proceedings. Such attorneys would be available to advise
the FAA decisionmaker or to serve as a hearing officer.
The proposed definition of hearing officer would require the
hearing officer to be an attorney. FAA attorneys holding certain
positions and working in specific offices would be precluded from
functioning as hearing officers to assure compliance with the proposed
rule on separation of functions.
Proposed Sec. 16.5, requiring the separation of prosecutorial and
adjudicatory functions in hearings, is based on FAR Sec. 13.203,
relating to civil penalty adjudications. Separation of functions is not
required by statute because hearings under part 16 would not be subject
to APA hearing requirements; however, the separation is provided to
promote confidence in the impartiality and integrity of decisions under
the new procedures. Separation of prosecutorial and adjudicatory
functions would be provided from the time of the issuance of an initial
determination in all cases in which an opportunity for hearing is
provided, including cases in which the respondent waives hearing and
appeals the initial determination in writing to the Administrator. When
separation applies, the Assistant Administrator for Airports would be
considered as performing the investigatory and prosecutorial function
and would not participate in the decision of the Administrator or
hearing officer.
Subpart B--General Rules Applicable to Complaints, Proceedings, and
Appeals Initiated by the FAA
This subpart would apply to all phases of the investigations and
adjudications under this part.
Proposed Sec. 16.11 would provide for expediting any portion of an
investigation or adjudication. While the normal procedures in this
proposal are designed to be completed efficiently, in some
circumstances there is a need to resolve an issue even more quickly.
The section would authorize the Assistant Administrator for Airports to
take a variety of steps appropriate to the particulars of any given
case. The section is intended to provide flexibility to adopt such
special procedures to assure sufficiently rapid decisionmaking and
procedural fairness in the circumstances of the individual case.
The proposed rules on filing and service of documents, computation
of time, and motions (proposed Secs. 16.13, 16.15, 16.17, and 16.19),
are based on similar provisions in the Federal Rules of Civil
Procedure, the Department's Rules of Practice in Proceedings (14 CFR
part 302), the Rules of Practice in Civil Penalty Actions (14 CFR part
13 subpart G), and the National Transportation Safety Board's Rules of
Practice in Air Safety Proceedings (49 CFR part 821). These rules have
been used for many years, are well-know to the aviation bar, and have
proven to be effective.
Subpart C--Special Rules Applicable to Complaints.
Under proposed Sec. 16.21, a potential complainant, i.e., a person
directly affected by the alleged noncompliance, would be required to
engage in good faith efforts to resolve the disputed matter informally
with potentially responsible respondents before filing a complaint with
the FAA under part 16. Informal resolution may include mediation,
arbitration, use of a dispute resolution board, or other form of third-
party assistance. The Department's preference for informal resolution
in lieu of formal complaint to the FAA is clearly stated in the notice
of proposed policy statement published concurrently with this proposed
rule.
Under this section, it would be necessary for the potential
complainant or his representative to certify that good faith efforts
had been made to achieve informal resolution. To protect the parties,
and for consistency with Rule 408 of the Federal Rules of Evidence, the
certification would not include information on monetary or other
settlement offers made but not agreed upon in writing.
Section 16.23 Complaints, Answers, and Other Documents
Section 16.23 would specify the information to be included in a
complaint, the additional pleadings allowed and the information to be
contained therein, and the method for filing a motion to dismiss. In
addition, it would shift to the complainant and the respondent the
burden of providing all available supporting documents on which they
rely and serving them upon all parties as specified in Sec. 16.15.
Finally, it would provide that the FAA will have 20 days to docket
and review the complaint. In the event that the complaint is not
dismissed, the FAA will notify both the complainant and named
respondent in writing within 20 days after the complaint is received
that an answer shall be filed within 20 days of the date of service of
the notification. The complainant's reply is due within 15 days of the
answer, and the respondent's rebuttal, if any, is due within 15 days of
the reply.
Section 16.25 Dismissals
Complaints that clearly do not state a cause of action that
warrants investigation by the jurisdiction of the Administrator, as
well as those that do not come within the jurisdiction of the
Administrator under the authorities set forth in this part, would be
dismissed with prejudice, within 20 days after receipt of the
complaint. As a final order of the agency, a dismissal would be
appealable to a United States Court of Appeals.
Section 16.27 Incomplete Complaints
Section 16.27 deals with a second category of complaint--one which
states a prima facie cause of action and falls within the jurisdiction
of the Administrator but is deficient as to one or more of the filing
requirements set forth in Sec. 16.23(b). Incomplete complaints would be
dismissed within 20 days after the receipt of the complaint, without
prejudice. Since the complainant would be able to refile, this
dismissal would not be appealable to the FAA decision-maker or to a
United States Court of Appeals.
Section 16.29 Investigations
Under Sec. 16.29, where the FAA finds reasonable grounds to
investigate the matters described in a complaint, it would conduct an
investigation. Where there is little dispute about factual matters, or
where documentary submissions alone are deemed sufficient to make a
record for decision, the investigation may consist entirely of a review
of the arguments and materials submitted by the parties in pleadings,
i.e., the complaint, answer, reply, and rebuttal. The FAA may rely on
this review for its initial determination on compliance. Because the
FAA could rely exclusively on information and documentary evidence
filed with the pleadings, parties would be expected to provide thorough
submissions in order to protect their interests.
Alternatively, the FAA could supplement the submissions by
requesting additional information from a party or by field
investigation if appropriate. Further, if necessary information is not
furnished voluntarily, the FAA could use its authority under the FAAct
and the AAIA to subpoena witnesses for deposition and production of
documents. By permitting the FAA to render its initial determination
based on the pleadings and material submitted therein, this section in
effect permits the grant of initial summary judgment.
Section 16.31 Initial Determinations After Investigations
Section 16.31 provides procedures for issuance of the FAA's initial
determinations and orders, and for issuance of the final decision on
appeal of the initial determination in cases that do not involve a
hearing. The Assistant Administrator for Airports, or a designee, would
issue an initial determination in every case in which the FAA
investigates a complaint. The agency would be required to issue an
initial determination in 120 days from the due date of the last
pleading (i.e., reply or rebuttal), but the date could be extended for
up to 60 days for good cause, or due to delay caused by the
complainant. If there is no appeal of the initial determination, it
would become the final decision of the Administrator. If a party
adversely affected by the initial determination does not file an
administrative appeal, the FAA proposes that the final decision would
not be judicially reviewable.
The initial determination is intended to provide a prompt and
authoritative indication of the agency position on a complaint.
Consistent with the view that local parties are best positioned to
resolve disputes, the initial determination should provide guidance to
airport proprietors and airport users in resolving the matter without
further process. While the initial determination can be appealed, the
FAA expects that in many instances the initial decision would resolve
the issues raised in the complaint to the satisfaction of the parties.
In such cases, the parties may find it more beneficial to negotiate a
solution based on the FAA's initial position than to continue to
litigate the matter.
Section 16.33 Final Decision Without Hearing
If the initial determination finds the sponsor in compliance and
dismisses the complaint, the complainant could appeal the determination
by a written appeal to the Administrator within 30 days. Reply briefs
could be filed within 20 days, and the Administrator would be required
to issue a final agency decision on appeal within 30 days of the due
date for the reply briefs. The FAA would not provide opportunity for a
hearing on the dismissal of a complaint.
If the initial determination contains a finding of noncompliance
and the respondent is entitled to a hearing, the determination would
provide the sponsor the opportunity elect an oral evidentiary hearing
under subpart F. The procedure for electing or waiving a hearing is set
forth in Subpart E. If the respondent waives hearing and instead elects
to file a written appeal to the Administrator, a final decision would
be issued by the Administrator or a designee under Sec. 16.33.
Subpart D--Special Rules Applicable to Proceedings Initiated by the FAA
Section 16.101 would make clear the FAA's continuing authority to
initiate its own investigation of any matter within the applicability
of this part without having received a complaint, as authorized by
section 313 and section 1002 of the Federal Aviation Act and section
519 of the Airport and Airway Improvement Act.
Section 16.103 serves three purposes: (1) To require a notice
setting forth the specific areas of concern to the FAA, following the
initiation of an investigation; (2) to establish the time limit for a
response; and (3) to encourage and provide time for informal
resolution. In the event the issues raised are not resolved informally,
the FAA could proceed to issue an initial determination under
Sec. 16.31.
Subpart E--Proposed Orders of Compliance
Subpart E is similar to Sec. 13.20 of part 13, but provides a more
streamlined and expedited procedure for the sponsor to elect to
exercise the option of requesting a hearing, in keeping with the
purpose of proposed part 16. If the initial determination proposes a
sanction against the sponsor subject to section 519(b) of the AAIA or
section 1002 of the FAAct, the respondent could file a request for
hearing within 30 days after service of the determination. If the
respondent elects a hearing, the agency will issue a hearing order.
Alternatively, if the respondent waives hearing and instead files a
written appeal (within 30 days), the Administrator would issue a final
decision in accordance with the procedures set forth in Sec. 16.33.
During the 30-day period before an election of hearing or written
appeal is due, the respondent and complainant would be encouraged to
negotiate a resolution of the dispute based on the initial
determination.
If the respondent fails to respond, the initial determination
becomes final.
Subpart F--Hearings
Proposed subpart F would state the procedures for initiating and
conducting adjudicative hearings. The hearing order, issued by the
Deputy Chief Counsel under proposed Sec. 16.201, would set the scope of
the hearing by identifying the issues to be resolved, as well as
assigning the hearing officer.
If no material facts that require oral examination of witnesses are
in dispute, the hearing could be limited to submission of briefs and
oral argument. If the hearing follows an investigatory hearing under
subpart J, the record from the subpart J proceeding would be made part
of the adjudicative hearing record, and the hearing officer could limit
the submission of evidence to avoid duplication of the prior
proceeding.
In the hearing, the agency attorney would represent the agency's
position before the hearing officer, and would have the same status as
any other representative of a party.
The proposed rules include commonly used adjudicatory procedures
such as representation of the parties by attorneys, intervention,
participation by non-parties, pretrial procedures and discovery, the
availability of compulsory process to obtain evidence, and procedures
for use at the hearing. They are based on similar provisions in the
Federal Rules of Civil Procedure, the Department's Rules of Practice in
Proceedings (14 CFR Part 302), the Rules of Practice in Civil Penalty
Actions (14 CFR part 13 subpart G), and the National Transportation
Safety Board's Rules of Practice in Air Safety Proceedings (49 CFR part
821). These provisions are intended to provide the parties with a
reasonable opportunity to prepare their cases, while allowing the
process to be completed expeditiously.
Subpart G--Initial Decisions, Orders and Appeals
Proposed subpart G provides procedures for issuance of initial
decisions and orders by hearing officers, appeals of the initial
decision to the FAA decisionmaker and for the issuance of consent
orders. Proposed Sec. 16.241 governing initial decisions and
administrative appeals is based on 14 CFR 13.20(g)-(i). However,
shorter time periods are provided to accommodate the time limits of
section 519 of the AAIA. In addition, the proposed rule would include a
provision for sua sponte review of an initial decision by the FAA
decisionmaker, consistent with the practice under 14 CFR 302.28(d).
Proposed Sec. 16.243 governing disposal of cases by consent orders
is derived from 14 CFR 13.13.
Subpart H--Judicial Review
Proposed Subpart H would contain rules applicable to judicial
review of final agency orders. Proposed Sec. 16.247(a) would set forth
the basic authority to seek judicial review. The provision is based on
14 CFR 13.235. Specific reference to section 519(b)(4) of the AAIA has
been added. Proposed Sec. 16.247(b) would identify FAA decisions and
actions under part 16 that the FAA does not consider to be judicially
reviewable final agency orders.
Subpart I--Ex Parte Communications
The proposed rule on ex parte communications is based on subpart J
of the Rules of Practice in Air Safety Proceedings of the NTSB, 49 CFR
Part 821, subpart J.
Subpart J--Alternate Procedure for Certain Complaints Concerning
Airport Rates and Charges
Proposed subpart J would provide a special procedure for the
expedited resolution of certain significant disputes involving the fees
that airport operators charge airlines. The procedure would involve a
formal investigation, including an evidentiary investigative hearing.
The concept of the investigatory hearing derives from subpart F of part
13. However, special provisions governing the conduct of discovery,
hearing, and initial determination in the subpart J proceeding are
intended to assure that the investigative process can be completed
within the time frame provided in the rule. If the conditions for the
use of subpart J are met, the airline filing the complaint could
request either the subpart J procedure or the investigatory procedures
under Sec. 16.29.
Proposed Sec. 16.401 sets forth the conditions necessary to request
the special procedure. A subpart J proceeding would be available only
to carriers holding authority under sections 401, 402, or 418 of the
FAAct or operating under an exemption for scheduled service under 14
CFR part 298.
A complaint requesting subpart J procedures would have to meet the
general requirements of Part 16 and the complainant would have to
request the use of subpart J procedures. In addition, subpart J would
only be available for a complaint alleging that an increase in an
airport rate or charge is unreasonable or unjustly discriminatory. The
request would be granted if the Assistant Administrator for Airports
determines that the complaint involves an issue that if not resolved in
an expedited manner could have a significant adverse impact on air
transportation. The FAA also proposes that subpart J could be used when
the Assistant Administrator for Airports determines that a complaint
raises a significant policy issue, without regard to the significance
of the potential impacts of the case.
The subpart J proceeding would be more than usually resource-
intensive for the agency, because of the expedited schedule and the
formal investigatory hearing. The limitation of complainants under
subpart J to scheduled air carriers and the limitation of the subject
matter to significant disputes over airport fees is intended,
therefore, to limit use of agency resources for an expedited hearing
procedure to those cases that have the greatest potential effect on the
traveling public.
Section 16.403 would establish requirements for the filing of
complaints and would establish procedures for ruling on the request for
use of subpart J procedures. The Administrator would rule on the
request for use of subpart J procedures within seven days. If the
complaint did not meet the requirements for use of subpart J but
otherwise satisfied part 16, the complaint would be processed under
subparts B and C exclusively.
If the Assistant Administrator for Airports determined to employ
subpart J procedures, the respondents would be required to file an
answer within 21 days of the Administrator's notice.
Under Sec. 16.405, the Assistant Administrator for Airports would
issue a notice and order of investigation within seven days after the
answer is served. The notice and order of investigation would identify
the presiding officer for the investigation, the allegations and scope
of investigation and the date by which the presiding officer is
directed to issue a report of investigation. The report will generally
be due 60 days after the answer was filed. Under Sec. 16.407, the
presiding officer may not be an agency attorney, as defined in subpart
A, or a person otherwise involved in the investigation of airport
compliance matters. Accordingly, while the presiding officer could be
an FAA or other DOT attorney, or another FAA employee with experience
relevant to the issue, the presiding officer would not be a person with
any prior involvement in the case at hand or a person whose regular
duties involved enforcement of airport compliance.
Proposed Sec. 16.411 sets forth procedures for a subpart J
investigation, including an expedited investigatory hearing. The
procedures are derived from existing part 13 and the hearing procedures
in proposed part 16, subpart F.
Proposed Sec. 16.413 would require the preparation of a report of
investigation which would be provided to the Assistant Administrator
and served on the parties. Under proposed Sec. 16.415, the Assistant
Administrator would issue an initial determination after review of the
record developed in the investigation, including the presiding
officer's report. The initial determination would be appealable to the
Administrator or his designee under the provisions of Sec. 16.31.
Proposed Sec. 16.415 would provide for automatic suspension, 30
days after the initial determination, of eligibility to receive new
Airport Improvement Program grants or payments under existing grants if
the initial determination finds that the challenged rate or charge is
unreasonable or unjustly discriminatory. However, the suspension would
be deferred if the respondent issued an appropriate rescission of the
disputed rate or charge pending completion of the proceeding under part
16.
Request for Comments
Interested persons are invited to comment on any aspect of the
proposed rules. The FAA is particularly interested in comment on the
following issues:
1. Whether the proposed rule strikes the right balance between
providing an opportunity to be heard, on the one hand, and producing an
expeditious agency decision, on the other.
2. Whether the overall time frames provided from complaint to
initial agency determination and from appeal to final agency decision
are practical.
3. Whether the particular time limits provided for each procedural
step are adequate.
4. The placement of responsibility for investigation, hearing, and
adjudication of complaints received by the FAA.
Regulatory Evaluation Summary
This notice proposes to adopt a new procedure for the filing,
investigation, and adjudication of complaints against airports for
violation of certain statutes administered by the FAA. The new
procedures would be substituted for existing procedures under 14 CFR
part 13. While the proposed rule differs in many details from the
existing rule, the costs to a complainant and respondent involved in
the complaint process would be virtually identical to the costs
involved under the existing rule. Accordingly, the expected economic
impact of this proposed amendment would be so minimal that a full
Regulatory Evaluation is not warranted.
International Trade Impact Statement
This rule is not anticipated to affect the import of foreign
products or services into the United States or the export of U.S.
products or services to foreign countries.
Regulatory Flexibility Determination
The Regulatory Flexibility Act (RFA) of 1980 was enacted by
Congress to ensure that small entities are not unnecessarily or
disproportionately burdened by Government regulations. The RFA requires
a Regulatory Flexibility Analysis if a rule would have a significant
economic impact, either detrimental or beneficial, on a substantial
number of small entities. Based on the potential relief that the rule
will provide and the criteria of implementing FAA Order 2100.14A,
Regulatory Flexibility Criteria and Guidance, the FAA has determined
that the rule will not have a significant economic impact on a
substantial number of small entities.
Federalism Implications
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Paperwork Reduction Act
This proposed rule contains no information collection requirements
that require approval of the Office of Management and Budget pursuant
to the Paperwork Reduction Act of 1980 (44 U.S.C. 3507 et seq.)
Conclusion
For the reasons discussed in the preamble, and based on the
findings in the Regulatory Flexibility Determination and the
International Trade Analysis, the FAA has determined that this proposed
regulation is not economically significant under Executive Order 12866.
However, due to the public interest in this rulemaking, this proposed
rule is considered significant under the Executive Order. The FAA
certifies that this proposal, if adopted, will not have a significant
economic impact, positive or negative, on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act. This
proposal is considered significant under DOT Regulatory Policies and
Procedures (44 FR 11034; February 26, 1978).
List of Subjects
14 CFR Part 13
Enforcement procedures, Investigations, Penalties.
14 CFR Part 16
Enforcement procedures, Investigations.
The Proposed Amendments
Accordingly, the Federal Aviation Administration proposes to amend
part 13 and adopt new part 16 of the Federal Aviation Regulations (14
CFR parts 13 and 16) as follows:
PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
1. The authority citation for part 13 continues to read as follows:
Authority: 49 U.S.C. 106(g) and 322; 49 U.S.C. App. 1354(a) and
(c), 1374(d), 1401-1406, 1421-1432, 1471-1473, 1481, 1482, 1484-
1489, 1523, 1655(c), 1808-1810, 2157(e) and (f), 2218, 2219; 16
U.S.C. 6002, 6004; 49 CFR 1.47.
2. Section 13.3 is amended by adding paragraph (d), to read as
follows:
Sec. 13.3 Investigations (general).
* * * * *
(d) A complaint against the sponsor, proprietor, or operator of a
Federally-assisted airport shall be filed in accordance with the
provisions of part 16 of this chapter. Notwithstanding other provisions
of this part, complaints, investigations, and agency decisions
involving violations of the legal authorities listed in Sec. 16.1 of
this chapter are governed exclusively by the provisions of part 16 of
this chapter.
3. A new part 16 is added to read as follows:
PART 16--RULES OF PRACTICE FOR FEDERALLY ASSISTED AIRPORT
ENFORCEMENT PROCEEDINGS
Subpart A--General Provisions
Sec.
16.1 Applicability and description of part.
16.3 Definitions.
16.5 Separation of functions.
Subpart B--General Rules Applicable to Complaints, Proceedings
Initiated by the FAA, and Appeals
16.11 Expedition and other modification of process.
16.13 Filing of documents.
16.15 Service of documents on the parties and the agency.
16.17 Computation of time.
16.19 Motions.
Subpart C--Special Rules Applicable to Complaints
16.21 Pre-complaint resolution.
16.23 Complaints, answers, replies, rebuttals, and other documents.
16.25 Dismissals.
16.27 Incomplete complaints.
16.29 Investigations.
16.31 Initial 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.
Subpart J--Alternate Procedure for Certain Complaints Concerning
Airport Rates and Charges
16.401 Availability of alternate complaint procedure
16.403 Answer and other documents.
16.405 Notice and order of investigation
16.407 Presiding officer.
16.409 Parties.
16.411 Investigation procedures.
16.413 Report of investigation.
16.415 Initial determination.
16.417 Eligibility for grants pending final agency decision.
Authority: 49 U.S.C. 106(g), 322; 49 U.S.C. 1110, 1111, and
1115; 49 U.S.C. App. 1349 (a) and (c), 1354 (a) and (c), 1482 (a),
(b) and (c), 1486, and 1513 (a) through (d) and (f); 49 U.S.C. 1718
(a) and (b), 1719, 1723, 1726 and 1727; 49 U.S.C. App. 2204 (a),
(b), (c), (d) and (h), 2210(a), 2211(a), 2215, 2218, 2219, and
2222(c); 50 U.S.C. App. 1622(g); 49 U.S.C. App. 1655(c); 49 CFR
1.47.
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, whether the proceedings are
instituted by order of the FAA or by filing with the FAA of a
complaint, under the following authorities:
(1) Section 308 of the Federal Aviation Act of 1958, as amended, 49
U.S.C. App. 1349, prohibiting the grant of exclusive rights for the use
of any landing area or air navigation facility on which Federal funds
have been expended.
(2) Requirements of the Anti-Head Tax Act, section 1113 (a) through
(d) of the Federal Aviation Act, 49 U.S.C. App. 1513 (a)-(d).
(3) The assurances contained in grant-in-aid agreements issued
under the Federal Airport Act of 1946, 49 U.S.C. 1101 et seq.
(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, as amended,
(AAIA) 49 U.S.C. App. 2201 et seq., specifically section 511(a), 49
U.S.C. App. 2210(a).
(6) Section 505(d) of the Airport and Airway Improvement Act of
1982, as amended, 49 U.S.C. App. 2214(d).
(7) Obligations contained in property deeds for property
transferred under 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. App. 2215).
(8) Obligations contained in property deeds for property
transferred under the Surplus Property Act (50 U.S.C. 1622(g)).
(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, complaints 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 Federal Aviation Act or FAA
regulations, except as specified in paragraphs (a)(1) and (a)(7) 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 on or after [effective date of final rule].
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 of this part or any
regulation, agreement, or document of conveyance issued or made under
that statute.
Administrator means the Administrator or his designee.
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 FAA decisionmaker regarding an initial
decision of the hearing officer or any appeal to the decisionmaker or
who is supervised in that action by a person who provides such advice
in an action covered by this part.
Assistant Administrator means the Assistant Administrator for
Airports.
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.
FAA decisionmaker means the Administrator of the FAA or any person
to whom the Administrator has delegated the authority to issue a final
decision and order of the Administrator on appeal from the initial
decision of a hearing officer.
File means to submit written documents to the FAA for inclusion in
the Enforcement Docket or to a hearing officer or presiding officer as
appropriate.
Final decision and order means a final agency decision on the
disposition of a complaint or on a respondent's compliance with any
Act, as defined in this section, and directs appropriate action. A
final decision and order that finds noncompliance may direct any
sanction authorized by applicable laws.
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; and the Assistant Chief Counsel and
attorneys in the Airports and Environmental Law Division of the FAA
Office of the Chief Counsel.
Initial decision means a decision made by the hearing officer in a
hearing under subpart F of this part.
Initial determination means a non-final agency decision following
an investigation, including an investigation by investigative hearing
under subpart J 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, when an initial determination providing an opportunity
for hearing is issued under Sec. 16.31 and subpart E of this part, the
agency.
Person means an individual, professional or other association,
business or other private organization, including a sole
proprietorship, partnership, or corporation, or a State or any agency
of a State, such as a municipality or other political subdivision of a
State, a tax-supported organization, or an Indian tribe or pueblo.
Personal delivery means hand delivery or overnight express delivery
service.
Presiding officer means a person designated by the Assistant
Administrator to preside over the investigation provided in subpart J
of this part, who is neither an agency attorney as defined in this
section or a person otherwise engaged in the investigation of airport
compliance.
Respondent means any person named in a complaint as a person
responsible for things done or omitted to be done in contravention of
any provision of any Act as to matters within the jurisdiction of the
Administrator.
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 who 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, a final decision by the Administrator or designee on
written appeal, or final decision by the FAA decisionmaker, 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 Administrator on written appeal, the FAA
decisionmaker, or agency employees advising those officials in that
capacity.
(c) The Chief Counsel, the Assistant Chief Counsel for Litigation,
or an attorney on the staff of the Assistant Chief Counsel for
Litigation advises the FAA decisionmaker 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.
Under the authority of 49 U.S.C. 1354(a) and 2218(a), the Assistant
Administrator 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. Notwithstanding any other provision of this part, upon finding
that circumstances require expedited handling of a particular case or
controversy, the Assistant Administrator may issue an order directing
any of the following prior to the issuance of an initial determination:
(a) Shortening the time period for any action under this part
consistent with due process;
(b) If other adequate opportunity to respond to pleadings is
available, eliminating the reply, rebuttal, or other actions prescribed
by this part;
(c) Authorizing a presiding officer to adopt expedited procedures;
(d) Designating alternative methods of service; or
(e) 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 Enforcement
Docket (AGC-10), 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.
Documents to be filed with a presiding officer shall be filed at the
address stated in the notice of investigation.
(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
Enforcement Docket. Copies need not be signed, but the name of the
persons signing the original shall be shown. If a hearing order or
notice and order of investigation has been issued in the case one of
the three copies shall be filed with the hearing officer or presiding
officer. If filing by facsimile, the facsimile copy does not constitute
one of the copies required under this section.
(d) Form. Documents filed with the FAA shall be typewritten or
legibly printed. In the case of docketed proceedings, the document
shall include the docket number of the proceeding on the front page.
(e) Signing of documents and other papers. The original of every
document filed shall be signed by the person filing it or the person's
duly authorized representative. The signature shall serve as a
certification that the signer has read the document and, based on
reasonable inquiry and to the best of the signer's knowledge,
information, and belief, the document is--
(1) Consistent with this part;
(2) Warranted by existing law or that a good faith argument exists
for extension, modification, or reversal of existing law; and
(3) Not interposed for any improper purpose, such as to harass or
to cause unnecessary delay or needless increase in the cost of the
administrative process.
(f) Designation of person to receive service. The initial document
filed 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 Enforcement 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
Enforcement 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).
(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 presiding
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, 5 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
or presiding officer directs otherwise.
(c) Answers to motions. Except as otherwise provided in this part,
or except when a motion is made during a hearing, any party may file an
answer in support of or in opposition to a motion, accompanied by
affidavits or other evidence relied upon, provided that the 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 or presiding 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,
use of a dispute resolution board.
(b) A complaint under this part will not be considered unless the
person or authorized representative filing the complaint certifies that
he or she has engaged in substantial and reasonable good faith efforts
to resolve the disputed matter informally prior to filing the complaint
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.
(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 was violated;
(2) Be served, in accordance with Sec. 16.15 of this part, 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;
(4) Describe how the complainant was directly and substantially
affected by the things done or omitted to be done by the respondents;
and
(5) Comply with any additional or special requirements of subpart J
of this part, if the complaint is brought under subpart J of this part.
(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 15 days of the date of
service of the answer.
(f) The respondent may file a rebuttal within 15 days of the date
of service of the complainant's rebuttal.
(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 any allegation,
and shall assert any affirmative defense.
(i) The answer, reply, and rebuttal shall each contain a concise
but complete statement of the facts relied upon to substantiate the
answers, admissions, denials, or averments made.
(j) The respondent's answer may include a motion to dismiss the
complaint, or any portion thereof, with a supporting memorandum of
points and authorities. If a motion to dismiss is filed, the
complainant may respond as part of its rebuttal 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 Assistant
Administrator will dismiss a complaint, or any claim made in a
complaint, with prejudice if it: Appears on its face to be outside the
jurisdiction of the Administrator under the Acts listed in Sec. 16.1;
or on its face does not state a claim that warrants an investigation or
further action by the FAA. The FAA will advise the person who filed the
complaint or the person's duly authorized representative and the
person(s) named in the complaint of the reasons for the dismissal.
Sec. 16.27 Incomplete complaints.
If a complaint is not dismissed pursuant to Sec. 16.25, but is
deficient as to one or more of the requirements set forth in Sec. 16.21
or Sec. 16.23(b), the Assistant Administrator 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 FAA shall advise the person who filed the complaint
or the person's duly authorized representative and the person(s) named
in the complaint of 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, and 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 of the Federal Aviation Act and Section 519 of the Airport
and Airway Improvement Act. 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.
2210(a)(11) and 2217.
Sec. 16.31 Initial determinations after investigations.
(a) After consideration of the pleadings and other information
obtained by the FAA after investigation, the Assistant Administrator
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. The time for issuing an initial determination
may be extended for a period of up to 60 days upon a written
determination by the Assistant Administrator that:
(1) The additional time is necessary for investigation and analysis
of the matters in the complaint; or
(2) The investigation has been delayed by actions of a complainant.
(b) The initial determination will set forth a concise explanation
of the factual and legal basis for the Assistant Administrator's
determination on each claim made by the complainant.
(c) A party adversely affected by the initial determination may
appeal the initial determination to the Administrator as provided in
Sec. 16.33.
(d) If the initial 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. The respondent may elect or waive a
hearing as provided in subpart E of this part.
Sec. 16.33 Final decisions without hearing.
(a) The Administrator will issue a final decision on appeal from an
initial 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 initial determination may file an appeal with
the Administrator within 30 days after the date of service of the
initial determination.
(c) A reply to an appeal may be filed with the Administrator within
20 days after the date of service of the appeal.
(d) The Administrator will issue a final decision and order within
30 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 initial determination becomes the
final decision and order of the FAA without further action. An initial
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 of
this part, 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 an initial 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 initial determination, the agency proposes to issue an order
terminating eligibility for grants, an order suspending the payment of
grant funds, 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. 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 initial determination issued under Sec. 16.31 will include
a statement of the availability of a hearing under subpart F of this
part.
(c) Within 30 days after service of an initial determination under
Sec. 16.31 and paragraph (b) of this section, a person subject to the
proposed compliance order may--
(1) Request a hearing under subpart F of this part;
(2) Waive hearing and appeal the notice in writing to the
Administrator, as provided in Sec. 16.33;
(3) File, jointly with the 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 initial 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 a hearing order. The hearing order will set
forth:
(1) The allegations in the complaint, 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;
(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) Rule on offers of proof;
(e) Receive relevant and material evidence;
(f) 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;
(g) Hold conferences to settle or to simplify the issues by consent
of the parties;
(h) Dispose of procedural motions and requests;
(i) Examine witnesses; and
(j) 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.
(2) An attorney who represents a party shall file a notice of
appearance in accordance with Sec. 16.15(f).
(b) Parties and agency participation.
(1) The parties to the hearing are the respondent(s) named in the
hearing order, 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 initial determination providing an opportunity for
hearing.
(3) As appropriate to the issues raised in a particular case,
offices and services of the FAA and the Office of the Secretary may
assist the FAA attorney consistent with the provisions of Sec. 16.5.
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
decisionmaker. 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 the 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. If the hearing officer grants an
extension of time as a result of oral 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, the due date for the hearing officer's
initial decision and for the final agency decision are extended by the
length of the extension by the hearing officer, in accordance with
section 519(b) of the AAIA, as amended in 1987.
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.
(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 120 days after
issuance of the initial determination order unless otherwise provided
in the hearing order.
Sec. 16.213 Discovery.
Discovery is limited to requests for admissions, requests for
production for documents, interrogatories, and depositions as
authorized by Sec. 16.215.
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; or
(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 or cannot be found or refuses to sign. The reporter shall note the
reason for failure to sign.
Sec. 16.217 Witnesses.
(a) Each party may designate as a witness any person who is able
and willing to give testimony that is relevant and material to the
issues in the hearing case, subject to the limitation set forth in
paragraph (b) of this section.
(b) The hearing officer may exclude testimony of witnesses that
would be irrelevant, immaterial, or unduly repetitious.
(c) Any witness may be accompanied by counsel. Counsel representing
a nonparty witness has no right to examine the witness or otherwise
participate in the development of testimony.
Sec. 16.219 Subpoenas.
(a) Request for subpoena. A party may apply to the hearing officer,
within the time specified for such applications in the prehearing
conference report, for a subpoena to compel testimony at a hearing or
to require the production of documents only from the following persons:
(1) Another party;
(2) An officer, employee or agent of another party;
(3) Any other person named in the complaint as participating in or
benefiting from the actions of the respondent alleged to have violated
any Act; or
(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 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
at the time when service is made.
(3) A subpoena issued under this part is effective throughout the
United States or any territory or possession thereof.
(c) Motions to quash or modify subpoena. (1) A party or any person
upon whom a subpoena has been served may file a motion to quash or
modify the subpoena with the hearing officer at or before the time
specified in the subpoena for the filing of such motions. The applicant
shall describe in detail the basis for the application to quash or
modify the subpoena including, but not limited to, a statement that the
testimony, document, or tangible evidence is not relevant to the
proceeding, that the subpoena is not reasonably tailored to the scope
of the proceeding, or that the subpoena is unreasonable and oppressive.
(2) A motion to quash or modify the subpoena stays the effect of
the subpoena pending a decision by the hearing officer on the motion.
Sec. 16.221 Witness fees.
(a) The party on whose behalf a witness appears is responsible for
paying any witness fees and mileage expenses.
(b) Except for employees of the United States summoned to testify
as to matters related to their public employment, witnesses summoned by
subpoena shall be paid the same fees and mileage expenses as are paid
to a witness in a court of the United States in comparable
circumstances.
Sec. 16.223 Evidence.
(a) General. A party may submit direct and rebuttal evidence in
accordance with this section.
(b) Requirement for written testimony and evidence. Except in the
case of evidence obtained by subpoena, or in the case of a special
ruling by the hearing officer to admit oral testimony, a party's direct
and rebuttal evidence shall be submitted in written form, in advance of
the oral hearing pursuant to the schedule established in the hearing
officer's prehearing conference report. Written direct and rebuttal
fact testimony shall be certified by the witness as true and correct.
Subject to the same exception (for evidence obtained by subpoena or
subject to a special ruling by the hearing officer), oral examination
of a party's own witness is limited to certification of the accuracy of
written evidence, including correction and updating, if necessary, and
reexamination following cross-examination by other parties.
(c) Subpoenaed testimony. Testimony of witnesses appearing under
subpoena may be obtained orally.
(d) Cross-examination. A party may conduct cross-examination that
may be required for disclosure of the facts, subject to control by the
hearing officer for fairness, expedition, and exclusion of extraneous
matters.
(e) Hearsay evidence. Hearsay evidence is admissible in proceedings
governed by this part. The fact that evidence is hearsay goes to the
weight of evidence and does not affect its admissibility.
(f) Admission of evidence. The hearing officer admits evidence
introduced by a party in support of its case in accordance with this
section, but may exclude irrelevant, immaterial or unduly repetitious
evidence.
(g) Expert or opinion witnesses. An employee of the FAA or DOT may
not be called as an expert or opinion witness for any party other than
the agency except as provided in Department of Transportation
regulations at 49 CFR part 9.
(h) Subpart J hearing. If an investigative hearing under subpart J
was held on the complaint, the hearing officer may limit fact testimony
and evidence in the hearing under this part to genuine issues of
material fact not adequately developed in the record of the initial
determination or not addressed in the initial determination.
Sec. 16.225 Public disclosure of evidence.
(a) Except as provided in this section, the hearing shall be open
to the public.
(b) The hearing officer may order that any information contained in
the record be withheld from public disclosure. Any person may object to
disclosure of information in the record by filing a written motion to
withhold specific information with the hearing officer. The person
shall state specific grounds for nondisclosure in the motion.
(c) The hearing officer shall grant the motion to withhold
information from public disclosure if the hearing officer determines
that disclosure would be in violation of the Privacy Act, would reveal
trade secrets or privileged or confidential commercial or financial
information, or is otherwise prohibited by law.
Sec. 16.227 Standard of proof.
The hearing officer shall issue an initial decision or shall rule
in a party's favor only if the decision or ruling is supported by, and
in accordance with, reliable, probative, and substantial evidence
contained in the record and is in accordance with law.
Sec. 16.229 Burden of proof.
(a) The burden of proof of noncompliance with an Act or any
regulation, order, agreement or document of conveyance issued under the
authority of an Act is on the agency.
(b) Except as otherwise provided by statute or rule, the proponent
of a motion, request, or order has the burden of proof.
(c) A party who has asserted an affirmative defense has the burden
of proving the affirmative defense.
Sec. 16.231 Offer of proof.
A party whose evidence has been excluded by a ruling of the hearing
officer may offer the evidence on the record when filing an appeal.
Sec. 16.233 Record.
(a) Subpart J investigation. If a special hearing was held on the
complaint under subpart J of this part, the pleadings, transcript of
hearing, all exhibits received into evidence, all motions,
applications, requests, and rulings, and all documents included in the
hearing record and the report of the investigation are entered into the
record of the hearing under this subpart.
(b) Exclusive record. The transcript of all testimony in the
hearing, all exhibits received into evidence, all motions,
applications, requests and rulings, and all documents included in the
hearing record shall constitute the exclusive record for decision in
the proceedings and the basis for the issuance of any orders.
(c) Examination and copying of record. Any interested person may
examine the record at the Enforcement Docket, Federal Aviation
Administration, 800 Independence Avenue, SW., room 924A, Washington, DC
20591. Any person may have a copy of the record after payment of
reasonable costs for search and reproduction of the record.
Sec. 16.235. Argument before the hearing officer.
(a) Argument during the hearing. During the hearing, the hearing
officer shall give the parties reasonable opportunity to present oral
argument on the record supporting or opposing motions, objections, and
rulings if the parties request an opportunity for argument. The hearing
officer may direct written argument during the hearing if the hearing
officer finds that submission of written arguments would not delay the
hearing.
(b) Posthearing briefs. The hearing officer may request or permit
the parties to submit posthearing briefs. The hearing officer may
provide for the filing of simultaneous reply briefs as well, if such
filing will not unduly delay the issuance of the hearing officer's
initial decision. Posthearing briefs shall include proposed findings of
fact and conclusions of law; exceptions to rulings of the hearing
officer; references to the record in support of the findings of fact;
and supporting arguments for the proposed findings, proposed
conclusions, and exceptions.
Sec. 16.237 Waiver of procedures.
(a) The hearing officer shall waive such procedural steps as all
parties to the hearing agree to waive before issuance of an initial
decision.
(b) Consent to a waiver of any procedural step bars the raising of
this issue on appeal.
(c) The parties may not by consent waive the obligation of the
hearing officer to enter an initial decision on the record.
Subpart G--Initial Decisions, Orders and Appeals
Sec. 16.241 Initial decisions, orders, and appeals.
(a) The hearing officer shall issue an initial decision based on
the record developed during the proceeding and shall send the initial
decision to the parties not later than 120 days after the initial
determination by the Assistant Administrator unless otherwise provided
in the hearing order.
(b) Each party adversely affected by the hearing officer's initial
decision may file an appeal within 20 days of the date the initial
decision is issued. Each party may file a reply to an appeal within 10
days after it is served on the party. Filing and service of appeals and
replies shall be by personal delivery.
(c) If an appeal is filed, the FAA decisionmaker reviews the entire
record and issues a final agency decision and order within 30 days
after the due date for replies to the appeal(s). If no appeal is filed,
the decisionmaker may take review of the case on his or her own motion.
If the FAA decisionmaker finds that the respondent is not in compliance
with any Act or any regulation, agreement, or document of conveyance
issued or made under such Act, the final agency order includes a
statement of corrective action, if appropriate, and identifies
sanctions for continued noncompliance.
(d) If no appeal is filed, and the FAA decisionmaker does not take
review of the initial decision on the FAA decisionmaker's own motion,
the initial decision shall take effect as the final agency decision and
order on the twenty-first day after the actual date the initial
decision is issued.
(e) The failure to file an appeal is deemed a waiver of any rights
to seek judicial review of an initial decision that becomes a final
agency decision by operation of Sec. 16.241(d).
(f) If the FAA decisionmaker takes review on the decisionmaker's
own motion, the FAA decisionmaker issues a notice of review by the
twenty-first day after the actual date the initial decision is issued.
(1) The notice sets forth the specific findings of fact and
conclusions of law in the initial decision that are subject to review
by the FAA decisionmaker.
(2) Parties may file briefs on review to the FAA decisionmaker or
rely on their post-hearing briefs to the hearing officer. Briefs on
review shall be filed not later than 15 days after service of the
notice of review.
(3) The FAA decisionmaker issues a final agency decision and order
within 30 days after the due date for briefs on review. If the FAA
decisionmaker finds that the respondent is not in compliance with any
Act or any regulation, agreement or document of conveyance issued under
such Act, the final agency order includes a statement of corrective
action, if appropriate, and identifies sanctions for continued
noncompliance.
Sec. 16.243 Consent orders.
(a) The agency attorney and the respondents may agree at any time
before the issuance of a final decision and order to dispose of the
case by issuance of a consent order. Good faith efforts to resolve a
complaint through issuance of a consent order may continue throughout
the administrative process. Except as provided in Sec. 16.209, such
efforts may not serve as the basis for extensions of the times set
forth in this part.
(b) A proposal for a consent order, specified in paragraph (a) of
this section, shall include:
(1) A proposed consent order;
(2) An admission of all jurisdictional facts;
(3) An express waiver of the right to further procedural steps and
of all rights to judicial review; and
(4) An incorporation by reference of the hearing order, if issued,
and an acknowledgment that the hearing order may be used to construe
the terms of the consent order.
(c) If the issuance of a consent order has been agreed upon by all
parties to the hearing, the proposed consent order shall be filed with
the hearing officer, along with a draft order adopting the consent
decree and dismissing the case, for the hearing officer's adoption.
(d) The deadline for the hearing officer's initial decision and the
final agency decision is extended by the amount of days elapsed between
the filing of the proposed consent order with the hearing officer and
the issuance of the hearing officer's order continuing the hearing.
(e) If the agency attorney and sponsor agree to dispose of a case
by issuance of a consent order before the FAA issues a hearing order,
the proposal for a consent order is submitted jointly to the official
authorized to issue a hearing order, together with a request to adopt
the consent order and dismiss the case. The official authorized to
issue the hearing order issues the consent order as an order of the FAA
and terminates the proceeding.
Subpart H--Judicial Review
Sec. 16.247 Judicial review of a final decision and order.
(a) A person may seek judicial review, in a United States Court of
Appeals, of a final decision and order of the Administrator as provided
in section 1006 of the Federal Aviation Act of 1958, as amended, or
section 519(b)(4) of the Airport and Airway Improvement Act of 1982, as
amended. A party seeking judicial review of a final decision and order
shall file a petition for review with the Court not later than 60 days
after a final decision and order under the AAIA has been served on the
party or within 60 days after the entry of an order under the Federal
Aviation Act.
(b) The following do not constitute final decisions and orders
subject to judicial review:
(1) An FAA decision to dismiss a complaint without prejudice, as
set forth in Sec. 16.17;
(2) An initial determination issued by the Assistant Administrator;
(3) An initial decision issued by a hearing officer at the
conclusion of a hearing;
(4) An initial determination or an initial decision of a hearing
officer that becomes the final decision of the Administrator because it
was not appealed within 30 days;
Subpart I--Ex Parte Communications
Sec. 16.301 Definitions.
As used in this subpart:
Decisional employee means the Administrator, Deputy Administrator,
FAA decisionmaker, hearing officer, or other FAA employee who is or who
may reasonably be expected to be involved in the decisional process of
the proceeding;
Ex parte communication means an oral or written communication not
on the public record with respect to which reasonable prior notice to
all parties is not given, but it shall not include requests for status
reports on any matter or proceeding covered by this part.
Sec. 16.303 Prohibited ex parte communications.
(a) The prohibitions of this section shall apply from the time a
proceeding is noticed for hearing unless the person responsible for the
communication has knowledge that it will be noticed, in which case the
prohibitions shall apply at the time of the acquisition of such
knowledge.
(b) Except to the extent required for the disposition of ex parte
matters as authorized by law:
(1) No interested person outside the FAA make or knowingly cause to
be made to any decisional employee an ex parte communication relevant
to the merits of the proceeding;
(2) No FAA employee shall make or knowingly cause to be made to any
interested person outside the FAA an ex parte communication relevant to
the merits of the proceeding; or
(3) Ex parte communications regarding solely matters of agency
procedure or practice are not prohibited by this section.
Sec. 16.305 Procedures for handling ex parte communication
A decisional employee who receives or who makes or knowingly causes
to be made a communication prohibited by Sec. 16.303 shall place on the
public record of the proceeding:
(a) All such written communications;
(b) Memoranda stating the substance of all such oral
communications; and
(c) All written responses, and memoranda stating the substance of
all oral responses, to the materials described in paragraphs (a) and
(b) of this section.
Sec. 16.307 Requirement to show cause and imposition of sanction.
(a) Upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of Sec. 16.303, the
Administrator or his designee or the hearing officer may, to the extent
consistent with the interests of justice and the policy of the
underlying statutes, require the party to show cause why his or her
claim or interest in the proceeding should not be dismissed, denied,
disregarded, or otherwise adversely affected on account of such
violation.
(b) The Administrator may, to the extent consistent with the
interests of justice and the policy of the underlying statutes
administered by the FAA, consider a violation of this subpart
sufficient grounds for a decision adverse to a party who has knowingly
committed such violation or knowingly caused such violation to occur.
Subpart J--Alternate Procedure for Certain Complaints Concerning
Airport Rates and Charges
Sec. 16.401 Availability of alternate procedure.
(a) A scheduled air carrier holding a certificate of public
convenience and necessity under 49 U.S.C. 1371, 1372, or 1388 or an
exemption from those sections under 14 CFR part 298, may bring a
complaint under this part using the procedures in this subpart.
(b) The procedures in this subpart are used only when all of the
following requirements are met:
(1) The complaint alleges that an increase in the fee charged by an
airport proprietor to scheduled air carriers is unreasonable within the
meaning of 49 U.S.C. 1513 (a) through (d), or is unreasonable or
unjustly discriminatory within the meaning of 49 U.S.C. 2210(c)(1);
(2) The Assistant Administrator, in his or her discretion,
determines that the complaint involves a matter which, if not resolved
by expedited procedure, may result in a substantial adverse impact on
air transportation or that determines that the complaint involves a
significant policy issue;
(3) The complaint meets the requirements for the filing of a
complaint set forth in subparts B and C of this part; and
(4) The complaint includes an express request that the complaint be
processed under this subpart.
(c) The Assistant Administrator may permit another air carrier
eligible to file a complaint under paragraphs (a) and (b) of this
section to join the complaint. A motion for joinder shall be filed on
or before the date the answer is due to be filed.
(d) Other than joinder of additional parties under paragraph (c) of
this section, participation in proceedings under this subpart by
persons other than complainants will be permitted only through the
filing of a written brief by a person with a substantial interest in
the proceeding at the discretion of the presiding officer before
issuance of the report of investigation, or by the Assistant
Administrator after issuance of the report. A person may file a motion
to submit a written brief to the presiding officer or the Assistant
Administrator, as appropriate.
Sec. 16.403 Answer and other documents.
(a) Within seven calendar days of receiving a complainant
requesting processing under this subpart, the Assistant Administrator
serves on the complainant and each person named in the complaint the
agency's determination whether the complaint--
(1) Meets the other requirements of this subpart; and
(2) Meets the requirements of subparts B and C of this part for the
filing of complaints.
(b) If the Assistant Administrator determines that the complaint
meets the requirements for a complaint under this subpart, each
respondent shall file an answer within 21 days of service of the
determination in paragraph (a) of this section.
(c) If the Assistant Administrator determines that the complaint
does not meet the requirements of this subpart but does meet the
requirements of subpart C of this part for the filing of a complaint,
the complaint will be processed under Sec. 16.29.
(d) The Assistant Administrator may dismiss a complaint as provided
in Secs. 16.25 and 16.27.
(e) The answer and all documents filed and served under this
subpart shall be filed and served by personal delivery. All other
requirements of subpart B of this part apply to the filing and service
of documents under this subpart.
(f) The Assistant Administrator may for good cause grant an
extension of the date by which the report of investigation is due.
Sec. 16.405 Notice and order of investigation.
Within seven days after the answer is served, the Assistant
Administrator issues a notice and order of investigation. The
investigation order states:
(a) The scope of the investigation, by describing the information
sought in terms of its subject matter or its relevance to specified
allegations;
(b) A description of the remedial or enforcement actions that may
be ordered in the event that a rate or charge is found to be useful,
including those provided in Sec. 16.109(a).
(c) Such rules of procedure as may be necessary to supplement this
part;
(d) The name and address of the presiding officer and the authority
delegated to the presiding officer to conduct the investigation in
accordance with the procedures set forth in this part;
(e) The date by which the presiding officer is directed to issue a
report of investigation, normally 60 days after filing of the answer.
Sec. 16.407 Presiding officer.
(a) The presiding officer is a person designated by the Assistant
Administrator who is neither an agency attorney, as defined in this
part, nor a person otherwise engaged in the investigation of airport
compliance.
(b) In accordance with the rules of this part, a presiding officer
may:
(1) Give notice of, and hold, prehearing conferences and
investigative hearings;
(2) Administer oaths and affirmations;
(3) Issue subpoenas authorized by law;
(4) Rule on offers of proof;
(5) Receive relevant and material evidence;
(6) Regulate the course of the hearing in accordance with the rules
of this part to avoid unnecessary and duplicative proceedings in the
interest of prompt and fair resolution of the matters at issue;
(7) Hold conferences to settle or to simplify the issues by consent
of the parties;
(8) Dispose of procedural motions and requests; and
(9) Examine witnesses.
(c) The presiding officer shall issue a report of investigation
which shall include findings of fact and, if directed by the Assistant
Administrator, proposed conclusions of law.
Sec. 16.409 Parties.
(a) Parties may appear as provided in Sec. 16.203(a) of this part.
(b) The parties to the investigation are the complainant(s), and
the respondent(s).
(c) The FAA is represented by an agency attorney who, for the
purposes of this part, will be deemed to be in the position of a party.
The function of the agency attorney is to assist in development of a
complete record for decision by the Assistant Administrator.
Sec. 16.411 Investigation procedure.
(a) Investigative hearing. The presiding officer shall hold an
evidentiary hearing to investigate the factual matters identified in
the investigative order. The hearing may be in person or,
alternatively, by oral argument following submission of documentary
evidence if the presiding officer determines that there are no genuine
issues of material fact that require oral examination of witnesses and
that documentary evidence in combination with oral argument is
sufficient to develop a complete record. Oral proceedings will be
transcribed and a transcript made available to the parties.
(b) Discovery. Discovery is limited to requests for admissions and
requests for production of documents. The presiding officer may--
(1) Require parties to submit discovery requests to the presiding
officer;
(2) Submit requests to the parties as modified by the presiding
officer in the interest of relevance, economy, and completeness of the
record for decision; and
(3) Require that responses be submitted to the presiding officer
with service on other parties.
(c) Witnesses. Consistent with paragraph (a), witnesses may be
designated and appear as provided in Secs. 16.217 and 16.221(a). The
presiding officer may exclude testimony as provided in Sec. 16.221(b).
(d) Subpoenas. Where necessary to ensure a complete record, the
presiding officer may issue a subpoena to compel a complainant or
respondent, or an officer, employee, or agent of a complainant or
respondent, to testify or to produce documents at the investigatory
hearing. Issuance of, service of, and motions regarding subpoenas shall
be in accordance with Sec. 16.219.
(e) Evidence. A party may offer direct and rebuttal evidence in
accordance with this section.
(1) Requirement for written testimony and evidence. Except in the
case of evidence obtained by subpoena, a party's direct and rebuttal
evidence, including testimony of witnesses, shall be submitted in
written form, in advance of any oral hearing pursuant to the schedule
established by the presiding officer. Written direct and rebuttal fact
testimony shall be certified by the witness as true and correct. Oral
examination of a party's own witness is limited to certification of the
accuracy of written evidence, including correction and updating, if
necessary, and redirect examination following cross-examination by
other parties.
(2) Cross-examination. A party may conduct cross-examination needed
for disclosure of the facts, subject to the control of the presiding
officer for fairness, expedition, and exclusion of extraneous matters.
(3) Admission of evidence. The presiding officer admits evidence in
accordance with this section, but may exclude irrelevant, immaterial,
privileged, or unduly repetitious evidence.
(4) Expert or opinion witnesses. An employee of the FAA or DOT may
not be called as an expert or opinion witness for any party other than
the agency except as provided in Department of Transportation
regulations at 49 CFR part 9.
(f) Public disclosure of evidence. Proceedings under this part are
open to the public. Evidence is disclosed or withheld from public
disclosure as provided in Sec. 16.225. Objections to public disclosure
may be filed with and ruled on by the presiding officer.
(g) Location of hearing. The investigative hearing shall be
conducted at a place or places designated by the presiding officer with
due regard for the convenience of the parties and the expeditious and
efficient handling of the investigation.
(h) Offer of proof. A party whose evidence has been excluded by a
ruling of the presiding officer may make an offer of the proof to be
included in the record.
(i) Exclusive record. The pleadings, transcript of the hearing, all
exhibits received into evidence, all motions, applications, requests
and rulings, and all documents included in the hearing record shall
constitute the exclusive record for the report of investigation.
(j) Argument before the presiding officer. During the hearing, the
presiding officer shall give the parties reasonable opportunity to
present oral argument on the record supporting or opposing motions,
objections, and rulings. In addition, the presiding officer may permit
oral argument on the merits of the case. The presiding officer may
request the parties to submit proposed findings of fact and conclusions
of law.
Sec. 16.413 Report of investigation.
(a) On or before the date set in the notice and order of
investigation, the presiding officer shall issue a written report of
investigation based on the record developed during the investigation.
The report shall include a concise summary of the evidence and findings
of fact and, if directed by the Assistant Administrator, conclusions of
law, on the issues set forth in the order of investigation.
(b) The presiding officer shall transmit the report of
investigation and the record to the Assistant Administrator.
(c) The presiding officer shall file the report of investigation in
the Enforcement Docket and serve copies on the parties.
Sec. 16.415 Initial determination.
(a) Within 120 days after the complaint is filed, unless extended
by the Assistant Administrator upon agreement of all the parties, the
Assistant Administrator will render an initial determination and serve
it on each party by certified mail, return receipt requested, or
personal delivery.
(b) The initial determination will set forth a concise explanation
of the factual and legal basis for the Assistant Administrator's
determination on each claim made by the complainant.
(c) A party adversely affected by the initial determination may
appeal the initial determination as provided in Sec. 16.31(c) or
16.31(d).
Sec. 16.417 Eligibility for grants pending final agency decision.
(a) Suspension of eligibility. If the initial determination under
Sec. 16.415 is that the challenged increase in rates and charges is
unreasonable or unjustly discriminatory, the respondent's eligibility
to receive new Airport Improvement Program grants under the AAIA and to
receive payments under existing grants is suspended effective 30 days
after the issuance of the initial determination, unless the respondent
files a notice of resolution of complaint or a notice of rescission
under this section.
(b) Rescission of increase. The suspension of eligibility is
deferred if, within 30 days after service of the initial determination,
the respondent does one of the following--
(1) Rescinds the increase in rates or charges. To implement the
rescission for purposes of this part, the respondent shall file a
notice of rescission in the Enforcement Docket and serve a copy on each
party.
(2) Resolves the dispute through agreement with other parties,
subject to the concurrence of the Assistant Administrator. The
respondent shall indicate resolution by the filing of a joint motion
for dismissal and for withdrawal of the complaint in the Enforcement
Docket. In exercising discretion whether to grant the motion, the
Assistant Administrator will consider, among other things, whether all
parties have joined the motion and the effect of the proposed
resolution on non-party aeronautical users of the airport.
(c) Deferral of the suspension of eligibility for grants and grant
payments under this section does not limit the FAA's authority to
impose any sanction or remedy for the past or continuing imposition of
an unreasonable or unjustly discriminatory fee, including ordering
refund with interest of fees paid prior to the effective date of the
order.
(d) Notwithstanding the provision for suspension of eligibility in
paragraph (a) of this section, the Assistant Administrator may execute
a grant agreement or approve payment under an existing grant if
necessary to correct or prevent an unsafe condition.
Issued in Washington, DC, on June 3, 1994.
Federico Pena,
Secretary of Transportation.
David R. Hinson,
Administrator, Federal Aviation Administration.
[FR Doc. 94-13942 Filed 6-6-94; 12:42 pm]
BILLING CODE 4910-13-M
