Rules of Practice for Federally-Assisted Airport Proceedings

Federal RegisterOct 16, 1996

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SUMMARY: This rulemaking establishes rules of practice for filing

complaints and adjudicating compliance matters involving Federally-

assisted airports. The rule addresses exclusively airport compliance

matters arising under the Airport and Airway Improvement Act (AAIA) of

1982, as amended; certain airport-related provisions of the Federal

Aviation Act of 1994, as amended; the Surplus Property Act, as amended;

predecessors to those acts; and regulations, grant agreements, and

documents of conveyance issued or made under those acts. The rule is

intended to expedite substantially the handling and disposition of

airport-related complaints.

EFFECTIVE DATE: This rule is effective December 16, 1996.

FOR FURTHER INFORMATION CONTACT: Barry Molar or Frank J. San Martin,

Airports Law Branch (AGC-610), Office of the Chief Counsel, (202) 267-

3473, Federal Aviation Administration, (FAA), 800 Independence Avenue,

SW., Washington, DC 20591.

SUPPLEMENTARY INFORMATION:

Background

A notice of proposed rulemaking (NPRM) for this rulemaking was

issued on June 9, 1994 (59 FR 29880). The NPRM proposed to amend the

FAA's existing complaint and adjudication procedures, 14 CFR Part 13,

``Investigative and Enforcement Procedures,'' to remove from the

coverage of part 13 the airport-related matters that will be handled

under the new part 16. Certain disputes between U.S. and foreign air

carriers and airport proprietors concerning the reasonableness of fees

imposed by airport proprietors are not covered by the rule, but by 14

CFR part 302, subpart F, pursuant to section 113 of the Federal

Aviation Act of 1994 (FAAct), Public Law No. 103-305 (August 23, 1994),

49 United States Code (U.S.C.) 47129.

On September 16, 1994, the FAA published a notice to withdraw

subpart J of the proposed rule, subpart J contained special procedures

for handling airport fee complaints by air carriers [59 FR 47568]. The

withdrawal became necessary with the passage of section 113 of the FAA

Act, which contained specific provisions for airport fee complaints by

air carriers that differed from, and were inconsistent with, subpart J.

The withdrawal notice also extended the comment period for the

remainder of the NPRM, subparts A through I, to December 1, 1994 [59 FR

47568]

Discussion of Comments

Sixteen commenters responded to the NPRM. Commenters included the

Air Freight Association; Air Line Pilots Association (ALPA); Air Ottawa

Flying Service, Inc.; Aircraft Owners and Pilots Association (AOPA);

Airports Council International-North America (ACI-NA); American Car

Rental Association (ACRA); Hawkins, Delafield & Wood; Hogan & Harston;

Maryland Aviation Administration; Melbourne Airport Authority; National

Association of State Aviation Officials (NASAO); National Business

Aircraft Association, Inc. (NBAA); National Air Transportation

Association (NATA); Newton & Associates, Inc. (NAI); Regional Airline

Association (RAA); and the United States Parachute Association (USPA).

Seven commenters generally support the promulgation of the proposed

rule with some reservations. The remaining commenters address specific

sections of the proposed rule.

A discussion of the issues most widely addressed in the comments

and an analysis of the final rule follows. All comments received were

considered by the agency. The summary of comments is intended to

represent the general divergence or correspondence in industry views on

various issues, and is not intended to be an exhaustive restatement of

the comments received. Comments pertaining to withdrawn subpart J will

not be addressed.

Standing

A number of commenters address issues concerning who should be able

to file a complaint under new part 16. ACI-NA strongly supports

limiting a complainant to a person ``directly and substantially

affected by any alleged non-compliance,'' under proposed Sec. 16.23.

Otherwise, ACI-NA argues, proceedings could be initiated by persons

making only minimal use of an airport, burdening both the respondent

and the FAA with the time and expense of administrative proceedings.

AOPA states it is concerned that, under proposed Sec. 16.23, an

association would not have standing to file a complaint on behalf of

its individual members. ACRA requests clarification that a

nonaeronautical user of an airport, such as a car rental company, could

file a complaint under part 16.

The final rule adopts the ``directly and substantially affected''

standard of the NPRM, with a special applicability provision for cases

where review diversion is alleged. Under Sec. 16.23(a) of the final

rule, a person directly and substantially affected by any alleged

noncompliance may file a complaint with the Administrator. Under

Sec. 16.3 of the final rule, a ``complaint'' is defined as ``a written

document * * * filed with the FAA by a person directly and

substantially affected by anything allegedly done or omitted to be done

* * * in contravention of any provision of any Act, as defined in this

section.'' Complaints by persons not ``directly and substantially

affected'' by respondent's alleged noncompliance will be subject to

dismissal with prejudice under part 16.

Persons alleging revenue diversion by an airport, as defined in 49

U.S.C. 47107(b), that do business with, and pay fees or rents to, the

airport, are considered in the final rule to be directly and

substantially affected by the alleged revenue diversion for the sole

purpose of having and standing to file a revenue diversion complaint

under Part 16. This special applicability provision for complaints of

revenue diversion is necessary because revenue diversion principally

affects the United States as the grantor of the federal airport funds

allegedly diverted. However, entities that do business on the airport

and pay fees to the airport have some interest in alleging revenue

diversion because their payments constitute airport revenue.

An association will have to meet the same ``directly and

substantially affected'' standing requirement individually, but will be

able to file a part 16 complaint as a representative of its members who

are ``directly and substantially affected'' by an act or omission of

respondent.

The standing requirement is necessary to assure that scarce agency

resources are devoted to matters in which the complainant's interest is

sufficient to justify the burden of processing a complaint under part

16. Parties who meet part 16 standing requirements may be represented

by duly authorized representatives.

Nonaeronautical users of airports are subject to the same

``directly and substantially affected'' standard as aeronautical users,

and could forseeably have standing to file a complaint under

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part 16. For example, an airport duty-free shop could have standing to

file a part 16 complaint alleging revenue diversion, and an airport

concession that is a disadvantaged business enterprise (DBE) could have

standing to file a part 16 complaint alleging non-compliance with the

applicable DBE regulation. However, most of an airport's obligations

are intended for the benefit of aeronautical users. A complaint

alleging that an airport operator's treatment of a nonaeronautical user

violates such obligation would be dismissed even though the

nonaeronautical user was directly and substantially affected by the

alleged practice. For example, the assurance against unjust

discrimination by an airport operator only applies to aeronautical

users, so a complaint by a nonaeronautical user alleging unjust

discrimination by an airport operator would be dismissed.

Notwithstanding, the standing requirement, complaints that are

dismissed because complainant lacks standing under Part 16 may be

referred by the FAA to the appropriate FAA region for consideration

under Subpart D, Special Rules Applicable to Proceedings Initiated by

the FAA.

Pre-complaint Resolution

Most commenters approve of the proposed requirement in Sec. 16.21,

that a person engage in good faith efforts to informally resolve a

disputed matter, directly with the person or entity in alleged

noncompliance, before filing a complaint. ACI-NA supports the proposed

rule but is concerned that the mention of ``mediation, arbitration, or

use of a dispute resolution board'' in Sec. 16.21 will be interpreted

to mean that such alternative dispute resolution (ADR) methods are

mandatory. AOPA suggests that the requirement to undertake informal

resolution before filing a complaint would be inappropriate to

complaints filed by general aviation and add to the costs and time to

arrive at resolution. USPA states that part 16 would not permit contact

with the FAA at the local level for assistance.

Under Sec. 16.21 as adopted, it will be necessary for a potential

complainant to certify that good faith efforts have been made to

achieve informal resolution. However, the final rule does not require

any particular informal resolution method, and mentions mediation,

arbitration, and dispute resolution board as examples only. The final

rule has been changed to add that the local FAA Airport District Office

(ADO), or FAA Regional Airports Division, may be asked by the parties

to assist them in resolving the dispute informally. That change is

intended to make the local airports office available to mediate a

dispute, and reflects the FAA's experience. In many cases, the

involvement of the FAA ADO or regional airports division can facilitate

informal resolution. Allegations of revenue diversion, however, may not

lend themselves to full resolution in the pre-complaint process unless

the proposed resolution addresses the total amounts allegedly diverted

by the airport. Nevertheless, a complainant must show that informal

resolution was attempted.

Hearing

Section 16.31(d) provides the respondent with the opportunity for a

hearing if the initial determination finds the respondent in

noncompliance and proposes the issuance of a compliance order and an

opportunity for a hearing required by statute. In all other cases no

opportunity for a hearing is provided, except at the discretion of the

agency.

The law firm of Hogan & Hartson proposes a fact-finding hearing

before the initial determination is issued in order to develop the

factual record. This recommendation is not adopted in the final rule.

Before issuing the initial determination, the FAA engages in the

process of investigating a complain. While complainants are entitled to

having their complaints investigated, they do not have a property

interest sufficient to require an oral evidentiary hearing as part of

that investigation, even when the investigation leads to a dismissal of

a complaint.

A respondent may be entitled to a hearing in some cases before the

FAA takes adverse action. However, Sec. 16.31(d) provides an

opportunity for a hearing in those cases after the initial

determination is made and before any final agency action is taken.

There is no need to provide a respondent with an additional oral

evidentiary hearing during the investigatory stage. Furthermore, the

factual record will be developed by the supporting documents that are

required to be submitted with each pleading under Sec. 16.23, an by any

additional information submitted by the parties or developed through

informal investigation under Sec. 16.29.

Several commenters argue that, contrary to Sec. 16.203(b)(1), which

provides in the NPRM that the respondent and the agency are the only

parties to the post-initial determination hearing, the complainant

should also be a party to the hearing. The NBAA argues that a

complainant should be a party to the hearing because the complainant's

participation will help develop the record of the case. NATA and Air

Ottawa Flying Service, Inc., argue that nonhearing party status for a

complainant deprives the complainant of due process of law because the

complainant may have property interests at stake.

The final rule revised Sec. 16.203(b)(1) to allow complainant to be

a party to a hearing along with the respondent and the agency. Under

Sec. 16.31(d), a case proceeds to a hearing only after the FAA has

found against the respondent in an initial determination that proposes

the issuance of a compliance order. Thus, at the hearing the FAA has

the burden of proof to establish the validity of its initial

determination, including the proposed order of compliance under

Sec. 16.109. The respondent is a party to the hearing who seeks

reversal of the FAA's initial determination. Although, a complainant's

status as an airport user alone does not give rise to a sufficient

property interests to justify party status as a matter of right, party

status for the complainant will permit it to have an opportunity to

assist in the development of the factual record as pointed out by NBAA.

In addition, providing automatic party status will avoid burdening the

hearing officer and parties with routine requests for intervention by

complainant. The rule provides the hearing officer with ample powers to

control the conduct of the hearing and to assure that complainant's

participation does not unduly delay the proceedings.

As noted in the NPRM, in the case in which an adjudicatory hearing

would be held (under Sec. 519 of the AAIA or Sec. 1002 of the FAA Act),

the hearing procedures are intended to permit the FAA to complete

compliance hearings within 180 days, while assuring that a respondent

receives a fair hearing and an opportunity to present evidence and

argument to support its position. Section 519 specifies that the FAA

may temporarily withhold new grants.

Several commenters object to proposed Sec. 16.3 which provides that

the part 16 hearing officer is an attorney designated by the FAA. They

state that the proposed provision gives the appearance and possibility

of nonobjectivity. NBAA suggests that hearing officers be

administrative law judges.

The commenters' concerns about the independence and objectivity of

an FAA designated hearing officer are misplaced. Under the terms of

Sec. 16.3, no FAA attorney in the region where the noncompliance

allegedly occurred, or in the Airports and Environmental Law

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Division, may be a hearing officer. This excludes all FAA attorneys who

could have access to factual knowledge of a part 16 complaint obtained

by means other than the administrative record, insures that the hearing

officer is independent of the offices that conduct investigations and

prosecutions, and insures that the hearing officer is objective and

independent.

Further, section 519 by its terms requires the FAA to provide

notice and ``an opportunity for hearing'' before imposing certain

sanctions. The simple requirement for a hearing, without more, has been

held not to constitute ``an adjudication required by statute to be

determined on the record after opportunity for an agency hearing,''

within the meaning of section 554 of the Administrative Procedure Act

(APA). See, e.g., Friends of the Earth v. EPA, 966 F.2d 690, 693 (D.C.

Cir. 1992); St. Louis Fuel and Supply Co., Inc. v. FERC, 890 F.2d 446,

448 (D.C. Cir. 1989). Accordingly, part 16 is not required by the APA

to include all of the provisions of sections 554, 556 and 557 of the

APA. In particular, the requirement that administrative law judges

serve as hearing officers does not apply.

In the interests of assuring a fair hearing, however, part 16

includes many of the elements required by sections 554, 556 and 557 of

the APA. For example, the hearing officer is required to issue an

initial decision; ex parte communications are prohibited; separation of

the prosecutorial and decision-making functions are required; and the

hearing officer has virtually all of the authority specified in section

556(c).

Intervention

AOPA and NBAA comment that the intervention provisions of

Sec. 16.207 are too restrictive and give the hearing officer too much

discretion in admitting a new party to a hearing. As explained earlier,

a part 16 hearing is to a large extent a proceeding in which the FAA

acts as a prosecutor seeking an order of compliance under Sec. 16.109

against respondent within the statutory time limits for issuing such

actions. Furthermore, complainant will under the final rule be a party

to the hearing. For these reasons, intervention in such a proceeding

should only be allowed if it will not unnecessarily broaden the issues,

or cause delay, and, if the person requesting intervention has

interests that need to be protected.

Analysis of the Provisions of the Final Rule

After careful review of the available data, including the comments

received, the FAA has determined to adopt this proposed rule with the

changes described previously.

Subpart A--General Provisions

Subpart A includes provisions of general applicability to

proceedings brought under part 16, definitions of terms used in the

regulation, and a provision on separation of functions.

The final rule modifies proposed Sec. 16.1(a) to exclude from the

coverage of part 16 disputes between U.S. and foreign air carriers and

airport-proprietors concerning the reasonableness of airport fees now

covered by 14 CFR part 302, as mandated by Congress in the FAA Act,

Public Law No. 103-305 (August 23, 1994).

Proposed Sec. 16.1(d) is modified to specify that part 16 applies

to investigations initiated by the FAA, as well as complaints filed

with the FAA on or after the effective date of the rule.

The definitions in Sec. 16.3 are, for the most part, derived from

the definitions of like or similar terms in 14 CFR part 13. The term

``agency employee'' defined as any employee of the Department of

Transportation, was added to indicate that other offices within the

Department of Transportation may assist the FAA in part 16 cases.

The title of ``Assistant Administrator for Airports'' in the

definitions section and throughout the text of the rule has been

changed in the final rule to ``Associate Administrator for Airports''

to reflect the correct title for this FAA official, as changed by a

recent agency reorganization.

The term ``Director,'' defined as the Director of the Office of

Airport Safety and Standards, was added to the definitions section and

to the text of the rule. The ``Director'' replaces the ``Assistant

Administrator'' as the decisionmaker of the initial determination

without a hearing under Sec. 16.31, as discussed more fully herein.

Although not technically incorrect, the term ``FAA decisionmaker''

was deleted from the definitions section and text of the final rule

because the term is unnecessary. Deletion of the term should avoid

confusion surrounding the ultimate decisionmaker in appeals from

initial determinations of the Director without a hearing under

Sec. 16.31, and from the initial decisions of hearing officers after a

hearing under Sec. 16.241. In both cases, the appeal will be submitted

to the Associate Administrator, who will issue a final decision under

either Sec. 16.33 or Sec. 16.241.

The substitution of Director and Associate Administrator as

decisionmakers instead of higher-level officials reflects the concerns

and experiences of agency personnel who reviewed the proposed rule. The

Director and Associate Administrator are experienced in airport matters

and may be more accessible within the short time periods in the final

rule for issuing decisions. The substitution also conforms more closely

to current practice in deciding complaints regarding airport

compliance.

The term ``Presiding officer'' was deleted from the definitions

section because it was referred to only in subpart J, which was

withdrawn.

The final rule contains no changes to the separation of function

section, Sec. 16.5, except that ``Associate Administrator'' replaces

``Administrator'' in Sec. 16.5(b) and ``FAA decisionmaker'' in

Sec. 16.5(c).

Separation of functions is not required by statute because hearings

under part 16 are not subject to APA hearing requirements; however, the

separation is provided to promote confidence in the impartiality and

integrity of decisions under the new procedures. Separation of

prosecutorial and adjudicatory functions will be provided from the time

the Director's determination is issued in all cases in which an

opportunity for hearing is provided, including cases in which the

respondent waives hearing and appeals the Director's determination in

writing to the Associate Administrator. When separation applies, the

Director will be considered as performing the investigatory and

prosecutorial function and will not participate in the decision of the

Associate Administrator or hearing officer.

Subpart B--General Rules Applicable to Complaints, Proceedings, and

Appeals Initiated by the FAA

This subpart applies to all phases of the investigations and

adjudications under this part.

The provisions governing filing and service of documents,

computation of time, and motions (Secs. 16.13, 16.15, 16.17, and

16.19), are based on similar provisions in the Federal Rules of Civil

Procedure, the Department of Transportation's Rules of Practice in

Proceedings (14 CFR part 302), the FAA Rules of Practice in Civil

Penalty Actions (14 CFR part 13, subpart G), and the National

Transportation Safety Board's (NSTB) Rules of Practice in Air Safety

Proceedings (49 CFR part 821). The proposed rule was modified to change

the agency address in Sec. 16.13. To insure timely processing and to

reflect

[[Page 54001]]

changes in the organization of the Office of the Chief Counsel ``FAA

Part 16 Airport Proceedings Docket (AGC-600)'' replaces ``FAA

Enforcement Docket (AGC-10).'' The additional 5 days provided after

service on a party of a document by mail was changed to 3 days in

Sec. 16.17(c). This revision conforms to the ``mail rule'' used in

federal practice under the Federal Rules of Civil Procedure.

Subpart C--Special Rules Applicable to Complaints

The final rule requires, under Sec. 16.21, a potential complainant

to engage in good faith efforts to resolve the disputed matter

informally with potentially responsible respondents before filing a

complaint with the FAA under part 16. Informal resolution may include

mediation, arbitration, use of a dispute resolution board, or other

form of third-party assistance, including assistance from the

responsible FAA Airports District Office or FAA Regional Airports

Division.

Under Sec. 16.21, it will be necessary for the potential

complainant or its representative to certify that good faith efforts

have been made to achieve informal resolution. To protect the parties

and for consistency with Rule 408 of the Federal Rules of Evidence, the

certification will not include information on monetary or other

settlement offers made but not agreed upon in writing. As explained

earlier, under Sec. 16.21(a), the FAA ADO or Regional Airports

Division, will be available upon request to assist the parties with

informal resolution.

The final rule retains the requirement that a complainant be

``directly and substantially affected by any alleged noncompliance'' in

order to have standing to file a complaint under Sec. 16.23. However,

as explained above complainants alleging revenue diversion by an

airport will be considered to be directly and substantially affected by

the alleged revenue diversion, if complainants do business with the

airport and pay fees or rentals to the airport.

To provide a more efficient and expedited process the time periods

for filing a reply to the answer and a rebuttal to the reply in

Sec. 16.23 (e) and (f) were reduced from 15 to 10 days.

At the suggestion of one commenter, the final rule adds ``lack of

standing'' as another possible ground for dismissal with prejudice

under Sec. 16.25. Besides dismissal of complaints that clearly do not

state a cause of action, or those that do not come within the

jurisdiction of the Administrator, a complaint may also be dismissed if

the complainant lacks standing to file the complaint under Secs. 16.3

and 16.23. As a final order of the agency, a dismissal with prejudice

would be appealable to a United States Court of Appeals.

As explained above, the final rule substitutes the Director of the

Office of Airport Safety and Standards as the official who makes the

initial determination after investigation under Sec. 16.31. The

Director would issue an initial determination in every case in which

the FAA investigates a complaint. Under the final rule, the agency is

required to issue a Director's determination in 120 days from the due

date of the last pleading (i.e., reply or rebuttal). The provision in

the NPRM allowing the Director to extend the period for issuing an

initial determination by 60 days for good cause was deleted from the

final rule in order to further expedite this administrative complaint

procedure.

The Director's determination is intended to provide a timely and

authoritative indication of the agency's position on a complaint. While

the Director's determination can be appealed to the Associate

Administrator under Sec. 16.33, the FAA expects that, in many

instances, the Director's determination will resolve the issues raised

in the complaint to the satisfaction of the parties. In such cases, the

parties may find it more beneficial to negotiate a solution based on

the FAA's initial position than to continue to litigate the matter.

Under the final rule, the Associate Administrator will issue the

final decision on appeal from a Director's determination without a

hearing under Sec. 16.33. If the initial determination finds the

sponsor in compliance and dismisses the complaint, the complainant may

appeal the determination by a written appeal to the Associate

Administrator within 30 days. The Associate Administrator is required

to issue a final agency decision in an appeal by a complainant within

60, not 30 days of the due date for the reply brief, as proposed in the

NPRM. The additional time for issuing a final agency decision was added

to the final rule to assure the agency adequate time to review the

record, prepare, and issue a final decision.

If the Director's determination contains a finding of noncompliance

and the respondent is entitled to a hearing, the determination will

provide the sponsor the opportunity to elect an oral evidentiary

hearing under subpart F. The procedure for electing or waiving a

hearing is set forth in subpart E. If the respondent waives a hearing

and instead elects to file a written appeal to the Associate

Administrator, a final decision will be issued by the Associate

Administrator under Sec. 16.33.

Subpart D--Special Rules Applicable to Proceedings Initiated by the FAA

Section 16.101 makes clear the FAA's continuing authority to

initiate its own investigation of any matter within the applicability

of this part without having received a complaint, as authorized by

Secs. 313 and 1002 of the FAA Act and Sec. 519 of the AAIA.

Subpart E--Proposed Orders of Compliance

Subpart E contains procedures that provide the respondent an

opportunity to file a request for hearing within 20 days after service

of the Director's determination if the determination proposes a

sanction against the sponsor subject to Sec. 519(b) of the AAIA or

Sec. 1002 of the FAA Act. The 20-day period to file a request for

hearing was reduced from 30 days in the NPRM in order to provide a more

efficient and expedited process. If the respondent elects a hearing,

the agency will issue a hearing order.

Alternatively, if the respondent waives hearing and instead files a

written appeal (within 30 days), the Associate Administrator will issue

a final decision in accordance with the procedures set forth in

Sec. 16.33. If the respondent fails to respond to the Director's

determination, the initial determination becomes final.

The final rule, based on comments received, includes a new ground

for the agency to provide the opportunity for a hearing under

Sec. 16.109(a): If the agency proposes to issue an order withholding

approval of any new application to impose a passenger facility charge

pursuant to Sec. 112 of the FAA Act, 49 U.S.C. 47111(e). That new

statutory section creates additional enforcement mechanisms against

illegal revenue diversion including the withholding of a new

application to impose a passenger facility charge. The statute requires

the FAA to provide an opportunity for hearing before imposing this

sanction.

The opportunity for a hearing by the agency under part 16 is

limited to those cases where there is a statutory requirement to offer

the opportunity for a hearing before the FAA takes a particular action,

or specific cases in which the FAA elects to offer a hearing.

Section 16.109(b)(3) allows respondent and complainant to file a

joint motion to withdraw the complaint and dismiss the proposed

compliance action. The FAA may, subject to its discretion, grant the

motion if it finds that a settlement by the parties fully

[[Page 54002]]

resolves the complaint violation and further compliance action is not

necessary.

Subpart F--Hearings

Subpart F contains the procedures for initiating and conducting

adjudicative hearings. The hearing order, issued by the Deputy Chief

Counsel under Sec. 16.201, will set the scope of the hearing by

identifying the issues to be resolved, as well as assigning the hearing

officer. If no material facts that require oral examination of

witnesses are in dispute, the hearing may be limited to submission of

briefs and oral argument.

In the hearing, the agency attorney will represent the agency's

position before the hearing officer and will have the same status as

any other representatives of a party. The rule includes commonly used

adjudicatory procedures, such as representation of the parties by

attorneys, intervention, participation by non-parties, pretrial

procedures and discovery, the availability of compulsory process to

obtain evidence, and procedures for using at the hearing. These

provisions are intended to provide the parties with a reasonable

opportunity to prepare their cases, while allowing the process to be

completed expeditiously. To assure an expeditious hearing process,

paragraph (b) was added to Sec. 16.213, discovery, to emphasize the

hearing officer's authority and duty to limit discovery wherever

feasible.

The final rule made the following clarifications and corrections to

the subpart based on comments received. The final rule added ``or

notice of investigation'' to Sec. 16.201(1) to clarify that the

provisions of subpart F may apply to proceedings initiated by the FAA

under subpart D. The final rule deleted an incorrect citation in

Sec. 16.203(a)(2) and replaced it with a citation to Sec. 16.13.

In the NPRM, the last phrase in proposed Sec. 16.209(d) cited

section 519(b) of the AAIA. The citation to the AAIA was included

because the AAIA provision contains the 180-day time limitation for a

determination which could affect the length of extensions of time

granted under part 16. (Although, at this time, the FAA does not

foresee any circumstances where it would provide for a hearing and

section 519(b) of the AAIA would not be applicable, in a case not

covered by section 519(b), an extension of time by the hearing officer

for any reason could extend all of the due dates beyond the 180-day

time limitation.) This provision is being modified in the final rule to

clarify this point.

The provisions of Sec. 16.233 on evidence, in part, are to permit

the hearing officer to exercise control over the hearing. Contrary to

the suggestion of one commenter, they are not intended to authorize the

hearing officer to preclude all cross-examination of a witness.

In keeping with the time limitations imposed by section 519(b) of

the AAIA, Sec. 16.235(a) of the final rule retains the provision

permitting the hearing officer to allow written argument during the

hearing only if the hearing officer finds that such argument would not

delay the hearing. Parties may make their arguments in posthearing

briefs under Sec. 16.235(b).

Subpart G--Initial Decisions, Orders and Appeals

Subpart G provides procedures for issuance of initial decisions and

orders by hearing officers, appeals of the initial decision to the

Associate Administrator for Airports, and issuance of consent orders.

Section 16.241 governs procedures and time frames for initial

decisions and administrative appeals based on 14 CFR 13.20(g)-(i).

However, shorter time periods are provided to accommodate the time

limits of Sec. 519 of the AAIA. In appeals from initial decisions of

hearing officers, under Sec. 16.241(c) and 16.241(f)(2), the Associate

Administrator must issue the final agency decision within 30 days of

the due date of the reply. This provision insures that the final agency

decision is issued within the 180-day time period of section 519.

In addition, the rule includes a provision for sua sponte review of

an initial decision by the Associate Administrator, consistent with the

practice under 14 CFR 302.28(d).

Section 16.243 governing disposal of cases by consent orders is

derived from 14 CFR 13.13.

As explained above, the final rule replaced all references to the

``FAA decisionmaker,'' though technically correct, with the ``Associate

Administrator,'' to avoid confusion and clarify. The ultimate

decisionmaker in part 16 proceedings, with or without hearings, is the

Associate Administrator for Airports for the reasons previously given.

Subpart H--Judicial Review

Subpart H contains rules applicable to judicial review of final

agency orders. Section 16.247(a) sets forth the basic authority to seek

judicial review. The provision is based on 14 CFR 13.235. Specific

reference to section 519(b)(4) of the AAIA has been added. Section

16.247(b) identifies FAA decisions and actions under part 16 that the

FAA does not consider to be judicially reviewable final agency orders.

Subpart I--Ex Parte Communications

The rule on ex parte communications is based on subpart J of the

Rules of Practice in Air Safety Proceedings of the NTSB, 49 CFR Part

821, subpart J, modified to reflect the fact that FAA employees

function as both parties and decisional employees in hearings conducted

under subpart F of part 16.

Subpart J--Alternative Procedure for Certain Complaints Concerning

Airport Rates and Charges

As explained above, subpart J of the proposed rule, containing

special procedures for the handling of airport fee complaints by U.S.

and foreign air carriers, was withdrawn on September 16, 1994 [59 FR

47568].

Regulatory Evaluation Summary

Introduction

This regulatory evaluation examines the costs and benefits of the

final rule concerning Rules for Federally-Assisted Airport Proceedings.

The rule establishes rules of practice for filing complaints and

adjudicating compliance matters involving Federally-assisted airports.

The rule is intended to expedite substantially the handling and

disposition of airport-related complaints. Since the impacts of the

changes are relatively minor this economic summary constitutes the

analysis and no regulatory evaluation will be placed in the docket.

Changes to Federal regulations must undergo several economic

analyses. First, Executive Order 12866 directs that each Federal agency

shall propose or adopt a regulation only upon a reasoned determination

that the benefits of the intended regulation justify its costs. Second,

the Regulatory Flexibility Act of 1980 requires agencies to analyze the

economic effect of regulatory changes on small entities. Third, the

Office of Management and Budget directs agencies to assess the effects

of regulatory changes on international trade. In conducting these

analyses, the FAA has determined that this rule is ``a significant

regulatory action'' as defined in the Executive Order and the

Department of Transportation Regulatory Policies and Procedures. This

rule would not have a significant impact on a substantial number of

small entities and would not constitute a barrier to international

trade.

[[Page 54003]]

Costs And Benefits

This final rule adopts a new procedure for the filing,

investigation, and adjudication of complaints against airports for

violation of certain statutes administered by the FAA. The new

procedures will substitute for existing procedures under 14 CFR part

13. There are no intended safety benefits that result from this rule.

The intended advantages of the rule are in the form of increased cost

effectiveness and timeliness in resolving complaints. The rule will use

FAA resources better and result in modest cost savings.

About 30 investigations are initiated per year due to complaints

filed with the FAA. Each investigation takes an average of 3 years

before a ruling is issued. The typical investigation requires a field

investigation, an initial review by the FAA's Office of Airports Safety

and Standards, and a legal review by an attorney in the Office of Chief

Counsel. A GS-12 (step 5) employee requires 30 hours to complete the

field investigation, a GS-13 (step 5) requires 30 hours to complete the

initial review, and a GS-14 (step 5) employee requires 20 hours to

complete the legal review. The average cost per investigation is

$3,100. (See Table 1.)

Table 1.--Cost of Investigations Current and Under New Rule

----------------------------------------------------------------------------------------------------------------

Average Yearly Hourly Loaded

Hours grade salary rate rate Cost

----------------------------------------------------------------------------------------------------------------

CURRENT SITUATION

Field investigation.............................. 35 GS-12 $50,388 $24.14 $31.39 $1,098.54

Initial review at HQ............................. 30 GS-13 59,917 28.71 37.32 1,119.68

Attorney review at HQ............................ 20 GS-14 70,804 33.93 44.10 882.08

==============================================================

Average cost per investigation...................................................................... $3,100

Average annual number of investigations............................................................. 30

---------

Average annual cost of investigations............................................................... $93,009

NEW SITUATION

Field............................................ 4 GS-12 $50,388 $24.14 $31.39 $125.55

Initial review at HQ............................. 40 GS-13 59,917 28.71 37.32 1,492.90

Attorney review at HQ............................ 20 GS-14 70,804 33.93 44.10 882.08

==============================================================

Average cost per investigation...................................................................... $2,501

Average annual number of investigations............................................................. 30

---------

Average annual cost of investigations............................................................... $75,016

Savings............................................................................................. $17,993

----------------------------------------------------------------------------------------------------------------

This number assumes a 30-percent loaded hourly rate for fringe

benefits. The annual cost of investigations is estimated to be $93,000.

Under the new rule, determinations will be made without the need

for a field investigation. The FAA will be able to decide the merits of

the case by looking at the record solely. The field investigation is

expected to require 4 hours of the GS-12 (step 5) employee time, mostly

to complete the proper forms; the initial review at headquarters is

expected to require 40 hours of the GS-13 (step 5) employee's time, and

the legal review is expected to remain at 20 hours of the GS-14 (step

5) employee's time. The average cost per investigation is estimated to

be $2,500 and the annual cost of investigations will be $75,000 (Table

1). The final rule will result in an average cost savings of $18,000

per year on investigations. Furthermore the FAA estimates that instead

of 3 years per investigation, each investigation will now take on

average 1 year.

Conclusion

The FAA has determined that the final rule would have only moderate

economic impacts on the industry, public, or government. The only

measurable economic impact the FAA estimates is a slight cost savings

to administer airport proceedings due to the utilization of government

resources in a more efficient manner. The FAA finds that the proposed

rule is cost-beneficial.

International Trade Impact Assessment

The Office of Management and Budget directs agencies to assess the

effects of regulatory changes on international trade. There should be

no effect on aircraft manufacturers or operators (U.S. or foreign).

Therefore, the FAA has determined that the proposed rule would neither

have an effect on the sale of foreign aviation products nor services in

the United States, nor would it have an effect on the sale of U.S.

products or services in foreign countries.

Regulatory Flexibility Determination

The Regulatory Flexibility Act (RFA) of 1980 was enacted by

Congress to ensure that small entities are not unnecessarily or

disproportionately burdened by Government regulations. The RFA requires

a Regulatory Flexibility Analysis if a rule would have a significant

economic impact, either detrimental or beneficial, on a substantial

number or small entities. Based on the potential relief that the rule

provides and the criteria contained in FAA Order 2100.14A, Regulatory

Flexibility Criteria and Guidance, the FAA has determined that the rule

will not have a significant economic impact on a substantial number of

small entities.

Federalism Implications

The regulations adopted herein will not have substantial direct

effects on the States, on the relationship between the national

government and the States, or on the distribution of power and

responsibilities among the various levels of government. Therefore, in

accordance with Executive Order 12612, it is determined that this final

rule does not have sufficient federalism implications to warrant the

preparation of a Federalism Assessment.

Paperwork Reduction Act

This final rule contains no information collection requirements

that require approval of the Office of Management and Budget pursuant

to the Paperwork Reduction Act of 1980 (44 U.S.C. 3507 et seq.)

[[Page 54004]]

Conclusion

For the reasons discussed in the preamble, and based on the

findings in the Regulatory Flexibility Determination and the

International Trade Analysis, the FAA has determined that this final

rule is not economically significant under Executive Order 12866. This

final rule is considered significant under DOT Regulatory Policies and

Procedures (44 FR 111034, February 26, 1979) and Executive Order 12866.

The FAA certifies that this final rule will not have a significant

economic impact, positive or negative, on a substantial number of small

entities under the criteria of the Regulatory Flexibility Act.

List of Subjects

14 CFR Part 13

Enforcement procedures, Investigations, Penalties.

14 CFR Part 16

Enforcement procedures, Investigations.

The Amendments

Accordingly, the Federal Aviation Administration amends chapter I

of title 14 of the Code of Federal Regulations as follows:

PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES

1. The authority citation for part 13 continues to read as follows:

Authority: 18 U.S.C. 6002; 49 U.S.C. 106(g), 5121-5124, 40113-

40114, 44103-44106, 44702-44703, 44709-44710, 44713, 46101-46110,

46301-46316, 46501-46502, 46504-46507, 47106, 47111, 47122, 47306,

47531-47532.

2. Section 13.3 is amended by adding a new paragraph (d) to read as

follows:

Sec. 13.3 Investigations (general).

* * * * *

(d) A complaint against the sponsor, proprietor, or operator of a

Federally-assisted airport involving violations of the legal

authorities listed in Sec. 16.1 of this chapter shall be filed in

accordance with the provisions of part 16 of this chapter, except in

the case of complaints, investigations, and proceedings initiated

before December 16, 1996, the effective date of part 16 of this

chapter.

3. A new part 16 is added to subchapter B to read as follows:

PART 16--RULES OF PRACTICE FOR FEDERALLY-ASSISTED AIRPORT

ENFORCEMENT PROCEEDINGS

Subpart A--General Provisions

Sec.

16.1 Applicability and description of part.

16.3 Definitions.

16.5 Separation of functions.

Subpart B--General Rules Applicable to Complaints, Proceedings

Initiated by the FAA, and Appeals

16.11 Expedition and other modification of process.

16.13 Filing of documents.

16.15 Service of documents on the parties and the agency.

16.17 Computation of time.

16.19 Motions.

Subpart C--Special Rules Applicable to Complaints

16.21 Pre-complaint resolution.

16.23 Complaints, answers, replies, rebuttals, and other documents.

16.25 Dismissals.

16.27 Incomplete complaints.

16.29 Investigations.

16.31 Director's determinations after investigations.

16.33 Final decisions without hearing.

Subpart D--Special Rules Applicable to Proceedings Initiated by the FAA

16.101 Basis for the initiation of agency action.

16.103 Notice of investigation.

16.105 Failure to resolve informally.

Subpart E--Proposed Orders of Compliance

16.109 Orders terminating eligibility for grants, cease and desist

orders, and other compliance orders.

Subpart F--Hearings

16.201 Notice and order of hearing.

16.202 Powers of a hearing officer.

16.203 Appearances, parties, and rights of parties.

16.207 Intervention and other participation.

16.209 Extension of time.

16.211 Prehearing conference.

16.213 Discovery.

16.215 Depositions.

16.217 Witnesses.

16.219 Subpoenas.

16.221 Witness fees.

16.223 Evidence.

16.225 Public disclosure of evidence.

16.227 Standard of proof.

16.229 Burden of proof.

16.231 Offer of proof.

16.233 Record.

16.235 Argument before the hearing officer.

16.237 Waiver of procedures.

Subpart G--Initial Decisions, Orders and Appeals

16.241 Initial decisions, orders, and appeals.

16.243 Consent orders.

Subpart H--Judicial Review

16.247 Judicial review of a final decision and order.

Subpart I--Ex Parte Communications

16.301 Definitions.

16.303 Prohibited ex parte communications.

16.305 Procedures for handling ex parte communications.

16.307 Requirement to show cause and imposition of sanction.

Authority: 49 U.S.C. 106(g), 322, 1110, 1111, 1115, 1116, 1718

(a) and (b), 1719, 1723, 1726, 1727, 40103(e), 40113, 40116,

44502(b), 46101, 46104, 46110, 47104, 47106(e), 47107, 47108,

47111(d), 47122, 47123-47125, 47151-47153, 48103.

Subpart A--General Provisions

Sec. 16.1 Applicability and description of part.

(a) General. The provisions of this part govern all proceedings

involving Federally-assisted airports, except for disputes between U.S.

and foreign air carriers and airport proprietors concerning the

reasonableness of airport fees covered by 14 CFR part 302, whether the

proceedings are instituted by order of the FAA or by filing with the

FAA a complaint, under the following authorities:

(1) 49 U.S.C. 40103(e), prohibiting the grant of exclusive rights

for the use of any landing area or air navigation facility on which

Federal funds have been expended (formerly section 308 of the Federal

Aviation Act of 1958, as amended).

(2) Requirements of the Anti-Head Tax Act, 49 U.S.C. 40116.

(3) The assurances contained in grant-in-aid agreements issued

under the Federal Airport Act of 1946, 49 U.S.C. 1101 et seq (repealed

1970).

(4) The assurances contained in grant-in-aid agreements issued

under the Airport and Airway Development Act of 1970, as amended, 49

U.S.C. 1701 et seq.

(5) The assurances contained in grant-in-aid agreements issued

under the Airport and Airway Improvement Act of 1982 (AAIA), as

amended, 49 U.S.C. 47101 et seq., specifically section 511(a), 49

U.S.C. 47107(a) and (b).

(6) Section 505(d) of the Airport and Airway Improvement Act of

1982, as amended, 49 U.S.C. 47113.

(7) Obligations contained in property deeds for property

transferred pursuant to section 16 of the Federal Airport Act (49

U.S.C. 1115), section 23 of the Airport and Airway Development Act (49

U.S.C. 1723), or section 516 of the Airport and Airway Improvement Act

(49 U.S.C. 47125).

(8) Obligations contained in property deeds for property

transferred under the Surplus Property Act (49 U.S.C. 47151-47153).

(b) Other agencies. Where a grant assurance concerns a statute,

executive

[[Page 54005]]

order, regulation, or other authority that provides an administrative

process for the investigation or adjudication of complaints by a

Federal agency other than the FAA, persons shall use the administrative

process established by those authorities. Where a grant assurance

concerns a statute, executive order, regulation, or other authority

that enables a Federal agency other than the FAA to investigate,

adjudicate, and enforce compliance under those authorities on its own

initiative, the FAA may defer to that Federal agency.

FAA involves a violation of the 49 U.S.C. subtitle VII or FAA

regulations, except as specified in paragraphs (a)(1) and (a)(2) of

this section, the FAA may take investigative and enforcement action

under 14 CFR part 13, ``Investigative and Enforcement Procedures.''

(d) Effective date. This part applies to a complaint filed with the

FAA and to an investigation initiated by the FAA on or after December

16, 1996.

Sec. 16.3 Definitions.

Terms defined in the Acts are used as so defined. As used in this

part:

Act means a statute listed in Sec. 16.1 and any regulation,

agreement, or document of conveyance issued or made under that statute.

Agency attorney means the Deputy Chief Counsel; the Assistant Chief

Counsel and attorneys in the Airports/Environmental Law Division of the

Office of the Chief Counsel; the Assistant Chief Counsel and attorneys

in an FAA region or center who represent the FAA during the

investigation of a complaint or at a hearing on a complaint, and who

prosecute on behalf of the FAA, as appropriate. An agency attorney

shall not include the Chief Counsel; the Assistant Chief Counsel for

Litigation, or any attorney on the staff of the Assistant Chief Counsel

for Litigation, who advises the Associate Administrator regarding an

initial decision of the hearing officer or any appeal to the Associate

Administrator or who is supervised in that action by a person who

provides such advice in an action covered by this part.

Agency employee means any employee of the U.S. Department of

Transportation.

Associate Administrator means the Associate Administrator for

Airports or a designee.

Complainant means the person submitting a complaint.

Complaint means a written document meeting the requirements of this

part filed with the FAA by a person directly and substantially affected

by anything allegedly done or omitted to be done by any person in

contravention of any provision of any Act, as defined in this section,

as to matters within the jurisdiction of the Administrator.

Director means the Director of the Office of Airport Safety and

Standards.

Director's determination means the initial determination made by

the Director following an investigation, which is a non-final agency

decision.

File means to submit written documents to the FAA for inclusion in

the Part 16 Airport Proceedings Docket or to a hearing officer.

Final decision and order means a final agency decision that

disposes of a complaint or determines a respondent's compliance with

any Act, as defined in this section, and directs appropriate action.

Hearing officer means an attorney designated by the FAA in a

hearing order to serve as a hearing officer in a hearing under this

part. The following are not designated as hearing officers: the Chief

Counsel and Deputy Chief Counsel; the Assistant Chief Counsel and

attorneys in the FAA region or center in which the noncompliance has

allegedly occurred or is occurring; the Assistant Chief Counsel and

attorneys in the Airports and Environmental Law Division of the FAA

Office of the Chief Counsel; and the Assistant Chief Counsel and

attorneys in the Litigation Division of the FAA Office of Chief

Counsel.

Initial decision means a decision made by the hearing officer in a

hearing under subpart F of this part.

Mail means U.S. first class mail; U.S. certified mail; and U.S.

express mail.

Noncompliance means anything done or omitted to be done by any

person in contravention of any provision of any Act, as defined in this

section, as to matters within the jurisdiction of the Administrator.

Party means the complainant(s) and the respondent(s) named in the

complaint and, after an initial determination providing an opportunity

for hearing is issued under Sec. 16.31 and subpart E of this part, the

agency.

Person in addition to its meaning under 49 U.S.C. 40102(a)(33),

includes a public agency as defined in 49 U.S.C. 47102(a)(15).

Personal delivery means hand delivery or overnight express delivery

service.

Respondent means any person named in a complaint as a person

responsible for noncompliance.

Sponsor means:

(1) Any public agency which, either individually or jointly with

one or more other public agencies, has received Federal financial

assistance for airport development or planning under the Federal

Airport Act, Airport and Airway Development Act or Airport and Airway

Improvement Act;

(2) Any private owner of a public-use airport that has received

financial assistance from the FAA for such airport; and

(3) Any person to whom the Federal Government has conveyed property

for airport purposes under section 13(g) of the Surplus Property Act of

1944, as amended.

Sec. 16.5 Separation of functions.

(a) Proceedings under this part, including hearings under subpart F

of this part, will be prosecuted by an agency attorney.

(b) After issuance of an initial determination in which the FAA

provides the opportunity for a hearing, an agency employee engaged in

the performance of investigative or prosecutorial functions in a

proceeding under this part will not, in that case or a factually

related case, participate or give advice in an initial decision by the

hearing officer, or a final decision by the Associate Administrator or

designee on written appeal, and will not, except as counsel or as

witness in the public proceedings, engage in any substantive

communication regarding that case or a related case with the hearing

officer, the Associate Administrator on written appeal, or agency

employees advising those officials in that capacity.

or an attorney on the staff of the Assistant Chief Counsel for

Litigation advises the Associate Administrator regarding an initial

decision, an appeal, or a final decision regarding any case brought

under this part.

Subpart B--General Rules Applicable to Complaints, Proceedings

Initiated by the FAA, and Appeals

Sec. 16.11 Expedition and other modification of process.

(a) Under the authority of 49 U.S.C. 40113 and 47121, the Director

may conduct investigations, issue orders, and take such other actions

as are necessary to fulfill the purposes of this part, including the

extension of any time period prescribed where necessary or appropriate

for a fair and complete hearing of matters before the agency.

(b) Notwithstanding any other provision of this part, upon finding

that circumstances require expedited handling of a particular case or

controversy, the Director may issue an

[[Page 54006]]

order directing any of the following prior to the issuance of the

Director's determination:

(1) Shortening the time period for any action under this part

consistent with due process;

(2) If other adequate opportunity to respond to pleadings is

available, eliminating the reply, rebuttal, or other actions prescribed

by this part;

(3) Designating alternative methods of service; or

(4) Directing such other measures as may be required.

Sec. 16.13 Filing of documents.

Except as otherwise provided in this part, documents shall be filed

with the FAA during a proceeding under this part as follows:

(a) Filing address. Documents to be filed with the FAA shall be

filed with the Office of the Chief Counsel, Attention: FAA Part 16

Airport Proceedings Docket, AGC-610, Federal Aviation Administration,

800 Independence Ave., SW., Washington, DC, 20591. Documents to be

filed with a hearing officer shall be filed at the address stated in

the hearing order.

(b) Date and method of filing. Filing of any document shall be by

personal delivery or mail as defined in this part, or by facsimile

(when confirmed by filing on the same date by one of the foregoing

methods). Unless the date is shown to be inaccurate, documents to be

filed with the FAA shall be deemed to be filed on the date of personal

delivery, on the mailing date shown on the certificate of service, on

the date shown on the postmark if there is no certificate of service,

on the send date shown on the facsimile (provided filing has been

confirmed through one of the foregoing methods), or on the mailing date

shown by other evidence if there is no certificate of service and no

postmark.

original and three copies of each document shall be filed with the FAA

Part 16 Airport Proceedings Docket. Copies need not be signed, but the

name of the person signing the original shall be shown. If a hearing

order has been issued in the case, one of the three copies shall be

filed with the hearing officer. If filing by facsimile, the facsimile

copy does not constitute one of the copies required under this section.

(d) Form. Documents filed with the FAA shall be typewritten or

legibly printed. In the case of docketed proceedings, the document

shall include the docket number of the proceeding on the front page.

(e) Signing of documents and other papers. The original of every

document filed shall be signed by the person filing it or the person's

duly authorized representative. The signature shall serve as a

certification that the signer has read the document and, based on

reasonable inquiry and to the best of the signer's knowledge,

information, and belief, the document is--

(1) Consistent with this part;

(2) Warranted by existing law or that a good faith argument exists

for extension, modification, or reversal of existing law; and

(3) Not interposed for any improper purpose, such as to harass or

to cause unnecessary delay or needless increase in the cost of the

administrative process.

(f) Designation of person to receive service. The initial document

filed by any person shall state on the first page the name, post office

address, telephone number, and facsimile number, if any, of the

person(s) to be served with documents in the proceeding. If any of

these items change during the proceeding, the person shall promptly

file notice of the change with the FAA Part 16 Airport Proceedings

Docket and the hearing officer and shall serve the notice on all

parties.

(g) Docket numbers. Each submission identified as a complaint under

this part by the submitting person will be assigned a docket number.

Sec. 16.15 Service of documents on the parties and the agency.

Except as otherwise provided in this part, documents shall be

served as follows:

(a) Who must be served. Copies of all documents filed with the FAA

Part 16 Airport Proceedings Docket shall be served by the persons

filing them on all parties to the proceeding. A certificate of service

shall accompany all documents when they are tendered for filing and

shall certify concurrent service on the FAA and all parties.

Certificates of service shall be in substantially the following form:

I hereby certify that I have this day served the foregoing [name

of document] on the following persons at the following addresses and

facsimile numbers (if also served by facsimile) by [specify method

of service]:

[list persons, addresses, facsimile numbers]

Dated this ______ day of ______, 19____.

[signature], for [party]

(b) Method of service. Except as otherwise agreed by the parties

and the hearing officer, the method of service is the same as set forth

in Sec. 16.13(b) for filing documents.

persons identified in accordance with Sec. 16.13(f). If no such person

has been designated, service shall be made on the party.

(d) Presumption of service. There shall be a presumption of lawful

service--

(1) When acknowledgment of receipt is by a person who customarily

or in the ordinary course of business receives mail at the address of

the party or of the person designated under Sec. 16.13(f); or

(2) When a properly addressed envelope, sent to the most current

address submitted under Sec. 16.13(f), has been returned as

undeliverable, unclaimed, or refused.

(e) Date of service. The date of service shall be determined in the

same manner as the filing date under Sec. 16.13(b).

Sec. 16.17 Computation of time.

This section applies to any period of time prescribed or allowed by

this part, by notice or order of the hearing officer, or by an

applicable statute.

(a) The date of an act, event, or default, after which a designated

time period begins to run, is not included in a computation of time

under this part.

(b) The last day of a time period is included in a computation of

time unless it is a Saturday, Sunday, or legal holiday for the FAA, in

which case, the time period runs until the end of the next day that is

not a Saturday, Sunday, or legal holiday.

within a prescribed period after service of a document upon the party,

and the document is served on the party by mail, 3 days shall be added

to the prescribed period.

Sec. 16.19 Motions.

(a) General. An application for an order or ruling not otherwise

specifically provided for in this part shall be by motion. Unless

otherwise ordered by the agency, the filing of a motion will not stay

the date that any action is permitted or required by this part.

(b) Form and contents. Unless made during a hearing, motions shall

be made in writing, shall state with particularity the relief sought

and the grounds for the relief sought, and shall be accompanied by

affidavits or other evidence relied upon. Motions introduced during

hearings may be made orally on the record, unless the hearing officer

directs otherwise.

or except when a motion is made during a hearing, any party may file an

answer in support of or in opposition to a motion, accompanied by

affidavits or other evidence relied upon, provided that the

[[Page 54007]]

answer to the motion is filed within 10 days after the motion has been

served upon the person answering, or any other period set by the

hearing officer. Where a motion is made during a hearing, the answer

and the ruling thereon may be made at the hearing, or orally or in

writing within the time set by the hearing officer.

Subpart C--Special Rules Applicable to Complaints

Sec. 16.21 Pre-complaint resolution.

(a) Prior to filing a complaint under this part, a person directly

and substantially affected by the alleged noncompliance shall initiate

and engage in good faith efforts to resolve the disputed matter

informally with those individuals or entities believed responsible for

the noncompliance. These efforts at informal resolution may include,

without limitation, at the parties' expense, mediation, arbitration, or

the use of a dispute resolution board, or other form of third party

assistance. The FAA Airports District Office, FAA Airports Field

Office, or FAA Regional Airports Division responsible for

administrating financial assistance to the respondent airport

proprietor, will be available upon request to assist the parties with

informal resolution.

(b) A complaint under this part will not be considered unless the

person or authorized representative filing the complaint certifies that

substantial and reasonable good faith efforts to resolve the disputed

matter informally prior to filing the complaint have been made and that

there appears no reasonable prospect for timely resolution of the

dispute. This certification shall include a brief description of the

party's efforts to obtain informal resolution but shall not include

information on monetary or other settlement offers made but not agreed

upon in writing by all parties.

Sec. 16.23 Complaints, answers, replies, rebuttals, and other

documents.

(a) A person directly and substantially affected by any alleged

noncompliance may file a complaint with the Administrator. A person

doing business with an airport and paying fees or rentals to the

airport shall be considered directly and substantially affected by

alleged revenue diversion as defined in 49 U.S.C. 47107(b).

(b) Complaints filed under this part shall--

(1) State the name and address of each person who is the subject of

the complaint and, with respect to each person, the specific provisions

of each Act that the complainant believes were violated;

(2) Be served, in accordance with Sec. 16.15, along with all

documents then available in the exercise of reasonable diligence,

offered in support of the complaint, upon all persons named in the

complaint as persons responsible for the alleged action(s) or

omission(s) upon which the complaint is based;

(3) Provide a concise but complete statement of the facts relied

upon to substantiate each allegation; and

(4) Describe how the complainant was directly and substantially

affected by the things done or omitted to be done by the respondents.

Sec. 16.27, the FAA notifies the complainant and respondents in writing

within 20 days after the date the FAA receives the complaint that the

complaint has been docketed and that respondents are required to file

an answer within 20 days of the date of service of the notification.

(d) The respondent shall file an answer within 20 days of the date

of service of the FAA notification.

(e) The complainant may file a reply within 10 days of the date of

service of the answer.

(f) The respondent may file a rebuttal within 10 days of the date

of service of the complainant's reply.

(g) The answer, reply, and rebuttal shall, like the complaint, be

accompanied by supporting documentation upon which the parties rely.

(h) The answer shall deny or admit the allegations made in the

complaint or state that the person filing the document is without

sufficient knowledge or information to admit or deny an allegation, and

shall assert any affirmative defense.

(i) The answer, reply, and rebuttal shall each contain a concise

but complete statement of the facts relied upon to substantiate the

answers, admissions, denials, or averments made.

(j) The respondent's answer may include a motion to dismiss the

complaint, or any portion thereof, with a supporting memorandum of

points and authorities. If a motion to dismiss is filed, the

complainant may respond as part of its reply notwithstanding the 10-day

time limit for answers to motions in Sec. 16.19(c).

Sec. 16.25 Dismissals.

Within 20 days after the receipt of the complaint, the Director

will dismiss a complaint, or any claim made in a complaint, with

prejudice if:

(a) It appears on its face to be outside the jurisdiction of the

Administrator under the Acts listed in Sec. 16.1;

(b) On its face it does not state a claim that warrants an

investigation or further action by the FAA; or

Secs. 16.3 and 16.23. The Director's dismissal will include the reasons

for the dismissal.

Sec. 16.27 Incomplete complaints.

If a complaint is not dismissed pursuant to Sec. 16.25 of this

part, but is deficient as to one or more of the requirements set forth

in Sec. 16.21 or Sec. 16.23(b), the Director will dismiss the complaint

within 20 days after receiving it. Dismissal will be without prejudice

to the refiling of the complaint after amendment to correct the

deficiency. The Director's dismissal will include the reasons for the

dismissal.

Sec. 16.29 Investigations.

(a) If, based on the pleadings, there appears to be a reasonable

basis for further investigation, the FAA investigates the subject

matter of the complaint.

(b) The investigation may include one or more of the following, at

the sole discretion of the FAA:

(1) A review of the written submissions or pleadings of the

parties, as supplemented by any informal investigation the FAA

considers necessary and by additional information furnished by the

parties at FAA request. In rendering its initial determination, the FAA

may rely entirely on the complaint and the responsive pleadings

provided under this subpart. Each party shall file documents that it

considers sufficient to present all relevant facts and argument

necessary for the FAA to determine whether the sponsor is in

compliance.

(2) Obtaining additional oral and documentary evidence by use of

the agency's authority to compel production of such evidence under

section 313 Aviation Act, 49 U.S.C. 40113 and 46104, and section 519 of

the Airport and Airway Improvement Act, 49 U.S.C. 47122. The

Administrator's statutory authority to issue compulsory process has

been delegated to the Chief Counsel, the Deputy Chief Counsel, the

Assistant Chief Counsel for Airports and Environmental Law, and each

Assistant Chief Counsel for a region or center.

(3) Conducting or requiring that a sponsor conduct an audit of

airport financial records and transactions as provided in 49 U.S.C.

47107 and 47121.

Sec. 16.31 Director's determinations after investigations.

(a) After consideration of the pleadings and other information

obtained by the FAA after investigation,

[[Page 54008]]

the Director will render an initial determination and provide it to

each party by certified mail within 120 days of the date the last

pleading specified in Sec. 16.23 was due.

(b) The Director's determination will set forth a concise

explanation of the factual and legal basis for the Director's

determination on each claim made by the complainant.

appeal the initial determination to the Associate Administrator as

provided in Sec. 16.33.

(d) If the Director's determination finds the respondent in

noncompliance and proposes the issuance of a compliance order, the

initial determination will include notice of opportunity for a hearing

under subpart F of this part, if such an opportunity is provided by the

FAA. The respondent may elect or waive a hearing as provided in subpart

E of this part.

Sec. 16.33 Final decisions without hearing.

(a) The Associate Administrator will issue a final decision on

appeal from the Director's determination, without a hearing, where--

(1) The complaint is dismissed after investigation;

(2) A hearing is not required by statute and is not otherwise made

available by the FAA; or

(3) The FAA provides opportunity for a hearing to the respondent

and the respondent waives the opportunity for a hearing as provided in

subpart E of this part.

(b) In the cases described in paragraph (a) of this section, a

party adversely affected by the Director's determination may file an

appeal with the Associate Administrator within 30 days after the date

of service of the initial determination.

Administrator within 20 days after the date of service of the appeal.

(d) The Associate Administrator will issue a final decision and

order within 60 days after the due date of the reply.

(e) If no appeal is filed within the time period specified in

paragraph (b) of this section, the Director's determination becomes the

final decision and order of the FAA without further action. A

Director's determination that becomes final because there is no

administrative appeal is not judicially reviewable.

Subpart D--Special Rules Applicable to Proceedings Initiated by the

FAA

Sec. 16.101 Basis for the initiation of agency action.

The FAA may initiate its own investigation of any matter within the

applicability of this part without having received a complaint. The

investigation may include, without limitation, any of the actions

described in Sec. 16.29(b).

Sec. 16.103 Notice of investigation.

Following the initiation of an investigation under Sec. 16.101, the

FAA sends a notice to the person(s) subject to investigation. The

notice will set forth the areas of the agency's concern and the reasons

therefor; request a response to the notice within 30 days of the date

of service; and inform the respondent that the FAA will, in its

discretion, invite good faith efforts to resolve the matter.

Sec. 16.105 Failure to resolve informally.

If the matters addressed in the FAA notices are not resolved

informally, the FAA may issue a Director's determination under

Sec. 16.31.

Subpart E--Proposed Orders of Compliance

Sec. 16.109 Orders terminating eligibility for grants, cease and

desist orders, and other compliance orders.

This section applies to initial determinations issued under

Sec. 16.31 that provide the opportunity for a hearing.

(a) The agency will provide the opportunity for a hearing if, in

the Director's determination, the agency proposes to issue an order

terminating eligibility for grants pursuant to 49 U.S.C. 47106(e) and

47111(d), an order suspending the payment of grant funds, an order

withholding approval of any new application to impose a passenger

facility charge pursuant to section 112 of the Federal Aviation

Administration Act of 1994, 49 U.S.C. 47111(e), a cease and desist

order, an order directing the refund of fees unlawfully collected, or

any other compliance order issued by the Administrator to carry out the

provisions of the Acts, and required to be issued after notice and

opportunity for a hearing. In cases in which a hearing is not required

by statute, the FAA may provide opportunity for a hearing at its

discretion.

(b) In a case in which the agency provides the opportunity for a

hearing, the Director's determination issued under Sec. 16.31 will

include a statement of the availability of a hearing under subpart F of

this part.

under Sec. 16.31 and paragraph (b) of this section, a person subject to

the proposed compliance order may--

(1) Request a hearing under subpart F of this part;

(2) Waive hearing and appeal the Director's determination in

writing to the Associate Administrator, as provided in Sec. 16.33;

(3) File, jointly with a complainant, a motion to withdraw the

complaint and to dismiss the proposed compliance action; or

(4) Submit, jointly with the agency attorney, a proposed consent

order under Sec. 16.243(e).

(d) If the respondent fails to request a hearing or to file an

appeal in writing within the time periods provided in paragraph (c) of

this section, the Director's determination becomes final.

Subpart F--Hearings

Sec. 16.201 Notice and order of hearing.

(a) If a respondent is provided the opportunity for hearing in an

initial determination and does not waive hearing, the Deputy Chief

Counsel within 10 days after the respondent elects a hearing will issue

and serve on the respondent and complainant a hearing order. The

hearing order will set forth:

(1) The allegations in the complaint, or notice of investigation,

and the chronology and results of the investigation preliminary to the

hearing;

(2) The relevant statutory, judicial, regulatory, and other

authorities;

(3) The issues to be decided;

(4) Such rules of procedure as may be necessary to supplement the

provisions of this part;

(5) The name and address of the person designated as hearing

officer, and the assignment of authority to the hearing officer to

conduct the hearing in accordance with the procedures set forth in this

part; and

(6) The date by which the hearing officer is directed to issue an

initial decision.

(b) Where there are no genuine issues of material fact requiring

oral examination of witnesses, the hearing order may contain a

direction to the hearing officer to conduct a hearing by submission of

briefs and oral argument without the presentation of testimony or other

evidence.

Sec. 16.202 Powers of a hearing officer.

In accordance with the rules of this subpart, a hearing officer

may:

(a) Give notice of, and hold, prehearing conferences and hearings;

[[Page 54009]]

(b) Administer oaths and affirmations;

deposition requested by the parties;

(d) Limit the frequency and extent of discovery;

(e) Rule on offers of proof;

(f) Receive relevant and material evidence;

(g) Regulate the course of the hearing in accordance with the rules

of this part to avoid unnecessary and duplicative proceedings in the

interest of prompt and fair resolution of the matters at issue;

(h) Hold conferences to settle or to simplify the issues by consent

of the parties;

(i) Dispose of procedural motions and requests;

(j) Examine witnesses; and

(k) Make findings of fact and conclusions of law, and issue an

initial decision.

Sec. 16.203 Appearances, parties, and rights of parties.

(a) Appearances. Any party may appear and be heard in person.

(1) Any party may be accompanied, represented, or advised by an

attorney licensed by a State, the District of Columbia, or a territory

of the United States to practice law or appear before the courts of

that State or territory, or by another duly authorized representative.

(2) An attorney, or other duly authorized representative, who

represents a party shall file a notice of appearance in accordance with

Sec. 16.13.

(b) Parties and agency participation.

(1) The parties to the hearing are the respondent (s) named in the

hearing order, the complainant(s), and the agency.

(2) Unless otherwise specified in the hearing order, the agency

attorney will serve as prosecutor for the agency from the date of

issuance of the Director's determination providing an opportunity for

hearing.

Sec. 16.207 Intervention and other participation.

(a) A person may submit a motion for leave to intervene as a party.

Except for good cause shown, a motion for leave to intervene shall be

submitted not later than 10 days after the notice of hearing and

hearing order.

(b) If the hearing officer finds that intervention will not unduly

broaden the issues or delay the proceedings and, if the person has a

property or financial interest that may not be addressed adequately by

the parties, the hearing officer may grant a motion for leave to

intervene. The hearing officer may determine the extent to which an

intervenor may participate in the proceedings.

participate in the hearing. Participation is limited to the filing of

post-hearing briefs and reply to the hearing officer and the Associate

Administrator. Such briefs shall be filed and served on all parties in

the same manner as the parties' post hearing briefs are filed.

(d) Participation under this section is at the discretion of the

FAA, and no decision permitting participation shall be deemed to

constitute an expression by the FAA that the participant has such a

substantial interest in the proceeding as would entitle it to judicial

review of such decision.

Sec. 16.209 Extension of time.

(a) Extension by oral agreement. The parties may agree to extend

for a reasonable period of time for filing a document under this part.

If the parties agree, the hearing officer shall grant one extension of

time to each party. The party seeking the extension of time shall

submit a draft order to the hearing officer to be signed by the hearing

officer and filed with the hearing docket. The hearing officer may

grant additional oral requests for an extension of time where the

parties agree to the extension.

(b) Extension by motion. A party shall file a written motion for an

extension of time with the hearing officer not later than 7 days before

the document is due unless good cause for the late filing is shown. A

party filing a written motion for an extension of time shall serve a

copy of the motion on each party.

written motion for an extension of time by the date the document was

due, the motion for an extension of time is deemed denied.

(d) Effect on time limits. In a hearing required by section 519(b)

of the Airport and Airways Improvement Act, as amended in 1987, 49

U.S.C. 47106(e) and 47111(d), the due date for the hearing officer's

initial decision and for the final agency decision are extended by the

length of the extension granted by the hearing officer only if the

hearing officer grants an extension of time as a result of an agreement

by the parties as specified in paragraph (a) of this section or, if the

hearing officer grants an extension of time as a result of the

sponsor's failure to adhere to the hearing schedule. In any other

hearing, an extension of time granted by the hearing officer for any

reason extends the due date for the hearing officer's initial decision

and for the final agency decision by the length of time of the hearing

officer's decision.

16.211 Prehearing conference.

(a) Prehearing conference notice. The hearing officer schedules a

prehearing conference and serves a prehearing conference notice on the

parties promptly after being designated as a hearing officer.

(1) The prehearing conference notice specifies the date, time,

place, and manner (in person or by telephone) of the prehearing

conference.

(2) The prehearing conference notice may direct the parties to

exchange proposed witness lists, requests for evidence and the

production of documents in the possession of another party, responses

to interrogatories, admissions, proposed procedural schedules, and

proposed stipulations before the date of the prehearing conference.

(b) The prehearing conference. The prehearing conference is

conducted by telephone or in person, at the hearing officer's

discretion. The prehearing conference addresses matters raised in the

prehearing conference notice and such other matters as the hearing

officer determines will assist in a prompt, full and fair hearing of

the issues.

conference, the hearing officer rules on any requests for evidence and

the production of documents in the possession of other parties,

responses to interrogatories, and admissions; on any requests for

depositions; on any proposed stipulations; and on any pending

applications for subpoenas as permitted by Sec. 16.219. In addition,

the hearing officer establishes the schedule, which shall provide for

the issuance of an initial decision not later than 110 days after

issuance of the Director's determination order unless otherwise

provided in the hearing order.

Sec. 16.213 Discovery.

(a) Discovery is limited to requests for admissions, requests for

production of documents, interrogatories, and depositions as authorized

by Sec. 16.215.

(b) The hearing officer shall limit the frequency and extent of

discovery permitted by this section if a party shows that--

(1) The information requested is cumulative or repetitious;

(2) The information requested may be obtained from another less

burdensome and more convenient source;

(3) The party requesting the information has had ample opportunity

to obtain the information through other

[[Page 54010]]

discovery methods permitted under this section; or

(4) The method or scope of discovery requested by the party is

unduly burdensome or expensive.

Sec. 16.215 Depositions.

(a) General. For good cause shown, the hearing officer may order

that the testimony of a witness may be taken by deposition and that the

witness produce documentary evidence in connection with such testimony.

Generally, an order to take the deposition of a witness is entered only

if:

(1) The person whose deposition is to be taken would be unavailable

at the hearing;

(2) The deposition is deemed necessary to perpetuate the testimony

of the witness; or

(3) The taking of the deposition is necessary to prevent undue and

excessive expense to a party and will not result in undue burden to

other parties or in undue delay.

(b) Application for deposition. Any party desiring to take the

deposition of a witness shall make application therefor to the hearing

officer in writing, with a copy of the application served on each

party. The application shall include:

(1) The name and residence of the witness;

(2) The time and place for the taking of the proposed deposition;

(3) The reasons why such deposition should be taken; and

(4) A general description of the matters concerning which the

witness will be asked to testify.

hearing officer, in his or her discretion, issues an order authorizing

the deposition and specifying the name of the witness to be deposed,

the location and time of the deposition and the general scope and

subject matter of the testimony to be taken.

(d) Procedures for deposition.

(1) Witnesses whose testimony is taken by deposition shall be sworn

or shall affirm before any questions are put to them. Each question

propounded shall be recorded and the answers of the witness transcribed

verbatim.

(2) Objections to questions or evidence shall be recorded in the

transcript of the deposition. The interposing of an objection shall not

relieve the witness of the obligation to answer questions, except where

the answer would violate a privilege.

(3) The written transcript shall be subscribed by the witness,

unless the parties by stipulation waive the signing, or the witness is

ill, cannot be found, or refuses to sign. The reporter shall note the

reason for failure to sign.

Sec. 16.217 Witnesses.

(a) Each party may designate as a witness any person who is able

and willing to give testimony that is relevant and material to the

issues in the hearing case, subject to the limitation set forth in

paragraph (b) of this section.

(b) The hearing officer may exclude testimony of witnesses that

would be irrelevant, immaterial, or unduly repetitious.

a nonparty witness has no right to examine the witness or otherwise

participate in the development of testimony.

Sec. 16.219 Subpoenas.

(a) Request for subpoena. A party may apply to the hearing officer,

within the time specified for such applications in the prehearing

conference report, for a subpoena to compel testimony at a hearing or

to require the production of documents only from the following persons:

(1) Another party;

(2) An officer, employee, or agent of another party;

(3) Any other person named in the complaint as participating in or

benefiting from the actions of the respondent alleged to have violated

any Act;

(4) An officer, employee, or agent of any other person named in the

complaint as participating in or benefiting from the actions of the

respondent alleged to have violated any Act.

(b) Issuance and service of subpoena.

(1) The hearing officer issues the subpoena if the hearing officer

determines that the evidence to be obtained by the subpoena is relevant

and material to the resolution of the issues in the case.

(2) Subpoenas shall be served by personal service, or upon an agent

designated in writing for the purpose, or by certified mail, return

receipt addressed to such person or agent. Whenever service is made by

registered or certified mail, the date of mailing shall be considered

as the time when service is made.

(3) A subpoena issued under this part is effective throughout the

United States or any territory or possession thereof.

(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.

subpoena may be obtained orally.

(d) Cross-examination. A party may conduct cross-examination that

may be required for disclosure of the facts, subject to control by the

hearing officer for fairness, expedition and exclusion of extraneous

matters.

(e) Hearsay evidence. Hearsay evidence is admissible in proceedings

governed by this part. The fact that

[[Page 54011]]

evidence is hearsay goes to the weight of evidence and does not affect

its admissibility.

(f) Admission of evidence. The hearing officer admits evidence

introduced by a party in support of its case in accordance with this

section, but may exclude irrelevant, immaterial, or unduly repetitious

evidence.

(g) Expert or opinion witnesses. An employee of the FAA or DOT may

not be called as an expert or opinion witness for any party other than

the agency except as provided in Department of Transportation

regulations at 49 CFR part 9.

Sec. 16.225 Public disclosure of evidence.

(a) Except as provided in this section, the hearing shall be open

to the public.

(b) The hearing officer may order that any information contained in

the record be withheld from public disclosure. Any person may object to

disclosure of information in the record by filing a written motion to

withhold specific information with the hearing officer. The person

shall state specific grounds for nondisclosure in the motion.

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.

of proving the affirmative defense.

Sec. 16.231 Offer of proof.

A party whose evidence has been excluded by a ruling of the hearing

officer may offer the evidence on the record when filing an appeal.

Sec. 16.233 Record.

(a) Exclusive record. The transcript of all testimony in the

hearing, all exhibits received into evidence, all motions, applications

requests and rulings, and all documents included in the hearing record

shall constitute the exclusive record for decision in the proceedings

and the basis for the issuance of any orders.

(b) Examination and copy of record. Any interested person may

examine the record at the Part 16 Airport Proceedings Docket, AGC-600,

Federal Aviation Administration, 800 Independence Avenue, SW.,

Washington, DC 20591. Any person may have a copy of the record after

payment of reasonable costs for search and reproduction of the record.

Sec. 16.235 Argument before the hearing officer.

(a) Argument during the hearing. During the hearing, the hearing

officer shall give the parties reasonable opportunity to present oral

argument on the record supporting or opposing motions, objections, and

rulings if the parties request an opportunity for argument. The hearing

officer may direct written argument during the hearing if the hearing

officer finds that submission of written arguments would not delay the

hearing.

(b) Posthearing briefs. The hearing officer may request or permit

the parties to submit posthearing briefs. The hearing officer may

provide for the filing of simultaneous reply briefs as well, if such

filing will not unduly delay the issuance of the hearing officer's

initial decision. Posthearing briefs shall include proposed findings of

fact and conclusions of law; exceptions to rulings of the hearing

officer; references to the record in support of the findings of fact;

and supporting arguments for the proposed findings, proposed

conclusions, and exceptions.

Sec. 16.237 Waiver of procedures.

(a) The hearing officer shall waive such procedural steps as all

parties to the hearing agree to waive before issuance of an initial

decision.

(b) Consent to a waiver of any procedural step bars the raising of

this issue on appeal.

hearing officer to enter an initial decision on the record.

Subpart G--Initial Decisions, Orders and Appeals

Sec. 16.241 Initial decisions, order, and appeals.

(a) The hearing officer shall issue an initial decision based on

the record developed during the proceeding and shall send the initial

decision to the parties not later than 110 days after the Director's

determination unless otherwise provided in the hearing order.

(b) Each party adversely affected by the hearing officer's initial

decision may file an appeal with the Associate Administrator within 15

days of the date the initial decision is issued. Each party may file a

reply to an appeal within 10 days after it is served on the party.

Filing and service of appeals and replies shall be by personal

delivery.

entire record and issues a final agency decision and order within 30

days of the due date of the reply. If no appeal is filed, the Associate

Administrator may take review of the case on his or her own motion. If

the Associate Administrator finds that the respondent is not in

compliance with any Act or any regulation, agreement, or document of

conveyance issued or made under such Act, the final agency order

includes a statement of corrective action, if appropriate, and

identifies sanctions for continued noncompliance.

(d) If no appeal is filed, and the Associate Administrator does not

take review of the initial decision on the Associate Administrator's

own motion, the initial decision shall take effect as the final agency

decision and order on the sixteenth day after the actual date the

initial decision is issued.

(e) The failure to file an appeal is deemed a waiver of any rights

to seek judicial review of an initial decision that becomes a final

agency decision by operation of paragraph (d) of this section.

(f) If the Associate Administrator takes review on the Associate

Administrator's own motion, the Associate Administrator issues a notice

of review by the sixteenth day after the actual date the initial

decision is issued.

(1) The notice sets forth the specific findings of fact and

conclusions of law in the initial decision that are subject to review

by the Associate Administrator.

(2) Parties may file one brief on review to the Associate

Administrator or rely on their posthearing briefs to the hearing

officer. Briefs on review shall be filed not later than 10 days after

service of the notice of review. Filing and service of briefs on review

shall be by personal delivery.

[[Page 54012]]

(3) The Associate Administrator issues a final agency decision and

order within 30 days of the due date of the briefs on review. If the

Associate Administrator finds that the respondent is not in compliance

with any Act or any regulation, agreement or document of conveyance

issued under such Act, the final agency order includes a statement of

corrective action, if appropriate, and identifies sanctions for

continued noncompliance.

Sec. 16.243 Consent orders.

(a) The agency attorney and the respondents may agree at any time

before the issuance of a final decision and order to dispose of the

case by issuance of a consent order. Good faith efforts to resolve a

complaint through issuance of a consent order may continue throughout

the administrative process. Except as provided in Sec. 16.209, such

efforts may not serve as the basis for extensions of the times set

forth in this part.

(b) A proposal for a consent order, specified in paragraph (a) of

this section, shall include:

(1) A proposed consent order;

(2) An admission of all jurisdictional facts;

(3) An express waiver of the right to further procedural steps and

of all rights of judicial review; and

(4) The hearing order, if issued, and an acknowledgment that the

hearing order may be used to construe the terms of the consent order.

parties to the hearing, the proposed consent order shall be filed with

the hearing officer, along with a draft order adopting the consent

decree and dismissing the case, for the hearing officer's adoption.

(d) The deadline for the hearing officer's initial decision and the

final agency decision is extended by the amount of days elapsed between

the filing of the proposed consent order with the hearing officer and

the issuance of the hearing officer's order continuing the hearing.

(e) If the agency attorney and sponsor agree to dispose of a case

by issuance of a consent order before the FAA issues a hearing order,

the proposal for a consent order is submitted jointly to the official

authorized to issue a hearing order, together with a request to adopt

the consent order and dismiss the case. The official authorized to

issue the hearing order issues the consent order as an order of the FAA

and terminates the proceeding.

Subpart H--Judicial Review

Sec. 16.247 Judicial review of a final decision and order.

(a) A person may seek judicial review, in a United States Court of

Appeals, of a final decision and order of the Associate Administrator

as provided in 49 U.S.C. 46110 or section 519(b)(4) of the Airport and

Airway Improvement Act of 1982, as amended, (AAIA), 49 U.S.C. 47106(d)

and 47111(d). A party seeking judicial review of a final decision and

order shall file a petition for review with the Court not later than 60

days after a final decision and order under the AAIA has been served on

the party or within 60 days after the entry of an order under 49 U.S.C.

40101 et seq.

(b) The following do not constitute final decisions and orders

subject to judicial review:

(1) An FAA decision to dismiss a complaint without prejudice, as

set forth in Sec. 16.27;

(2) A Director's determination;

(3) An initial decision issued by a hearing officer at the

conclusion of a hearing;

(4) A Director's determination or an initial decision of a hearing

officer that becomes the final decision of the Associate Administrator

because it was not appealed within the applicable time periods provided

under Secs. 16.33(b) and 16.241(b).

Subpart I--Ex Parte Communications

Sec. 16.301 Definitions.

As used in this subpart:

Decisional employee means the Administrator, Deputy Administrator,

Associate Administrator, Director, hearing officer, or other FAA

employee who is or who may reasonably be expected to be involved in the

decisional process of the proceeding.

Ex parte communication means an oral or written communication not

on the public record with respect to which reasonable prior notice to

all parties is not given, but it shall not include requests for status

reports on any matter or proceeding covered by this part, or

communications between FAA employees who participate as parties to a

hearing pursuant to 16.203(b) of this part and other parties to a

hearing.

Sec. 16.303 Prohibited ex parte communications.

(a) The prohibitions of this section shall apply from the time a

proceeding is noticed for hearing unless the person responsible for the

communication has knowledge that it will be noticed, in which case the

prohibitions shall apply at the time of the acquisition of such

knowledge.

(b) Except to the extent required for the disposition of ex parte

matters as authorized by law:

(1) No interested person outside the FAA and no FAA employee

participating as a party shall make or knowingly cause to be made to

any decisional employee an ex parte communication relevant to the

merits of the proceeding;

(2) No FAA employee shall make or knowingly cause to be made to any

interested person outside the FAA an ex parte communication relevant to

the merits of the proceeding; or

(3) Ex parte communications regarding solely matters of agency

procedure or practice are not prohibited by this section.

Sec. 16.305 Procedures for handling ex parte communications.

A decisional employee who receives or who makes or knowingly causes

to be made a communication prohibited by Sec. 16.303 shall place in the

public record of the proceeding:

(a) All such written communications;

(b) Memoranda stating the substance of all such oral

communications; and

all oral responses, to the materials described in paragraphs (a) and

(b) of this section.

Sec. 16.307 Requirement to show cause and imposition of sanction.

(a) Upon receipt of a communication knowingly made or knowingly

caused to be made by a party in violation of Sec. 16.303, the Associate

Administrator or his designee or the hearing officer may, to the extent

consistent with the interests of justice and the policy of the

underlying statutes, require the party to show cause why his or her

claim or interest in the proceeding should not be dismissed, denied,

disregarded, or otherwise adversely affected on account of such

violation.

(b) The Associate Administrator may, to the extent consistent with

the interests of justice and the policy of the underlying statutes

administered by the FAA, consider a violation of this subpart

sufficient grounds for a decision adverse to a party who has knowingly

committed such violation or knowingly caused such violation to occur.

Issued in Washington, DC, on October 8, 1996.

David R. Hinson,

Administrator.

[FR Doc. 96-26180 Filed 10-10-96; 8:45 am]

BILLING CODE 4910-13-M

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.