Last updated on January 8th, 2025 at 02:16 am
Title 14—Aeronautics and Space–Volume 1
CHAPTER I—FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
SUBCHAPTER A—DEFINITIONS AND GENERAL REQUIREMENTS
PART 1—DEFINITIONS AND ABBREVIATIONS
§ 1.1 General definitions.
As used in Subchapters A through K of this chapter, unless the context requires otherwise:
Administrator means the Federal Aviation Administrator or any person to whom he has delegated his authority in the matter concerned.
Aerodynamic coefficients means non-dimensional coefficients for aerodynamic forces and moments.
Air carrier means a person who undertakes directly by lease, or other arrangement, to engage in air transportation.
Air commerce means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or navigation of aircraft within the limits of any Federal airway or any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign air commerce.
Aircraft means a device that is used or intended to be used for flight in the air.
Aircraft engine means an engine that is used or intended to be used for propelling aircraft. It includes turbosuperchargers, appurtenances, and accessories necessary for its functioning, but does not include propellers.
Airframe means the fuselage, booms, nacelles, cowlings, fairings, airfoil surfaces (including rotors but excluding propellers and rotating airfoils of engines), and landing gear of an aircraft and their accessories and controls.
Airplane means an engine-driven fixed-wing aircraft heavier than air, that is supported in flight by the dynamic reaction of the air against its wings.
Airport means an area of land or water that is used or intended to be used for the landing and takeoff of aircraft, and includes its buildings and facilities, if any.
Airship means an engine-driven lighter-than-air aircraft that can be steered.
Air traffic means aircraft operating in the air or on an airport surface, exclusive of loading ramps and parking areas.
Air traffic clearance means an authorization by air traffic control, for the purpose of preventing collision between known aircraft, for an aircraft to proceed under specified traffic conditions within controlled airspace.
Air traffic control means a service operated by appropriate authority to promote the safe, orderly, and expeditious flow of air traffic.
Air Traffic Service (ATS) route is a specified route designated for channeling the flow of traffic as necessary for the provision of air traffic services. The term “ATS route” refers to a variety of airways, including jet routes, area navigation (RNAV) routes, and arrival and departure routes. An ATS route is defined by route specifications, which may include:
(1) An ATS route designator;
(2) The path to or from significant points;
(3) Distance between significant points;
(4) Reporting requirements; and
(5) The lowest safe altitude determined by the appropriate authority.
Air transportation means interstate, overseas, or foreign air transportation or the transportation of mail by aircraft.
Alert Area. An alert area is established to inform pilots of a specific area wherein a high volume of pilot training or an unusual type of aeronautical activity is conducted.
Alternate airport means an airport at which an aircraft may land if a landing at the intended airport becomes inadvisable.
Altitude engine means a reciprocating aircraft engine having a rated takeoff power that is producible from sea level to an established higher altitude.
Amateur rocket means an unmanned rocket that:
(1) Is propelled by a motor or motors having a combined total impulse of 889,600 Newton-seconds (200,000 pound-seconds) or less; and
(2) Cannot reach an altitude greater than 150 kilometers (93.2 statute miles) above the earth’s surface.
Appliance means any instrument, mechanism, equipment, part, apparatus, appurtenance, or accessory, including communications equipment, that is used or intended to be used in operating or controlling an aircraft in flight, is installed in or attached to the aircraft, and is not part of an airframe, engine, or propeller.
Approved, unless used with reference to another person, means approved by the FAA or any person to whom the FAA has delegated its authority in the matter concerned, or approved under the provisions of a bilateral agreement between the United States and a foreign country or jurisdiction.
Area navigation (RNAV) is a method of navigation that permits aircraft operations on any desired flight path.
Area navigation (RNAV) route is an ATS route based on RNAV that can be used by suitably equipped aircraft.
Armed Forces means the Army, Navy, Air Force, Marine Corps, and Coast Guard, including their regular and reserve components and members serving without component status.
Autorotation means a rotorcraft flight condition in which the lifting rotor is driven entirely by action of the air when the rotorcraft is in motion.
Auxiliary rotor means a rotor that serves either to counteract the effect of the main rotor torque on a rotorcraft or to maneuver the rotorcraft about one or more of its three principal axes.
Balloon means a lighter-than-air aircraft that is not engine driven, and that sustains flight through the use of either gas buoyancy or an airborne heater.
Brake horsepower means the power delivered at the propeller shaft (main drive or main output) of an aircraft engine.
Calibrated airspeed means the indicated airspeed of an aircraft, corrected for position and instrument error. Calibrated airspeed is equal to true airspeed in standard atmosphere at sea level.
Canard means the forward wing of a canard configuration and may be a fixed, movable, or variable geometry surface, with or without control surfaces.
Canard configuration means a configuration in which the span of the forward wing is substantially less than that of the main wing.
Category:
(1) As used with respect to the certification, ratings, privileges, and limitations of airmen, means a broad classification of aircraft. Examples include: airplane; rotorcraft; glider; and lighter-than-air; and
(2) As used with respect to the certification of aircraft, means a grouping of aircraft based upon intended use or operating limitations. Examples include: transport, normal, utility, acrobatic, limited, restricted, and provisional.
Category A, with respect to transport category rotorcraft, means multiengine rotorcraft designed with engine and system isolation features specified in Part 29 and utilizing scheduled takeoff and landing operations under a critical engine failure concept which assures adequate designated surface area and adequate performance capability for continued safe flight in the event of engine failure.
Category B, with respect to transport category rotorcraft, means single-engine or multiengine rotorcraft which do not fully meet all Category A standards. Category B rotorcraft have no guaranteed stay-up ability in the event of engine failure and unscheduled landing is assumed.
Category II operations, with respect to the operation of aircraft, means a straight-in ILS approach to the runway of an airport under a Category II ILS instrument approach procedure issued by the Administrator or other appropriate authority.
Category III operations, with respect to the operation of aircraft, means an ILS approach to, and landing on, the runway of an airport using a Category III ILS instrument approach procedure issued by the Administrator or other appropriate authority.
Ceiling means the height above the earth’s surface of the lowest layer of clouds or obscuring phenomena that is reported as “broken”, “overcast”, or “obscuration”, and not classified as “thin” or “partial”.
Civil aircraft means aircraft other than public aircraft.
Class:
(1) As used with respect to the certification, ratings, privileges, and limitations of airmen, means a classification of aircraft within a category having similar operating characteristics. Examples include: single engine; multiengine; land; water; gyroplane; helicopter; airship; and free balloon; and
(2) As used with respect to the certification of aircraft, means a broad grouping of aircraft having similar characteristics of propulsion, flight, or landing. Examples include: airplane; rotorcraft; glider; balloon; landplane; and seaplane.
Clearway means:
(1) For turbine engine powered airplanes certificated after August 29, 1959, an area beyond the runway, not less than 500 feet wide, centrally located about the extended centerline of the runway, and under the control of the airport authorities. The clearway is expressed in terms of a clearway plane, extending from the end of the runway with an upward slope not exceeding 1.25 percent, above which no object nor any terrain protrudes. However, threshold lights may protrude above the plane if their height above the end of the runway is 26 inches or less and if they are located to each side of the runway.
(2) For turbine engine powered airplanes certificated after September 30, 1958, but before August 30, 1959, an area beyond the takeoff runway extending no less than 300 feet on either side of the extended centerline of the runway, at an elevation no higher than the elevation of the end of the runway, clear of all fixed obstacles, and under the control of the airport authorities.
Climbout speed, with respect to rotorcraft, means a referenced airspeed which results in a flight path clear of the height-velocity envelope during initial climbout.
Commercial operator means a person who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property, other than as an air carrier or foreign air carrier or under the authority of Part 375 of this title. Where it is doubtful that an operation is for “compensation or hire”, the test applied is whether the carriage by air is merely incidental to the person’s other business or is, in itself, a major enterprise for profit.
Configuration, Maintenance, and Procedures (CMP) document means a document approved by the FAA that contains minimum configuration, operating, and maintenance requirements, hardware life-limits, and Master Minimum Equipment List (MMEL) constraints necessary for an airplane-engine combination to meet ETOPS type design approval requirements.
Consensus standard means, for the purpose of certificating light-sport aircraft, an industry-developed consensus standard that applies to aircraft design, production, and airworthiness. It includes, but is not limited to, standards for aircraft design and performance, required equipment, manufacturer quality assurance systems, production acceptance test procedures, operating instructions, maintenance and inspection procedures, identification and recording of major repairs and major alterations, and continued airworthiness.
Controlled airspace means an airspace of defined dimensions within which air traffic control service is provided to IFR flights and to VFR flights in accordance with the airspace classification.
Controlled airspace is a generic term that covers Class A, Class B, Class C, Class D, and Class E airspace.
Controlled Firing Area. A controlled firing area is established to contain activities, which if not conducted in a controlled environment, would be hazardous to nonparticipating aircraft.
Crewmember means a person assigned to perform duty in an aircraft during flight time.
Critical altitude means the maximum altitude at which, in standard atmosphere, it is possible to maintain, at a specified rotational speed, a specified power or a specified manifold pressure. Unless otherwise stated, the critical altitude is the maximum altitude at which it is possible to maintain, at the maximum continuous rotational speed, one of the following:
(1) The maximum continuous power, in the case of engines for which this power rating is the same at sea level and at the rated altitude.
(2) The maximum continuous rated manifold pressure, in the case of engines, the maximum continuous power of which is governed by a constant manifold pressure.
Critical engine means the engine whose failure would most adversely affect the performance or handling qualities of an aircraft.
Decision altitude (DA) is a specified altitude in an instrument approach procedure at which the pilot must decide whether to initiate an immediate missed approach if the pilot does not see the required visual reference, or to continue the approach. Decision altitude is expressed in feet above mean sea level.
Decision height (DH) is a specified height above the ground in an instrument approach procedure at which the pilot must decide whether to initiate an immediate missed approach if the pilot does not see the required visual reference, or to continue the approach. Decision height is expressed in feet above ground level.
Early ETOPS means ETOPS type design approval obtained without gaining non-ETOPS service experience on the candidate airplane-engine combination certified for ETOPS.
EFVS operation means an operation in which visibility conditions require an EFVS to be used in lieu of natural vision to perform an approach or landing, determine enhanced flight visibility, identify required visual references, or conduct a rollout.
Enhanced flight visibility (EFV) means the average forward horizontal distance, from the cockpit of an aircraft in flight, at which prominent topographical objects may be clearly distinguished and identified by day or night by a pilot using an enhanced flight vision system.
Enhanced flight vision system (EFVS) means an installed aircraft system which uses an electronic means to provide a display of the forward external scene topography (the natural or manmade features of a place or region especially in a way to show their relative positions and elevation) through the use of imaging sensors, including but not limited to forward-looking infrared, millimeter wave radiometry, millimeter wave radar, or low-light level image intensification. An EFVS includes the display element, sensors, computers and power supplies, indications, and controls.
Equivalent airspeed means the calibrated airspeed of an aircraft corrected for adiabatic compressible flow for the particular altitude. Equivalent airspeed is equal to calibrated airspeed in standard atmosphere at sea level.
ETOPS Significant System means an airplane system, including the propulsion system, the failure or malfunctioning of which could adversely affect the safety of an ETOPS flight, or the continued safe flight and landing of an airplane during an ETOPS diversion. Each ETOPS significant system is either an ETOPS group 1 significant system or an ETOPS group 2 significant system.
(1) An ETOPS group 1 Significant System—
(i) Has fail-safe characteristics directly linked to the degree of redundancy provided by the number of engines on the airplane.
(ii) Is a system, the failure or malfunction of which could result in an IFSD, loss of thrust control, or other power loss.
(iii) Contributes significantly to the safety of an ETOPS diversion by providing additional redundancy for any system power source lost as a result of an inoperative engine.
(iv) Is essential for prolonged operation of an airplane at engine inoperative altitudes.
(2) An ETOPS group 2 significant system is an ETOPS significant system that is not an ETOPS group 1 significant system.
Extended Operations (ETOPS) means an airplane flight operation, other than an all-cargo operation in an airplane with more than two engines, during which a portion of the flight is conducted beyond a time threshold identified in part 121 or part 135 of this chapter that is determined using an approved one-engine-inoperative cruise speed under standard atmospheric conditions in still air.
Extended over-water operation means—
(1) With respect to aircraft other than helicopters, an operation over water at a horizontal distance of more than 50 nautical miles from the nearest shoreline; and
(2) With respect to helicopters, an operation over water at a horizontal distance of more than 50 nautical miles from the nearest shoreline and more than 50 nautical miles from an off-shore heliport structure.
External load means a load that is carried, or extends, outside of the aircraft fuselage.
External-load attaching means means the structural components used to attach an external load to an aircraft, including external-load containers, the backup structure at the attachment points, and any quick-release device used to jettison the external load.
Final approach fix (FAF) defines the beginning of the final approach segment and the point where final segment descent may begin.
Final takeoff speed means the speed of the airplane that exists at the end of the takeoff path in the en route configuration with one engine inoperative.
Fireproof—
(1) With respect to materials and parts used to confine fire in a designated fire zone, means the capacity to withstand at least as well as steel in dimensions appropriate for the purpose for which they are used, the heat produced when there is a severe fire of extended duration in that zone; and
(2) With respect to other materials and parts, means the capacity to withstand the heat associated with fire at least as well as steel in dimensions appropriate for the purpose for which they are used.
Fire resistant—
(1) With respect to sheet or structural members means the capacity to withstand the heat associated with fire at least as well as aluminum alloy in dimensions appropriate for the purpose for which they are used; and
(2) With respect to fluid-carrying lines, fluid system parts, wiring, air ducts, fittings, and powerplant controls, means the capacity to perform the intended functions under the heat and other conditions likely to occur when there is a fire at the place concerned.
Flame resistant means not susceptible to combustion to the point of propagating a flame, beyond safe limits, after the ignition source is removed.
Flammable, with respect to a fluid or gas, means susceptible to igniting readily or to exploding.
Flap extended speed means the highest speed permissible with wing flaps in a prescribed extended position.
Flash resistant means not susceptible to burning violently when ignited.
Flightcrew member means a pilot, flight engineer, or flight navigator assigned to duty in an aircraft during flight time.
Flight level means a level of constant atmospheric pressure related to a reference datum of 29.92 inches of mercury. Each is stated in three digits that represent hundreds of feet. For example, flight level 250 represents a barometric altimeter indication of 25,000 feet; flight level 255, an indication of 25,500 feet.
Flight plan means specified information, relating to the intended flight of an aircraft, that is filed orally or in writing with air traffic control.
Flight simulation training device (FSTD) means a full flight simulator or a flight training device.
Flight time means:
(1) Pilot time that commences when an aircraft moves under its own power for the purpose of flight and ends when the aircraft comes to rest after landing; or
(2) For a glider without self-launch capability, pilot time that commences when the glider is towed for the purpose of flight and ends when the glider comes to rest after landing.
Flight training device (FTD) means a replica of aircraft instruments, equipment, panels, and controls in an open flight deck area or an enclosed aircraft cockpit replica. It includes the equipment and computer programs necessary to represent aircraft (or set of aircraft) operations in ground and flight conditions having the full range of capabilities of the systems installed in the device as described in part 60 of this chapter and the qualification performance standard (QPS) for a specific FTD qualification level.
Flight visibility means the average forward horizontal distance, from the cockpit of an aircraft in flight, at which prominent unlighted objects may be seen and identified by day and prominent lighted objects may be seen and identified by night.
Foreign air carrier means any person other than a citizen of the United States, who undertakes directly, by lease or other arrangement, to engage in air transportation.
Foreign air commerce means the carriage by aircraft of persons or property for compensation or hire, or the carriage of mail by aircraft, or the operation or navigation of aircraft in the conduct or furtherance of a business or vocation, in commerce between a place in the United States and any place outside thereof; whether such commerce moves wholly by aircraft or partly by aircraft and partly by other forms of transportation.
Foreign air transportation means the carriage by aircraft of persons or property as a common carrier for compensation or hire, or the carriage of mail by aircraft, in commerce between a place in the United States and any place outside of the United States, whether that commerce moves wholly by aircraft or partly by aircraft and partly by other forms of transportation.
Forward wing means a forward lifting surface of a canard configuration or tandem-wing configuration airplane. The surface may be a fixed, movable, or variable geometry surface, with or without control surfaces.
Full flight simulator (FFS) means a replica of a specific type; or make, model, and series aircraft cockpit. It includes the assemblage of equipment and computer programs necessary to represent aircraft operations in ground and flight conditions, a visual system providing an out-of-the-cockpit view, a system that provides cues at least equivalent to those of a three-degree-of-freedom motion system, and has the full range of capabilities of the systems installed in the device as described in part 60 of this chapter and the qualification performance standards (QPS) for a specific FFS qualification level.
Glider means a heavier-than-air aircraft, that is supported in flight by the dynamic reaction of the air against its lifting surfaces and whose free flight does not depend principally on an engine.
Ground visibility means prevailing horizontal visibility near the earth’s surface as reported by the United States National Weather Service or an accredited observer.
Go-around power or thrust setting means the maximum allowable in-flight power or thrust setting identified in the performance data.
Gyrodyne means a rotorcraft whose rotors are normally engine-driven for takeoff, hovering, and landing, and for forward flight through part of its speed range, and whose means of propulsion, consisting usually of conventional propellers, is independent of the rotor system.
Gyroplane means a rotorcraft whose rotors are not engine-driven, except for initial starting, but are made to rotate by action of the air when the rotorcraft is moving; and whose means of propulsion, consisting usually of conventional propellers, is independent of the rotor system.
Helicopter means a rotorcraft that, for its horizontal motion, depends principally on its engine-driven rotors.
Heliport means an area of land, water, or structure used or intended to be used for the landing and takeoff of helicopters.
Idle thrust means the jet thrust obtained with the engine power control level set at the stop for the least thrust position at which it can be placed.
IFR conditions means weather conditions below the minimum for flight under visual flight rules.
IFR over-the-top, with respect to the operation of aircraft, means the operation of an aircraft over-the-top on an IFR flight plan when cleared by air traffic control to maintain “VFR conditions” or “VFR conditions on top”.
Indicated airspeed means the speed of an aircraft as shown on its pitot static airspeed indicator calibrated to reflect standard atmosphere adiabatic compressible flow at sea level uncorrected for airspeed system errors.
In-flight shutdown (IFSD) means, for ETOPS only, when an engine ceases to function (when the airplane is airborne) and is shutdown, whether self induced, flightcrew initiated or caused by an external influence. The FAA considers IFSD for all causes: for example, flameout, internal failure, flightcrew initiated shutdown, foreign object ingestion, icing, inability to obtain or control desired thrust or power, and cycling of the start control, however briefly, even if the engine operates normally for the remainder of the flight. This definition excludes the airborne cessation of the functioning of an engine when immediately followed by an automatic engine relight and when an engine does not achieve desired thrust or power but is not shutdown.
Instrument means a device using an internal mechanism to show visually or aurally the attitude, altitude, or operation of an aircraft or aircraft part. It includes electronic devices for automatically controlling an aircraft in flight.
Instrument approach procedure (IAP) is a series of predetermined maneuvers by reference to flight instruments with specified protection from obstacles and assurance of navigation signal reception capability. It begins from the initial approach fix, or where applicable, from the beginning of a defined arrival route to a point:
(1) From which a landing can be completed; or
(2) If a landing is not completed, to a position at which holding or en route obstacle clearance criteria apply.
Interstate air commerce means the carriage by aircraft of persons or property for compensation or hire, or the carriage of mail by aircraft, or the operation or navigation of aircraft in the conduct or furtherance of a business or vocation, in commerce between a place in any State of the United States, or the District of Columbia, and a place in any other State of the United States, or the District of Columbia; or between places in the same State of the United States through the airspace over any place outside thereof; or between places in the same territory or possession of the United States, or the District of Columbia.
Interstate air transportation means the carriage by aircraft of persons or property as a common carrier for compensation or hire, or the carriage of mail by aircraft in commerce:
(1) Between a place in a State or the District of Columbia and another place in another State or the District of Columbia;
(2) Between places in the same State through the airspace over any place outside that State; or
(3) Between places in the same possession of the United States;
Intrastate air transportation means the carriage of persons or property as a common carrier for compensation or hire, by turbojet-powered aircraft capable of carrying thirty or more persons, wholly within the same State of the United States.
Kite means a framework, covered with paper, cloth, metal, or other material, intended to be flown at the end of a rope or cable, and having as its only support the force of the wind moving past its surfaces.
Landing gear extended speed means the maximum speed at which an aircraft can be safely flown with the landing gear extended.
Landing gear operating speed means the maximum speed at which the landing gear can be safely extended or retracted.
Large aircraft means aircraft of more than 12,500 pounds, maximum certificated takeoff weight.
Light-sport aircraft means an aircraft, other than a helicopter or powered-lift that, since its original certification, has continued to meet the following:
(1) A maximum takeoff weight of not more than—
(i) 1,320 pounds (600 kilograms) for aircraft not intended for operation on water; or
(ii) 1,430 pounds (650 kilograms) for an aircraft intended for operation on water.
(2) A maximum airspeed in level flight with maximum continuous power (V
(3) A maximum never-exceed speed (V
(4) A maximum stalling speed or minimum steady flight speed without the use of lift-enhancing devices (V
(5) A maximum seating capacity of no more than two persons, including the pilot.
(6) A single, reciprocating engine, if powered.
(7) A fixed or ground-adjustable propeller if a powered aircraft other than a powered glider.
(8) A fixed or feathering propeller system if a powered glider.
(9) A fixed-pitch, semi-rigid, teetering, two-blade rotor system, if a gyroplane.
(10) A nonpressurized cabin, if equipped with a cabin.
(11) Fixed landing gear, except for an aircraft intended for operation on water or a glider.
(12) Fixed or retractable landing gear, or a hull, for an aircraft intended for operation on water.
(13) Fixed or retractable landing gear for a glider.
Lighter-than-air aircraft means aircraft that can rise and remain suspended by using contained gas weighing less than the air that is displaced by the gas.
Load factor means the ratio of a specified load to the total weight of the aircraft. The specified load is expressed in terms of any of the following: aerodynamic forces, inertia forces, or ground or water reactions.
Long-range communication system (LRCS). A system that uses satellite relay, data link, high frequency, or another approved communication system which extends beyond line of sight.
Long-range navigation system (LRNS). An electronic navigation unit that is approved for use under instrument flight rules as a primary means of navigation, and has at least one source of navigational input, such as inertial navigation system or global positioning system.
Mach number means the ratio of true airspeed to the speed of sound.
Main rotor means the rotor that supplies the principal lift to a rotorcraft.
Maintenance means inspection, overhaul, repair, preservation, and the replacement of parts, but excludes preventive maintenance.
Major alteration means an alteration not listed in the aircraft, aircraft engine, or propeller specifications—
(1) That might appreciably affect weight, balance, structural strength, performance, powerplant operation, flight characteristics, or other qualities affecting airworthiness; or
(2) That is not done according to accepted practices or cannot be done by elementary operations.
Major repair means a repair:
(1) That, if improperly done, might appreciably affect weight, balance, structural strength, performance, powerplant operation, flight characteristics, or other qualities affecting airworthiness; or
(2) That is not done according to accepted practices or cannot be done by elementary operations.
Manifold pressure means absolute pressure as measured at the appropriate point in the induction system and usually expressed in inches of mercury.
Maximum engine overtorque, as it applies to turbopropeller and turboshaft engines incorporating free power turbines for all ratings except one engine inoperative (OEI) ratings of two minutes or less, means the maximum torque of the free power turbine rotor assembly, the inadvertent occurrence of which, for periods of up to 20 seconds, will not require rejection of the engine from service, or any maintenance action other than to correct the cause.
Maximum speed for stability characteristics, V
Medical certificate means acceptable evidence of physical fitness on a form prescribed by the Administrator.
Military operations area. A military operations area (MOA) is airspace established outside Class A airspace to separate or segregate certain nonhazardous military activities from IFR Traffic and to identify for VFR traffic where theses activities are conducted.
Minimum descent altitude (MDA) is the lowest altitude specified in an instrument approach procedure, expressed in feet above mean sea level, to which descent is authorized on final approach or during circle-to-land maneuvering until the pilot sees the required visual references for the heliport or runway of intended landing.
Minor alteration means an alteration other than a major alteration.
Minor repair means a repair other than a major repair.
National defense airspace means airspace established by a regulation prescribed, or an order issued under, 49 U.S.C. 40103(b)(3).
Navigable airspace means airspace at and above the minimum flight altitudes prescribed by or under this chapter, including airspace needed for safe takeoff and landing.
Night means the time between the end of evening civil twilight and the beginning of morning civil twilight, as published in the Air Almanac, converted to local time.
Nonprecision approach procedure means a standard instrument approach procedure in which no electronic glide slope is provided.
Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose (except as provided in § 91.13 of this chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise).
Operational control, with respect to a flight, means the exercise of authority over initiating, conducting or terminating a flight.
Overseas air commerce means the carriage by aircraft of persons or property for compensation or hire, or the carriage of mail by aircraft, or the operation or navigation of aircraft in the conduct or furtherance of a business or vocation, in commerce between a place in any State of the United States, or the District of Columbia, and any place in a territory or possession of the United States; or between a place in a territory or possession of the United States, and a place in any other territory or possession of the United States.
Overseas air transportation means the carriage by aircraft of persons or property as a common carrier for compensation or hire, or the carriage of mail by aircraft, in commerce:
(1) Between a place in a State or the District of Columbia and a place in a possession of the United States; or
(2) Between a place in a possession of the United States and a place in another possession of the United States; whether that commerce moves wholly by aircraft or partly by aircraft and partly by other forms of transportation.
Over-the-top means above the layer of clouds or other obscuring phenomena forming the ceiling.
Parachute means a device used or intended to be used to retard the fall of a body or object through the air.
Person means an individual, firm, partnership, corporation, company, association, joint-stock association, or governmental entity. It includes a trustee, receiver, assignee, or similar representative of any of them.
Pilotage means navigation by visual reference to landmarks.
Pilot in command means the person who:
(1) Has final authority and responsibility for the operation and safety of the flight;
(2) Has been designated as pilot in command before or during the flight; and
(3) Holds the appropriate category, class, and type rating, if appropriate, for the conduct of the flight.
Pitch setting means the propeller blade setting as determined by the blade angle measured in a manner, and at a radius, specified by the instruction manual for the propeller.
Portable oxygen concentrator means a medical device that separates oxygen from other gasses in ambient air and dispenses this concentrated oxygen to the user.
Positive control means control of all air traffic, within designated airspace, by air traffic control.
Powered parachute means a powered aircraft comprised of a flexible or semi-rigid wing connected to a fuselage so that the wing is not in position for flight until the aircraft is in motion. The fuselage of a powered parachute contains the aircraft engine, a seat for each occupant and is attached to the aircraft’s landing gear.
Powered-lift means a heavier-than-air aircraft capable of vertical takeoff, vertical landing, and low speed flight that depends principally on engine-driven lift devices or engine thrust for lift during these flight regimes and on nonrotating airfoil(s) for lift during horizontal flight.
Precision approach procedure means a standard instrument approach procedure in which an electronic glide slope is provided, such as ILS and PAR.
Preventive maintenance means simple or minor preservation operations and the replacement of small standard parts not involving complex assembly operations.
Prohibited area. A prohibited area is airspace designated under part 73 within which no person may operate an aircraft without the permission of the using agency.
Propeller means a device for propelling an aircraft that has blades on an engine-driven shaft and that, when rotated, produces by its action on the air, a thrust approximately perpendicular to its plane of rotation. It includes control components normally supplied by its manufacturer, but does not include main and auxiliary rotors or rotating airfoils of engines.
Public aircraft means any of the following aircraft when not being used for a commercial purpose or to carry an individual other than a crewmember or qualified non-crewmenber:
(1) An aircraft used only for the United States Government; an aircraft owned by the Government and operated by any person for purposes related to crew training, equipment development, or demonstration; an aircraft owned and operated by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments; or an aircraft exclusively leased for at least 90 continuous days by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments.
(i) For the sole purpose of determining public aircraft status, commercial purposes means the transportation of persons or property for compensation or hire, but does not include the operation of an aircraft by the armed forces for reimbursement when that reimbursement is required by any Federal statute, regulation, or directive, in effect on November 1, 1999, or by one government on behalf of another government under a cost reimbursement agreement if the government on whose behalf the operation is conducted certifies to the Administrator of the Federal Aviation Administration that the operation is necessary to respond to a significant and imminent threat to life or property (including natural resources) and that no service by a private operator is reasonably available to meet the threat.
(ii) For the sole purpose of determining public aircraft status, governmental function means an activity undertaken by a government, such as national defense, intelligence missions, firefighting, search and rescue, law enforcement (including transport of prisoners, detainees, and illegal aliens), aeronautical research, biological or geological resource management (including data collection on civil aviation systems undergoing research, development, test, or evaluation at a test range (as such term is defined in 49 U.S.C. 44801)), infrastructure inspections, or any other activity undertaken by a governmental entity that the Administrator determines is inherently governmental.
(iii) For the sole purpose of determining public aircraft status, qualified non-crewmember means an individual, other than a member of the crew, aboard an aircraft operated by the armed forces or an intelligence agency of the United States Government, or whose presence is required to perform, or is associated with the performance of, a governmental function.
(2) An aircraft owned or operated by the armed forces or chartered to provide transportation to the armed forces if—
(i) The aircraft is operated in accordance with title 10 of the United States Code;
(ii) The aircraft is operated in the performance of a governmental function under title 14, 31, 32, or 50 of the United States Code and the aircraft is not used for commercial purposes; or
(iii) The aircraft is chartered to provide transportation to the armed forces and the Secretary of Defense (or the Secretary of the department in which the Coast Guard is operating) designates the operation of the aircraft as being required in the national interest.
(3) An aircraft owned or operated by the National Guard of a State, the District of Columbia, or any territory or possession of the United States, and that meets the criteria of paragraph (2) of this definition, qualifies as a public aircraft only to the extent that it is operated under the direct control of the Department of Defense.
Rated 30-second OEI Power, with respect to rotorcraft turbine engines, means the approved brake horsepower developed under static conditions at specified altitudes and temperatures within the operating limitations established for the engine under part 33 of this chapter, for continuation of one flight operation after the failure or shutdown of one engine in multiengine rotorcraft, for up to three periods of use no longer than 30 seconds each in any one flight, and followed by mandatory inspection and prescribed maintenance action.
Rated 2-minute OEI Power, with respect to rotorcraft turbine engines, means the approved brake horsepower developed under static conditions at specified altitudes and temperatures within the operating limitations established for the engine under part 33 of this chapter, for continuation of one flight operation after the failure or shutdown of one engine in multiengine rotorcraft, for up to three periods of use no longer than 2 minutes each in any one flight, and followed by mandatory inspection and prescribed maintenance action.
Rated continuous OEI power, with respect to rotorcraft turbine engines, means the approved brake horsepower developed under static conditions at specified altitudes and temperatures within the operating limitations established for the engine under part 33 of this chapter, and limited in use to the time required to complete the flight after the failure or shutdown of one engine of a multiengine rotorcraft.
Rated maximum continuous augmented thrust, with respect to turbojet engine type certification, means the approved jet thrust that is developed statically or in flight, in standard atmosphere at a specified altitude, with fluid injection or with the burning of fuel in a separate combustion chamber, within the engine operating limitations established under Part 33 of this chapter, and approved for unrestricted periods of use.
Rated maximum continuous power, with respect to reciprocating, turbopropeller, and turboshaft engines, means the approved brake horsepower that is developed statically or in flight, in standard atmosphere at a specified altitude, within the engine operating limitations established under part 33, and approved for unrestricted periods of use.
Rated maximum continuous thrust, with respect to turbojet engine type certification, means the approved jet thrust that is developed statically or in flight, in standard atmosphere at a specified altitude, without fluid injection and without the burning of fuel in a separate combustion chamber, within the engine operating limitations established under part 33 of this chapter, and approved for unrestricted periods of use.
Rated takeoff augmented thrust, with respect to turbojet engine type certification, means the approved jet thrust that is developed statically under standard sea level conditions, with fluid injection or with the burning of fuel in a separate combustion chamber, within the engine operating limitations established under part 33 of this chapter, and limited in use to periods of not over 5 minutes for takeoff operation.
Rated takeoff power, with respect to reciprocating, turbopropeller, and turboshaft engine type certification, means the approved brake horsepower that is developed statically under standard sea level conditions, within the engine operating limitations established under part 33, and limited in use to periods of not over 5 minutes for takeoff operation.
Rated takeoff thrust, with respect to turbojet engine type certification, means the approved jet thrust that is developed statically under standard sea level conditions, without fluid injection and without the burning of fuel in a separate combustion chamber, within the engine operating limitations established under part 33 of this chapter, and limited in use to periods of not over 5 minutes for takeoff operation.
Rated 30-minute OEI power, with respect to rotorcraft turbine engines, means the approved brake horsepower developed under static conditions at specified altitudes and temperatures within the operating limitations established for the engine under part 33 of this chapter, and limited in use to one period of use no longer than 30 minutes after the failure or shutdown of one engine of a multiengine rotorcraft.
Rated 2
Rating means a statement that, as a part of a certificate, sets forth special conditions, privileges, or limitations.
Reference landing speed means the speed of the airplane, in a specified landing configuration, at the point where it descends through the 50 foot height in the determination of the landing distance.
Reporting point means a geographical location in relation to which the position of an aircraft is reported.
Restricted area. A restricted area is airspace designated under Part 73 within which the flight of aircraft, while not wholly prohibited, is subject to restriction.
Rocket means an aircraft propelled by ejected expanding gases generated in the engine from self-contained propellants and not dependent on the intake of outside substances. It includes any part which becomes separated during the operation.
Rotorcraft means a heavier-than-air aircraft that depends principally for its support in flight on the lift generated by one or more rotors.
Rotorcraft-load combination means the combination of a rotorcraft and an external-load, including the external-load attaching means. Rotorcraft-load combinations are designated as Class A, Class B, Class C, and Class D, as follows:
(1) Class A rotorcraft-load combination means one in which the external load cannot move freely, cannot be jettisoned, and does not extend below the landing gear.
(2) Class B rotorcraft-load combination means one in which the external load is jettisonable and is lifted free of land or water during the rotorcraft operation.
(3) Class C rotorcraft-load combination means one in which the external load is jettisonable and remains in contact with land or water during the rotorcraft operation.
(4) Class D rotorcraft-load combination means one in which the external-load is other than a Class A, B, or C and has been specifically approved by the Administrator for that operation.
Route segment is a portion of a route bounded on each end by a fix or navigation aid (NAVAID).
Sea level engine means a reciprocating aircraft engine having a rated takeoff power that is producible only at sea level.
Second in command means a pilot who is designated to be second in command of an aircraft during flight time.
Show, unless the context otherwise requires, means to show to the satisfaction of the Administrator.
Small aircraft means aircraft of 12,500 pounds or less, maximum certificated takeoff weight.
Small unmanned aircraft means an unmanned aircraft weighing less than 55 pounds on takeoff, including everything that is on board or otherwise attached to the aircraft.
Small unmanned aircraft system (small UAS) means a small unmanned aircraft and its associated elements (including communication links and the components that control the small unmanned aircraft) that are required for the safe and efficient operation of the small unmanned aircraft in the national airspace system.
Special VFR conditions mean meteorological conditions that are less than those required for basic VFR flight in controlled airspace and in which some aircraft are permitted flight under visual flight rules.
Special VFR operations means aircraft operating in accordance with clearances within controlled airspace in meteorological conditions less than the basic VFR weather minima. Such operations must be requested by the pilot and approved by ATC.
Standard atmosphere means the atmosphere defined in U.S. Standard Atmosphere, 1962 (Geopotential altitude tables).
Stopway means an area beyond the takeoff runway, no less wide than the runway and centered upon the extended centerline of the runway, able to support the airplane during an aborted takeoff, without causing structural damage to the airplane, and designated by the airport authorities for use in decelerating the airplane during an aborted takeoff.
Suitable RNAV system is an RNAV system that meets the required performance established for a type of operation, e.g. IFR; and is suitable for operation over the route to be flown in terms of any performance criteria (including accuracy) established by the air navigation service provider for certain routes (e.g. oceanic, ATS routes, and IAPs). An RNAV system’s suitability is dependent upon the availability of ground and/or satellite navigation aids that are needed to meet any route performance criteria that may be prescribed in route specifications to navigate the aircraft along the route to be flown. Information on suitable RNAV systems is published in FAA guidance material.
Supplemental restraint system means any device that is not installed on the aircraft pursuant to an FAA approval, used to secure an individual inside an aircraft when that person is not properly secured by an FAA-approved safety belt and, if installed, shoulder harness, or an approved child restraint system. It consists of a harness secured around the torso of the individual using the supplemental restraint system and a lanyard that connects the harness to an FAA-approved airframe attachment point inside the aircraft.
Synthetic vision means a computer-generated image of the external scene topography from the perspective of the flight deck that is derived from aircraft attitude, high-precision navigation solution, and database of terrain, obstacles and relevant cultural features.
Synthetic vision system means an electronic means to display a synthetic vision image of the external scene topography to the flight crew.
Takeoff power:
(1) With respect to reciprocating engines, means the brake horsepower that is developed under standard sea level conditions, and under the maximum conditions of crankshaft rotational speed and engine manifold pressure approved for the normal takeoff, and limited in continuous use to the period of time shown in the approved engine specification; and
(2) With respect to turbine engines, means the brake horsepower that is developed under static conditions at a specified altitude and atmospheric temperature, and under the maximum conditions of rotor shaft rotational speed and gas temperature approved for the normal takeoff, and limited in continuous use to the period of time shown in the approved engine specification.
Takeoff safety speed means a referenced airspeed obtained after lift-off at which the required one-engine-inoperative climb performance can be achieved.
Takeoff thrust, with respect to turbine engines, means the jet thrust that is developed under static conditions at a specific altitude and atmospheric temperature under the maximum conditions of rotorshaft rotational speed and gas temperature approved for the normal takeoff, and limited in continuous use to the period of time shown in the approved engine specification.
Tandem wing configuration means a configuration having two wings of similar span, mounted in tandem.
TCAS I means a TCAS that utilizes interrogations of, and replies from, airborne radar beacon transponders and provides traffic advisories to the pilot.
TCAS II means a TCAS that utilizes interrogations of, and replies from airborne radar beacon transponders and provides traffic advisories and resolution advisories in the vertical plane.
TCAS III means a TCAS that utilizes interrogation of, and replies from, airborne radar beacon transponders and provides traffic advisories and resolution advisories in the vertical and horizontal planes to the pilot.
Time in service, with respect to maintenance time records, means the time from the moment an aircraft leaves the surface of the earth until it touches it at the next point of landing.
Traffic pattern means the traffic flow that is prescribed for aircraft landing at, taxiing on, or taking off from, an airport.
True airspeed means the airspeed of an aircraft relative to undisturbed air. True airspeed is equal to equivalent airspeed multiplied by (ρ0/ρ)
Type:
(1) As used with respect to the certification, ratings, privileges, and limitations of airmen, means a specific make and basic model of aircraft, including modifications thereto that do not change its handling or flight characteristics. Examples include: DC-7, 1049, and F-27; and
(2) As used with respect to the certification of aircraft, means those aircraft which are similar in design. Examples include: DC-7 and DC-7C; 1049G and 1049H; and F-27 and F-27F.
(3) As used with respect to the certification of aircraft engines means those engines which are similar in design. For example, JT8D and JT8D-7 are engines of the same type, and JT9D-3A and JT9D-7 are engines of the same type.
United States, in a geographical sense, means (1) the States, the District of Columbia, Puerto Rico, and the possessions, including the territorial waters, and (2) the airspace of those areas.
United States air carrier means a citizen of the United States who undertakes directly by lease, or other arrangement, to engage in air transportation.
Unmanned aircraft means an aircraft operated without the possibility of direct human intervention from within or on the aircraft.
Unmanned aircraft system means an unmanned aircraft and its associated elements (including communication links and the components that control the unmanned aircraft) that are required for the safe and efficient operation of the unmanned aircraft in the airspace of the United States.
VFR over-the-top, with respect to the operation of aircraft, means the operation of an aircraft over-the-top under VFR when it is not being operated on an IFR flight plan.
Warning area. A warning area is airspace of defined dimensions, extending from 3 nautical miles outward from the coast of the United States, that contains activity that may be hazardous to nonparticipating aircraft. The purpose of such warning areas is to warn nonparticipating pilots of the potential danger. A warning area may be located over domestic or international waters or both.
Weight-shift-control aircraft means a powered aircraft with a framed pivoting wing and a fuselage controllable only in pitch and roll by the pilot’s ability to change the aircraft’s center of gravity with respect to the wing. Flight control of the aircraft depends on the wing’s ability to flexibly deform rather than the use of control surfaces.
Winglet or tip fin means an out-of-plane surface extending from a lifting surface. The surface may or may not have control surfaces.
§ 1.2 Abbreviations and symbols.
In Subchapters A through K of this chapter:
AFM means airplane flight manual.
AGL means above ground level.
ALS means approach light system.
APU means auxiliary power unit.
ASR means airport surveillance radar.
ATC means air traffic control.
ATS means Air Traffic Service.
CAMP means continuous airworthiness maintenance program.
CAS means calibrated airspeed.
CAT II means Category II.
CMP means configuration, maintenance, and procedures.
DH means decision height.
DME means distance measuring equipment compatible with TACAN.
EAS means equivalent airspeed.
EFVS means enhanced flight vision system.
Equi-Time Point means a point on the route of flight where the flight time, considering wind, to each of two selected airports is equal.
ETOPS means extended operations.
EWIS, as defined by § 25.1701 of this chapter, means electrical wiring interconnection system.
FAA means Federal Aviation Administration.
FFS means full flight simulator.
FM means fan marker.
FSTD means flight simulation training device.
FTD means flight training device.
GS means glide slope.
HIRL means high-intensity runway light system.
IAS means indicated airspeed.
ICAO means International Civil Aviation Organization.
IFR means instrument flight rules.
IFSD means in-flight shutdown.
ILS means instrument landing system.
IM means ILS inner marker.
INT means intersection.
LDA means localizer-type directional aid.
LFR means low-frequency radio range.
LMM means compass locator at middle marker.
LOC means ILS localizer.
LOM means compass locator at outer marker.
M means mach number.
MAA means maximum authorized IFR altitude.
MALS means medium intensity approach light system.
MALSR means medium intensity approach light system with runway alignment indicator lights.
MCA means minimum crossing altitude.
MDA means minimum descent altitude.
MEA means minimum en route IFR altitude.
MEL means minimum equipment list.
MM means ILS middle marker.
MOCA means minimum obstruction clearance altitude.
MRA means minimum reception altitude.
MSL means mean sea level.
NDB (ADF) means nondirectional beacon (automatic direction finder).
NM means nautical mile.
NOPAC means North Pacific area of operation.
NOPT means no procedure turn required.
OEI means one engine inoperative.
OM means ILS outer marker.
OPSPECS means operations specifications.
PACOTS means Pacific Organized Track System.
PAR means precision approach radar.
PMA means parts manufacturer approval.
POC means portable oxygen concentrator.
PTRS means Performance Tracking and Reporting System.
RAIL means runway alignment indicator light system.
RBN means radio beacon.
RCLM means runway centerline marking.
RCLS means runway centerline light system.
REIL means runway end identification lights.
RFFS means rescue and firefighting services.
RNAV means area navigation.
RR means low or medium frequency radio range station.
RVR means runway visual range as measured in the touchdown zone area.
SALS means short approach light system.
SATCOM means satellite communications.
SSALS means simplified short approach light system.
SSALSR means simplified short approach light system with runway alignment indicator lights.
TACAN means ultra-high frequency tactical air navigational aid.
TAS means true airspeed.
TCAS means a traffic alert and collision avoidance system.
TDZL means touchdown zone lights.
TSO means technical standard order.
TVOR means very high frequency terminal omnirange station.
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VFR means visual flight rules.
VGSI means visual glide slope indicator.
VHF means very high frequency.
VOR means very high frequency omnirange station.
VORTAC means collocated VOR and TACAN.
§ 1.3 Rules of construction.
(a) In Subchapters A through K of this chapter, unless the context requires otherwise:
(1) Words importing the singular include the plural;
(2) Words importing the plural include the singular; and
(3) Words importing the masculine gender include the feminine.
(b) In Subchapters A through K of this chapter, the word:
(1) Shall is used in an imperative sense;
(2) May is used in a permissive sense to state authority or permission to do the act prescribed, and the words “no person may * * *” or “a person may not * * *” mean that no person is required, authorized, or permitted to do the act prescribed; and
(3) Includes means “includes but is not limited to”.
PART 3—GENERAL REQUIREMENTS
Subpart A—General Requirements Concerning Type Certificated Products or Products, Parts, Appliances, or Materials That May Be Used on Type-Certificated Products
§ 3.1 Applicability.
(a) This part applies to any person who makes a record regarding:
(1) A type-certificated product, or
(2) A product, part, appliance or material that may be used on a type-certificated product.
(b) Section 3.5(b) does not apply to records made under part 43 of this chapter.
§ 3.5 Statements about products, parts, appliances and materials.
(a) Definitions. The following terms will have the stated meanings when used in this section:
Airworthy means the aircraft conforms to its type design and is in a condition for safe operation.
Product means an aircraft, aircraft engine, or aircraft propeller.
Record means any writing, drawing, map, recording, tape, film, photograph or other documentary material by which information is preserved or conveyed in any format, including, but not limited to, paper, microfilm, identification plates, stamped marks, bar codes or electronic format, and can either be separate from, attached to or inscribed on any product, part, appliance or material.
(b) Prohibition against fraudulent and intentionally false statements. When conveying information related to an advertisement or sales transaction, no person may make or cause to be made:
(1) Any fraudulent or intentionally false statement in any record about the airworthiness of a type-certificated product, or the acceptability of any product, part, appliance, or material for installation on a type-certificated product.
(2) Any fraudulent or intentionally false reproduction or alteration of any record about the airworthiness of any type-certificated product, or the acceptability of any product, part, appliance, or material for installation on a type-certificated product.
(c) Prohibition against intentionally misleading statements. (1) When conveying information related to an advertisement or sales transaction, no person may make, or cause to be made, a material representation that a type-certificated product is airworthy, or that a product, part, appliance, or material is acceptable for installation on a type-certificated product in any record if that representation is likely to mislead a consumer acting reasonably under the circumstances.
(2) When conveying information related to an advertisement or sales transaction, no person may make, or cause to be made, through the omission of material information, a representation that a type-certificated product is airworthy, or that a product, part, appliance, or material is acceptable for installation on a type-certificated product in any record if that representation is likely to mislead a consumer acting reasonably under the circumstances.
(d) The provisions of § 3.5(b) and § 3.5(c) shall not apply if a person can show that the product is airworthy or that the product, part, appliance or material is acceptable for installation on a type-certificated product.
Subpart B—Security Threat Disqualification
§ 3.200 Effect of Transportation Security Administration notification on a certificate or any part of a certificate held by an individual.
When the Transportation Security Administration (TSA) notifies the FAA that an individual holding a certificate or part of a certificate issued by the FAA poses, or is suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety, the FAA will issue an order amending, modifying, suspending, or revoking any certificate or part of a certificate issued by the FAA.
§ 3.205 Effect of Transportation Security Administration notification on applications by individuals for a certificate or any part of a certificate.
(a) When the TSA notifies the FAA that an individual who has applied for a certificate or any part of a certificate issued by the FAA poses, or is suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety, the FAA will hold the individual’s certificate applications in abeyance pending further notification from the TSA.
(b) When the TSA notifies the FAA that the TSA has made a final security threat determination regarding an individual, the FAA will deny all the individual’s certificate applications. Alternatively, if the TSA notifies the FAA that it has withdrawn its security threat determination, the FAA will continue processing the individual’s applications.
Subpart C—Designated U.S. Agents for Service
§ 3.301 Applicability.
This subpart applies to individuals who:
(a) Do not have a U.S. physical address of record on file with the FAA;
(b) Have a foreign address of record on file with the FAA; and
(c) Hold or apply for certificates, ratings, or authorizations under part 47, 61, 63, 65, 67, or 107 of this chapter.
§ 3.302 Definitions.
U.S. agent address is an address in the States of the United States, the District of Columbia, or any U.S. territory or possession. If the U.S. agent is an entity, the address must be the U.S. agent’s office address. If the U.S. agent is an individual, the address must be the U.S. agent’s usual place of residence or, if applicable, the individual’s U.S. military office address. If the U.S. agent is serving as a U.S. agent in their official capacity with the military, the address may be a military office address. A U.S. agent address may not be a post office box, military post office box, or a mail drop box.
U.S. agent for service (U.S. agent) is an entity or an adult (individual who is 18 or older) with a U.S. address who a certificate, rating, or authorization holder or applicant designates to receive FAA service on their behalf.
U.S. physical address is an address in the States of the United States, the District of Columbia, or any U.S. territory or possession, but excludes post office boxes, military post office boxes, mail drop boxes, and commercial addresses that are not also residential addresses.
§ 3.303 Designation of a U.S. agent for service.
(a) Individuals must designate a U.S. agent for service within the U.S. in writing to the FAA in a form and manner prescribed by the Administrator. Individuals designating a U.S. agent must ensure that the U.S. agent understands the requirements for receiving FAA service on behalf of the individual and is competent to perform that responsibility.
(b) The designation must include the U.S. agent’s full name, U.S. agent address, email address, and certification by the individual that the U.S. agent has accepted responsibility for receiving FAA service on behalf of the individual. It may also include the U.S. agent’s fax number and phone number.
(c) Individuals must notify the FAA in a form and manner prescribed by the Administrator of any change to their U.S. agent designation or the U.S. agent’s contact information within 30 days of the change.
(d) Individuals must comply with the requirements listed in this subpart no later than:
(1) July 7, 2025, for holders of any certificate, rating, or authorization issued under part 47, 61, 63, 65, 67, or 107. These individuals who fail to timely designate a U.S. agent for service and comply with the requirements under this subpart may not exercise the privileges of any certificate, rating, or authorization issued under part 47, 61, 63, 65, 67, or 107, and an individual aircraft owner’s aircraft registration certificate will be considered ineffective; and
(2) April 2, 2025, for applicants of any certificate, rating, or authorization issued under part 47, 61, 63, 65, 67, or 107. An applicant who fails to designate a U.S. agent for service and comply with the requirements under this subpart shall not be issued a certificate, rating, or authorization under part 47, 61, 63, 65, 67, or 107.
PART 5—SAFETY MANAGEMENT SYSTEMS
Subpart A—General
§ 5.1 Applicability.
This part applies to all of the following:
(a) Any person that holds or applies for a certificate issued under part 119 of this chapter authorizing the person to conduct operations under part 121 of this chapter.
(b) Any person that holds or applies for a certificate issued under part 119 of this chapter authorizing the person to conduct operations under part 135 of this chapter.
(c) Any person that holds or applies for a Letter of Authorization issued under § 91.147 of this chapter.
(d) Any person that holds both a type certificate and a production certificate issued under part 21 of this chapter for the same product.
(e) Any person that holds a production certificate issued under part 21 of this chapter for a product for which the person is a licensee of the type certificate for the same product.
(f) Any person that applies for a production certificate under part 21 of this chapter for a product for which the person is the holder or licensee of the type certificate for the same product.
(g) Any person that holds a type certificate issued under part 21 of this chapter for a product, except for persons that hold only type certificates issued under § 21.29 of this chapter, that allows another person to use the type certificate to manufacture the same product under a production certificate.
§ 5.3 Definitions.
Hazard means a condition or an object that could foreseeably cause or contribute to an incident or aircraft accident, as defined in 49 CFR 830.2.
Risk means the composite of predicted severity and likelihood of the potential effect of a hazard.
Risk control means a means to reduce or eliminate the effects of hazards.
Safety assurance means processes within the SMS that function systematically to ensure the performance and effectiveness of safety risk controls and that the organization meets or exceeds its safety objectives through the collection, analysis, and assessment of information.
Safety Management System (SMS) means the formal, top-down, organization-wide approach to managing safety risk and assuring the effectiveness of safety risk controls. It includes systematic procedures, practices, and policies for the management of safety risk.
Safety objective means a measurable goal or desirable outcome related to safety.
Safety performance means realized or actual safety accomplishment relative to the organization’s safety objectives.
Safety policy means the person’s documented commitment to safety, which defines its safety objectives and the accountabilities and responsibilities of its employees in regards to safety.
Safety promotion means a combination of training and communication of safety information to support the implementation and operation of an SMS in an organization.
Safety Risk Management means a process within the SMS composed of describing the system, identifying the hazards, and analyzing, assessing, and controlling risk.
§ 5.5 General requirements.
(a) SMS components. An SMS under this part must be appropriate to the size, scope, and complexity of the person’s organization and include, at a minimum, all of the following components:
(1) Safety policy that meets the requirements of subpart B of this part.
(2) Safety risk management that meets the requirements of subpart C of this part.
(3) Safety assurance that meets the requirements of subpart D of this part.
(4) Safety promotion that meets the requirements of subpart E of this part.
(b) Continuing requirements. Any person required to develop and implement an SMS under this part must maintain the SMS in accordance with this part.
§ 5.7 Requirements for domestic, flag, and supplemental operations.
(a) Any person authorized to conduct operations under part 121 of this chapter that has an SMS acceptable to the FAA on or before May 28, 2024, must revise its SMS to meet the requirements of this part no later than May 28, 2025.
(b) Any person applying for authorization to conduct operations under part 121 of this chapter or with such application pending on or after May 28, 2024, must develop and implement an SMS that meets the requirements of this part.
(c) Any person required to develop and implement an SMS under this section must maintain the SMS as long as the person is authorized to conduct operations under part 121 of this chapter.
(d) Any person required to develop and implement an SMS under this section must make available to the Administrator, upon request, all necessary information and data that demonstrates that the person has an SMS that meets the requirements set forth in this part.
§ 5.9 Requirements for commuter and on-demand operations or passenger-carrying flights for compensation or hire.
(a) Any person authorized to conduct operations under part 135 of this chapter or that holds a Letter of Authorization issued under § 91.147 of this chapter before May 28, 2024, must:
(1) Develop and implement an SMS that meets the requirements of this part no later than May 28, 2027.
(2) Submit to the FAA, a declaration of compliance with this part in a form and manner acceptable to the Administrator no later than May 28, 2027.
(b) Any person applying for authorization to conduct operations under part 135 of this chapter or a Letter of Authorization under § 91.147 of this chapter, or with such application pending on or after May 28, 2024, must develop and implement an SMS that meets the requirements of this part.
(c) Any person required to develop and implement an SMS under this section must maintain the SMS as long as the person is authorized to conduct operations under either part 135 or § 91.147 of this chapter.
(d) Any person required to develop and implement an SMS under this section must make available to the Administrator, upon request, all necessary information and data that demonstrates that the person has an SMS that meets the requirements set forth in this part.
(e) The following requirements do not apply to those organizations with a single pilot who is the sole individual performing all necessary functions in the conduct and execution related to, or in direct support of, the safe operation of the aircraft: §§ 5.21(a)(4), 5.21(a)(5), 5.21(c), 5.23(a)(2), 5.23(a)(3), 5.23(b), 5.25(b)(3), 5.25(c), 5.27(a), 5.27(b), 5.71(a)(7), 5.93, and 5.97(d) of this part.
§ 5.11 Requirements for production certificate holders that are holders or licensees of a type certificate for the same product.
Any person that holds a production certificate issued under part 21 of this chapter for a product for which the person is the holder or licensee of the type certificate for the same product on or before May 28, 2024, must:
(a) Develop and maintain an organizational system description in accordance with § 5.17 of this subpart.
(b) Submit an implementation plan in accordance with § 5.19 of this subpart for FAA approval in a form and manner acceptable to the Administrator no later than November 28, 2024.
(c) Develop an SMS that meets the requirements of this part.
(d) Implement the SMS in accordance with this part no later than May 28, 2027.
(e) Make available to the Administrator, upon request, all necessary information and data that demonstrates that the person has an SMS that meets the requirements set forth in this part.
(f) Maintain the SMS as long as the person is both a holder of a production certificate and a holder or licensee of a type certificate for the same product.
§ 5.13 Requirements for type certificate holders or licensees applying for a production certificate for the same product.
(a) This section applies to any holder or licensee of a type certificate for a product who either:
(1) Applies for a production certificate for that same product under part 21 of this chapter on or after May 28, 2024, or
(2) Has an application for a production certificate for that same product under part 21 of this chapter pending on May 28, 2024.
(b) Any person that meets paragraph (a) of this section must:
(1) Develop and maintain an organizational system description in accordance with § 5.17 of this subpart.
(2) Submit an implementation plan in accordance with § 5.19 of this subpart for FAA approval in a form and manner acceptable to the Administrator during the certification process.
(3) Develop an SMS that meets the requirements of this part.
(4) Implement the SMS in accordance with this part no later than 36 months after submission of the implementation plan.
(5) Make available to the Administrator, upon request, all necessary information and data that demonstrates that the person has an SMS that meets the requirements set forth in this part.
(6) Maintain the SMS as long as the person is both a holder of a production certificate and a holder or licensee of a type certificate for the same product.
§ 5.15 Requirements for type certificate holders that allow another person to use the type certificate to obtain a production certificate for the same product.
(a) This section applies to any person that holds a type certificate issued under part 21 of this chapter for a product, except for persons that hold only type certificates issued under § 21.29 of this chapter, that allows another person to use the type certificate to manufacture the same product under a production certificate.
(b) Any person that meets paragraph (a) of this section and has a licensing agreement in accordance with § 21.55 of this chapter on May 28, 2024, must:
(1) Develop and maintain an organizational system description in accordance with § 5.17 of this subpart.
(2) Submit an implementation plan in accordance with § 5.19 of this subpart for FAA approval in a form and manner acceptable to the Administrator no later than November 28, 2024.
(3) Develop an SMS that meets the requirements of this part.
(4) Implement the SMS in accordance with this part no later than May 28, 2027.
(5) Make available to the Administrator, upon request, all necessary information and data that demonstrates that the person has an SMS that meets the requirements set forth in this part.
(6) Maintain the SMS as long as the person continues to meet paragraph (a) of this section.
(c) Any person that meets paragraph (a) of this section and enters into a licensing agreement in accordance with § 21.55 of this chapter after May 28, 2024, must:
(1) Develop and maintain an organizational system description in accordance with § 5.17 of this subpart.
(2) Submit an implementation plan in accordance with § 5.19 of this subpart for FAA approval in a form and manner acceptable to the Administrator when providing written licensing agreements in accordance with § 21.55 of this chapter.
(3) Develop an SMS that meets the requirements of this part.
(4) Implement the SMS in accordance with this part no later than 36 months after submission of the person’s implementation plan.
(5) Make available to the Administrator, upon request, all necessary information and data that demonstrates that the person has an SMS that meets the requirements set forth in this part.
(6) Maintain the SMS as long as the person continues to meet paragraph (a) of this section.
§ 5.17 Organizational system description.
An organizational system description developed and maintained under this part must include a summary of the following information about the safety of the aviation products or services provided by the person:
(a) The person’s aviation-related processes, procedures, and activities.
(b) The function and purpose of the aviation products or services.
(c) The operating environment.
(d) The personnel, equipment, and facilities necessary for operation.
§ 5.19 Implementation plan.
(a) An implementation plan filed under this part must be based on the organizational system description as defined in § 5.17 and describe the means of compliance (including, but not limited to, new or existing policies, processes, or procedures) used to meet the requirements of this part.
(b) A person required to submit an implementation plan under this part must make available to the Administrator, upon request, all necessary information and data that demonstrates that the SMS has been or will be implemented in accordance with the implementation plan.
Subpart B—Safety Policy
§ 5.21 Safety policy.
(a) Any person required to have an SMS under this part must have a safety policy that includes at least the following:
(1) The person’s safety objectives.
(2) The person’s commitment to fulfill the safety objectives.
(3) A clear statement about the provision of the necessary resources for the implementation of the SMS.
(4) A safety reporting policy that defines requirements for employee reporting of safety hazards or issues.
(5) A policy that defines unacceptable behavior and conditions for disciplinary action.
(6) An emergency response plan that provides for the safe transition from normal to emergency operations in accordance with the requirements of § 5.27.
(7) A code of ethics that is applicable to all employees, including management personnel and officers, which clarifies that safety is the organization’s highest priority.
(b) The safety policy must be signed by the accountable executive described in § 5.25.
(c) The safety policy must be documented and communicated throughout the person’s organization.
(d) The safety policy must be regularly reviewed by the accountable executive to ensure it remains relevant and appropriate to the person.
(a) Any person required to have an SMS under this part must define in its safety policy the accountability for safety of the following individuals:
(1) Accountable executive, as described in § 5.25.
(2) All members of management in regard to developing, implementing, and maintaining SMS processes within their area of responsibility, including, but not limited to:
(i) Hazard identification and safety risk assessment.
(ii) Assuring the effectiveness of safety risk controls.
(iii) Promoting safety as required in subpart E of this part.
(iv) Advising the accountable executive on the performance of the SMS and on any need for improvement.
(3) Employees relative to the person’s safety performance.
(b) The person must identify the levels of management with the authority to make decisions regarding safety risk acceptance.
§ 5.25 Designation and responsibilities of required safety management personnel.
(a) Designation of the accountable executive. Any person required to have an SMS under this part must identify an accountable executive who, irrespective of other functions, satisfies the following:
(1) Is the final authority over operations authorized to be conducted under the person’s certificate(s) or Letter(s) of Authorization.
(2) Controls the financial resources required for the operations to be conducted under the person’s certificate(s) or Letter(s) of Authorization.
(3) Controls the human resources required for the operations authorized to be conducted under the person’s certificate(s) or Letter(s) of Authorization.
(4) Retains ultimate responsibility for the safety performance of the operations conducted under the person’s certificate(s) or Letter(s) of Authorization.
(b) Responsibilities of the accountable executive. The accountable executive must accomplish the following:
(1) Ensure that the SMS is properly implemented and is performing across all pertinent areas.
(2) Develop and sign the safety policy.
(3) Communicate the safety policy throughout the person’s organization.
(4) Regularly review the safety policy to ensure it remains relevant and appropriate to the person.
(5) Regularly review the safety performance and direct actions necessary to address substandard safety performance in accordance with § 5.75.
(c) Designation of management personnel. The accountable executive must designate sufficient management personnel who, on behalf of the accountable executive, are responsible for the following:
(1) Coordinate implementation, maintenance, and integration of the SMS throughout the person’s organization.
(2) Facilitate hazard identification and safety risk analysis.
(3) Monitor the effectiveness of safety risk controls.
(4) Ensure safety promotion throughout the person’s organization as required in subpart E of this part.
(5) Regularly report to the accountable executive on the performance of the SMS and on any need for improvement.
§ 5.27 Coordination of emergency response planning.
Where emergency response procedures are necessary, any person required to have an SMS under this part must develop, and the accountable executive must approve as part of the safety policy, an emergency response plan that addresses at least the following:
(a) Delegation of emergency authority throughout the person’s organization.
(b) Assignment of employee responsibilities during the emergency.
(c) Coordination of the emergency response plans with the emergency response plans of other organizations it must interface with during the provision of its services.
Subpart C—Safety Risk Management
§ 5.51 Applicability.
Any person required to have an SMS under this part must apply safety risk management to the following:
(a) Implementation of new systems.
(b) Revision of existing systems.
(c) Development of operational procedures.
(d) Identification of hazards or ineffective risk controls through the safety assurance processes in subpart D of this part.
§ 5.53 System analysis and hazard identification.
(a) When applying safety risk management, any person required to have an SMS under this part must analyze the systems identified in § 5.51. Those system analyses must be used to identify hazards under paragraph (c) of this section and in developing and implementing risk controls related to the system under § 5.55(c).
(b) In conducting the system analysis, the following information must be considered:
(1) Function and purpose of the system.
(2) The system’s operating environment.
(3) An outline of the system’s processes and procedures.
(4) The personnel, equipment, and facilities necessary for operation of the system.
(5) The interfaces of the system.
(c) Any person required to have an SMS under this part must develop and maintain processes to identify hazards within the context of the system analysis.
§ 5.55 Safety risk assessment and control.
Any person required to have an SMS under this part must:
(a) Develop and maintain processes to analyze safety risk associated with the hazards identified in § 5.53(c).
(b) Define a process for conducting risk assessment that allows for the determination of acceptable safety risk.
(c) Develop and maintain processes to develop safety risk controls that are necessary as a result of the safety risk assessment process under paragraph (b) of this section.
(d) Evaluate whether the risk will be acceptable with the proposed safety risk control applied before the safety risk control is implemented.
§ 5.57 Notification of hazards to interfacing persons.
If a person required to have an SMS under this part identifies a hazard in the operating environment, the person must provide notice of the hazard to any interfacing person that, to the best of the person’s knowledge, could address the hazard or mitigate the risk. For the purpose of this section, interfacing persons are those that contribute to the safety of the certificate or Letter of Authorization holder’s aviation-related products and services.
Subpart D—Safety Assurance
§ 5.71 Safety performance monitoring and measurement.
(a) Any person required to have an SMS under this part must develop and maintain processes and systems to acquire data with respect to its operations, products, and services to monitor the safety performance of the organization. These processes and systems must include, at a minimum, the following:
(1) Monitoring of operational processes.
(2) Monitoring of the operational environment to detect changes.
(3) Auditing of operational processes and systems.
(4) Evaluations of the SMS and operational processes and systems.
(5) Investigations of incidents and accidents.
(6) Investigations of reports regarding potential non-compliance with regulatory standards or other safety risk controls established by the person through the safety risk management process established in subpart C of this part.
(7) A confidential employee reporting system in which employees can report hazards, issues, concerns, occurrences, incidents, as well as propose solutions and safety improvements, without concern of reprisal for reporting.
(8) Investigations of hazard notifications that have been received from external sources.
(b) Any person required to have an SMS under this part must develop and maintain processes that analyze the data acquired through the processes and systems identified under paragraph (a) of this section and any other relevant data with respect to its operations, products, and services.
(c) Any person that holds both a type certificate and a production certificate issued under part 21 of this chapter for the same product must submit a summary of the confidential employee reports received under paragraph (a)(7) of this section to the Administrator once every 6 months.
§ 5.73 Safety performance assessment.
(a) Any person required to have an SMS under this part must conduct assessments of its safety performance against its safety objectives, which include reviews by the accountable executive, to:
(1) Ensure compliance with the safety risk controls established by the person.
(2) Evaluate the performance of the SMS.
(3) Evaluate the effectiveness of the safety risk controls established under § 5.55(c) and identify any ineffective controls.
(4) Identify changes in the operational environment that may introduce new hazards.
(5) Identify new hazards.
(b) Upon completion of the assessment, if ineffective controls or new hazards are identified under paragraphs (a)(2) through (5) of this section, the person must use the safety risk management process described in subpart C of this part.
§ 5.75 Continuous improvement.
Any person required to have an SMS under this part must establish and implement processes to correct safety performance deficiencies identified in the assessments conducted under § 5.73.
Subpart E—Safety Promotion
§ 5.91 Competencies and training.
Any person required to have an SMS under this part must provide training to each individual identified in § 5.23 of this part to ensure the individuals attain and maintain the competencies necessary to perform their duties relevant to the operation and performance of the SMS.
§ 5.93 Safety communication.
Any person required to have an SMS under this part must develop and maintain means for communicating safety information that, at a minimum:
(a) Ensures that employees are aware of the SMS policies, processes, and tools that are relevant to their responsibilities.
(b) Conveys hazard information relevant to the employee’s responsibilities.
(c) Explains why safety actions have been taken.
(d) Explains why safety procedures are introduced or changed.
Subpart F—SMS Documentation and Recordkeeping
§ 5.95 SMS documentation.
Any person required to have an SMS under this part must develop and maintain the following SMS documentation:
(a) Safety policy.
(b) SMS processes and procedures.
§ 5.97 SMS records.
Any person required to have an SMS under this part must:
(a) Maintain records of outputs of safety risk management processes as described in subpart C of this part. Such records must be retained for as long as the control remains relevant to the operation.
(b) Maintain records of outputs of safety assurance processes as described in subpart D of this part. Such records must be retained for a minimum of 5 years.
(c) Maintain a record of all training provided under § 5.91 for each individual. Such records must be retained for as long as the individual is employed by the person.
(d) Retain records of all communications provided under § 5.93 or § 5.57 for a minimum of 24 consecutive calendar months.
SUBCHAPTER B—PROCEDURAL RULES
PART 11—GENERAL RULEMAKING PROCEDURES
Subpart A—Rulemaking Procedures
§ 11.1 To what does this part apply?
This part applies to the issuance, amendment, and repeal of any regulation for which FAA (“we”) follows public rulemaking procedures under the Administrative Procedure Act (“APA”) (5 U.S.C. 553).
Definition of Terms
§ 11.3 What is an advance notice of proposed rulemaking?
An advance notice of proposed rulemaking (ANPRM) tells the public that FAA is considering an area for rulemaking and requests written comments on the appropriate scope of the rulemaking or on specific topics. An advance notice of proposed rulemaking may or may not include the text of potential changes to a regulation.
§ 11.5 What is a notice of proposed rulemaking?
A notice of proposed rulemaking (NPRM) proposes FAA’s specific regulatory changes for public comment and contains supporting information. It includes proposed regulatory text.
§ 11.7 What is a supplemental notice of proposed rulemaking?
On occasion, FAA may decide that it needs more information on an issue, or that we should take a different approach than we proposed. Also, we may want to follow a commenter’s suggestion that goes beyond the scope of the original proposed rule. In these cases, FAA may issue a supplemental notice of proposed rulemaking (SNPRM) to give the public an opportunity to comment further or to give us more information.
§ 11.9 What is a final rule?
A final rule sets out new or revised requirements and their effective date. It also may remove requirements. When preceded by an NPRM, a final rule will also identify significant substantive issues raised by commenters in response to the NPRM and will give the agency’s response.
§ 11.11 What is a final rule with request for comments?
A final rule with request for comment is a rule that the FAA issues in final (with an effective date) that invites public comment on the rule. We usually do this when we have not first issued an ANPRM or NPRM, because we have found that doing so would be impracticable, unnecessary, or contrary to the public interest. We give our reasons for our determination in the preamble. The comment period often ends after the effective date of the rule. A final rule not preceded by an ANPRM or NPRM is commonly called an “immediately adopted final rule.” We invite comments on these rules only if we think that we will receive useful information. For example, we would not invite comments when we are just making an editorial clarification or correction.
§ 11.13 What is a direct final rule?
A direct final rule is a type of final rule with request for comments. Our reason for issuing a direct final rule without an NPRM is that we would not expect to receive any adverse comments, and so an NPRM is unnecessary. However, to be certain that we are correct, we set the comment period to end before the effective date.
If we receive an adverse comment, we will either publish a document withdrawing the direct final rule before it becomes effective and may issue an NPRM, or proceed by any other means permitted under the Administrative Procedure Act, 5 U.S.C. 551 et seq., consistent with procedures at 49 CFR 5.13(l).
§ 11.15 What is a petition for exemption?
A petition for exemption is a request to the FAA by an individual or entity asking for relief from the requirements of a current regulation. For petitions for waiver of commercial space transportation regulations, see part 404 of this title.
§ 11.17 What is a petition for rulemaking?
A petition for rulemaking is a request to FAA by an individual or entity asking the FAA to adopt, amend, or repeal a regulation.
§ 11.19 What is a special condition?
A special condition is a regulation that applies to a particular aircraft design. The FAA issues special conditions when we find that the airworthiness regulations for an aircraft, aircraft engine, or propeller design do not contain adequate or appropriate safety standards, because of a novel or unusual design feature.
General
§ 11.21 What are the most common kinds of rulemaking actions for which FAA follows the Administrative Procedure Act?
FAA follows the Administrative Procedure Act (APA) procedures for these common types of rules:
(a) Rules found in the Code of Federal Regulations;
(b) Airworthiness directives issued under part 39 of this chapter; and
(c) Airspace Designations issued under various parts of this chapter.
§ 11.23 Does FAA follow the same procedures in issuing all types of rules?
Yes, in general, FAA follows the same procedures for all rule types. There are some differences as to which FAA official has authority to issue each type, and where you send petitions for FAA to adopt, amend, or repeal each type. Assume that the procedures in this subpart apply to all rules, except where we specify otherwise.
§ 11.25 How does FAA issue rules?
(a) The FAA uses APA rulemaking procedures to adopt, amend, or repeal regulations. To propose or adopt a new regulation, or to change a current regulation, FAA will issue one or more of the following documents. We publish these rulemaking documents in the
(1) An advance notice of proposed rulemaking (ANPRM).
(2) A notice of proposed rulemaking (NPRM).
(3) A supplemental notice of proposed rulemaking (SNPRM).
(4) A final rule.
(5) A final rule with request for comments.
(6) A direct final rule.
(b) Each of the rulemaking documents in paragraph (a) of this section generally contains the following information:
(1) The topic involved in the rulemaking document.
(2) FAA’s legal authority for issuing the rulemaking document.
(3) How interested persons may participate in the rulemaking proceeding (for example, by filing written comments or making oral presentations at a public meeting).
(4) Whom to call if you have questions about the rulemaking document.
(5) The date, time, and place of any public meetings FAA will hold to discuss the rulemaking document.
(6) The docket number and regulation identifier number (RIN) for the rulemaking proceeding.
§ 11.27 Are there other ways FAA collects specific rulemaking recommendations before we issue an NPRM?
Yes, the FAA obtains advice and recommendations from rulemaking advisory committees. One of these committees is the Aviation Rulemaking Advisory Committee (ARAC), which is a formal standing committee comprised of representatives of aviation associations and industry, consumer groups, and interested individuals. In conducting its activities, ARAC complies with the Federal Advisory Committee Act and the direction of FAA. We task ARAC with providing us with recommended rulemaking actions dealing with specific areas and problems. If we accept an ARAC recommendation to change an FAA rule, we ordinarily publish an NPRM using the procedures in this part. The FAA may establish other rulemaking advisory committees as needed to focus on specific issues for a limited period of time.
§ 11.29 May FAA change its regulations without first issuing an ANPRM or NPRM?
The FAA normally adds or changes a regulation by issuing a final rule after an NPRM. However, FAA may adopt, amend, or repeal regulations without first issuing an ANPRM or NPRM in the following situations:
(a) We may issue a final rule without first requesting public comment if, for good cause, we find that an NPRM is impracticable, unnecessary, or contrary to the public interest. We place that finding and a brief statement of the reasons for it in the final rule. For example, we may issue a final rule in response to a safety emergency.
(b) If an NPRM would be unnecessary because we do not expect to receive adverse comment, we may issue a direct final rule.
§ 11.31 How does FAA process direct final rules?
(a) A direct final rule will take effect on a specified date unless FAA receives an adverse comment within the comment period—generally 60 days after the direct final rule is published in the
(1) A comment recommending another rule change, in addition to the change in the direct final rule at issue. We consider the comment adverse, however, if the commenter states why the direct final rule would be ineffective without the change.
(2) A frivolous or insubstantial comment.
(b) If FAA has not received an adverse comment, we will publish a confirmation document in the
(c) If we receive an adverse comment, we will advise the public by publishing a document in the
§ 11.33 How can I track FAA’s rulemaking activities?
The best ways to track FAA’s rulemaking activities are with the docket number or the regulation identifier number.
(a) Docket ID. We assign a docket ID to each rulemaking document proceeding. Each rulemaking document FAA issues in a particular rulemaking proceeding, as well as public comments on the proceeding, will display the same docket ID. This ID allows you to search the Federal Docket Management System (FDMS) for information on most rulemaking proceedings. You can view and copy docket materials during regular business hours at the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Or you can view and download docketed materials through the Internet at http://www.regulations.gov. If you can’t find the material in the electronic docket, contact the person listed under FOR FURTHER INFORMATION CONTACT in the document you are interested in.
(b) Regulation identifier number. DOT publishes a semiannual agenda of all current and projected DOT rulemakings, reviews of existing regulations, and completed actions. This semiannual agenda appears in the Unified Agenda of Federal Regulations, published in the
§ 11.35 Does FAA include sensitive security information and proprietary information in the Federal Docket Management System (FDMS)?
(a) Sensitive security information. You should not submit sensitive security information to the rulemaking docket, unless you are invited to do so in our request for comments. If we ask for this information, we will tell you in the specific document how to submit this information, and we will provide a separate non-public docket for it. For all proposed rule changes involving civil aviation security, we review comments as we receive them, before they are placed in the docket. If we find that a comment contains sensitive security information, we remove that information before placing the comment in the general docket.
(b) Proprietary information. When we are aware of proprietary information filed with a comment, we do not place it in the docket. We hold it in a separate file to which the public does not have access, and place a note in the docket that we have received it. If we receive a request to examine or copy this information, we treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). We process such a request under the DOT procedures found in 49 CFR part 7.
§ 11.37 Where can I find information about an Airworthiness Directive, an airspace designation, or a petition handled in a region?
The FAA includes most documents concerning Airworthiness Directives, airspace designations, or petitions handled in a region in the electronic docket. If the information isn’t in the docket, contact the person listed under FOR FURTHER INFORMATION CONTACT in the
§ 11.38 What public comment procedures does the FAA follow for Special Conditions?
Even though the Administrative Procedure Act does not require notice and comment for rules of particular applicability, FAA does publish proposed special conditions for comment. In the following circumstances we may not invite comment before we issue a special condition. If we don’t, we will invite comment when we publish the final special condition.
(a) The FAA considers prior notice to be impracticable if issuing a design approval would significantly delay delivery of the affected aircraft. We consider such a delay to be contrary to the public interest.
(b) The FAA considers prior notice to be unnecessary if we have provided previous opportunities to comment on substantially identical proposed special conditions, and we are satisfied that new comments are unlikely.
§ 11.39 How may I participate in FAA’s rulemaking process?
You may participate in FAA’s rulemaking process by doing any of the following:
(a) File written comments on any rulemaking document that asks for comments, including an ANPRM, NPRM, SNPRM, a final rule with request for comments, or a direct final rule. Follow the directions for commenting found in each rulemaking document.
(b) Ask that we hold a public meeting on any rulemaking, and participate in any public meeting that we hold.
(c) File a petition for rulemaking that asks us to adopt, amend, or repeal a regulation.
§ 11.40 Can I get more information about a rulemaking?
You can contact the person listed under FOR FURTHER INFORMATION CONTACT in the preamble of a rule. That person can explain the meaning and intent of a proposed rule, the technical aspects of a document, the terminology in a document, and can tell you our published schedule for the rulemaking process. We cannot give you information that is not already available to other members of the public.
The Department of Transportation policy regarding public contacts during rulemaking appears at 49 CFR 5.19.
Written Comments
§ 11.41 Who may file comments?
Anyone may file written comments about proposals and final rules that request public comments.
§ 11.43 What information must I put in my written comments?
(a) Your written comments must be in English and must contain the following:
(1) The docket number of the rulemaking document you are commenting on, clearly set out at the beginning of your comments.
(2) Your name and mailing address, and, if you wish, other contact information, such as a fax number, telephone number, or e-mail address.
(3) Your information, views, or arguments, following the instructions for participation in the rulemaking document on which you are commenting.
(b) You should also include all material relevant to any statement of fact or argument in your comments, to the extent that the material is available to you and reasonable for you to submit. Include a copy of the title page of the document. Whether or not you submit a copy of the material to which you refer, you should indicate specific places in the material that support your position.
§ 11.45 Where and when do I file my comments?
(a) Send your comments to the location specified in the rulemaking document on which you are commenting. If you are asked to send your comments to the Federal Document Management System, you may send them in either of the following ways:
(1) By mail to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
(2) Through the Internet to http://www.regulations.gov.
(3) In any other manner designated by FAA.
(b) Make sure that your comments reach us by the deadline set out in the rulemaking document on which you are commenting. We will consider late-filed comments to the extent possible only if they do not significantly delay the rulemaking process.
(c) We may reject your paper or electronic comments if they are frivolous, abusive, or repetitious. We may reject comments you file electronically if you do not follow the electronic filing instructions at the Federal Docket Management System Web site.
§ 11.47 May I ask for more time to file my comments?
Yes, if FAA grants your request for more time to file comments, we grant all persons the same amount of time. We will notify the public of the extension by a document in the
(a) Show the docket number of the rule at the top of the first page;
(b) State, at the beginning, that you are requesting an extension of the comment period;
(c) Show that you have good cause for the extension and that an extension is in the public interest;
(d) Be sent to the address specified for comments in the rulemaking document on which you are commenting.
Public Meetings and Other Proceedings
§ 11.51 May I request that FAA hold a public meeting on a rulemaking action?
Yes, you may request that we hold a public meeting. FAA holds a public meeting when we need more than written comments to make a fully informed decision. Submit your written request to the address specified in the rulemaking document on which you are commenting. Specify at the top of your letter or message that you are requesting that the agency hold a public meeting. Submit your request no later than 30 days after our rulemaking notice. If we find good cause for a meeting, we will notify you and publish a notice of the meeting in the
§ 11.53 What takes place at a public meeting?
A public meeting is a non-adversarial, fact-finding proceeding conducted by an FAA representative. Public meetings are announced in the
Petitions for Rulemaking and for Exemption
§ 11.61 May I ask FAA to adopt, amend, or repeal a regulation, or grant relief from the requirements of a current regulation?
(a) Using a petition for rulemaking, you may ask FAA to add a new regulation to title 14 of the Code of Federal Regulations (14 CFR) or ask FAA to amend or repeal a current regulation in 14 CFR.
(b) Using a petition for exemption, you may ask FAA to grant you relief from current regulations in 14 CFR.
§ 11.63 How and to whom do I submit my petition for rulemaking or petition for exemption?
(a) To submit a petition for rulemaking or exemption—
(1) By electronic submission, submit your petition for rulemaking or exemption to the FAA through the internet at http://www.regulations.gov, the Federal Docket Management System website. For additional instructions, you may visit http://www.faa.gov, and navigate to the Rulemaking home page.
(2) By paper submission, send the original signed copy of your petition for rulemaking or exemption to this address: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
(b) Submit a petition for rulemaking or exemption from part 139 of this chapter—
(1) To the appropriate FAA airport field office in whose area your airport is, or will be, established; and
(2) To the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590 or by electronic submission to this Internet address: http://www.regulations.gov.
(c) The FAA may designate other means by which you can submit petitions in the future.
(d) Submit your petition for exemption 120 days before you need the exemption to take effect.
§ 11.71 What information must I include in my petition for rulemaking?
(a) You must include the following information in your petition for rulemaking:
(1) Your name and mailing address and, if you wish, other contact information such as a fax number, telephone number, or e-mail address.
(2) An explanation of your proposed action and its purpose.
(3) The language you propose for a new or amended rule, or the language you would remove from a current rule.
(4) An explanation of why your proposed action would be in the public interest.
(5) Information and arguments that support your proposed action, including relevant technical and scientific data available to you.
(6) Any specific facts or circumstances that support or demonstrate the need for the action you propose.
(b) In the process of considering your petition, we may ask that you provide information or data available to you about the following:
(1) The costs and benefits of your proposed action to society in general, and identifiable groups within society in particular.
(2) The regulatory burden of your proposed action on small businesses, small organizations, small governmental jurisdictions, and Indian tribes.
(3) The recordkeeping and reporting burdens of your proposed action and whom the burdens would affect.
(4) The effect of your proposed action on the quality of the natural and social environments.
§ 11.73 How does FAA process petitions for rulemaking?
After we have determined the disposition of your petition, we will contact you in writing about our decision. The FAA may respond to your petition for rulemaking in one of the following ways:
(a) If we determine that your petition justifies our taking the action you suggest, we may issue an NPRM or ANPRM. We will do so no later than 6 months after the date we receive your petition. In making our decision, we consider:
(1) The immediacy of the safety or security concerns you raise;
(2) The priority of other issues the FAA must deal with; and
(3) The resources we have available to address these issues.
(b) If we have issued an ANPRM or NPRM on the subject matter of your petition, we will consider your arguments for a rule change as a comment in connection with the rulemaking proceeding. We will not treat your petition as a separate action.
(c) If we have begun a rulemaking project in the subject area of your petition, we will consider your comments and arguments for a rule change as part of that project. We will not treat your petition as a separate action.
(d) If we have tasked ARAC to study the general subject area of your petition, we will ask ARAC to review and evaluate your proposed action. We will not treat your petition as a separate action.
(e) If we determine that the issues you identify in your petition may have merit, but do not address an immediate safety concern or cannot be addressed because of other priorities and resource constraints, we may dismiss your petition. Your comments and arguments for a rule change will be placed in a database, which we will examine when we consider future rulemaking.
§ 11.75 Does FAA invite public comment on petitions for rulemaking?
Generally, FAA does not invite public comment on petitions for rulemaking.
§ 11.77 Is there any additional information I must include in my petition for designating airspace?
In petitions asking FAA to establish, amend, or repeal a designation of airspace, including special use airspace, you must include all the information specified by § 11.71 and also:
(a) The location and a description of the airspace you want assigned or designated;
(b) A complete description of the activity or use to be made of that airspace, including a detailed description of the type, volume, duration, time, and place of the operations to be conducted in the area;
(c) A description of the air navigation, air traffic control, surveillance, and communication facilities available and to be provided if we grant the designation; and
(d) The name and location of the agency, office, facility, or person who would have authority to permit the use of the airspace when it was not in use for the purpose to which you want it assigned.
§ 11.81 What information must I include in my petition for an exemption?
You must include the following information in your petition for an exemption and submit it to FAA as soon as you know you need an exemption.
(a) Your name and mailing address and, if you wish, other contact information such as a fax number, telephone number, or e-mail address;
(b) The specific section or sections of 14 CFR from which you seek an exemption;
(c) The extent of relief you seek, and the reason you seek the relief;
(d) The reasons why granting your request would be in the public interest; that is, how it would benefit the public as a whole;
(e) The reasons why granting the exemption would not adversely affect safety, or how the exemption would provide a level of safety at least equal to that provided by the rule from which you seek the exemption;
(f) A summary we can publish in the
(1) The rule from which you seek the exemption; and
(2) A brief description of the nature of the exemption you seek;
(g) Any additional information, views or arguments available to support your request; and
(h) If you want to exercise the privileges of your exemption outside the United States, the reason why you need to do so.
§ 11.83 How can I operate under an exemption outside the United States?
If you want to be able to operate under your exemption outside the United States, you must request this when you petition for relief and give us the reason for this use. If you do not provide your reason or we determine that it does not justify this relief, we will limit your exemption to use within the United States. Before we extend your exemption for use outside the United States, we will verify that the exemption would be in compliance with the Standards of the International Civil Aviation Organization (ICAO). If it would not, but we still believe it would be in the public interest to allow you to do so, we will file a difference with ICAO. However, a foreign country still may not allow you to operate in that country without meeting the ICAO standard.
§ 11.85 Does FAA invite public comment on petitions for exemption?
Yes, FAA publishes information about petitions for exemption in the
(a) The docket number of the petition;
(b) The citation to the rule or rules from which the petitioner requested relief;
(c) The name of the petitioner;
(d) The petitioner’s summary of the action requested and the reasons for requesting it; and
(e) A request for comments to assist FAA in evaluating the petition.
§ 11.87 Are there circumstances in which FAA may decide not to publish a summary of my petition for exemption?
The FAA may not publish a summary of your petition for exemption and request comments if you present or we find good cause why we should not delay action on your petition. The factors we consider in deciding not to request comment include:
(a) Whether granting your petition would set a precedent.
(b) Whether the relief requested is identical to exemptions granted previously.
(c) Whether our delaying action on your petition would affect you adversely.
(d) Whether you filed your petition in a timely manner.
§ 11.89 How much time do I have to submit comments to FAA on a petition for exemption?
The FAA states the specific time allowed for comments in the
§ 11.91 How does FAA inform me of its decision on my petition for exemption?
The FAA will notify you in writing about its decision on your petition. A copy of this decision is also placed in the public docket. We will include the docket number associated with your petition in our letter to you.
§ 11.101 May I ask FAA to reconsider my petition for rulemaking or petition for exemption if it is denied?
Yes, you may petition FAA to reconsider your petition denial. You must submit your request to the address to which you sent your original petition, and FAA must receive it within 60 days after we issued the denial. For us to accept your petition, show the following:
(a) That you have a significant additional fact and why you did not present it in your original petition;
(b) That we made an important factual error in our denial of your original petition; or
(c) That we did not correctly interpret a law, regulation, or precedent.
§ 11.103 What exemption relief may be available to federal, state, and local governments when operating aircraft that are not public aircraft?
The Federal Aviation Administration may grant a federal, state, or local government an exemption from part A of subtitle VII of title 49 United States Code, and any regulation issued under that authority that is applicable to an aircraft as a result of the Independent Safety Board Act Amendments of 1994, Public Law 103-411, if—
(a) The Administrator finds that granting the exemption is necessary to prevent an undue economic burden on the unit of government; and
(b) The Administrator certifies that the aviation safety program of the unit of government is effective and appropriate to ensure safe operations of the type of aircraft operated by the unit of government.
Subpart B—Paperwork Reduction Act Control Numbers
§ 11.201 Office of Management and Budget (OMB) control numbers assigned under the Paperwork Reduction Act.
(a) The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) requires FAA to get approval from OMB for our information collection activities, and to list a record of those approvals in the
(b) The table listing OMB control numbers assigned to FAA’s information collection activities follows:
| 14 CFR part or section identified and described | Current OMB control number |
|---|---|
| Part 13.5 | 2120-0795 |
| Part 14 | 2120-0539 |
| Part 17 | 2120-0632 |
| Part 21 | 2120-0018, 2120-0552 |
| Part 34 | 2120-0508 |
| Part 39 | 2120-0056 |
| Part 43 | 2120-0020 |
| Part 45 | 2120-0508 |
| Part 47 | 2120-0024, 2120-0042 |
| Part 48 | 2120-0765 |
| Part 49 | 2120-0043 |
| Part 60 | 2120-0680 |
| Part 61 | 2120-0021, 2120-0034, 2120-0543, 2120-0571, 2120-0816 |
| Part 63 | 2120-0007 |
| Part 65 | 2120-0022, 2120-0535, 2120-0571, 2120-0648 |
| Part 67 | 2120-0034, 2120-0543 |
| Part 68 | 2120-0770 |
| Part 77 | 2120-0001 |
| Part 89 | 2120-0781, 2120-0782, 2120-0783, 2120-0785. |
| Part 91 | 2120-0005, 2120-0026, 2120-0027, 2120-0573, 2120-0606, 2120-0620, 2120-0631, 2120-0651, 2120-0819, 2120-0820. |
| Part 93 | 2120-0524, 2120-0606, 2120-0639 |
| Part 101 | 2120-0027 |
| Part 105 | 2120-0027, 2120-0641 |
| Part 107 | 2120-0005, 2120-0021, 2120-0027, 2120-0767, 2120-0768, 2120-0775. |
| Part 111 | 2120-0607 |
| Part 119 | 2120-0593 |
| Part 121 | 2120-0008, 2120-0028, 2120-0535, 2120-0571, 2120-0600, 2120-0606, 2120-0614, 2120-0616, 2120-0631, 2120-0651, 2120-0653, 2120-0691, 2120-0739, 2120-0760, 2120-0766. |
| Part 125 | 2120-0028, 2120-0085, 2120-0616, 2120-0651 |
| Part 129 | 2120-0028, 2120-0536, 2120-0616, 2120-0638 |
| Part 133 | 2120-0044 |
| Part 135 | 2120-0003, 2120-0028, 2120-0039, 2120-0535, 2120-0571, 2120-0600, 2120-0606, 2120-0614, 2120-0616, 2120-0620, 2120-0631, 2120-0653, 2120-0766. |
| Part 137 | 2120-0049 |
| Part 139 | 2120-0045, 2120-0063 |
| Part 141 | 2120-0009 |
| Part 142 | 2120-0570 |
| Part 145 | 2120-0003, 2120-0010, 2120-0571 |
| Part 147 | 2120-0040 |
| Part 150 | 2120-0517 |
| Part 157 | 2120-0036 |
| Part 158 | 2120-0557 |
| Part 161 | 2120-0563 |
| Part 171 | 2120-0014 |
| Part 183 | 2120-0033, 2120-0604 |
| Part 193 | 2120-0646 |
| Part 198 | 2120-0514 |
| Part 400 | 2120-0643, 2120-0644, 0649 |
| Part 401 | 2120-0608 |
| Part 440 | 2120-0601 |
| SFAR 36 | 2120-0507 |
| SFAR 71 | 2120-0620 |
PART 13—INVESTIGATIVE AND ENFORCEMENT PROCEDURES
Subpart A—General Authority to Re-Delegate and Investigative Procedures
§ 13.1 Re-delegation.
Unless otherwise specified, the Chief Counsel, each Deputy Chief Counsel, and the Assistant Chief Counsel for Enforcement may re-delegate the authority delegated to them under this part.
§ 13.2 Reports of violations.
(a) Any person who knows of any violation of 49 U.S.C. subtitle VII, 49 U.S.C. chapter 51, or any rule, regulation, or order issued under those statutes, should report the violation to FAA personnel.
(b) FAA personnel will review each report made under this section to determine whether any additional investigation or action is warranted.
§ 13.3 Investigations (general).
(a) The Administrator may conduct investigations; hold hearings; issue subpoenas; require the production of relevant documents, records, and property; and take evidence and depositions.
(b) The Administrator has delegated the authority to conduct investigations to the various services and offices for matters within their respective areas.
(c) The Administrator delegates to the Chief Counsel, each Deputy Chief Counsel, and the Assistant Chief Counsel for Enforcement the authority to:
(1) Issue orders;
(2) Conduct formal investigations;
(3) Subpoena witnesses and records in conducting a hearing or investigation;
(4) Order depositions and production of records in a proceeding or investigation; and
(5) Petition a court of the United States to enforce a subpoena or order described in paragraphs (c)(3) and (4) of this section.
(d) A complaint against the sponsor, proprietor, or operator of a federally assisted airport involving violations of the legal authorities listed in § 16.1 of this chapter must be filed in accordance with the provisions of part 16 of this chapter.
§ 13.5 Formal complaints.
(a) Any person may file a complaint with the Administrator with respect to a violation by a person of any requirement under 49 U.S.C. subtitle VII, 49 U.S.C. chapter 51, or any rule, regulation, or order issued under those statutes, as to matters within the jurisdiction of the Administrator. This section does not apply to complaints against the Administrator or employees of the FAA acting within the scope of their employment.
(b) Complaints filed under this section must—
(1) Be submitted in writing and identified as a complaint seeking an appropriate order or other enforcement action;
(2) Be submitted to the Federal Aviation Administration, Office of the Chief Counsel, Attention: Formal Complaint Clerk (AGC-300), 800 Independence Avenue SW, Washington, DC 20591;
(3) Set forth the name and address, if known, of each person who is the subject of the complaint and, with respect to each person, the specific provisions of the statute, rule, regulation, or order that the complainant believes were violated;
(4) Contain a concise but complete statement of the facts relied upon to substantiate each allegation;
(5) State the name, address, telephone number, and email of the person filing the complaint; and
(6) Be signed by the person filing the complaint or an authorized representative.
(c) A complaint that does not meet the requirements of paragraph (b) of this section will be considered a report under § 13.2.
(d) The FAA will send a copy of a complaint that meets the requirements of paragraph (b) of this section to the subject(s) of the complaint by certified mail.
(e) A subject of the complaint may serve a written answer to the complaint to the Formal Complaint Clerk at the address specified in paragraph (b)(2) of this section no later than 20 days after service of a copy of the complaint. For purposes of this paragraph (e), the date of service is the date on which the FAA mailed a copy of the complaint to the subject of the complaint.
(f) After the subject(s) of the complaint have served a written answer or after the allotted time to serve an answer has expired, the Administrator will determine if there are reasonable grounds for investigating the complaint, and—
(1) If the Administrator determines that a complaint does not state facts that warrant an investigation or action, the complaint may be dismissed without a hearing and the reason for the dismissal will be given, in writing, to the person who filed the complaint and the subject(s) of the complaint; or
(2) If the Administrator determines that reasonable grounds exist, an informal investigation may be initiated or an order of investigation may be issued in accordance with subpart F of this part, or both. The subject(s) of a complaint will be advised which official has been delegated the responsibility under § 13.3(b) or (c), as applicable, for conducting the investigation.
(g) If the investigation substantiates the allegations set forth in the complaint, the Administrator may take action in accordance with applicable law and FAA policy.
(h) The complaint and other records relating to the disposition of the complaint are maintained in the Formal Complaint Docket (AGC-300), Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591. Any interested person may examine any docketed material at that office at any time after the docket is established, except material that is required to be withheld from the public under applicable law, and may obtain a copy upon paying the cost of the copy.
§ 13.7 Records, documents, and reports.
Each record, document, and report that FAA regulations require to be maintained, exhibited, or submitted to the Administrator may be used in any investigation conducted by the Administrator; and, except to the extent the use may be specifically limited or prohibited by the section which imposes the requirement, the records, documents, and reports may be used in any civil penalty action, certificate action, or other legal proceeding.
Subpart B—Administrative Actions
§ 13.11 Administrative disposition of certain violations.
(a) If, after an investigation, FAA personnel determine that an apparent violation of 49 U.S.C. subtitle VII, 49 U.S.C. chapter 51, or any rule, regulation, or order issued under those statutes, does not require legal enforcement action, an appropriate FAA official may take administrative action to address the apparent violation.
(b) An administrative action under this section does not constitute a formal adjudication of the matter, and may take the form of—
(1) A Warning Notice that recites available facts and information about the incident or condition and indicates that it may have been a violation; or
(2) A Letter of Correction that states the corrective action the apparent violator has taken or agrees to take. If the apparent violator does not complete the agreed corrective action, the FAA may take legal enforcement action.
Subpart C—Legal Enforcement Actions
§ 13.13 Consent orders.
(a) The Chief Counsel, each Deputy Chief Counsel, and the Assistant Chief Counsel for Enforcement may issue a consent order to resolve any matter with a person that may be subject to legal enforcement action.
(b) A person that may be subject to legal enforcement action may propose a consent order. The proposed consent order must include—
(1) An admission of all jurisdictional facts;
(2) An express waiver of the right to further procedural steps and of all rights to legal review in any forum;
(3) An express waiver of attorney’s fees and costs;
(4) If a notice or order has been issued prior to the proposed consent order, an incorporation by reference of the notice or order and an acknowledgment that the notice or order may be used to construe the terms of the consent order; and
(5) If a request for hearing or appeal is pending in any forum, a provision that the person will withdraw the request for hearing or notice of appeal.
§ 13.14 [Reserved]
§ 13.15 Civil penalties: Other than by administrative assessment.
(a) The FAA uses the procedures in this section when it seeks a civil penalty other than by the administrative assessment procedures in § 13.16 or § 13.18.
(b) The authority of the Administrator to seek a civil penalty, and the ability to refer cases to the United States Attorney General, or the delegate of the Attorney General, for prosecution of civil penalty actions sought by the Administrator is delegated to the Chief Counsel, each Deputy Chief Counsel, and the Assistant Chief Counsel for Enforcement. This delegation applies to cases involving one or more of the following:
(1) An amount in controversy in excess of:
(i) $400,000, if the violation was committed by a person other than an individual or small business concern; or
(ii) $50,000, if the violation was committed by an individual or small business concern.
(2) An in rem action, seizure of aircraft subject to lien, suit for injunctive relief, or for collection of an assessed civil penalty.
(c) The Administrator may compromise any civil penalty proposed under this section, before referral to the United States Attorney General, or the delegate of the Attorney General, for prosecution.
(1) The Administrator, through the Chief Counsel, a Deputy Chief Counsel, or the Assistant Chief Counsel for Enforcement sends a civil penalty letter to the person charged with a violation. The civil penalty letter contains a statement of the charges; the applicable law, rule, regulation, or order; and the amount of civil penalty that the Administrator will accept in full settlement of the action or an offer to compromise the civil penalty.
(2) Not later than 30 days after receipt of the civil penalty letter, the person cited with an alleged violation may respond to the civil penalty letter by—
(i) Submitting electronic payment, a certified check, or money order in the amount offered by the Administrator in the civil penalty letter. The agency attorney will send a letter to the person charged with the violation stating that payment is accepted in full settlement of the civil penalty action; or
(ii) Submitting one of the following to the agency attorney:
(A) Written material or information that may explain, mitigate, or deny the violation or that may show extenuating circumstances; or
(B) A written request for an informal conference to discuss the matter with the agency attorney and to submit any relevant information or documents that may explain, mitigate, or deny the violation; or that may show extenuating circumstances.
(3) The documents, material, or information submitted under paragraph (c)(2)(ii) of this section may include support for any claim of inability to pay the civil penalty in whole or in part, or for any claim of small business status as defined in 49 U.S.C. 46301(i).
(4) The Administrator will consider any material or information submitted under paragraph (c)(2)(ii) of this section to determine whether the person is subject to a civil penalty or to determine the amount for which the Administrator will compromise the action.
(5) If the parties cannot agree to compromise the civil penalty, the Administrator may refer the civil penalty action to the United States Attorney General, or the delegate of the Attorney General, to begin proceedings in a U.S. district court to prosecute and collect a civil penalty.
§ 13.16 Civil penalties: Administrative assessment against a person other than an individual acting as a pilot, flight engineer, mechanic, or repairman; administrative assessment against all persons for hazardous materials violations.
(a) General. The FAA uses the procedures in this section when it assesses a civil penalty against a person other than an individual acting as a pilot, flight engineer, mechanic, or repairman for a violation cited in the first sentence of 49 U.S.C. 46301(d)(2), or in 49 U.S.C. 47531, or any implementing rule, regulation, or order, except when the U.S. district courts have exclusive jurisdiction.
(b) District court jurisdiction. The U.S. district courts have exclusive jurisdiction of any civil penalty action initiated by the FAA for violations described in paragraph (a) of this section if—
(1) The amount in controversy is more than $400,000 for a violation committed by a person other than an individual or small business concern;
(2) The amount in controversy is more than $50,000 for a violation committed by an individual or a small business concern;
(3) The action is in rem or another action in rem based on the same violation has been brought;
(4) The action involves an aircraft subject to a lien that has been seized by the Government; or
(5) Another action has been brought for an injunction based on the same violation.
(c) Hazardous materials violations. An order assessing a civil penalty for a violation under 49 U.S.C. chapter 51, or a rule, regulation, or order issued under 49 U.S.C. chapter 51, is issued only after the following factors have been considered:
(1) The nature, circumstances, extent, and gravity of the violation;
(2) With respect to the violator, the degree of culpability, any history of prior violations, the ability to pay, and any effect on the ability to continue to do business; and
(3) Other matters that justice requires.
(d) Delegation of authority. The authority of the Administrator is delegated to each Deputy Chief Counsel and the Assistant Chief Counsel for Enforcement, as follows:
(1) Under 49 U.S.C. 46301(d), 47531, and 5123, and 49 CFR 1.83, to initiate and assess civil penalties for a violation of those statutes or a rule, regulation, or order issued under those provisions;
(2) Under 49 U.S.C. 5123, 49 CFR 1.83, 49 U.S.C. 46301(d), and 49 U.S.C. 46305, to refer cases to the Attorney General of the United States or a delegate of the Attorney General for collection of civil penalties;
(3) Under 49 U.S.C. 46301(f), to compromise the amount of a civil penalty imposed; and
(4) Under 49 U.S.C. 5123(e) and (f) and 49 CFR 1.83, to compromise the amount of a civil penalty imposed.
(e) Order assessing civil penalty. (1) An order assessing civil penalty may be issued for a violation described in paragraph (a) or (c) of this section, or as otherwise provided by statute, after notice and opportunity for a hearing, when:
(i) A person charged with a violation agrees to pay a civil penalty for a violation; or
(ii) A person charged with a violation does not request a hearing under paragraph (g)(2)(ii) of this section within 15 days after receipt of a final notice of proposed civil penalty.
(2) The following also serve as an order assessing civil penalty:
(i) An initial decision or order issued by an administrative law judge as described in § 13.232(e).
(ii) A decision or order issued by the FAA decisionmaker as described in § 13.233(j).
(f) Notice of proposed civil penalty. A civil penalty action is initiated by sending a notice of proposed civil penalty to the person charged with a violation, the designated agent for the person, or if there is no such designated agent, the president of the company charged with a violation. In response to a notice of proposed civil penalty, a company may designate in writing another person to receive documents in that civil penalty action. The notice of proposed civil penalty contains a statement of the charges and the amount of the proposed civil penalty. Not later than 30 days after receipt of the notice of proposed civil penalty, the person charged with a violation may—
(1) Submit the amount of the proposed civil penalty or an agreed-upon amount, in which case either an order assessing civil penalty or compromise order under paragraph (n) of this section may be issued in that amount;
(2) Submit to the agency attorney one of the following:
(i) Written information, including documents and witness statements, demonstrating that a violation of the regulations did not occur or that a penalty or the amount of the penalty is not warranted by the circumstances.
(ii) A written request to reduce the proposed civil penalty, stating the amount of reduction and the reasons and providing any documents supporting a reduction of the proposed civil penalty, including records indicating a financial inability to pay or records showing that payment of the proposed civil penalty would prevent the person from continuing in business.
(iii) A written request for an informal conference to discuss the matter with the agency attorney and to submit relevant information or documents; or
(3) Request a hearing conducted in accordance with subpart G of this part.
(g) Final notice of proposed civil penalty. A final notice of proposed civil penalty will be sent to the person charged with a violation, the designated agent for the person, the designated agent named in accordance with paragraph (f) of this section, or the president of the company charged with a violation. The final notice of proposed civil penalty contains a statement of the charges and the amount of the proposed civil penalty and, as a result of information submitted to the agency attorney during informal procedures, may modify an allegation or a proposed civil penalty contained in a notice of proposed civil penalty.
(1) A final notice of proposed civil penalty may be issued—
(i) If the person charged with a violation fails to respond to the notice of proposed civil penalty within 30 days after receipt of that notice; or
(ii) If the parties participated in any procedures under paragraph (f)(2) of this section and the parties have not agreed to compromise the action or the agency attorney has not agreed to withdraw the notice of proposed civil penalty.
(2) Not later than 15 days after receipt of the final notice of proposed civil penalty, the person charged with a violation may do one of the following:
(i) Submit the amount of the proposed civil penalty or an agreed-upon amount, in which case either an order assessing civil penalty or a compromise order under paragraph (n) of this section may be issued in that amount; or
(ii) Request a hearing conducted in accordance with subpart G of this part.
(h) Request for a hearing. Any person requesting a hearing, under paragraph (f)(3) or (g)(2)(ii) of this section must file the request with the FAA Hearing Docket Clerk and serve the request on the agency attorney in accordance with the requirements in subpart G of this part.
(i) Hearing. The procedural rules in subpart G of this part apply to the hearing.
(j) Appeal. Either party may appeal the administrative law judge’s initial decision to the FAA decisionmaker under the procedures in subpart G of this part. The procedural rules in subpart G of this part apply to the appeal.
(k) Judicial review. A person may seek judicial review only of a final decision and order of the FAA decisionmaker in accordance with § 13.235.
(l) Payment. (1) A person must pay a civil penalty by:
(i) Sending a certified check or money order, payable to the Federal Aviation Administration, to the FAA office identified in the notice of proposed civil penalty, the final notice of proposed civil penalty, or the order assessing civil penalty; or
(ii) Making an electronic payment according to the directions specified in the notice of proposed civil penalty, the final notice of proposed civil penalty, or the order assessing civil penalty.
(2) The civil penalty must be paid within 30 days after service of the order assessing civil penalty, unless otherwise agreed to by the parties. In cases where a hearing is requested, an appeal to the FAA decisionmaker is filed, or a petition for review of the FAA decisionmaker’s decision is filed in a U.S. court of appeals, the civil penalty must be paid within 30 days after all litigation in the matter is completed and the civil penalty is affirmed in whole or in part.
(m) Collection of civil penalties. If an individual does not pay a civil penalty imposed by an order assessing civil penalty or other final order, the Administrator may take action to collect the penalty.
(n) Compromise. The FAA may compromise the amount of any civil penalty imposed under this section under 49 U.S.C. 5123(e), 46301(f), or 46318 at any time before referring the action to the United States Attorney General, or the delegate of the Attorney General, for collection.
(1) When a civil penalty is compromised with a finding of violation, an agency attorney issues an order assessing civil penalty.
(2) When a civil penalty is compromised without a finding of violation, the agency attorney issues a compromise order that states the following:
(i) The person has paid a civil penalty or has signed a promissory note providing for installment payments.
(ii) The FAA makes no finding of a violation.
(iii) The compromise order will not be used as evidence of a prior violation in any subsequent civil penalty proceeding or certificate action proceeding.
§ 13.17 Seizure of aircraft.
(a) The Chief Counsel, or a Regional Administrator for an aircraft within the region, may issue an order authorizing a State or Federal law enforcement officer or a Federal Aviation Administration safety inspector to seize an aircraft that is involved in a violation for which a civil penalty may be imposed on its owner or the individual commanding the aircraft.
(b) Each person seizing an aircraft under this section places it in the nearest available and adequate public storage facility in the judicial district in which it was seized.
(c) The Regional Administrator or Chief Counsel, without delay, sends a written notice and a copy of this section to the registered owner of the seized aircraft and to each other person shown by FAA records to have an interest in it, stating the—
(1) Time, date, and place of seizure;
(2) Name and address of the custodian of the aircraft;
(3) Reasons for the seizure, including the violations alleged or proven to have been committed; and
(4) Amount that may be tendered as—
(i) A compromise of a civil penalty for the alleged violation; or
(ii) Payment for a civil penalty imposed for a proven violation.
(d) The Chief Counsel or Assistant Chief Counsel for Enforcement immediately sends a report to the United States Attorney for the judicial district in which it was seized, requesting the United States Attorney to institute proceedings to enforce a lien against the aircraft.
(e) The Regional Administrator or Chief Counsel directs the release of a seized aircraft when—
(1) The alleged violator pays a civil penalty or an amount agreed upon in compromise, and the costs of seizing, storing, and maintaining the aircraft;
(2) The aircraft is seized under an order of a court of the United States in proceedings in rem initiated under 49 U.S.C. 46305 to enforce a lien against the aircraft;
(3) The United States Attorney General, or the delegate of the Attorney General, notifies the FAA that the United States Attorney General, or the delegate of the Attorney General, refuses to institute proceedings in rem under 49 U.S.C. 46305 to enforce a lien against the aircraft; or
(4) A bond in the amount and with the sureties prescribed by the Chief Counsel or the Assistant Chief Counsel for Enforcement is deposited, conditioned on payment of the penalty or the compromise amount, and the costs of seizing, storing, and maintaining the aircraft.
§ 13.18 Civil penalties: Administrative assessment against an individual acting as a pilot, flight engineer, mechanic, or repairman.
(a) General. (1) This section applies to each action in which the FAA seeks to assess a civil penalty by administrative procedures against an individual acting as a pilot, flight engineer, mechanic, or repairman under 49 U.S.C. 46301(d)(5) for a violation listed in 49 U.S.C. 46301(d)(2). This section does not apply to a civil penalty assessed for a violation of 49 U.S.C. chapter 51, or a rule, regulation, or order issued thereunder.
(2) Notwithstanding the provisions of paragraph (a)(1) of this section, the U.S. district courts have exclusive jurisdiction of any civil penalty action involving an individual acting as a pilot, flight engineer, mechanic, or repairman for violations described in paragraph (a)(1), or under 49 U.S.C. 46301(d)(4), if:
(i) The amount in controversy is more than $50,000;
(ii) The action involves an aircraft subject to a lien that has been seized by the government; or
(iii) Another action has been brought for an injunction based on the same violation.
(b) Definitions. As used in this part, the following definitions apply:
(1) Flight engineer means an individual who holds a flight engineer certificate issued under part 63 of this chapter.
(2) Individual acting as a pilot, flight engineer, mechanic, or repairman means an individual acting in such capacity, whether or not that individual holds the respective airman certificate issued by the FAA.
(3) Mechanic means an individual who holds a mechanic certificate issued under part 65 of this chapter.
(4) Pilot means an individual who holds a pilot certificate issued under part 61 of this chapter.
(5) Repairman means an individual who holds a repairman certificate issued under part 65 of this chapter.
(c) Delegation of authority. The authority of the Administrator is delegated to the Chief Counsel and each Deputy Chief Counsel, and the Assistant Chief Counsel for Enforcement, as follows:
(1) To initiate and assess civil penalties under 49 U.S.C. 46301(d)(5);
(2) To refer cases to the Attorney General of the United States, or the delegate of the Attorney General, for collection of civil penalties; and
(3) To compromise the amount of a civil penalty under 49 U.S.C. 46301(f).
(d) Notice of proposed assessment. A civil penalty action is initiated by sending a notice of proposed assessment to the individual charged with a violation specified in paragraph (a) of this section. The notice of proposed assessment contains a statement of the charges and the amount of the proposed civil penalty. The individual charged with a violation may do the following:
(1) Submit the amount of the proposed civil penalty or an agreed-upon amount, in which case either an order of assessment or a compromise order will be issued in that amount.
(2) Answer the charges in writing by submitting information, including documents and witness statements, demonstrating that a violation of the regulations did not occur or that a penalty, or the amount of the penalty, is not warranted by the circumstances.
(3) Submit a written request to reduce the proposed civil penalty, stating the amount of reduction and the reasons, and providing any documents supporting a reduction of the proposed civil penalty, including records indicating a financial inability to pay.
(4) Submit a written request for an informal conference to discuss the matter with an agency attorney and submit relevant information or documents.
(5) Request that an order of assessment be issued so that the individual charged may appeal to the National Transportation Safety Board.
(e) Failure to respond to notice of proposed assessment. An order of assessment may be issued if the individual charged with a violation fails to respond to the notice of proposed assessment within 15 days after receipt of that notice.
(f) Order of assessment. An order of assessment, which imposes a civil penalty, may be issued for a violation described in paragraph (a) of this section after notice and an opportunity to answer any charges and be heard as to why such order should not be issued.
(g) Appeal. Any individual who receives an order of assessment issued under this section may appeal the order to the National Transportation Safety Board. The appeal stays the effectiveness of the Administrator’s order.
(h) Judicial review. A party may seek judicial review only of a final decision and order of the National Transportation Safety Board under 49 U.S.C. 46301(d)(6) and 46110. Neither an initial decision, nor an order issued by an administrative law judge that has not been appealed to the National Transportation Safety Board, nor an order compromising a civil penalty action, may be appealed under any of those sections.
(i) Compromise. The FAA may compromise any civil penalty imposed under this section at any time before referring the action to the United States Attorney General, or the delegate of the Attorney General, for collection.
(1) When a civil penalty is compromised with a finding of violation, an agency attorney issues an order of assessment.
(2) When a civil penalty is compromised without a finding of violation, the agency attorney issues a compromise order of assessment that states the following:
(i) The individual has paid a civil penalty or has signed a promissory note providing for installment payments;
(ii) The FAA makes no finding of violation; and
(iii) The compromise order will not be used as evidence of a prior violation in any subsequent civil penalty proceeding or certificate action proceeding.
(j) Payment. (1) An individual must pay a civil penalty by:
(i) Sending a certified check or money order, payable to the Federal Aviation Administration, to the FAA office identified in the order of assessment; or
(ii) Making an electronic payment according to the directions specified in the order of assessment.
(2) The civil penalty must be paid within 30 days after service of the order of assessment, unless an appeal is filed with the National Transportation Safety Board. In cases where an appeal is filed with the National Transportation Safety Board, or a petition for review is filed with a U.S. court of appeals, the civil penalty must be paid within 30 days after all litigation in the matter is completed and the civil penalty is affirmed in whole or in part.
(k) Collection of civil penalties. If an individual does not pay a civil penalty imposed by an order of assessment or other final order, the Administrator may take action provided under the law to collect the penalty.
§ 13.19 Certificate actions appealable to the National Transportation Safety Board.
(a) This section applies to certificate actions by the Administrator that are appealable to the National Transportation Safety Board.
(1) Under 49 U.S.C. 44709(b) the Administrator may issue an order amending, modifying, suspending, or revoking all or part of any type certificate, production certificate, airworthiness certificate, airman certificate, air carrier operating certificate, air navigation facility certificate, or air agency certificate if as a result of a reinspection, reexamination, or other investigation, the Administrator determines that the public interest and safety in air commerce requires it, if a certificate holder has violated an aircraft noise or sonic boom standard or regulation prescribed under 49 U.S.C. 44715(a), or if the holder of the certificate is convicted of violating 16 U.S.C. 742j-1(a).
(2) The authority of the Administrator to issue orders under 49 U.S.C. 44709(b)(1)(A) and (b)(2) is delegated to the Chief Counsel, each Deputy Chief Counsel, and the Assistant Chief Counsel for Enforcement.
(b) The agency attorney will issue a notice before issuing a non-immediately effective order to amend, modify, suspend, or revoke a type certificate, production certificate, airworthiness certificate, airman certificate, air carrier operating certificate, air navigation facility certificate, air agency certificate, or to revoke an aircraft certificate of registration because the aircraft was used to carry out or facilitate an activity punishable under a law of the United States or a State related to a controlled substance (except a law related to simple possession of a controlled substance), by death or imprisonment for more than one year, and the owner of the aircraft permitted the use of the aircraft knowing that the aircraft was to be used for the activity.
(1) A notice of proposed certificate action will advise the certificate holder or aircraft owner of the charges or other reasons upon which the Administrator bases the proposed action, and allows the holder to answer any charges and to be heard as to why the certificate should not be amended, suspended, modified, or revoked.
(2) In response to a notice of proposed certificate action described in paragraph (b)(1) of this section, the certificate holder or aircraft owner, within 15 days of the date of receipt of the notice, may—
(i) Surrender the certificate and waive any right to contest or appeal the charged violations and sanction, in which case the Administrator will issue an order;
(ii) Answer the charges in writing by submitting information, including documents and witness statements, demonstrating that a violation of the regulations did not occur or that the proposed sanction is not warranted by the circumstances;
(iii) Submit a written request for an informal conference to discuss the matter with an agency attorney and submit relevant information or documents; or
(iv) Request that an order be issued in accordance with the notice of proposed certificate action so that the certificate holder or aircraft owner may appeal to the National Transportation Safety Board.
(c) In the case of an emergency order amending, modifying, suspending, or revoking a type certificate, production certificate, airworthiness certificate, airman certificate, air carrier operating certificate, air navigation facility certificate, or air agency certificate, a person affected by the immediate effectiveness of the Administrator’s order may petition the National Transportation Safety Board for a review of the Administrator’s determination that an emergency exists.
(d) A person may not petition the National Transportation Safety Board for a review of the Administrator’s determination that safety in air transportation or air commerce requires the immediate effectiveness of an order where the action is based on the circumstances described in paragraph (d)(1), (2), or (3) of this section.
(1) The revocation of an individual’s airman certificates for the reasons stated in paragraph (d)(1)(i) or (ii) of this section:
(i) A conviction under a law of the United States or a State related to a controlled substance (except a law related to simple possession of a controlled substance), of an offense punishable by death or imprisonment for more than one year if the Administrator finds that—
(A) An aircraft was used to commit, or facilitate the commission of the offense; and
(B) The individual served as an airman, or was on the aircraft, in connection with committing, or facilitating the commission of, the offense.
(ii) Knowingly carrying out an activity punishable, under a law of the United States or a State related to a controlled substance (except a law related to simple possession of a controlled substance), by death or imprisonment for more than one year; and—
(A) An aircraft was used to carry out or facilitate the activity; and
(B) The individual served as an airman, or was on the aircraft, in connection with carrying out, or facilitating the carrying out of, the activity.
(2) The revocation of a certificate of registration for an aircraft, and any other aircraft the owner of that aircraft holds, if the Administrator finds that—
(i) The aircraft was used to carry out or facilitate an activity punishable, under a law of the United States or a State related to a controlled substance (except a law related to simple possession of a controlled substance), by death or imprisonment for more than one year; and
(ii) The owner of the aircraft permitted the use of the aircraft knowing that the aircraft was to be used for the activity described in paragraph (d)(2)(i) of this section.
(3) The revocation of an airman certificate, design organization certificate, type certificate, production certificate, airworthiness certificate, air carrier operating certificate, airport operating certificate, air agency certificate, or air navigation facility certificate if the Administrator finds that the holder of the certificate or an individual who has a controlling or ownership interest in the holder—
(i) Was convicted in a court of law of a violation of a law of the United States relating to the installation, production, repair, or sale of a counterfeit or fraudulently-represented aviation part or material; or
(ii) Knowingly, and with the intent to defraud, carried out or facilitated an activity described in paragraph (d)(3)(i) of this section.
§ 13.20 Orders of compliance, cease and desist orders, orders of denial, and other orders.
(a) General. This section applies to all of the following:
(1) Orders of compliance;
(2) Cease and desist orders;
(3) Orders of denial;
(4) Orders suspending or revoking a certificate of registration (but not revocation of a certificate of registration because the aircraft was used to carry out or facilitate an activity punishable, under a law of the United States or a State related to a controlled substance (except a law related to simple possession of a controlled substance), by death or imprisonment for more than one year and the owner of the aircraft permitted the use of the aircraft knowing that the aircraft was to be used for the activity); and
(5) Other orders issued by the Administrator to carry out the provisions of the Federal aviation statute codified at 49 U.S.C. subtitle VII that apply this section by statute, rule, regulation, or order, or for which there is no specific administrative process provided by statute, rule, regulation, or order.
(b) Applicability of procedures. (1) Prior to the issuance of a non-immediately effective order covered by this section, the Administrator will provide the person who would be subject to the order with notice, advising the person of the charges or other reasons upon which the proposed action is based, and the provisions in paragraph (c) of this section apply.
(2) If the Administrator is of the opinion that an emergency exists related to safety in air commerce and requires immediate action and issues an order covered by this section that is immediately effective, the provisions of paragraph (d) of this section apply.
(c) Non-emergency procedures. (1) Within 30 days after service of the notice, the person subject to the notice may:
(i) Submit a written reply;
(ii) Agree to the issuance of the order as proposed in the notice of proposed action, waiving any right to contest or appeal the agreed-upon order issued under this option in any administrative or judicial forum;
(iii) Submit a written request for an informal conference to discuss the matter with an agency attorney; or
(iv) Request a hearing in accordance with the non-emergency procedures of subpart D of this part.
(2) After an informal conference is held or a reply is filed, if the agency attorney notifies the person that some or all of the proposed agency action will not be withdrawn, the person may, within 10 days after receiving the agency attorney’s notification, request a hearing on the parts of the proposed agency action not withdrawn, in accordance with the non-emergency procedures of subpart D of this part.
(3) If a hearing is requested in accordance with paragraph (c)(1)(iv) or (c)(2) of this section, the non-emergency procedures of subpart D of this part apply.
(4) Failure to request a hearing within the periods provided in paragraph (c)(1)(iv) or (c)(2) of this section:
(i) Constitutes a waiver of the right to a hearing and appeal; and
(ii) Authorizes the agency to make appropriate findings of fact and to issue an appropriate order without further notice or proceedings.
(d) Emergency procedures. (1) If the Administrator is of the opinion that an emergency exists related to safety in air commerce and requires immediate action, the Administrator issues simultaneously:
(i) An immediately effective order that expires 80 days after the date of issuance and sets forth the charges or other reasons upon which the order is based; and
(ii) A notice of proposed action that:
(A) Sets forth the charges or other reasons upon which the notice of proposed action is based; and
(B) Advises that within 10 days after service of the notice, the person may appeal the notice by requesting an expedited hearing in accordance with the emergency procedures of subpart D of this part.
(2) The Administrator will serve the immediately effective order and the notice of proposed action together by personal or overnight delivery and by certified or registered mail to the person subject to the order and notice of proposed action.
(3) Failure to request a hearing challenging the notice of proposed action under the expedited procedures in subpart D of this part within 10 days after service of the notice:
(i) Constitutes a waiver of the right to a hearing and appeal under subpart D of this part; and
(ii) Authorizes the Administrator, without further notice or proceedings, to make appropriate findings of fact, issue an immediately effective order without expiration, and withdraw the 80-day immediately effective order.
(4) The filing of a request for hearing under subpart D of this part does not stay the effectiveness of the 80-day immediately effective order issued under this section.
(e) Delegation of authority. The authority of the Administrator under this section is delegated to the Chief Counsel, each Deputy Chief Counsel, and the Assistant Chief Counsel for Enforcement.
§§ 13.21 -13.29 [Reserved]
Subpart D—Rules of Practice for FAA Hearings
§ 13.31 Applicability.
This subpart applies to proceedings in which a hearing has been requested in accordance with § 13.20 or § 13.75. Hearings under this subpart are considered informal and are provided through the Office of Adjudication.
§ 13.33 Parties, representatives, and notice of appearance.
(a) Parties. Parties to proceedings under this subpart include the following: Complainant, respondent, and where applicable, intervenor.
(1) Complainant is the FAA Office that issued the notice of proposed action under the authorities listed in § 13.31.
(2) Respondent is the party filing a request for hearing.
(3) Intervenor is a person permitted to participate as a party under § 13.51.
(b) Representatives. Any party to a proceeding under this subpart may appear and be heard in person or by a representative. A representative is an attorney, or another representative designated by the party.
(c) Notice of appearance—(1) Content. The representative of a party must file a notice of appearance that includes the representative’s name, address, telephone number, and, if available, fax number, and email address.
(2) Filing. A notice of appearance may be incorporated into an initial filing in a proceeding. A notice of appearance by additional representatives or substitutes after an initial filing in a proceeding must be filed independently.
§ 13.35 Request for hearing, complaint, and answer.
(a) Initial filing and service. A request for hearing must be filed with the FAA Hearing Docket, and a copy must be served on the official who issued the notice of proposed action, in accordance with the requirements in § 13.43 for filing and service of documents. The request for hearing must be in writing and describe the action proposed by the FAA, and must contain a statement that a hearing is requested under this subpart.
(b) Complaint. Within 20 days after service of the copy of the request for hearing, the official who issued the notice of proposed action must forward a copy of that notice, which serves as the complaint, to the FAA Hearing Docket.
(c) Answer. Within 30 days after service of the copy of the complaint, the Respondent must file an answer to the complaint. All allegations in the complaint not specifically denied in the answer are deemed admitted.
§ 13.37 Hearing officer: Assignment and powers.
As soon as practicable after the filing of the complaint, the Director of the Office of Adjudication will assign a hearing officer to preside over the matter. The hearing officer may—
(a) Give notice concerning, and hold, prehearing conferences and hearings;
(b) Administer oaths and affirmations;
(c) Examine witnesses;
(d) Adopt procedures for the submission of evidence in written form;
(e) Issue subpoenas;
(f) Rule on offers of proof;
(g) Receive evidence;
(h) Regulate the course of proceedings, including but not limited to discovery, motions practice, imposition of sanctions, and the hearing;
(i) Hold conferences, before and during the hearing, to settle and simplify issues by consent of the parties;
(j) Dispose of procedural requests and similar matters;
(k) Issue protective orders governing the exchange and safekeeping of information otherwise protected by law, except that national security information may not be disclosed under such an order;
(l) Issue orders and decisions, and make findings of fact, as appropriate; and
(m) Take any other action authorized by this subpart.
§ 13.39 Disqualification of hearing officer.
(a) Motion and supporting affidavit. Any party may file a motion for disqualification under § 13.49(g). A party must state the grounds for disqualification, including, but not limited to, a financial or other personal interest that would be affected by the outcome of the enforcement action, personal animus against a party to the action or against a group to which a party belongs, prejudgment of the adjudicative facts at issue in the proceeding, or any other prohibited conflict of interest. A party must submit an affidavit with the motion for disqualification that sets forth, in detail, the matters alleged to constitute grounds for disqualification.
(b) Timing. A motion for disqualification must be filed prior to the issuance of the hearing officer’s decision under § 13.63(b). Any party may file a response to a motion for disqualification, but must do so no later than 5 days after service of the motion for disqualification.
(c) Decision on motion for disqualification. The hearing officer must render a decision on the motion for disqualification no later than 15 days after the motion has been filed. If the hearing officer finds that the motion for disqualification and supporting affidavit show a basis for disqualification, the hearing officer must withdraw from the proceedings immediately. If the hearing officer finds that disqualification is not warranted, the hearing officer must deny the motion and state the grounds for the denial on the record. If the hearing officer fails to rule on a party’s motion for disqualification within 15 days after the motion has been filed, the motion is deemed granted.
(d) Self-disqualification. A hearing officer may disqualify himself or herself at any time.
§ 13.41 Separation of functions and prohibition on ex parte communications.
(a) Separation of powers. The hearing officer independently exercises the powers under this subpart in a manner conducive to justice and the proper dispatch of business. The hearing officer must not participate in any appeal to the Administrator.
(b) Ex parte communications. (1) No substantive ex parte communications between the hearing officer and any party are permitted.
(2) A hearing, conference, or other event scheduled with prior notice will not constitute ex parte communication prohibited by this section. A hearing, conference, or other event scheduled with prior notice, may proceed in the hearing officer’s sole discretion if a party fails to appear, respond, or otherwise participate, and will not constitute an ex parte communication prohibited by this section.
(3) For an appeal to the Administrator under this subpart, FAA attorneys representing the complainant must not advise the Administrator or engage in any ex parte communications with the Administrator or his advisors.
§ 13.43 Service and filing of pleadings, motions, and documents.
(a) General rule. A party must file all requests for hearing, pleadings, motions, and documents with the FAA Hearing Docket, and must serve a copy upon all parties to the proceedings.
(b) Methods of filing. Filing must be by email, personal delivery, expedited or overnight courier express service, mail, or fax.
(c) Address for filing. A person filing a document with the FAA Hearing Docket must use the address identified for the method of filing as follows:
(1) If delivery is in person, or by expedited or overnight express courier service. Federal Aviation Administration, 600 Independence Avenue SW, Wilbur Wright Building—Suite 2W100, Washington, DC 20597; Attention: FAA Hearing Docket, AGC-70.
(2) If delivery is via U.S. mail, or U.S. certified or registered mail. Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; Attention: FAA Hearing Docket, AGC-70, Wilbur Wright Building—Suite 2W100.
(3) Contact information. The FAA Office of Adjudication will make available on its website an email address and fax number for the FAA Hearing Docket, as well as other contact information.
(d) Requirement to file an original document and number of copies. A party must file an original document and one copy when filing by personal delivery or by mail. Only one copy must be filed if filing is accomplished by email or fax.
(e) Filing by email. A document that is filed by email must be attached as a Portable Document Format (PDF) file to an email. The document must be signed in accordance with § 13.207. The email message does not constitute a submission, but serves only to deliver the attached PDF file to the FAA Hearing Docket.
(f) Methods of service—(1) General. A person may serve any document by email, personal delivery, expedited or overnight courier express service, mail, or fax.
(2) Service by email. Service of documents by email is voluntary and requires the prior consent of the person to be served by email. A person may retract consent to be served by email by filing and serving a written retraction. A document that is served by email must be attached as a PDF file to an email message.
(g) Certificate of service. A certificate of service must accompany all documents filed with the FAA Hearing Docket. The certificate of service must be signed, describe the method of service, and state the date of service.
(h) Date of filing and service. If a document is sent by fax or email, the date of filing and service is the date the email or fax is sent. If a document is sent by personal delivery or by expedited or overnight express courier service, the date of filing and service is the date that delivery is accomplished. If a document is mailed, the date of filing and service is the date shown on the certificate of service, the date shown on the postmark if there is no certificate of service, or the mailing date shown by other evidence if there is no certificate of service or postmark.
§ 13.44 [Reserved]
§ 13.45 Computation of time and extension of time.
(a) In computing any period of time prescribed or allowed by this subpart, the date of the act, event, default, notice, or order is not to be included in the computation. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or Federal holiday, in which event the period runs until the end of the next day that is not a Saturday, Sunday, or a Federal holiday.
(b) Whenever a party must respond within a prescribed period after service by mail, 5 days are added to the prescribed period.
(c) The parties may agree to extend the time for filing any document required by this subpart with the consent of—
(1) The Director of the Office of Adjudication prior to the designation of a hearing officer;
(2) The hearing officer prior to the filing of a notice of appeal; or
(3) The Director of the Office of Adjudication after the filing of a notice of appeal.
(d) If the parties do not agree, a party may make a written request to extend the time for filing to the appropriate official identified in paragraph (c) of this section. The appropriate official may grant the request for good cause shown.
§ 13.47 Withdrawal or amendment of the complaint, answer, or other filings.
(a) Withdrawal. At any time before the hearing, the complainant may withdraw the complaint, and the respondent may withdraw the request for hearing.
(b) Amendments. At any time more than 10 days before the date of hearing, any party may amend its complaint, answer, or other pleading, by filing the amendment with the FAA Hearing Docket and serving a copy of it on every other party. After that time, amendment requires approval of the hearing officer. If an initial pleading is amended, the hearing officer must allow the other parties a reasonable opportunity to respond.
§ 13.49 Motions.
(a) Motions in lieu of an answer. A respondent may file a motion to dismiss or a motion for a more definite statement in place of an answer. If the hearing officer denies the motion, the respondent must file an answer within 10 days.
(1) Motion to dismiss. The respondent may file a motion asserting that the allegations in the complaint fail to state a violation of Federal aviation statutes, a violation of regulations in this chapter, lack of qualification of the respondent, or other appropriate grounds.
(2) Motion for more definite statement. The respondent may file a motion that the allegations in the notice be made more definite and certain.
(b) Motion to dismiss request for hearing. The FAA may file a motion to dismiss a request for hearing based on jurisdiction, timeliness, or other appropriate grounds.
(c) Motion for decision on the pleadings or for summary decision. After the complaint and answer are filed, either party may move for a decision on the pleadings or for a summary decision, in the manner provided by Rules 12 and 56, respectively, of the Federal Rules of Civil Procedure.
(d) Motion to strike. Upon motion of either party, the hearing officer may order stricken, from any pleadings, any insufficient allegation or defense, or any redundant, immaterial, impertinent, or scandalous matter.
(e) Motion to compel. Any party may file a motion asking the hearing officer to order any other party to produce discovery requested in accordance with § 13.53 if—
(1) The other party has failed to timely produce the requested discovery; and
(2) The moving party certifies it has in good faith conferred with the other party in an attempt to obtain the requested discovery prior to filing the motion to compel.
(f) Motion for protective order. The hearing officer may order information contained in anything filed, or in any testimony given pursuant to this subpart withheld from public disclosure when, in the judgment of the hearing officer, disclosure would be detrimental to aviation safety; disclosure would not be in the public interest; or the information is not otherwise required to be made available to the public. Any person may make written objection to the public disclosure of any information, stating the ground for such objection.
(g) Other motions. Any application for an order or ruling not otherwise provided for in this subpart must be made by motion.
(h) Responses to motions. Any party may file a response to any motion under this subpart within 10 days after service of the motion.
§ 13.51 Intervention.
Any person may move for leave to intervene in a proceeding and may become a party thereto, if the hearing officer, after the case is sent to the hearing officer for hearing, finds that the person may be bound by the order to be issued in the proceedings or has a property or financial interest that may not be adequately represented by existing parties, and that the intervention will not unduly broaden the issues or delay the proceedings. Except for good cause shown, a motion for leave to intervene may not be considered if it is filed less than 10 days before the hearing.
§ 13.53 Discovery.
(a) Filing. Discovery requests and responses are not filed with the FAA Hearing Docket unless in support of a motion, offered for impeachment, or other permissible circumstances as approved by the hearing officer.
(b) Scope of discovery. Any party may discover any matter that is not privileged and is relevant to any party’s claim or defense.
(c) Time for response to written discovery requests. (1) Written discovery includes interrogatories, requests for admission or stipulations, and requests for production of documents.
(2) Unless otherwise directed by the hearing officer, a party must serve its response to a discovery request no later than 30 days after service of the discovery request.
(d) Depositions. After the respondent has filed a request for hearing and an answer, either party may take testimony by deposition.
(e) Limits on discovery. The hearing officer may limit the frequency and extent of discovery upon a showing by a party that—
(1) The discovery requested is cumulative or repetitious;
(2) The discovery requested can be obtained from another less burdensome and more convenient source;
(3) The party requesting the information has had ample opportunity to obtain the information through other discovery methods permitted under this section; or
(4) The method or scope of discovery requested by the party is unduly burdensome or expensive.
§ 13.55 Notice of hearing.
The hearing officer must set a reasonable date, time, and location for the hearing, and must give the parties adequate notice thereof, and of the nature of the hearing. Due regard must be given to the convenience of the parties with respect to the location of the hearing.
§ 13.57 Subpoenas and witness fees.
(a) Application. The hearing officer, upon application by any party to the proceeding, may issue subpoenas requiring the attendance of witnesses or the production of documents or tangible things at a hearing or for the purpose of taking depositions, as permitted by law. The application for producing evidence must show its general relevance and reasonable scope. Absent good cause shown, a party must file a request for a subpoena at least:
(1) 15 days before a scheduled deposition under the subpoena; or
(2) 30 days before a scheduled hearing where attendance at the hearing is sought.
(b) Procedure. A party seeking the production of a document in the custody of an FAA employee must use the discovery procedure found in § 13.53, and if necessary, a motion to compel under § 13.49. A party that applies for the attendance of an FAA employee at a hearing must send the application, in writing, to the hearing officer. The application must set forth the need for that employee’s attendance.
(c) Fees. Except for an employee of the agency who appears at the direction of the agency, a witness who appears at a deposition or hearing is entitled to the same fees and allowances as provided for under 28 U.S.C. 1821. The party who applies for a subpoena to compel the attendance of a witness at a deposition or hearing, or the party at whose request a witness appears at a deposition or hearing, must pay the witness fees and allowances described in this section.
(d) Service of subpoenas. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person. Except for the complainant, the party that requested the subpoena must tender at the time of service the fees for 1 day’s attendance and the allowances allowed by law if the subpoena requires that person’s attendance. Proving service, if necessary, requires the filing with the FAA Hearing Docket of a statement showing the date and manner of service and the names of the persons served. The server must certify the statement.
(e) Motion to quash or modify the subpoena. A party, or any person served with a subpoena, may file a motion to quash or modify the subpoena with the hearing officer at or before the time specified in the subpoena for compliance. The movant must 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 thing is not relevant to the proceeding, that the subpoena is not reasonably tailored to the scope of the proceeding, or that the subpoena is unreasonable and oppressive. A motion to quash or modify the subpoena will stay the effect of the subpoena pending a decision by the hearing officer on the motion.
(f) Enforcement of subpoena. If a person disobeys a subpoena, a party may apply to a U.S. district court to seek judicial enforcement of the subpoena.
§ 13.59 Evidence.
(a) Each party to a hearing may present the party’s case or defense by oral or documentary evidence, submit evidence in rebuttal, and conduct such cross-examination as may be needed for a full disclosure of the facts.
(b) Except with respect to affirmative defenses and notices of proposed denial, the burden of proof is upon the complainant.
§ 13.61 Argument and submittals.
The hearing officer must give the parties adequate opportunity to present arguments in support of motions, objections, and the final order. The hearing officer may determine whether arguments are to be oral or written. At the end of the hearing, the hearing officer may allow each party to submit written proposed findings and conclusions and supporting reasons for them.
§ 13.63 Record, decision, and aircraft registration proceedings.
(a) The record. (1) The testimony and exhibits admitted at a hearing, together with all papers, requests, and rulings filed in the proceedings, are the exclusive basis for the issuance of the hearing officer’s decision.
(2) On appeal to the Administrator, the record shall include all of the information identified in paragraph (a)(1) of this section and evidence proffered but not admitted at the hearing.
(3) Any party may obtain a transcript of the hearing from the official reporter upon payment of the required fees.
(b) Hearing officer’s decision. The decision by the hearing officer must include findings of fact based on the record, conclusions of law, and an appropriate order.
(c) Certain aircraft registration proceedings. If the hearing officer determines that an aircraft is ineligible for a certificate of aircraft registration in proceedings relating to aircraft registration orders suspending or revoking a certificate of registration under § 13.20, the hearing officer may suspend or revoke the aircraft registration certificate.
§ 13.65 Appeal to the Administrator, reconsideration, and judicial review.
(a) Any party to a hearing may appeal from the order of the hearing officer by filing with the FAA Hearing Docket a notice of appeal to the Administrator within 20 days after the date of issuance of the order. Filing and service of the notice of appeal, and any other papers, are accomplished according to the procedures in § 13.43.
(b) If a notice of appeal is not filed from the order issued by a hearing officer, such order is final with respect to the parties. Such order is not binding precedent and is not subject to judicial review.
(c) Any person filing an appeal authorized by paragraph (a) of this section must file an appeal brief with the Administrator within 40 days after the date of issuance of the order, and serve a copy on the other party. A reply brief must be filed within 40 days after service of the appeal brief and a copy served on the appellant.
(d) On appeal, the Administrator reviews the record of the proceeding and issues an order dismissing, reversing, modifying or affirming the order. The Administrator’s order includes the reasons for the Administrator’s action. The Administrator considers only whether:
(1) Each finding of fact is supported by a preponderance of the reliable, probative, and substantial evidence;
(2) Each conclusion is made in accordance with law, precedent, and policy; and
(3) The hearing officer committed any prejudicial error.
(e) The Director and legal personnel of the Office of Adjudication serve as the advisors to the Administrator for appeals under this section.
(1) The Director has the authority to:
(i) Manage all or portions of individual appeals; and to prepare written decisions and proposed final orders in such appeals;
(ii) Issue procedural and other interlocutory orders aimed at proper and efficient appeal management, including, without limitation, scheduling and sanctions orders;
(iii) Grant or deny motions to dismiss appeals;
(iv) Dismiss appeals upon request of the appellant or by agreement of the parties;
(v) Stay decisions and orders of the Administrator, pending judicial review or reconsideration by the Administrator;
(vi) Summarily dismiss repetitious or frivolous petitions to reconsider or modify orders;
(vii) Correct typographical, grammatical, and similar errors in the Administrator’s decisions and orders, and to make non-substantive editorial changes; and
(viii) Take all other reasonable steps deemed necessary and proper for the management of the appeals process, in accordance with this part and applicable law.
(2) The Director’s authority in paragraph (e)(1) of this section may be re-delegated, as necessary, except to hearing officers and others materially involved in the hearing that is the subject of the appeal.
(f) Motions to reconsider the final order of the Administrator must be filed with the FAA Hearing Docket within thirty days of service of the Administrator’s order.
(g) Judicial review of the Administrator’s final order under this section is provided in accordance with 49 U.S.C. 5127 or 46110, as applicable.
§ 13.67 Procedures for expedited proceedings.
(a) When an expedited administrative hearing is requested in accordance with § 13.20(d), the procedures in this subpart will apply except as provided in paragraphs (a)(1) through (7) of this section.
(1) Service and filing of pleadings, motions, and documents must be by overnight delivery, and fax or email. Responses to motions must be filed within 7 days after service of the motion.
(2) Within 3 days after receipt of the request for hearing, the agency must file a copy of the notice of proposed action, which serves as the complaint, to the FAA Hearing Docket.
(3) Within 3 days after receipt of the complaint, the person that requested the hearing must file an answer to the complaint. All allegations in the complaint not specifically denied in the answer are deemed admitted. Failure to file a timely answer, absent a showing of good cause, constitutes withdrawal of the request for hearing.
(4) Within 3 days of the filing of the complaint, the Director of the Office of Adjudication will assign a hearing officer to preside over the matter.
(5) The parties must serve discovery as soon as possible and set time limits for compliance with discovery requests that accommodate the accelerated adjudication schedule set forth in this subpart. The hearing officer will resolve any failure of the parties to agree to a discovery schedule.
(6) The expedited hearing must commence within 40 days after the notice of proposed action was issued.
(7) The hearing officer must issue an oral decision and order dismissing, reversing, modifying, or affirming the notice of proposed action at the close of the hearing. If a notice of appeal is not filed, such order is final with respect to the parties and is not subject to judicial review.
(b) Any party to the expedited hearing may appeal from the initial decision of the hearing officer to the Administrator by filing a notice of appeal within 3 days after the date on which the decision was issued. The time limitations for the filing of documents for appeals under this section will not be extended by reason of the unavailability of the hearing transcript.
(1) Any appeal to the Administrator under this section must be perfected within 7 days after the date the notice of appeal was filed by filing a brief in support of the appeal. Any reply to the appeal brief must be filed within 7 days after the date the appeal brief was served on that party. The Administrator must issue an order deciding the appeal no later than 80 days after the date the notice of proposed action was issued.
(2) The Administrator’s order is immediately effective and constitutes the final agency decision. The Administrator’s order may be appealed pursuant to 49 U.S.C. 46110. The filing of an appeal under 49 U.S.C. 46110 does not stay the effectiveness of the Administrator’s order.
(c) At any time after an immediately effective order is issued, the FAA may request the United States Attorney General, or the delegate of the Attorney General, to bring an action for appropriate relief.
§ 13.69 Other matters: Alternative dispute resolution, standing orders, and forms.
(a) Parties may use mediation to achieve resolution of issues in controversy addressed by this subpart. Parties seeking alternative dispute resolution services may engage the services of a mutually acceptable mediator. The mediator must not participate in the adjudication under this subpart of any matter in which the mediator has provided mediation services. Mediation discussions and submissions will remain confidential consistent with the provisions of the Administrative Dispute Resolution Act, the principles of Federal Rule of Evidence 408, and other applicable Federal laws.
(b) The Director of the Office of Adjudication may issue standing orders and forms needed for the proper dispatch of business under this subpart.
Subpart E—Orders of Compliance Under the Hazardous Materials Transportation Act
The authority of the Administrator under 49 U.S.C. 5121(a) and (d) is delegated to the Chief Counsel, each Deputy Chief Counsel, and the Assistant Chief Counsel for Enforcement.
§ 13.71 Applicability.
(a) An order of compliance may be issued after notice and an opportunity for a hearing in accordance with §§ 13.73 through 13.77 whenever the Chief Counsel, a Deputy Chief Counsel, or the Assistant Chief Counsel for Enforcement has reason to believe that a person is engaging in the transportation or shipment by air of hazardous materials in violation of the Hazardous Materials Transportation Act, as amended and codified at 49 U.S.C. chapter 51, or any rule, regulation, or order issued under 49 U.S.C. chapter 51, for which the FAA exercises enforcement responsibility, and the circumstances do not require the issuance of an emergency order under 49 U.S.C. 5121(d).
(b) If circumstances require the issuance of an emergency order under 49 U.S.C. 5121(d), the Chief Counsel, a Deputy Chief Counsel, or the Assistant Chief Counsel for Enforcement will issue an emergency order of compliance as described in § 13.81.
§ 13.73 Notice of proposed order of compliance.
The Chief Counsel, a Deputy Chief Counsel, or the Assistant Chief Counsel for Enforcement may issue to an alleged violator a notice of proposed order of compliance advising the alleged violator of the charges and setting forth the remedial action sought in the form of a proposed order of compliance.
§ 13.75 Reply or request for hearing.
(a) Within 30 days after service upon the alleged violator of a notice of proposed order of compliance, the alleged violator may—
(1) Submit a written reply;
(2) Submit a written request for an informal conference to discuss the matter with an agency attorney; or
(3) Request a hearing in accordance with subpart D of this part.
(b) If, after an informal conference is held or a reply is filed, the agency attorney notifies the person named in the notice that some or all of the proposed agency action will not be withdrawn or will not be subject to a consent order of compliance, the alleged violator may, within 10 days after receiving the agency attorney’s notification, request a hearing in accordance with subpart D of this part.
(c) Failure of the alleged violator to file a reply or request a hearing within the period provided in paragraph (a) or (b) of this section, as applicable—
(1) Constitutes a waiver of the right to a hearing under subpart D of this part and the right to petition for judicial review; and
(2) Authorizes the Administrator to make any appropriate findings of fact and to issue an appropriate order of compliance, without further notice or proceedings.
§ 13.77 Consent order of compliance.
(a) At any time before the issuance of an order of compliance, an agency attorney and the alleged violator may agree to dispose of the case by the issuance of a consent order of compliance.
(b) The alleged violator may submit a proposed consent order to an agency attorney. The proposed consent order must include—
(1) An admission of all jurisdictional facts;
(2) An express waiver of the right to further procedural steps and of all rights to legal review in any forum;
(3) An express waiver of attorney’s fees and costs;
(4) If a notice has been issued prior to the proposed consent order of compliance, an incorporation by reference of the notice and an acknowledgement that the notice may be used to construe the terms of the consent order of compliance; and
(5) If a request for hearing is pending in any forum, a provision that the alleged violator will withdraw the request for a hearing and request that the case be dismissed.
§ 13.79 [Reserved]
§ 13.81 Emergency orders.
(a) Notwithstanding §§ 13.73 through 13.77, the Chief Counsel, each Deputy Chief Counsel, or the Assistant Chief Counsel for Enforcement may issue an emergency order of compliance, which is effective upon issuance, in accordance with the procedures in subpart C of 49 CFR part 109, if the person who issues the order finds that there is an “imminent hazard” as defined in 49 CFR 109.1.
(b) The FAA official who issued the emergency order of compliance may rescind or suspend the order if the criteria set forth in paragraph (a) of this section are no longer satisfied, and, when appropriate, may issue a notice of proposed order of compliance under § 13.73.
(c) If at any time in the course of a proceeding commenced in accordance with § 13.73 the criteria set forth in paragraph (a) of this section are satisfied, the official who issued the notice may issue an emergency order of compliance, even if the period for filing a reply or requesting a hearing specified in § 13.75 has not expired.
13.83-13.87 [Reserved]
Subpart F—Formal Fact-Finding Investigation Under an Order of Investigation
§ 13.101 Applicability.
(a) This subpart applies to fact-finding investigations in which an investigation has been ordered under § 13.3(c) or § 13.5(f)(2).
(b) This subpart does not limit the authority of any person to issue subpoenas, administer oaths, examine witnesses, and receive evidence in any informal investigation as otherwise provided by law.
§ 13.103 Order of investigation.
The order of investigation—
(a) Defines the scope of the investigation by describing the information sought in terms of its subject matter or its relevancy to specified FAA functions;
(b) Sets forth the form of the investigation which may be either by individual deposition or investigative proceeding or both; and
(c) Names the official who is authorized to conduct the investigation and serve as the presiding officer.
§ 13.105 Notification.
Any person under investigation and any person required to testify and produce documentary or physical evidence during the investigation will be advised of the purpose of the investigation, and of the place where the investigative proceeding or deposition will be convened. This may be accomplished by a notice of investigation or by a subpoena. A copy of the order of investigation may be sent to such persons when appropriate.
§ 13.107 Designation of additional parties.
(a) The presiding officer may designate additional persons as parties to the investigation, if in the discretion of the presiding officer, it will aid in the conduct of the investigation.
(b) The presiding officer may designate any person as a party to the investigation if—
(1) The person petitions the presiding officer to participate as a party;
(2) The disposition of the investigation may as a practical matter impair the ability to protect the person’s interest unless allowed to participate as a party; and
(3) The person’s interest is not adequately represented by existing parties.
§ 13.109 Convening the investigation.
The presiding officer will conduct the investigation at a location convenient to the parties involved and as expeditious and efficient as handling of the investigation permits.
§ 13.111 Subpoenas.
(a) At the discretion of the presiding officer, or at the request of a party to the investigation, the presiding officer may issue a subpoena directing any person to appear at a designated time and place to testify or to produce documentary or physical evidence relating to any matter under investigation.
(b) Subpoenas must be served by personal service on the person or an agent designated in writing for the purpose, or by registered or certified mail addressed to the person or agent. Whenever service is made by registered or certified mail, the date of mailing will be considered the time when service is made.
(c) Subpoenas extend in jurisdiction throughout the United States and any territory or possession thereof.
§ 13.113 Noncompliance with the investigative process.
(a) If a person disobeys a subpoena, the Administrator or a party to the investigation may petition a court of the United States to enforce the subpoena in accordance with applicable statutes.
(b) If a party to the investigation fails to comply with the provisions of this subpart or an order issued by the presiding officer, the Administrator may bring a civil action to enforce the requirements of this subpart or any order issued under this subpart in a court of the United States in accordance with applicable statutes.
§ 13.115 Public proceedings.
(a) All investigative proceedings and depositions must be public unless the presiding officer determines that the public interest requires otherwise.
(b) The presiding officer may order information contained in any report or document filed or in any testimony given pursuant to this subpart withheld from public disclosure when, in the judgment of the presiding officer, disclosure would adversely affect the interests of any person and is not required in the public interest or is not otherwise required by statute to be made available to the public. Any person may make written objection to the public disclosure of information, stating the grounds for such objection.
§ 13.117 Conduct of investigative proceeding or deposition.
(a) The presiding officer may question witnesses.
(b) Any witness may be accompanied by counsel.
(c) Any party may be accompanied by counsel and either the party or counsel may—
(1) Question witnesses, provided the questions are relevant and material to the matters under investigation and would not unduly impede the progress of the investigation; and
(2) Make objections on the record and argue the basis for such objections.
(d) Copies of all notices or written communications sent to a party or witness must, upon request, be sent to that person’s attorney of record.
§ 13.119 Immunity and orders requiring testimony or other information.
(a) Whenever a person refuses, on the basis of a privilege against self-incrimination, to testify or provide other information during the course of any investigation conducted under this subpart, the presiding officer may, with the approval of the United States Attorney General, or the delegate of the Attorney General, issue an order requiring the person to give testimony or provide other information. However, no testimony or other information so compelled (or any information directly or indirectly derived from such testimony or other information) may be used against the person in any criminal case, except in a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
(b) The presiding officer may issue an order under this section if—
(1) The testimony or other information from the witness may be necessary to the public interest; and
(2) The witness has refused or is likely to refuse to testify or provide other information on the basis of a privilege against self-incrimination.
(c) Immunity provided by this section will not become effective until the person has refused to testify or provide other information on the basis of a privilege against self-incrimination, and an order under this section has been issued. An order, however, may be issued prospectively to become effective in the event of a claim of the privilege.
§ 13.121 Witness fees.
All witnesses appearing, other than employees of the Federal Aviation Administration, are entitled to the same fees and allowances as provided for under 28 U.S.C. 1821.
§ 13.123 Submission by party to the investigation.
(a) During an investigation conducted under this subpart, a party may submit to the presiding officer—
(1) A list of witnesses to be called, specifying the subject matter of the expected testimony of each witness; and
(2) A list of exhibits to be considered for inclusion in the record.
(b) If the presiding officer determines that the testimony of a witness or the receipt of an exhibit in accordance with paragraph (a) of this section will be relevant, competent, and material to the investigation, the presiding officer may subpoena the witness or use the exhibit during the investigation.
§ 13.125 Depositions.
Depositions for investigative purposes may be taken at the discretion of the presiding officer with reasonable notice to the party under investigation. Depositions must be taken before the presiding officer or other person authorized to administer oaths and designated by the presiding officer. The testimony must be reduced to writing by the person taking the deposition, or under the direction of that person, and where possible must then be subscribed by the deponent. Any person may be compelled to appear and testify and to produce physical and documentary evidence.
§ 13.127 Reports, decisions, and orders.
The presiding officer must issue a written report based on the record developed during the formal investigation, including a summary of principal conclusions. A summary of principal conclusions must be prepared by the official who issued the order of investigation in every case that results in no action, or no action as to a particular party to the investigation. All such reports must be furnished to the parties to the investigation and made available to the public on request.
§ 13.129 Post-investigation action.
A decision on whether to initiate subsequent action must be made on the basis of the record developed during the formal investigation and any other information in the possession of the Administrator.
§ 13.131 Other procedures.
Any question concerning the scope or conduct of a formal investigation not covered in this subpart may be ruled on by the presiding officer on his or her own initiative, or on the motion of a party or a person testifying or producing evidence.
Subpart G—Rules of Practice In FAA Civil Penalty Actions
§ 13.201 Applicability.
This subpart applies to all civil penalty actions initiated under § 13.16 in which a hearing has been requested.
§ 13.202 Definitions.
For this subpart only, the following definitions apply:
Administrative law judge means an administrative law judge appointed pursuant to the provisions of 5 U.S.C. 3105.
Agency attorney means the Deputy Chief Counsel or the Assistant Chief Counsel responsible for the prosecution of enforcement-related matters under this subpart, or attorneys who are supervised by those officials or are assigned to prosecute a particular enforcement-related matter under this subpart. Agency attorney does not include the Chief Counsel or anyone from the Office of Adjudication.
Complaint means a document issued by an agency attorney alleging a violation of a provision of the Federal aviation statute listed in the first sentence of 49 U.S.C. 46301(d)(2) or in 49 U.S.C. 47531, or of the Federal hazardous materials transportation statute, 49 U.S.C. 5121-5128, or a rule, regulation, or order issued under those statutes, that has been filed with the FAA Hearing Docket after a hearing has been requested under § 13.16(f)(3) or (g)(2)(ii).
Complainant means the FAA office that issued the notice of proposed civil penalty under § 13.16.
FAA decisionmaker means the Administrator of the Federal Aviation Administration, acting in the capacity of the decisionmaker on appeal, or any person to whom the Administrator has delegated the Administrator’s decisionmaking authority in a civil penalty action. As used in this subpart, the FAA decisionmaker is the official authorized to issue a final decision and order of the Administrator in a civil penalty action.
Mail includes U.S. mail, U.S. certified mail, U.S. registered mail, or use of an expedited or overnight express courier service, but does not include email.
Office of Adjudication means the Federal Aviation Administration Office of Adjudication, including the FAA Hearing Docket, the Director of the Office of Adjudication and legal personnel, or any subsequently designated office (including its head and any legal personnel) that advises the FAA decisionmaker regarding appeals of initial decisions and orders to the FAA decisionmaker.
Order assessing civil penalty means a document that contains a finding of a violation of a provision of the Federal aviation statute listed in the first sentence of 49 U.S.C. 46301(d)(2) or in 49 U.S.C. 47531, or of the Federal hazardous materials transportation statute, 49 U.S.C. 5121-5128, or a rule, regulation, or order issued under those statutes, and may direct payment of a civil penalty. Unless an appeal is filed with the FAA decisionmaker in a timely manner, an initial decision or order of an administrative law judge is considered an order assessing civil penalty if an administrative law judge finds that an alleged violation occurred and determines that a civil penalty, in an amount found appropriate by the administrative law judge, is warranted. Unless a petition for review is filed with a U.S. Court of Appeals in a timely manner, a final decision and order of the Administrator is considered an order assessing civil penalty if the FAA decisionmaker finds that an alleged violation occurred and a civil penalty is warranted.
Party means the Respondent, the complainant and any intervenor.
Personal delivery includes hand-delivery or use of a contract or express messenger service. “Personal delivery” does not include the use of Federal Government interoffice mail service.
Pleading means a complaint, an answer, and any amendment of these documents permitted under this subpart.
Properly addressed means a document that shows an address contained in agency records; a residential, business, or other address submitted by a person on any document provided under this subpart; or any other address shown by other reasonable and available means.
Respondent means a person named in a complaint.
Writing or written includes paper or electronic documents that are filed or served by email, mail, personal delivery, or fax.
§ 13.203 Separation of functions.
(a) Civil penalty proceedings, including hearings, are prosecuted by an agency attorney.
(b) An agency employee who has engaged in the performance of investigative or prosecutorial functions in a civil penalty action must not participate in deciding or advising the administrative law judge or the FAA decisionmaker in that case, or a factually-related case, but may participate as counsel for the complainant or as a witness in the public proceedings.
(c) The Chief Counsel and the Director and legal personnel of the Office of Adjudication will advise the FAA decisionmaker regarding any appeal of an initial decision or order in a civil penalty action to the FAA decisionmaker.
§ 13.204 Appearances and rights of parties.
(a) Any party may appear and be heard in person.
(b) Any party may be accompanied, represented, or advised by an attorney or representative designated by the party, and may be examined by that attorney or representative in any proceeding governed by this subpart. An attorney or representative who represents a party must file a notice of appearance in the action, in the manner provided in § 13.210, and must serve a copy of the notice of appearance on each party, and on the administrative law judge, if assigned, in the manner provided in § 13.211, before participating in any proceeding governed by this subpart. The attorney or representative must include the name, address, and telephone number, and, if available, fax number and email address, of the attorney or representative in the notice of appearance.
(c) Any person may request a copy of a document in the record upon payment of reasonable costs. A person may keep an original document, data, or evidence, with the consent of the administrative law judge, by substituting a legible copy of the document for the record.
§ 13.205 Administrative law judges.
(a) Powers of an administrative law judge. In accordance with the rules of this subpart, an administrative law judge may:
(1) Give notice of, and hold, prehearing conferences and hearings;
(2) Administer oaths and affirmations;
(3) Issue subpoenas as authorized by law;
(4) Rule on offers of proof;
(5) Receive relevant and material evidence;
(6) Regulate the course of the hearing in accordance with the rules of this subpart;
(7) Hold conferences to settle or to simplify the issues by consent of the parties;
(8) Dispose of procedural motions and requests;
(9) Make findings of fact and conclusions of law, and issue an initial decision;
(10) Bar a person from a specific proceeding based on a finding of obstreperous or disruptive behavior in that specific proceeding; and
(11) Take any other action authorized by this subpart.
(b) Limitations. The administrative law judge must not issue an order of contempt, award costs to any party, or impose any sanction not specified in this subpart. If the administrative law judge imposes any sanction not specified in this subpart, a party may file an interlocutory appeal of right under § 13.219(c).
(c) Disqualification. The administrative law judge may disqualify himself or herself at any time. A party may file a motion for disqualification under § 13.218.
§ 13.206 Intervention.
(a) A person may submit a motion for leave to intervene as a party in a civil penalty action. Except for good cause shown, a motion for leave to intervene must be submitted not later than 10 days before the hearing.
(b) The administrative law judge may grant a motion for leave to intervene if the administrative law judge finds that intervention will not unduly broaden the issues or delay the proceedings and—
(1) The person seeking to intervene will be bound by any order or decision entered in the action; or
(2) The person seeking to intervene has a property, financial, or other legitimate interest that may not be addressed adequately by the parties.
(c) The administrative law judge may determine the extent to which an intervenor may participate in the proceedings.
§ 13.207 Certification of documents.
(a) Signature required. The attorney of record, the party, or the party’s representative must sign, by hand, electronically, or by other method acceptable to the administrative law judge, or, if the matter is on appeal, to the FAA decisionmaker, each document tendered for filing with the FAA Hearing Docket or served on the administrative law judge and on each other party.
(b) Effect of signing a document. By signing a document, the attorney of record, the party, or the party’s representative certifies that the attorney, the party, or the party’s representative has read the document and, based on reasonable inquiry and to the best of that person’s knowledge, information, and belief, the document is—
(1) Consistent with the rules in this subpart;
(2) Warranted by existing law or a good faith argument for extension, modification, or reversal of existing law; and
(3) Not unreasonable or unduly burdensome or expensive, not made to harass any person, not made to cause unnecessary delay, and not made to cause needless increase in the cost of the proceedings or for any other improper purpose.
(c) Sanctions. If the attorney of record, the party, or the party’s representative signs a document in violation of this section, the administrative law judge or the FAA decisionmaker must:
(1) Strike the pleading signed in violation of this section;
(2) Strike the request for discovery or the discovery response signed in violation of this section and preclude further discovery by the party;
(3) Deny the motion or request signed in violation of this section;
(4) Exclude the document signed in violation of this section from the record;
(5) Dismiss the interlocutory appeal and preclude further appeal on that issue by the party who filed the appeal until an initial decision has been entered on the record; or
(6) Dismiss the appeal of the administrative law judge’s initial decision to the FAA decisionmaker.
§ 13.208 Complaint.
(a) Filing. The agency attorney must file the complaint with the FAA Hearing Docket, or may file a written motion to dismiss a request for hearing under § 13.218 instead of filing a complaint, not later than 20 days after receipt by the agency attorney of a request for hearing. When filing the complaint, the agency attorney must follow the filing instructions in § 13.210. The agency attorney may suggest a location for the hearing when filing the complaint.
(b) Service. An agency attorney must serve a copy of the complaint on the respondent, the president of the corporation or company named as a respondent, or a person designated by the respondent to accept service of documents in the civil penalty action. When serving the complaint, the agency attorney must follow the service instructions in § 13.211.
(c) Contents. A complaint must set forth the facts alleged, any regulation allegedly violated by the respondent, and the proposed civil penalty in sufficient detail to provide notice of any factual or legal allegation and proposed civil penalty.
(d) Motion to dismiss stale allegations or complaint. Instead of filing an answer to the complaint, a respondent may move to dismiss the complaint, or that part of the complaint, alleging a violation that occurred more than 2 years before an agency attorney issued a notice of proposed civil penalty to the respondent.
(1) An administrative law judge may not grant the motion and dismiss the complaint or part of the complaint if the administrative law judge finds that the agency has shown good cause for any delay in issuing the notice of proposed civil penalty.
(2) If the agency fails to show good cause for any delay, an administrative law judge may dismiss the complaint, or that part of the complaint, alleging a violation that occurred more than 2 years before an agency attorney issued the notice of proposed civil penalty to the respondent.
(3) A party may appeal the administrative law judge’s ruling on the motion to dismiss the complaint or any part of the complaint in accordance with § 13.219(b).
§ 13.209 Answer.
(a) Writing required. A respondent must file in the FAA Hearing Docket a written answer to the complaint, or may file a written motion pursuant to § 13.208 or § 13.218 instead of filing an answer, not later than 30 days after service of the complaint. The answer must be dated and signed by the person responding to the complaint. An answer must be typewritten or legibly handwritten.
(b) Filing. A person filing an answer or motion under paragraph (a) of this section must follow the filing instructions in § 13.210.
(c) Service. A person filing an answer or a motion under paragraph (a) of this section must serve a copy of the answer or motion in accordance with the service instructions in § 13.211.
(d) Contents. An answer must specifically state any affirmative defense that the respondent intends to assert at the hearing. A person filing an answer may include a brief statement of any relief requested in the answer. The person filing an answer may recommend a location for the hearing when filing the answer.
(e) Specific denial of allegations required. A person filing an answer must admit, deny, or state that the person is without sufficient knowledge or information to admit or deny, each allegation in the complaint. All allegations in the complaint not specifically denied in the answer are deemed admitted. A general denial of the complaint is deemed a failure to file an answer.
(f) Failure to file answer. A person’s failure to file an answer without good cause will be deemed an admission of the truth of each allegation contained in the complaint.
§ 13.210 Filing of documents.
(a) General rule. Unless provided otherwise in this subpart, all documents in proceedings under this subpart must be tendered for filing with the FAA Hearing Docket.
(b) Methods of filing. Filing must be by email, personal delivery, mail, or fax.
(c) Address for filing. A person filing a document with the FAA Hearing Docket must use the address identified for the method of filing as follows:
(1) If delivery is in person, or by expedited or overnight express courier service. Federal Aviation Administration, 600 Independence Avenue SW, Wilbur Wright Building—Suite 2W100, Washington, DC 20597; Attention: FAA Hearing Docket, AGC-70.
(2) If delivery is via U.S. mail, or U.S. certified or registered mail. Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; Attention: FAA Hearing Docket, AGC-70, Wilbur Wright Building—Suite 2W100.
(3) If delivery is via email or fax. The email address and fax number for the FAA Hearing Docket, made available on the FAA Office of Adjudication website.
(d) Date of filing. If a document is filed by fax or email, the date of filing is the date the email or fax is sent. If a document is filed by personal delivery, the date of filing is the date that personal delivery is accomplished. If a document is filed by mail, the date of filing is the date shown on the certificate of service, the date shown on the postmark if there is no certificate of service, or the mailing date shown by other evidence if there is no certificate of service or postmark.
(e) Form. Each document must be typewritten or legibly handwritten.
(f) Contents. Unless otherwise specified in this subpart, each document must contain a short, plain statement of the facts on which the person’s case rests and a brief statement of the action requested.
(g) Requirement to file an original document and number of copies. A party must file an original document and one copy when filing by personal delivery or by mail. Only one copy must be filed if filing is accomplished by email or fax.
(h) Filing by email. A document that is filed by email must be attached as a PDF file to an email. The document must be signed in accordance with § 13.207. The email message does not constitute a submission, but serves only to deliver the attached PDF file to the FAA Hearing Docket.
§ 13.211 Service of documents.
(a) General. A person must serve a copy of all documents on each party and the administrative law judge, if assigned, at the time of filing with the FAA Hearing Docket except as provided otherwise in this subpart.
(b) Service by the FAA Hearing Docket, the administrative law judge, and the FAA decisionmaker. The FAA Hearing Docket, the administrative law judge, and the FAA decisionmaker must send documents to a party by personal delivery, mail, fax, or email as provided in this section.
(c) Methods of service—(1) General. A person may serve any document by email, personal delivery, mail, or fax.
(2) Service by email. Service of documents by email is voluntary and requires the prior consent of the person to be served by email. A person may retract consent to be served by email by filing a written retraction with the FAA Hearing Docket and serving it on the other party and the administrative law judge. A document that is served by email must be attached as a PDF file to an email message.
(d) Certificate of service. A certificate of service must accompany all documents filed with the FAA Hearing Docket. The certificate of service must be signed, describe the method of service, and state the date of service.
(e) Date of service. If a document is served by fax or served by email, the date of service is the date the email or fax is sent. If a document is served by personal delivery, the date of service is the date that personal delivery is accomplished. If a document is mailed, the date of service is the date shown on the certificate of service, the date shown on the postmark if there is no certificate of service, or the mailing date shown by other evidence if there is no certificate of service or postmark.
(f) Valid service. A document served by mail or personal delivery that was properly addressed, was sent in accordance with this subpart, and that was returned as unclaimed, or that was refused or not accepted, is deemed to have been served in accordance with this subpart.
(g) Additional time after service by mail. Whenever a party must respond within a prescribed period after service by mail, 5 days are added to the prescribed period.
(h) Presumption of service. There is a presumption of service where a party or a person, who customarily receives mail, or receives it in the ordinary course of business, at either the person’s residence or the person’s principal place of business, acknowledges receipt of the document.
§ 13.212 Computation of time.
(a) This section applies to any period of time prescribed or allowed by this subpart, by notice or order of the administrative law judge, or by any applicable statute.
(b) The date of an act, event, or default is not included in a computation of time under this subpart.
(c) The last day of a time period is included unless it is a Saturday, Sunday, or a Federal holiday. If the last day is a Saturday, Sunday, or Federal holiday, the time period runs until the end of the next day that is not a Saturday, Sunday, or Federal holiday.
§ 13.213 Extension of time.
(a) The parties may agree to extend for a reasonable period the time for filing a document under this subpart. The party seeking the extension of time must submit a draft order to the administrative law judge to be signed by the administrative law judge and filed with the FAA Hearing Docket. The administrative law judge must sign and issue the order if the extension agreed to by the parties is reasonable.
(b) A party may file a written motion for an extension of time. A written motion for an extension of time must be filed with the FAA Hearing Docket in accordance with § 13.210. The motion must be filed no later than seven days before the document is due unless good cause for the late filing is shown. The party filing the motion must serve a copy of the motion in accordance with § 13.211. The administrative law judge may grant the extension of time if good cause for the extension is shown.
(c) If the administrative law judge fails to rule on a motion for an extension of time by the date the document was due, the motion for an extension of time is deemed granted for no more than 20 days after the original date the document was to be filed.
§ 13.214 Amendment of pleadings.
(a) Filing and service. A party must file the amendment with the FAA Hearing Docket and must serve a copy of the amendment on the administrative law judge, if assigned, and on all parties to the proceeding.
(b) Time. (1) Not later than 15 days before the scheduled date of a hearing, a party may amend a complaint or an answer without the consent of the administrative law judge.
(2) Less than 15 days before the scheduled date of a hearing, the administrative law judge may allow amendment of a complaint or an answer only for good cause shown in a motion to amend.
(c) Responses. The administrative law judge must allow a reasonable time, but not more than 20 days from the date of filing, for other parties to respond if an amendment to a complaint, answer, or other pleading has been filed with the FAA Hearing Docket and served on the administrative law judge and other parties.
§ 13.215 Withdrawal of complaint or request for hearing.
At any time before or during a hearing, an agency attorney may withdraw a complaint or a party may withdraw a request for a hearing without the consent of the administrative law judge. If an agency attorney withdraws the complaint or a party withdraws the request for a hearing and the answer, the administrative law judge must dismiss the proceedings under this subpart with prejudice.
§ 13.216 Waivers.
Waivers of any rights provided by statute or regulation must be in writing or by stipulation made at a hearing and entered into the record. The parties must set forth the precise terms of the waiver and any conditions.
§ 13.217 Joint procedural or discovery schedule.
(a) General. The parties may agree to submit a schedule for filing all prehearing motions, conducting discovery in the proceedings, or both.
(b) Form and content of schedule. If the parties agree to a joint procedural or discovery schedule, one of the parties must file the joint schedule setting forth the dates to which the parties have agreed, in accordance with § 13.210, and must also serve a copy of the joint schedule in accordance with § 13.211. The filing of the joint schedule must include a draft order establishing a joint schedule to be signed by the administrative law judge.
(1) The joint schedule may include, but need not be limited to, requests for discovery, objections to discovery requests, responses to discovery requests to which there are no objections, submission of prehearing motions, responses to prehearing motions, exchange of exhibits to be introduced at the hearing, and a list of witnesses that may be called at the hearing.
(2) Each party must sign the joint schedule.
(c) Time. The parties may agree to submit all prehearing motions and responses and may agree to close discovery in the proceedings under the joint schedule within a reasonable time before the date of the hearing, but not later than 15 days before the hearing.
(d) Joint scheduling order. The joint schedule filed by the parties is a proposed schedule that requires approval of the administrative law judge to become the joint scheduling order.
(e) Disputes. The administrative law judge must resolve disputes regarding discovery or disputes regarding compliance with the joint scheduling order as soon as possible so that the parties may continue to comply with the joint scheduling order.
(f) Sanctions for failure to comply with joint schedule. If a party fails to comply with a joint scheduling order, the administrative law judge may impose any of the following sanctions, proportional to the party’s failure to comply with the order:
(1) Strike the relevant portion of a party’s pleadings;
(2) Preclude prehearing or discovery motions by that party;
(3) Preclude admission of the relevant portion of a party’s evidence at the hearing; or
(4) Preclude the relevant portion of the testimony of that party’s witnesses at the hearing.
§ 13.218 Motions.
(a) General. A party applying for an order or ruling not specifically provided in this subpart must do so by filing a motion in accordance with § 13.210. A party must serve a copy of each motion in accordance with § 13.211.
(b) Form and contents. A party must state the relief sought by the motion and the particular grounds supporting that relief. If a party has evidence in support of a motion, the party must attach any supporting evidence, including affidavits, to the motion.
(c) Filing of motions. A motion made prior to the hearing must be in writing. Unless otherwise agreed by the parties or for good cause shown, a party must file any prehearing motion not later than 30 days before the hearing in the FAA Hearing Docket in accordance with § 13.210, and must serve a copy on the administrative law judge, if assigned, and on each party in accordance with § 13.211. Motions introduced during a hearing may be made orally on the record unless the administrative law judge directs otherwise.
(d) Responses to motions. Any party may file a response, with affidavits or other evidence in support of the response, not later than 10 days after service of a written motion on that party. When a motion is made during a hearing, the response may be made at the hearing on the record, orally or in writing, within a reasonable time determined by the administrative law judge.
(e) Rulings on motions. The administrative law judge must rule on all motions as follows:
(1) Discovery motions. The administrative law judge must resolve all pending discovery motions not later than 10 days before the hearing.
(2) Prehearing motions. The administrative law judge must resolve all pending prehearing motions not later than 7 days before the hearing. If the administrative law judge issues a ruling or order orally, the administrative law judge must serve a written copy of the ruling or order, within 3 days, on each party. In all other cases, the administrative law judge must issue rulings and orders in writing and must serve a copy of the ruling or order on each party.
(3) Motions made during the hearing. The administrative law judge must issue rulings and orders on oral motions. Oral rulings or orders on motions must be made on the record.
(f) Specific motions. The motions that a party may file include but are not limited to the following:
(1) Motion to dismiss for insufficiency. A respondent may file a motion to dismiss the complaint for insufficiency instead of filing an answer. If the administrative law judge denies the motion to dismiss the complaint for insufficiency, the respondent must file an answer not later than 10 days after service of the administrative law judge’s denial of the motion. A motion to dismiss the complaint for insufficiency must show that the complaint fails to state a violation of a provision of the Federal aviation statute listed in the first sentence in 49 U.S.C. 46301(d)(2) or in 49 U.S.C. 47531, or any implementing rule, regulation, or order, or a violation of the Federal hazardous materials transportation statute, 49 U.S.C. 5121-5128, or any implementing rule, regulation, or order.
(2) Motion to dismiss. A party may file a motion to dismiss, specifying the grounds for dismissal. If an administrative law judge grants a motion to dismiss in part, a party may appeal the administrative law judge’s ruling on the motion to dismiss under § 13.219(b).
(i) Motion to dismiss a request for a hearing. An agency attorney may file a motion to dismiss a request for a hearing instead of filing a complaint. If the motion to dismiss is not granted, the agency attorney must file the complaint in the FAA Hearing Docket and must serve a copy of the complaint on the administrative law judge and on each party not later than 10 days after service of the administrative law judge’s ruling or order on the motion to dismiss. If the motion to dismiss is granted and the proceedings are terminated without a hearing, the respondent may appeal to the FAA decisionmaker under § 13.233. If required by the decision on appeal, the agency attorney must file a complaint in the FAA Hearing Docket and must serve a copy of the complaint on the administrative law judge and each party not later than 10 days after service of the FAA decisionmaker’s decision on appeal.
(ii) Motion to dismiss a complaint. A respondent may file a motion to dismiss a complaint instead of filing an answer, including a motion to dismiss a stale complaint or allegations as provided in § 13.208. If the motion to dismiss is not granted, the respondent must file an answer in the FAA Hearing Docket and must serve a copy of the answer on the administrative law judge and on each party not later than 10 days after service of the administrative law judge’s ruling or order on the motion to dismiss. If the motion to dismiss is granted and the proceedings are terminated without a hearing, the agency attorney may file an appeal in the FAA Hearing Docket under § 13.233 and must serve each other party. If required by the FAA decisionmaker’s decision on appeal, the respondent must file an answer in the FAA Hearing Docket, and must serve a copy of the answer on the administrative law judge and on each party not later than 10 days after service of the decision on appeal.
(3) Motion for a more definite statement. A party may file a motion for a more definite statement of any pleading which requires a response under this subpart. A party must set forth, in detail, the indefinite or uncertain allegations contained in a complaint or response to any pleading and must submit the details that the party believes would make the allegation or response definite and certain.
(i) Complaint. A respondent may file a motion requesting a more definite statement of the allegations contained in the complaint instead of filing an answer. If the administrative law judge grants the motion, the agency attorney must supply a more definite statement not later than 15 days after service of the ruling granting the motion. If the agency attorney fails to supply a more definite statement, the administrative law judge may strike the allegations in the complaint to which the motion is directed. If the administrative law judge denies the motion, the respondent must file an answer in the FAA Hearing Docket and must serve a copy of the answer on the administrative law judge and on each party not later than 10 days after service of the order of denial.
(ii) Answer. An agency attorney may file a motion requesting a more definite statement if an answer fails to respond clearly to the allegations in the complaint. If the administrative law judge grants the motion, the respondent must supply a more definite statement not later than 15 days after service of the ruling on the motion. If the respondent fails to supply a more definite statement, the administrative law judge may strike those statements in the answer to which the motion is directed. The respondent’s failure to supply a more definite statement may be deemed an admission of unanswered allegations in the complaint.
(4) Motion to strike. Any party may make a motion to strike any insufficient allegation or defense, or any redundant, immaterial, impertinent, or scandalous matter in a pleading. A party must file a motion to strike before a response is required under this subpart or, if a response is not required, not later than 10 days after service of the pleading. A motion to strike must be filed in the FAA Hearing Docket and served on the administrative law judge, if assigned, and on each other party.
(5) Motion for decision. A party may make a motion for decision, regarding all or any part of the proceedings, at any time before the administrative law judge has issued an initial decision in the proceedings. The administrative law judge must grant a party’s motion for decision if the pleadings, depositions, answers to interrogatories, admissions, matters that the administrative law judge has officially noticed, or evidence introduced during the hearing shows that there is no genuine issue of material fact and that the party making the motion is entitled to a decision as a matter of law. The party making the motion for decision has the burden of showing that there is no genuine issue of material fact disputed by the parties.
(6) Motion for disqualification. A party may file a motion for disqualification in the FAA Hearing Docket and must serve a copy on the administrative law judge and on each party. A party may file the motion at any time after the administrative law judge has been assigned to the proceedings but must make the motion before the administrative law judge files an initial decision in the proceedings.
(i) Motion and supporting affidavit. A party must state the grounds for disqualification in a motion for disqualification, including, but not limited to, a financial or other personal interest that would be affected by the outcome of the enforcement action, personal animus against a party to the action or against a group to which a party belongs, prejudgment of the adjudicative facts at issue in the proceeding, or any other prohibited conflict of interest. A party must submit an affidavit with the motion for disqualification that sets forth, in detail, the matters alleged to constitute grounds for disqualification.
(ii) Response. A party must respond to the motion for disqualification not later than 5 days after service of the motion for disqualification.
(iii) Decision on motion for disqualification. The administrative law judge must render a decision on the motion for disqualification not later than 15 days after the motion has been filed. If the administrative law judge finds that the motion for disqualification and supporting affidavit show a basis for disqualification, the administrative law judge must withdraw from the proceedings immediately. If the administrative law judge finds that disqualification is not warranted, the administrative law judge must deny the motion and state the grounds for the denial on the record. If the administrative law judge fails to rule on a party’s motion for disqualification within 15 days after the motion has been filed, the motion is deemed granted.
(iv) Appeal. A party may appeal the administrative law judge’s denial of the motion for disqualification in accordance with § 13.219(b).
(7) Motions for reconsideration of an initial decision, order dismissing a complaint, order dismissing a request for hearing or order dismissing a request for hearing and answer. The FAA decisionmaker may treat motions for reconsideration of an initial decision, order dismissing a complaint, order dismissing a request for hearing, or order dismissing a request for hearing and answer as a notice of appeal under § 13.233, and if the motion was filed within the time allowed for the filing of a notice of appeal, the FAA decisionmaker will issue a briefing schedule.
§ 13.219 Interlocutory appeals.
(a) General. Unless otherwise provided in this subpart, a party may not appeal a ruling or decision of the administrative law judge to the FAA decisionmaker until the initial decision has been entered on the record. A decision or order of the FAA decisionmaker on the interlocutory appeal does not constitute a final order of the Administrator for the purposes of judicial appellate review as provided in § 13.235.
(b) Interlocutory appeal for cause. If a party orally requests or files a written request for an interlocutory appeal for cause, the proceedings are stayed until the administrative law judge issues a decision on the request. Any written request for interlocutory appeal for cause must be filed in the FAA Hearing Docket and served on each party and on the administrative law judge. If the administrative law judge grants the request, the proceedings are stayed until the FAA decisionmaker issues a decision on the interlocutory appeal. The administrative law judge must grant the request if a party shows that delay of the appeal would be detrimental to the public interest or would result in undue prejudice to any party.
(c) Interlocutory appeals of right. If a party notifies the administrative law judge of an interlocutory appeal of right, the proceedings are stayed until the FAA decisionmaker issues a decision on the interlocutory appeal. A party may file an interlocutory appeal of right, without the consent of the administrative law judge, before an initial decision has been entered in the case of:
(1) A ruling or order by the administrative law judge barring a person from the proceedings;
(2) Failure of the administrative law judge to dismiss the proceedings in accordance with § 13.215; or
(3) A ruling or order by the administrative law judge in violation of § 13.205(b).
(d) Procedure. A party must file a notice of interlocutory appeal, with supporting documents, with the FAA Hearing Docket, and must serve a copy of the notice and supporting documents on each party and the administrative law judge not later than 10 days after the administrative law judge’s decision forming the basis of an interlocutory appeal of right, or not later than 10 days after the administrative law judge’s decision granting an interlocutory appeal for cause, as appropriate. A party must file a reply, if any, with the FAA Hearing Docket, and serve a copy on each party and the administrative law judge not later than 10 days after service of the appeal. The FAA decisionmaker must render a decision on the interlocutory appeal on the record and as a part of the decision in the proceedings, within a reasonable time after receipt of the interlocutory appeal.
(e) Summary rejection. The FAA decisionmaker may reject frivolous, repetitive, or dilatory appeals, and may issue an order precluding one or more parties from making further interlocutory appeals in a proceeding in which there have been frivolous, repetitive, or dilatory interlocutory appeals.
§ 13.220 Discovery.
(a) Initiation of discovery. Any party may initiate discovery described in this section without the consent or approval of the administrative law judge at any time after a complaint has been filed in the proceedings.
(b) Methods of discovery. The following methods of discovery are permitted under this section: Depositions on oral examination or written questions of any person; written interrogatories directed to a party; requests for production of documents or tangible items to any person; and requests for admission by a party. A party must not file written interrogatories and responses, requests for production of documents or tangible items and responses, and requests for admission and response with the FAA Hearing Docket or serve them on the administrative law judge. In the event of a discovery dispute, a party must attach a copy of the relevant documents in support of a motion made under this section.
(c) Service on the agency. A party must serve each discovery request directed to the agency or any agency employee on the agency attorney of record.
(d) Time for response to discovery requests. Unless otherwise directed by this subpart or agreed by the parties, a party must respond to a request for discovery, including filing objections to a request for discovery, not later than 30 days after service of the request.
(e) Scope of discovery. Subject to the limits on discovery set forth in paragraph (f) of this section, a party may discover any matter that is not privileged and that is relevant to any party’s claim or defense, including the existence, description, nature, custody, condition, and location of any document or other tangible item and the identity and location of any person having knowledge of discoverable matter. A party may discover facts known, or opinions held, by an expert who any other party expects to call to testify at the hearing. A party has no ground to object to a discovery request on the basis that the information sought would not be admissible at the hearing.
(f) Limiting discovery. The administrative law judge must 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 can be obtained from another less burdensome and more convenient source;
(3) The party requesting the information has had ample opportunity to obtain the information through other discovery methods permitted under this section; or
(4) The method or scope of discovery requested by the party is unduly burdensome or expensive.
(g) Confidential orders. A party or person who has received a discovery request for information that is related to a trade secret, confidential or sensitive material, competitive or commercial information, proprietary data, or information on research and development, may file a motion for a confidential order in the FAA Hearing Docket in accordance with § 13.210, and must serve a copy of the motion for a confidential order on each party and on the administrative law judge in accordance with § 13.211.
(1) The party or person making the motion must show that the confidential order is necessary to protect the information from disclosure to the public.
(2) If the administrative law judge determines that the requested material is not necessary to decide the case, the administrative law judge must preclude any inquiry into the matter by any party.
(3) If the administrative law judge determines that the requested material may be disclosed during discovery, the administrative law judge may order that the material may be discovered and disclosed under limited conditions or may be used only under certain terms and conditions.
(4) If the administrative law judge determines that the requested material is necessary to decide the case and that a confidential order is warranted, the administrative law judge must provide:
(i) An opportunity for review of the document by the parties off the record;
(ii) Procedures for excluding the information from the record; and
(iii) Order that the parties must not disclose the information in any manner and the parties must not use the information in any other proceeding.
(h) Protective orders. A party or a person who has received a request for discovery may file a motion for protective order in the FAA Hearing Docket and must serve a copy of the motion for protective order on the administrative law judge and each other party. The party or person making the motion must show that the protective order is necessary to protect the party or the person from annoyance, embarrassment, oppression, or undue burden or expense. As part of the protective order, the administrative law judge may:
(1) Deny the discovery request;
(2) Order that discovery be conducted only on specified terms and conditions, including a designation of the time or place for discovery or a determination of the method of discovery; or
(3) Limit the scope of discovery or preclude any inquiry into certain matters during discovery.
(i) Duty to supplement or amend responses. A party who has responded to a discovery request has a duty to supplement or amend the response, as soon as the information is known, as follows:
(1) A party must supplement or amend any response to a question requesting the identity and location of any person having knowledge of discoverable matters.
(2) A party must supplement or amend any response to a question requesting the identity of each person who will be called to testify at the hearing as an expert witness and the subject matter and substance of that witness’s testimony.
(3) A party must supplement or amend any response that was incorrect when made or any response that was correct when made but is no longer correct, accurate, or complete.
(j) Depositions—(1) Form. A deposition must be taken on the record and reduced to writing. The person being deposed must sign the deposition unless the parties agree to waive the requirement of a signature.
(2) Administration of oaths. Within the United States, or a territory or possession subject to the jurisdiction of the United States, a party must take a deposition before a person authorized to administer oaths by the laws of the United States or authorized by the law of the place where the examination is held. In foreign countries, a party must take a deposition in any manner allowed by the Federal Rules of Civil Procedure.
(3) Notice of deposition. A party must serve a notice of deposition, stating the time and place of the deposition and the name and address of each person to be examined, on the person to be deposed, the administrative law judge, and each party not later than 7 days before the deposition. The notice must be filed in the FAA Hearing Docket simultaneously. A party may serve a notice of deposition less than 7 days before the deposition only with consent of the administrative law judge. The party noticing a deposition must attach a copy of any subpoena duces tecum requesting that materials be produced at the deposition to the notice of deposition.
(4) Use of depositions. A party may use any part or all of a deposition at a hearing authorized under this subpart only upon a showing of good cause. The deposition may be used against any party who was present or represented at the deposition or who had reasonable notice of the deposition.
(k) Interrogatories. A party, the party’s attorney, or the party’s representative may sign the party’s responses to interrogatories. A party must answer each interrogatory separately and completely in writing. If a party objects to an interrogatory, the party must state the objection and the reasons for the objection. An opposing party may use any part or all of a party’s responses to interrogatories at a hearing authorized under this subpart to the extent that the response is relevant, material, and not repetitious.
(1) A party must not serve more than 30 interrogatories to each other party. Each subpart of an interrogatory must be counted as a separate interrogatory.
(2) A party must file a motion for leave to serve additional interrogatories on a party with the administrative law judge before serving additional interrogatories on a party. The administrative law judge may grant the motion only if the party shows good cause.
(l) Requests for admission. A party may serve a written request for admission of the truth of any matter within the scope of discovery under this section or the authenticity of any document described in the request. A party must set forth each request for admission separately. A party must serve copies of documents referenced in the request for admission unless the documents have been provided or are reasonably available for inspection and copying.
(1) Time. A party’s failure to respond to a request for admission, in writing and signed by the attorney or the party, not later than 30 days after service of the request, is deemed an admission of the truth of the statement or statements contained in the request for admission. The administrative law judge may determine that a failure to respond to a request for admission is not deemed an admission of the truth if a party shows that the failure was due to circumstances beyond the control of the party or the party’s attorney.
(2) Response. A party may object to a request for admission and must state the reasons for objection. A party may specifically deny the truth of the matter or describe the reasons why the party is unable to truthfully deny or admit the matter. If a party is unable to deny or admit the truth of the matter, the party must show that the party has made reasonable inquiry into the matter or that the information known to, or readily obtainable by, the party is insufficient to enable the party to admit or deny the matter. A party may admit or deny any part of the request for admission. If the administrative law judge determines that a response does not comply with the requirements of this paragraph (l)(2) or that the response is insufficient, the matter is deemed admitted.
(3) Effect of admission. Any matter admitted or deemed admitted under this section is conclusively established for the purpose of the hearing and appeal.
(m) Motion to compel discovery. A party may make a motion to compel discovery if a person refuses to answer a question during a deposition, a party fails or refuses to answer an interrogatory, if a person gives an evasive or incomplete answer during a deposition or when responding to an interrogatory, or a party fails or refuses to produce documents or tangible items. During a deposition, the proponent of a question may complete the deposition or may adjourn the examination before making a motion to compel if a person refuses to answer. Any motion to compel must be filed with the FAA Hearing Docket and served on the administrative law judge and other parties in accordance with §§ 13.210 and 13.211, respectively.
(n) Failure to comply with a discovery order. If a party fails to comply with a discovery order, the administrative law judge may impose any of the following sanctions proportional to the party’s failure to comply with the order:
(1) Strike the relevant portion of a party’s pleadings;
(2) Preclude prehearing or discovery motions by that party;
(3) Preclude admission of the relevant portion of a party’s evidence at the hearing; or
(4) Preclude the relevant portion of the testimony of that party’s witnesses at the hearing.
§ 13.221 Notice of hearing.
(a) Notice. The administrative law judge must provide each party with notice of the date, time, and location of the hearing at least 60 days before the hearing date.
(b) Date, time, and location of the hearing. The administrative law judge to whom the proceedings have been assigned must set a reasonable date, time, and location for the hearing. The administrative law judge must consider the need for discovery and any joint procedural or discovery schedule submitted by the parties when determining the hearing date. The administrative law judge must give due regard to the convenience of the parties, the location where the majority of the witnesses reside or work, and whether the location is served by a scheduled air carrier.
(c) Earlier hearing. With the consent of the administrative law judge, the parties may agree to hold the hearing on an earlier date than the date specified in the notice of hearing.
§ 13.222 Evidence.
(a) General. A party is entitled to present the party’s case or defense by oral, documentary, or demonstrative evidence, to submit rebuttal evidence, and to conduct any cross-examination that may be required for a full and true disclosure of the facts.
(b) Admissibility. A party may introduce any oral, documentary, or demonstrative evidence in support of the party’s case or defense. The administrative law judge must admit any relevant oral, documentary, or demonstrative evidence introduced by a party, but must exclude irrelevant, immaterial, or unduly repetitious evidence.
(c) Hearsay evidence. Hearsay evidence is admissible in proceedings governed by this subpart. The fact that evidence submitted by a party is hearsay goes only to the weight of the evidence and does not affect its admissibility.
§ 13.223 Standard of proof.
The administrative law judge must issue an initial decision or must rule in a party’s favor only if the decision or ruling is supported by, and in accordance with, the reliable, probative, and substantial evidence contained in the record. In order to prevail, the party with the burden of proof must prove the party’s case or defense by a preponderance of reliable, probative, and substantial evidence.
§ 13.224 Burden of proof.
(a) Except in the case of an affirmative defense, the burden of proof is on the agency.
(b) Except as otherwise provided by statute or rule, the proponent of a motion, request, or order has the burden of proof.
(c) A party who has asserted an affirmative defense has the burden of proving the affirmative defense.
§ 13.225 Offer of proof.
A party whose evidence has been excluded by a ruling of the administrative law judge may offer the evidence for the record on appeal.
§ 13.226 Public disclosure of information.
(a) The administrative law judge may order that any information contained in the record be withheld from public disclosure. Any party or interested person may object to disclosure of information in the record by filing and serving a written motion to withhold specific information in accordance with §§ 13.210 and 13.211 respectively. A party may file a motion seeking to protect from public disclosure information contained in a document that the party is filing at the same time it files the document. The person or party must state the specific grounds for nondisclosure in the motion.
(b) The administrative law judge must grant the motion to withhold if, based on the motion and any response to the motion, the administrative law judge determines that: Disclosure would be detrimental to aviation safety; disclosure would not be in the public interest; or the information is not otherwise required to be made available to the public.
§ 13.227 Expert or opinion witnesses.
An employee of the agency may not be called as an expert or opinion witness for any party other than the FAA in any proceeding governed by this subpart. An employee of a respondent may not be called by an agency attorney as an expert or opinion witness for the FAA in any proceeding governed by this subpart to which the respondent is a party.
§ 13.228 Subpoenas.
(a) Request for subpoena. The administrative law judge, upon application by any party to the proceeding, may issue subpoenas requiring the attendance of witnesses or the production of documents or tangible things at a hearing or for the purpose of taking depositions, as permitted by law. A request for a subpoena must show its general relevance and reasonable scope. The party must serve the subpoena on the witness or the holder of the documents or tangible items as permitted by applicable statute. A request for a subpoena must be filed and served in accordance with §§ 13.210 and 13.211, respectively. Absent good cause shown, the filing and service must be completed as follows:
(1) Not later than 15 days before a scheduled deposition under the subpoena; or
(2) Not later than 30 days before a scheduled hearing where attendance at the hearing is sought.
(b) Motion to quash or modify the subpoena. A party, or any person upon whom a subpoena has been served, may file in the FAA Hearing Docket a motion to quash or modify the subpoena and must serve a copy on the administrative law judge and each party at or before the time specified in the subpoena for compliance. The movant must describe, in detail, the basis for the motion 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. A motion to quash or modify the subpoena will stay the effect of the subpoena pending a decision by the administrative law judge on the motion.
(c) Enforcement of subpoena. Upon a showing that a person has failed or refused to comply with a subpoena, a party may apply to the appropriate U.S. district court to seek judicial enforcement of the subpoena.
§ 13.229 Witness fees.
(a) General. The party who applies for a subpoena to compel the attendance of a witness at a deposition or hearing, or the party at whose request a witness appears at a deposition or hearing, must pay the witness fees described in this section.
(b) Amount. Except for an employee of the agency who appears at the direction of the agency, a witness who appears at a deposition or hearing is entitled to the same fees and allowances provided for under 28 U.S.C. 1821.
§ 13.230 Record.
(a) Exclusive record. The pleadings, transcripts of the hearing and prehearing conferences, exhibits admitted into evidence, rulings, motions, applications, requests, briefs, and responses thereto, constitute the exclusive record for decision of the proceedings and the basis for the issuance of any orders in the proceeding. Any proceedings regarding the disqualification of an administrative law judge must be included in the record. Though only exhibits admitted into evidence are part of the record before an administrative law judge, evidence proffered but not admitted is also part of the record on appeal, as provided by § 13.225.
(b) Examination and copying of record. The parties may examine the record at the FAA Hearing Docket and may obtain copies of the record upon payment of applicable fees. Any other person may obtain copies of the releasable portions of the record in accordance with applicable law.
§ 13.231 Argument before the administrative law judge.
(a) Arguments during the hearing. During the hearing, the administrative law judge must give the parties a reasonable opportunity to present arguments on the record supporting or opposing motions, objections, and rulings if the parties request an opportunity for argument. The administrative law judge may request written arguments during the hearing if the administrative law judge finds that submission of written arguments would be reasonable.
(b) Final oral argument. At the conclusion of the hearing and before the administrative law judge issues an initial decision in the proceedings, the administrative law judge must allow the parties to submit oral proposed findings of fact and conclusions of law, exceptions to rulings of the administrative law judge, and supporting arguments for the findings, conclusions, or exceptions. At the conclusion of the hearing, a party may waive final oral argument.
(c) Post-hearing briefs. The administrative law judge may request written post-hearing briefs before the administrative law judge issues an initial decision in the proceedings if the administrative law judge finds that submission of written arguments would be reasonable. If a party files a written post-hearing brief, the party must include proposed findings of fact and conclusions of law, exceptions to rulings of the administrative law judge, and supporting arguments for the findings, conclusions, or exceptions. The administrative law judge must give the parties a reasonable opportunity, but not more than 30 days after receipt of the transcript, to prepare and submit the briefs. A party must file and serve any post-hearing brief in in accordance with §§ 13.210 and 13.211, respectively.
§ 13.232 Initial decision.
(a) Contents. The administrative law judge must issue an initial decision at the conclusion of the hearing. In each oral or written decision, the administrative law judge must include findings of fact and conclusions of law, as well as the grounds supporting those findings and conclusions, for all material issues of fact, the credibility of witnesses, the applicable law, any exercise of the administrative law judge’s discretion, and the amount of any civil penalty found appropriate by the administrative law judge. The administrative law judge must also include a discussion of the basis for any order issued in the proceedings. The administrative law judge is not required to provide a written explanation for rulings on objections, procedural motions, and other matters not directly relevant to the substance of the initial decision. If the administrative law judge refers to any previous unreported or unpublished initial decision, the administrative law judge must make copies of that initial decision available to all parties and the FAA decisionmaker.
(b) Oral decision. Except as provided in paragraph (c) of this section, at the conclusion of the hearing, the administrative law judge’s oral initial decision and order must be on the record.
(c) Written decision. The administrative law judge may issue a written initial decision not later than 30 days after the conclusion of the hearing or submission of the last post-hearing brief if the administrative law judge finds that issuing a written initial decision is reasonable. The administrative law judge must serve a copy of any written initial decision on each party.
(d) Reconsideration of an initial decision. The FAA decisionmaker may treat a motion for reconsideration of an initial decision as a notice of appeal under § 13.233, and if the motion was filed within the time allowed for the filing of a notice of appeal, the FAA decisionmaker will issue a briefing schedule, as provided in § 13.218.
(e) Order assessing civil penalty. Unless appealed pursuant to § 13.233, the initial decision issued by the administrative law judge is considered an order assessing civil penalty if the administrative law judge finds that an alleged violation occurred and determines that a civil penalty, in an amount found appropriate by the administrative law judge, is warranted. The administrative law judge may not assess a civil penalty exceeding the amount sought in the complaint.
§ 13.233 Appeal from initial decision.
(a) Notice of appeal. A party may appeal the administrative law judge’s initial decision, and any decision not previously appealed to the FAA decisionmaker on interlocutory appeal pursuant to § 13.219, by filing a notice of appeal in accordance with § 13.210 no later than 10 days after entry of the oral initial decision on the record or service of the written initial decision on the parties. The party must serve a copy of the notice of appeal on each party in accordance with § 13.211. A party is not required to serve any documents under § 13.233 on the administrative law judge.
(b) Issues on appeal. In any appeal from a decision of an administrative law judge, the FAA decisionmaker considers only the following issues:
(1) Whether each finding of fact is supported by a preponderance of reliable, probative, and substantial evidence;
(2) Whether each conclusion of law is made in accordance with applicable law, precedent, and public policy; and
(3) Whether the administrative law judge committed any prejudicial errors.
(c) Perfecting an appeal. Except as follows in paragraphs (c)(1) and (2) of this section, a party must perfect an appeal to the FAA decisionmaker no later than 50 days after entry of the oral initial decision on the record or service of the written initial decision on the parties by filing an appeal brief in accordance with § 13.210 and serving a copy on every other party in accordance with § 13.211.
(1) Extension of time by agreement of the parties. The parties may agree to extend the time for perfecting the appeal with the consent of the FAA decisionmaker. If the FAA decisionmaker grants an extension of time to perfect the appeal, the FAA decisionmaker must serve a letter confirming the extension of time on each party.
(2) Written motion for extension. If the parties do not agree to an extension of time for perfecting an appeal, a party desiring an extension of time may file a written motion for an extension in accordance with § 13.210 and must serve a copy of the motion on each party under § 13.211. Any party may file a written response to the motion for extension no later than 10 days after service of the motion. The FAA decisionmaker may grant an extension if good cause for the extension is shown in the motion.
(d) Appeal briefs. A party must file the appeal brief in accordance with § 13.210 and must serve a copy of the appeal brief on each party in accordance with § 13.211.
(1) A party must set forth, in detail, the party’s specific objections to the initial decision or rulings in the appeal brief. A party also must set forth, in detail, the basis for the appeal, the reasons supporting the appeal, and the relief requested in the appeal. If the party relies on evidence contained in the record for the appeal, the party must specifically refer to the pertinent evidence contained in the transcript in the appeal brief.
(2) The FAA decisionmaker may dismiss an appeal, on the FAA decisionmaker’s own initiative or upon motion of any other party, where a party has filed a notice of appeal but fails to perfect the appeal by timely filing an appeal brief with the FAA decisionmaker.
(e) Reply brief. Except as follows in paragraphs (e)(1) and (2) of this section, any party may file a reply brief in accordance with § 13.210 not later than 35 days after the appeal brief has been served on that party. The party filing the reply brief must serve a copy of the reply brief on each party in accordance with § 13.211. If the party relies on evidence contained in the record for the reply, the party must specifically refer to the pertinent evidence contained in the transcript in the reply brief.
(1) Extension of time by agreement of the parties. The parties may agree to extend the time for filing a reply brief with the consent of the FAA decisionmaker. If the FAA decisionmaker grants an extension of time to file the reply brief, the FAA decisionmaker must serve a letter confirming the extension of time on each party.
(2) Written motion for extension. If the parties do not agree to an extension of time for filing a reply brief, a party desiring an extension of time may file a written motion for an extension in accordance with § 13.210 and must serve a copy of the motion on each party in accordance with § 13.211. Any party choosing to respond to the motion must file and serve a written response to the motion no later than 10 days after service of the motion The FAA decisionmaker may grant an extension if good cause for the extension is shown in the motion.
(f) Other briefs. The FAA decisionmaker may allow any person to submit an amicus curiae brief in an appeal of an initial decision. A party may not file more than one brief unless permitted by the FAA decisionmaker. A party may petition the FAA decisionmaker, in writing, for leave to file an additional brief and must serve a copy of the petition on each party. The party may not file the additional brief with the petition. The FAA decisionmaker may grant leave to file an additional brief if the party demonstrates good cause for allowing additional argument on the appeal. The FAA decisionmaker will allow a reasonable time for the party to file the additional brief.
(g) Number of copies. A party must file the original plus one copy of the appeal brief or reply brief, but only one copy if filing by email or fax, as provided in § 13.210.
(h) Oral argument. The FAA decisionmaker may permit oral argument on the appeal. On the FAA decisionmaker’s own initiative, or upon written motion by any party, the FAA decisionmaker may find that oral argument will contribute substantially to the development of the issues on appeal and may grant the parties an opportunity for oral argument.
(i) Waiver of objections on appeal. If a party fails to object to any alleged error regarding the proceedings in an appeal or a reply brief, the party waives any objection to the alleged error. The FAA decisionmaker is not required to consider any objection in an appeal brief, or any argument in the reply brief, if a party’s objection or argument is based on evidence contained on the record and the party does not specifically refer to the pertinent evidence from the record in the brief.
(j) FAA decisionmaker’s decision on appeal. The FAA decisionmaker will review the record, the briefs on appeal, and the oral argument, if any, when considering the issues on appeal. The FAA decisionmaker may affirm, modify, or reverse the initial decision, make any necessary findings, or remand the case for any proceedings that the FAA decisionmaker determines may be necessary. The FAA decisionmaker may assess a civil penalty but must not assess a civil penalty in an amount greater than that sought in the complaint.
(1) The FAA decisionmaker may raise any issue, on the FAA decisionmaker’s own initiative, that is required for proper disposition of the proceedings. The FAA decisionmaker will give the parties a reasonable opportunity to submit arguments on the new issues before making a decision on appeal. If an issue raised by the FAA decisionmaker requires the consideration of additional testimony or evidence, the FAA decisionmaker will remand the case to the administrative law judge for further proceedings and an initial decision related to that issue. If an issue raised by the FAA decisionmaker is solely an issue of law, or the issue was addressed at the hearing but was not raised by a party in the briefs on appeal, a remand of the case to the administrative law judge for further proceedings is not required but may be provided in the discretion of the FAA decisionmaker.
(2) The FAA decisionmaker will issue the final decision and order of the Administrator on appeal in writing and will serve a copy of the decision and order on each party. Unless a petition for review is filed pursuant to § 13.235, a final decision and order of the Administrator will be considered an order assessing civil penalty if the FAA decisionmaker finds that an alleged violation occurred and a civil penalty is warranted.
(3) A final decision and order of the Administrator after appeal is precedent in any other civil penalty action. Any issue, finding or conclusion, order, ruling, or initial decision of an administrative law judge that has not been appealed to the FAA decisionmaker is not precedent in any other civil penalty action.
§ 13.234 Petition to reconsider or modify a final decision and order of the FAA decisionmaker on appeal.
(a) General. Any party may petition the FAA decisionmaker to reconsider or modify a final decision and order issued by the FAA decisionmaker on appeal from an initial decision. A party must file a petition to reconsider or modify in accordance with § 13.210 not later than 30 days after service of the FAA decisionmaker’s final decision and order on appeal and must serve a copy of the petition on each party in accordance with § 13.211. A party is not required to serve any documents under this section on the administrative law judge. The FAA decisionmaker will not reconsider or modify an initial decision and order issued by an administrative law judge that has not been appealed by any party to the FAA decisionmaker.
(b) Number of copies. The parties must file the original plus one copy of the petition or the reply to the petition, but only one copy if filing by email or fax, as provided in § 13.210.
(c) Contents. A party must state briefly and specifically the alleged errors in the final decision and order on appeal, the relief sought by the party, and the grounds that support the petition to reconsider or modify.
(1) If the petition is based, in whole or in part, on allegations regarding the consequences of the FAA decisionmaker’s decision, the party must describe these allegations and must describe, and support, the basis for the allegations.
(2) If the petition is based, in whole or in part, on new material not previously raised in the proceedings, the party must set forth the new material and include affidavits of prospective witnesses and authenticated documents that would be introduced in support of the new material. The party must explain, in detail, why the new material was not discovered through due diligence prior to the hearing.
(d) Repetitious and frivolous petitions. The FAA decisionmaker will not consider repetitious or frivolous petitions. The FAA decisionmaker may summarily dismiss repetitious or frivolous petitions to reconsider or modify.
(e) Reply petitions. Any party replying to a petition to reconsider or modify must file the reply in accordance with § 13.210 no later than 10 days after service of the petition on that party, and must also serve a copy of the reply on each party in accordance with § 13.211.
(f) Effect of filing petition. The filing of a timely petition under this section will stay the effective date of the FAA decisionmaker’s decision and order on appeal until final disposition of the petition by the FAA decisionmaker.
(g) FAA decisionmaker’s decision on petition. The FAA decisionmaker has discretion to grant or deny a petition to reconsider. The FAA decisionmaker will grant or deny a petition to reconsider within a reasonable time after receipt of the petition or receipt of the reply petition, if any. The FAA decisionmaker may affirm, modify, or reverse the final decision and order on appeal, or may remand the case for any proceedings that the FAA decisionmaker determines may be necessary.
§ 13.235 Judicial review of a final decision and order.
(a) In cases under the Federal aviation statute, a party may seek judicial review of a final decision and order of the Administrator, as provided in 49 U.S.C. 46110(a), and, as applicable, in 49 U.S.C. 46301(d)(7)(D)(iii), 46301(g), or 47532.
(b) In cases under the Federal hazardous materials transportation statute, a party may seek judicial review of a final decision and order of the Administrator, as provided in 49 U.S.C. 5127.
(c) A party seeking judicial review of a final order issued by the Administrator may file a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the United States Court of Appeals for the circuit in which the party resides or has its principal place of business.
(d) The party must file the petition for review no later than 60 days after service of the Administrator’s final decision and order.
§ 13.236 Alternative dispute resolution.
Parties may use mediation to achieve resolution of issues in controversy addressed by this subpart. Parties seeking alternative dispute resolution services may engage the services of a mutually acceptable mediator. The mediator must not participate in the adjudication under this subpart of any matter in which the mediator has provided mediation services. Mediation discussions and submissions will remain confidential consistent with the provisions of the Administrative Dispute Resolution Act and other applicable Federal laws.
Subpart H—Civil Monetary Penalty Inflation Adjustment
§ 13.301 Inflation adjustments of civil monetary penalties.
(a) This subpart provides the maximum civil monetary penalties or range of minimum and maximum civil monetary penalties for each statutory civil penalty subject to FAA jurisdiction, as adjusted for inflation.
(b) Each adjustment to a maximum civil monetary penalty or to minimum and maximum civil monetary penalties that establish a civil monetary penalty range applies to actions initiated under this part for violations occurring on or after December 30, 2024, notwithstanding references to specific civil penalty amounts elsewhere in this part.
(c) Minimum and maximum civil monetary penalties are as follows:
Table 1 to § 13.301(
| United States Code
citation | Civil monetary penalty description | 2024
minimum penalty amount | New adjusted
minimum penalty amount for violations occurring on or after December 30, 2024 | 2024
maximum penalty amount | New adjusted maximum
penalty amount for violations occurring on or after December 30, 2024 |
|---|---|---|---|---|---|
| 49 U.S.C. 5123(a)(1) | Violation of hazardous materials transportation law | N/A | N/A | $99,756 | $102,348. |
| 49 U.S.C. 5123(a)(2) | Violation of hazardous materials transportation law resulting in death, serious illness, severe injury, or substantial property destruction | N/A | N/A | $232,762 | $238,809. |
| 49 U.S.C. 5123(a)(3) | Violation of hazardous materials transportation law relating to training | $601 | $617 | $99,756 | $102,348. |
| 49 U.S.C. 44704(d)(3) | Knowing presentation of a nonconforming aircraft for issuance of an initial airworthiness certificate by a production certificate holder | N/A | N/A | $1,181,581 | $1,212, 278. |
| 49 U.S.C. 44704(e)(4) | Knowing failure by an applicant for or holder of a type certificate to submit safety critical information or include certain such information in an airplane flight manual or flight crew operating manual | N/A | N/A | $1,181,581 | $1,212,278. |
| 49 U.S.C. 44704(e)(5) | Knowing false statement by an airline transport pilot (ATP) certificate holder with respect to the submission of certain safety critical information | N/A | N/A | See entries for 49 U.S.C. 46301(a)(1) and (a)(5) | See entries for 49 U.S.C. 46301(a)(1) and (a)(5). |
| 49 U.S.C. 44742 | Interference by a supervisory employee of an organization designation authorization (ODA) holder that manufactures a transport category airplane with an ODA unit member’s performance of authorized functions | N/A | N/A | See entries for 49 U.S.C. 46301(a)(1) | See entries for 49 U.S.C. 46301(a)(1). |
| 49 U.S.C. 44802 note | Operation of an unmanned aircraft or unmanned aircraft system equipped or armed with a dangerous weapon | N/A | N/A | $30,417 | $31,207. |
| 49 U.S.C. 46301(a)(1) | Violation by a person other than an individual or small business concern under 49 U.S.C. 46301(a)(1)(A) or (B) | N/A | N/A | $41,577 | $75,000. |
| 49 U.S.C. 46301(a)(1) | Violation by an airman serving as an airman under 49 U.S.C. 46301(a)(1)(A) or (B) (but not covered by 46301(a)(5)(A) or (B)) | N/A | N/A | $1,828 | $1,875. |
| 49 U.S.C. 46301(a)(1) | Violation by an individual or small business concern under 49 U.S.C. 46301(a)(1)(A) or (B) (but not covered in 49 U.S.C. 46301(a)(5)) | N/A | N/A | $1,828 | $1,875. |
| 49 U.S.C. 46301(a)(3) | Violation of 49 U.S.C. 47107(b) (or any assurance made under such section) or 49 U.S.C. 47133 | N/A | N/A | Increase above otherwise applicable maximum amount not to exceed 3 times the amount of revenues used in violation of such section | No change. |
| 49 U.S.C. 46301(a)(5)(A) | Violation by an individual or small business concern (except an airman serving as an airman) under 49 U.S.C. 46301(a)(5)(A)(i) or (ii) | N/A | N/A | $16,630 | $17,062. |
| 49 U.S.C. 46301(a)(5)(B)(i) | Violation by an individual or small business concern related to the transportation of hazardous materials | N/A | N/A | $16,630 | $17,062. |
| 49 U.S.C. 46301(a)(5)(B)(ii) | Violation by an individual or small business concern related to the registration or recordation under 49 U.S.C. chapter 441, of an aircraft not used to provide air transportation | N/A | N/A | $16,630 | $17,062. |
| 49 U.S.C. 46301(a)(5)(B)(iii) | Violation by an individual or small business concern of 49 U.S.C. 44718(d), relating to limitation on construction or establishment of landfills | N/A | N/A | $16,630 | $17,062. |
| 49 U.S.C. 46301(a)(5)(B)(iv) | Violation by an individual or small business concern of 49 U.S.C. 44725, relating to the safe disposal of life-limited aircraft parts | N/A | N/A | $16,630 | $17,062. |
| 49 U.S.C. 46301(a)(8) | Violation of 49 U.S.C. 41707(a)(22), including any grant assurances made under that section | N/A | N/A | N/A | $5,000. |
| 49 U.S.C. 46301 note | Individual who aims the beam of a laser pointer at an aircraft in the airspace jurisdiction of the United States, or at the flight path of such an aircraft | N/A | N/A | $31,819 | $32,646. |
| 49 U.S.C. 46301(b) | Tampering with a smoke alarm device | N/A | N/A | $5,339 | $5,478. |
| 49 U.S.C. 46302 | Knowingly providing false information about alleged violation involving the special aircraft jurisdiction of the United States | N/A | N/A | $28,995 | $29,748. |
| 49 U.S.C. 46318 | Physical or sexual assault or threat to physically or sexually assault crewmember or other individual on an aircraft, or action that poses an imminent threat to the safety of the aircraft or individuals on board | N/A | N/A | $43,658 | $44,792. |
| 49 U.S.C. 46319 | Permanent closure of an airport without providing sufficient notice | N/A | N/A | $16,630 | $17,062. |
| 49 U.S.C. 46320 | Operating an unmanned aircraft and in so doing knowingly or recklessly interfering with a wildfire suppression, law enforcement, or emergency response effort | N/A | N/A | $25,455 | $26,116. |
| 49 U.S.C. 47531 | Violation of 49 U.S.C. 47528-47530 or 47534, relating to the prohibition of operating certain aircraft not complying with stage 3 noise levels | N/A | N/A | See entries for 49 U.S.C. 46301(a)(1) and (a)(5) | See entries for 49 U.S.C. 46301(a)(1) and (a)(5). |
Subpart I—Flight Operational Quality Assurance Programs
§ 13.401 Flight Operational Quality Assurance Program: Prohibition against use of data for enforcement purposes.
(a) Applicability. This section applies to any operator of an aircraft who operates such aircraft under an approved Flight Operational Quality Assurance (FOQA) program.
(b) Definitions. For the purpose of this section, the terms—
(1) Flight Operational Quality Assurance (FOQA) program means an FAA-approved program for the routine collection and analysis of digital flight data gathered during aircraft operations, including data currently collected pursuant to existing regulatory provisions, when such data is included in an approved FOQA program.
(2) FOQA data means any digital flight data that has been collected from an individual aircraft pursuant to an FAA-approved FOQA program, regardless of the electronic format of that data.
(3) Aggregate FOQA data means the summary statistical indices that are associated with FOQA event categories, based on an analysis of FOQA data from multiple aircraft operations.
(c) Requirements. In order for paragraph (e) of this section to apply, the operator must submit, maintain, and adhere to a FOQA Implementation and Operation Plan that is approved by the Administrator and which contains the following elements:
(1) A description of the operator’s plan for collecting and analyzing flight recorded data from line operations on a routine basis, including identification of the data to be collected;
(2) Procedures for taking corrective action that analysis of the data indicates is necessary in the interest of safety;
(3) Procedures for providing the FAA with aggregate FOQA data;
(4) Procedures for informing the FAA as to any corrective action being undertaken pursuant to paragraph (c)(2) of this section.
(d) Submission of aggregate data. The operator will provide the FAA with aggregate FOQA data in a form and manner acceptable to the Administrator.
(e) Enforcement. Except for criminal or deliberate acts, the Administrator will not use an operator’s FOQA data or aggregate FOQA data in an enforcement action against that operator or its employees when such FOQA data or aggregate FOQA data is obtained from a FOQA program that is approved by the Administrator.
(f) Disclosure. FOQA data and aggregate FOQA data, if submitted in accordance with an order designating the information as protected under part 193 of this chapter, will be afforded the nondisclosure protections of part 193 of this chapter.
(g) Withdrawal of program approval. The Administrator may withdraw approval of a previously approved FOQA program for failure to comply with the requirements of this chapter. Grounds for withdrawal of approval may include, but are not limited to—
(1) Failure to implement corrective action that analysis of available FOQA data indicates is necessary in the interest of safety; or
(2) Failure to correct a continuing pattern of violations following notice by the agency; or also
(3) Willful misconduct or willful violation of the FAA regulations in this chapter.
PART 14—RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 1980
Subpart A—General Provisions
§ 14.01 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (adversary adjudications) before the Federal Aviation Administration (FAA). An eligible party may receive an award when it prevails over the FAA, unless the agency’s position in the proceeding was substantially justified or special circumstances make an award unjust. The rules in this part describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that the FAA Decisionmaker will use to make them. As used hereinafter, the term “agency” applies to the FAA.
§ 14.02 Proceedings covered.
(a) The Act applies to certain adversary adjudications conducted by the FAA under 49 CFR part 17 and the Acquisition Management System (AMS). These are adjudications under 5 U.S.C. 554, in which the position of the FAA is represented by an attorney or other representative who enters an appearance and participates in the proceeding. This subpart applies to proceedings under 49 U.S.C. 46301, 46302, and 46303 and to the Default Adjudicative Process under part 17 of this chapter and the AMS.
(b) If a proceeding includes both matters covered by the Act and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues.
(c) Fees and other expenses may not be awarded to a party for any portion of the adversary adjudication in which such party has unreasonably protracted the proceedings.
§ 14.03 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a party to the adversary adjudication for which it seeks an award. The term “party” is defined in 5 U.S.C. 504(b)(1)(B) and 5 U.S.C. 551(3). The applicant must show that it meets all conditions or eligibility set out in this subpart.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $2 million at the time the adversary adjudication was initiated;
(2) The sole owner of an unincorporated business who has a net worth of not more than $7 million, including both personal and business interests, and not more than 500 employees at the time the adversary adjudication was initiated;
(3) A charitable or other tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 employees at the time the adversary adjudication was initiated; and
(4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 employees at the time the adversary adjudication was initiated; and
(5) Any other partnership, corporation, association, or public or private organization with a net worth of not more than $7 million and not more than 500 employees at the time the adversary adjudication was initiated.
(c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated.
(d) An applicant who owns an unincorporated business will be considered an “individual” rather than a “sole owner of an unincorporated business” if the issues on which the applicant prevails are related primarily to personal interests rather than to business interest.
(e) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant’s direction and control. Part-time employees shall be included on a proportional basis.
(f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Any individual, corporation, or other entity that directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate for purposes of this part, unless the ALJ or adjudicative officer determines that such treatment would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities. In addition, the ALJ or adjudicative officer may determine that financial relationships of the applicant, other than those described in this paragraph, constitute special circumstances that would make an award unjust.
(g) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible if not itself eligible for an award.
§ 14.04 Standards for awards.
(a) A prevailing applicant may receive an award for attorney fees and other expenses incurred in connection with a proceeding, or in a significant and discrete substantive portion of the proceeding, unless the position of the agency over which the applicant has prevailed was substantially justified. Whether or not the position of the FAA was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which was made in the civil action for which fees and other expenses are sought. The burden of proof that an award should not be made to an eligible prevailing applicant is on the agency counsel, who may avoid an award by showing that the agency’s position was reasonable in law and fact.
(b) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust.
§ 14.05 Allowance fees and expenses.
(a) Awards will be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents, and expert witnesses, even if the services were made available without charge or at a reduced rate to the applicant.
(b) No award for the fee of an attorney or agent under this part may exceed $125 per hour, or such rate as prescribed by 5 U.S.C. 504. No award to compensate an expert witness may exceed the highest rate at which the agency pays expert witnesses. However, an award may also include the reasonable expenses of the attorney, agent, or witness as a separate item, if the attorney, agent, or witness ordinarily charges clients separately for such expenses.
(c) In determining the reasonableness of the fee sought for an attorney, agent, or expert witness, the ALJ or adjudicative officer shall consider the following:
(1) If the attorney, agent, or witness is in private practice, his or her customary fee for similar services, or if an employee of the applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in which the attorney, agent, or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and
(5) Such other factors as may bear on the value of the services provided.
(d) The reasonable cost of any study, analysis, engineering report, test, project, or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant’s case.
(e) Fees may be awarded only for work performed after the issuance of a complaint, or in the Default Adjudicative Process for a protest or contract dispute under part 17 of this chapter and the AMS.
Subpart B—Information Required From Applicants
§ 14.10 Contents of application.
(a) An application for an award of fees and expenses under the Act shall identify the applicant and the proceeding for which an award is sought. The application shall show that the applicant has prevailed and identify the position of the agency in the proceeding that the applicant alleges was not substantially justified. Unless the applicant is an individual, the application shall also state the number of employees of the applicant and describe briefly the type and purpose of its organization or business.
(b) The application shall also include a statement that the applicant’s net worth does not exceed $2 million (if an individual) or $7 million (for all other applicants, including their affiliates) at the time the adversary adjudication was initiated. However, an applicant may omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)), or in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant’s belief that it qualifies under such section; or
(2) It states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(c) The application shall state the amount of fees and expenses for which an award is sought.
(d) The application may also include any other matters that the applicant wishes this agency to consider in determining whether and in what amount an award should be made.
(e) The application shall be signed by the applicant or an authorized officer or attorney for the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the information provided in the application is true and correct.
(f) If the applicant is a partnership, corporation, association, organization, or sole owner of an unincorporated business, the application shall state that the applicant did not have more than 500 employees at the time the adversary adjudication was initiated, giving the number of its employees and describing briefly the type and purpose of its organization or business.
§ 14.11 Net worth exhibit.
(a) Each applicant except a qualified tax-exempt organization or cooperative association must provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates when the proceeding was initiated. If any individual, corporation, or other entity directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or if the applicant directly or indirectly owns or controls a majority of the voting shares or other interest of any corporation or other entity, the exhibit must include a showing of the net worth of all such affiliates or of the applicant including the affiliates. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant’s and its affiliates’ assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this part. The administrative law judge may require an applicant to file additional information to determine the eligibility for an award.
(b) The net worth exhibit shall describe any transfers of assets from, or obligations incurred by, the applicant or any affiliate, occurring in the one-year period prior to the date on which the proceeding was initiated, that reduced the net worth of the applicant and its affiliates below the applicable net worth ceiling. If there were no such transactions, the applicant shall so state.
(c) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of the net worth exhibit, or any part of it, may submit that portion of the exhibit directly to the ALJ or adjudicative officer in a sealed envelope labeled “Confidential Financial Information,” accompanied by a motion to withhold the information.
(1) The motion shall describe the information sought to be withheld and explain, in detail, why it should be exempt under applicable law or regulation, why public disclosure would adversely affect the applicant, and why disclosure is not required in the public interest.
(2) The net worth exhibit shall be served on the FAA counsel, but need not be served on any other party to the proceeding.
(3) If the ALJ or adjudicative officer finds that the net worth exhibit, or any part of it, should not be withheld from disclosure, it shall be placed in the public record of the proceeding. Otherwise, any request to inspect or copy the exhibit shall be disposed of in accordance with the FAA’s established procedures.
§ 14.12 Documentation of fees and expenses.
The application shall be accompanied by full documentation of the fees and expenses, including the cost of any study, analysis, engineering report, test, project or similar matter, for which an award is sought. A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceedings by each individual, a description of the specific services performed, the rate at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services provided. The administrative law judge may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed.
Subpart C—Procedures for Considering Applications
§ 14.20 When an application may be filed.
(a) An application may be filed whenever the applicant has prevailed in the proceeding, but in no case later than 30 days after the FAA Decisionmaker’s final disposition of the proceeding, or service of the order of the Administrator in a proceeding under the AMS.
(b) If review or reconsideration is sought or taken of a decision to which an applicant believes it has prevailed, proceedings for the award of fees shall be stayed pending final disposition of the underlying controversy.
(c) For purposes of this part, final disposition means the later of:
(1) Under part 17 of this chapter and the AMS, the date on which the order of the Administrator is served;
(2) The date on which an unappealed initial decision becomes administratively final;
(3) Issuance of an order disposing of any petitions for reconsideration of the FAA Decisionmaker’s final order in the proceeding;
(4) If no petition for reconsideration is filed, the last date on which such a petition could have been filed; or
(5) Issuance of a final order or any other final resolution of a proceeding, such as a settlement or voluntary dismissal, which is not subject to a petition for reconsideration.
§ 14.21 Filing and service of documents.
Any application for an award or other pleading or document related to an application shall be filed and served on all parties to the proceeding in the same manner as other pleadings in the proceeding, except as provided in § 14.11(b) for confidential financial information. Where the proceeding was held under part 17 of this chapter and the AMS, the application shall be filed with the FAA’s attorney and with the Office of Dispute Resolution for Acquisition.
§ 14.22 Answer to application.
(a) Within 30 days after service of an application, counsel representing the agency against which an award is sought may file an answer to the application. Unless agency counsel requests an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of the section, failure to file an answer within the 30-day period may be treated as a consent to the award requested.
(b) If the FAA’s counsel and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further extensions may be granted by the ALJ or adjudicative officer upon request by the FAA’s counsel and the applicant.
(c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of agency counsel’s position. If the answer is based on any alleged facts not already in the record of the proceeding, agency counsel shall include with the answer either supporting affidavits or a request for further proceedings under § 14.26.
§ 14.23 Reply.
Within 15 days after service of an answer, the applicant may file a reply. If the reply is based on any alleged facts not already in the record of the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under § 14.26.
§ 14.24 Comments by other parties.
Any party to a proceeding other than the applicant and the FAA’s counsel may file comments on an application within 30 days after it is served, or on an answer within 15 days after it is served. A commenting party may not participate further in proceedings on the application unless the ALJ or adjudicative officer determines that the public interest requires such participation in order to permit full exploration of matters raised in the comments.
§ 14.25 Settlement.
The applicant and agency counsel may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying proceeding, or after the underlying proceeding has been concluded. If a prevailing party and agency counsel agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement.
§ 14.26 Further proceedings.
(a) Ordinarily the determination of an award will be made on the basis of the written record; however, on request of either the applicant or agency counsel, or on his or her own initiative, the ALJ or adjudicative officer assigned to the matter may order further proceedings, such as an informal conference, oral argument, additional written submissions, or an evidentiary hearing. Such further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application and shall be conducted as promptly as possible.
(b) A request that the administrative law judge order further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues.
§ 14.27 Decision.
(a) The ALJ shall issue an initial decision on the application within 60 days after completion of proceedings on the application.
(b) An adjudicative officer in a proceeding under part 17 of this chapter and the AMS shall prepare a findings and recommendations for the Office of Dispute Resolution for Acquisition.
(c) A decision under paragraph (a) or (b) of this section shall include written findings and conclusions on the applicant’s eligibility and status as prevailing party and an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision shall also include, if at issue, findings on whether the FAA’s position was substantially justified, or whether special circumstances make an award unjust.
§ 14.28 Review by FAA decisionmaker.
(a) In proceedings other than those under part 17 of this chapter and the AMS, either the applicant or the FAA counsel may seek review of the initial decision on the fee application in accordance with subpart G of part 13 of this chapter, specifically § 13.233. Additionally, the FAA Decisionmaker may decide to review the decision on his/her own initiative. If neither the applicant nor the FAA’s counsel seeks review within 30 days after the decision is issued, it shall become final. Whether to review a decision is a matter within the discretion of the FAA Decisionmaker. If review is taken, the FAA Decisionmaker will issue a final decision on the application or remand the application to the ALJ who issue the initial fee award determination for further proceedings.
(b) In proceedings under part 17 of this chapter and the AMS, the adjudicative officer shall prepare findings and recommendations for the Office of Dispute Resolution for Acquisition with recommendations as to whether or not an award should be made, the amount of the award, and the reasons therefor. The Office of Dispute Resolution for Acquisition shall submit a recommended order to the Administrator after the completion of all submissions related to the EAJA application. Upon the Administrator’s action, the order shall become final, and may be reviewed under 49 U.S.C. 46110.
§ 14.29 Judicial review.
If an applicant is dissatisfied with the determination of fees and other expenses made under this subsection, pursuant 5 U.S.C. 504(c)(2), that applicant may, within thirty (30) days after the determination is made, appeal the determination to the court of the United States having jurisdiction to review the merits of the underlying decision of the FAA adversary adjudication. The court’s determination on any appeal heard under this paragraph shall be based solely on the factual record made before the FAA. The court may modify the determination of fees and other expenses only if the court finds that the failure to make an award of fees and other expenses, or the calculation of the amount of the award, was unsupported by substantial evidence.
§ 14.30 Payment of award.
An applicant seeking payment of an award shall submit to the disbursing official of the FAA a copy of the FAA Decisionmaker’s final decision granting the award, accompanied by a statement that the applicant will not seek review of the decision in the United States courts. Applications for award grants in cases involving the FAA shall be sent to: The Office of Accounting and Audit, AAA-1, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. The agency will pay the amount awarded to the applicant within 60 days, unless judicial review of the award or of the underlying decision of the adversary adjudication has been sought by the applicant or any other party to the proceeding.
PART 15—ADMINISTRATIVE CLAIMS UNDER FEDERAL TORT CLAIMS ACT
Subpart A—General Procedures
§ 15.1 Scope of regulations.
(a) These regulations apply to claims asserted under the Federal Tort Claims Act, as amended, for money damages against the United States for injury to, or loss of property, or for personal injury or death, caused by the negligent or wrongful act or omission of an employee of the FAA acting within the scope of office or employment. The regulations in this part supplement the Attorney General’s regulations in 28 CFR part 14, as amended. The regulations in 28 CFR part 14, as amended, and the regulations in this part apply to consideration by the FAA of administrative claims under the Federal Tort Claims Act.
§ 15.3 Administrative claim, when presented; appropriate office.
(a) A claim is deemed to have been presented when the FAA receives, at a place designated in paragraph (b) of this section, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to, or loss of, property or for personal injury or death, alleged to have occurred by reason of the incident. A claim which should have been presented to the FAA but which was mistakenly filed with another Federal agency, is deemed presented to the FAA on the date the claim is received by the FAA at a place designated in paragraph (b) of this section. A claim addressed to, or filed with, the FAA by mistake will be transferred to the appropriate Federal agency, if that agency can be determined, or returned to the claimant.
(b) Claims shall be delivered or mailed to the Assistant Chief Counsel, Litigation Division, AGC-400, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591, or alternatively, may be mailed or delivered to the Regional Counsel in any of the FAA Regional Offices or the Assistant Chief Counsel, Europe, Africa, and Middle East Area Office.
(c) Claim forms are available at each location listed in paragraph (b) of this section.
(d) A claim presented in accordance with this section may be amended by the claimant at any time prior to final FAA action or prior to the exercise of the claimant’s option, under 28 U.S.C. 2675(a), to deem the agency’s failure to make a final disposition of his or her claim within 6 months after it was filed as a final denial. Each amendment to a claim shall be submitted in writing and signed by the claimant or the claimant’s duly authorized agent or legal representative. Upon the timely filing of an amendment to a pending claim, the FAA has 6 months thereafter in which to make a final disposition of the claim as amended, and the claimant’s option under 28 U.S.C. 2675(a) does not accrue until 6 months after the filing of the amendment.
§ 15.5 Administrative claim, who may file.
(a) A claim for injury to, or loss of, property may be presented by the owner of the property interest which is the subject of the claim or by the owner’s duly authorized agent or legal representative.
(b) A claim for personal injury may be presented by the injured person or that person’s duly authorized agent or legal representative.
(c) A claim based on death may be presented by the executor or administrator of the decedent’s estate or by any other person legally entitled to assert such a claim under applicable State law.
(d) A claim for loss wholly compensated by an insurer with the rights of a subrogee may be presented by the insurer. A claim for loss partially compensated by an insurer with the rights of a subrogee may be presented by the insurer or the insured individually, as their respective interest appear, or jointly. Whenever an insurer presents a claim asserting the rights of a subrogee, it shall present with its claim appropriate evidence that it has the rights of a subrogee.
(e) A claim presented by an agent or legal representative shall be presented in the name of the claimant, be signed by the agent or legal representative, show the title or legal capacity of the person signing, and be accompanied by evidence of authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.
§ 15.7 Administrative claims; evidence and information to be submitted.
(a) Death. In support of a claim based on death, the claimant may be required to submit the following evidence or information:
(1) An authenticated death certificate or other competent evidence showing cause of death, date of death, and age of the decedent.
(2) The decedent’s employment or occupation at time of death, including monthly or yearly salary or earnings (if any), and the duration of last employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status of the decedent’s survivors, including identification of those survivors who were dependent for support upon the decedent at the time of death.
(4) Degree of support afforded by the decedent to each survivor dependent upon decedent for support at the time of death.
(5) Decedent’s general, physical, and mental conditions before death.
(6) Itemized bills for medical and burial expenses incurred by reason of the incident causing death or itemized receipts of payment for such expenses.
(7) If damages for pain and suffering prior to death are claimed, a physician’s detailed statement specifying the injuries suffered, duration of pain and suffering, any drugs administered for pain, and the decedent’s physical condition in the interval between injury and death.
(8) Any other evidence or information which may have a bearing on either the responsibility of the United States for the death or the amount of damages claimed.
(b) Personal injury. In support of a claim for personal injury, including pain and suffering, the claimant may be required to submit the following evidence or information:
(1) A written report by the attending physician or dentist setting forth the nature and extent of the injuries, nature and extent of treatment, any degree of temporary or permanent disability, the prognosis, period of hospitalization, and any diminished earning capacity.
(2) In addition to the report required by paragraph (b)(1) of this section, the claimant may be required to submit to a physical or mental examination by a physician employed by the FAA or another Federal agency. A copy of the report of the examining physician is made available to the claimant upon the claimant’s written request if the claimant has, upon request, furnished the report required by paragraph (b)(1), and has made or agrees to make available to the FAA any other physician’s reports previously or thereafter made on the physical or mental condition which is the subject matter of the claim.
(3) Itemized bills for medical, dental, and hospital expenses incurred or itemized receipts of payment for such expenses.
(4) If the prognosis reveals the necessity for future treatment, a statement of expected expenses for such treatment.
(5) If a claim is made for loss of time from employment, a written statement from the claimant’s employer showing actual time lost from employment, whether the claimant is a full or part-time employee, and wages or salary actually lost.
(6) If a claim is made for loss of income and the claimant is self-employed, documentary evidence showing the amount of earnings actually lost.
(7) Any other evidence or information which may have a bearing on the responsibility of the United States for the personal injury or the damages claimed.
(c) Property damage. In support of a claim for injury to or loss of property, real or personal, the claimant may be required to submit the following evidence or information:
(1) Proof of ownership of the property interest which is the subject of the claim.
(2) A detailed statement of the amount claimed with respect to each item of property.
(3) An itemized receipt of payment for necessary repairs or itemized written estimates of the cost of such repairs.
(4) A statement listing date of purchase, purchase price, and salvage value, where repair is not economical.
(5) Any other evidence or information which may have a bearing on either the responsibility of the United States for the injury to or loss of property or the damages claimed.
§ 15.9 Investigation and examination.
The FAA may investigate a claim or conduct a physical examination of a claimant. The FAA may request any other Federal agency to investigate a claim or conduct a physical examination of a claimant and provide a report of the investigation or examination to the FAA.
Subpart B—Indemnification Under Section 1118 of the Federal Aviation Act of 1958
§ 15.101 Applicability.
This subpart prescribes procedural requirements for the indemnification of a publisher of aeronautical charts or maps under section 1118 of the Federal Aviation Act of 1958, as amended, when the publisher incurs liability as a result of publishing—
(a) A chart or map accurately depicting a defective or deficient flight procedure or airway that was promulgated by the FAA; or
(b) Aeronautical data that—
(1) Is visually displayed in the cockpit of an aircraft; and
(2) When visually displayed, accurately depicts a defective or deficient flight procedure or airway promulgated by the FAA.
§ 15.103 Exclusions.
A publisher that requests indemnification under this part will not be indemnified if—
(a) The complaint filed against the publisher, or demand for payment against the publisher, first occurred before December 19, 1985;
(b) The publisher does not negotiate a good faith settlement;
(c) The publisher does not conduct a good faith defense;
(d) The defective or deficient flight procedure or airway—
(1) Was not promulgated by the FAA;
(2) Was not accurately depicted on the publisher’s chart or map;
(3) Was not accurately displayed on a visual display in the cockpit, or
(4) Was obviously defective or deficient;
(e) The publisher does not give notice as required by § 15.107 of this part and that failure is prejudicial to the Government; or
(f) The publisher does not appeal a lower court’s decision pursuant to a request by the Administrator under § 15.111(d)(2) of this part.
§ 15.105 Filing of requests for indemnification.
A request for indemnification under this part—
(a) May be filed by—
(1) A publisher described in § 15.101 of this part; or
(2) The publisher’s duly authorized agent or legal representative;
(b) Shall be filed with the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; and
(c) Shall state the basis for the publisher’s assertion that indemnification under this part is required.
§ 15.107 Notification requirements.
A request for indemnification will not be considered by the FAA unless the following conditions are met:
(a) The publisher must notify the Chief Counsel of the FAA, within the time limits prescribed in paragraph (b) or (c) of this section, of the publisher’s first receipt of a demand for payment, or service of a complaint in any proceeding, federal or state, in which it appears that indemnification under this part may be required.
(b) For each complaint filed, or demand for payment made, on or after December 19, 1985, and before June 4, 1990, the notice required by paragraph (a) of this section must be received by the FAA on or before July 2, 1990.
(c) For each complaint filed, or demand for payment made, on or after June 4, 1990, the notice required by paragraph (a) of this section must be received by the FAA within 60 days after the day the publisher first receives the demand for payment or service of the complaint.
(d) Within 5 days after the day a judgment is rendered against the publisher in any proceeding, or within 30 days of the denial of an appeal, whichever is later, the publisher must notify the FAA Chief Counsel that—
(1) There is an adverse judgment against the publisher; and
(2) The publisher has a claim for indemnification against the FAA arising out of that judgment.
§ 15.109 Settlements.
(a) A publisher may not settle a claim with another party, for which the publisher has sought, or intends to seek, indemnification under this part, unless—
(1) The publisher submits a copy of the proposed settlement, and a statement justifying the settlement, to the Chief Counsel of the FAA; and
(2) The Administrator and where necessary, the appropriate official of the Department of Justice, approves the proposed settlement.
(3) The publisher submits a signed release that clearly releases the United States from any further liability to the publisher and the claimant.
(b) If the Administrator does not approve the proposed settlement, the Administrator will—
(1) So notify the publisher by registered mail within 60 days of receipt of the proposed settlement; and
(2) Explain why the request for indemnification was not approved.
(c) If the Administrator approves the proposed settlement, the Administrator will so notify the publisher by registered mail within 60 days after the FAA’s receipt of the proposed settlement.
(d) If the Administrator does not have sufficient information to approve or disapprove the proposed settlement, the Administrator will request, within 60 days after receipt of the proposed settlement, the additional information needed to make a determination.
§ 15.111 Conduct of litigation.
(a) If a lawsuit is filed against the publisher and the publisher has sought, or intends to seek, indemnification under this part, the publisher shall—
(1) Give notice as required by § 15.107 of this part;
(2) If requested by the United States—
(i) Implead the United States as a third-party defendant in the action; and
(ii) Arrange for the removal of the action to Federal Court;
(3) Promptly provide any additional information requested by the United States; and
(4) Cooperate with the United States in the defense of the lawsuit.
(b) If the lawsuit filed against the publisher results in a proposed settlement, the publisher shall submit that proposed settlement to the FAA for approval in accordance with § 15.109 of this part.
(c) If the lawsuit filed against the publisher results in a judgment against the publisher and the publisher has sought, or intends to seek, indemnification under this part as a result of the adverse judgment, the publisher shall—
(1) Give notice to the FAA as required by § 15.107(d) of this part;
(2) Submit a copy of the trial court’s decision to the FAA Chief Counsel not more than 5 business days after the adverse judgment is rendered; and
(3) If an appeal is taken from the adverse judgment, submit a copy of the appellate decision to the FAA Chief Counsel not more than 30 days after that decision is rendered.
(d) Within 60 days after receipt of the trial court’s decision, the Administrator by registered mail will—
(1) Notify the publisher that indemnification is required under this part;
(2) Request that the publisher appeal the trial court’s adverse decision; or
(3) Notify the publisher that it is not entitled to indemnification under this part and briefly state the basis for the denial.
§ 15.113 Indemnification agreements.
(a) Upon a finding of the Administrator that indemnification is required under this part, and after obtaining the concurrence of the United States Department of Justice, the FAA will promptly enter into an indemnification agreement providing for the payment of the costs specified in paragraph (c) of this section.
(b) The indemnification agreement will be signed by the Chief Counsel and the publisher.
(c) The FAA will indemnify the publisher for—
(1) Compensatory damages awarded by the court against the publisher;
(2) Reasonable costs and fees, including reasonable attorney fees at a rate not to exceed that permitted under the Equal Access to Justice Act (5 U.S.C. 504), and any postjudgment interest, if the publisher conducts a good faith defense, or pursues a good faith appeal, at the request, or with the concurrence, of the FAA.
(d) Except as otherwise provided in this section, the FAA will not indemnify the publisher for—
(1) Punitive or exemplary damages;
(2) Civil or criminal fines or any other litigation sanctions;
(3) Postjudgment interest;
(4) Costs;
(5) Attorney fees; or
(6) Other incidental expenses.
(e) The indemnification agreement must provide that the Government will be subrogated to all claims or rights of the publisher, including third-party claims, cross-claims, and counterclaims.
§ 15.115 Payment.
After execution of the indemnification agreement, the FAA will submit the agreement to the United States Department of Justice and request payment, in accordance with the agreement, from the Judgment Fund.
PART 16—RULES OF PRACTICE FOR FEDERALLY-ASSISTED AIRPORT ENFORCEMENT PROCEEDINGS
Subpart A—General Provisions
§ 16.1 Applicability and description of part.
(a) General. The provisions of this part govern all Federal Aviation Administration (FAA) proceedings involving Federally-assisted airports, except for complaints or requests for determination filed with the Secretary under 14 CFR part 302, whether the proceedings are instituted by order of the FAA or by filing a complaint with the FAA 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 and other Federal obligations 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 and other Federal obligations 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 and other Federal obligations contained in grant-in-aid agreements issued under the Airport and Airway Improvement Act of 1982 (AAIA), as amended and recodified, 49 U.S.C. 47101 et seq., specifically section 511(a), 49 U.S.C. 47107, and 49 U.S.C. 47133.
(6) Section 505(d) of the Airport and Airway Improvement Act of 1982, and the requirements concerning civil rights and/or Disadvantaged Business Enterprise (DBE) issues contained in 49 U.S.C. 47107(e) and 49 U.S.C. 47113; 49 U.S.C. 47123; 49 U.S.C. 322, as amended; 49 CFR parts 23 and/or 26; and/or grant assurance 30 and/or grant assurance 37.
(7) Obligations contained in property deeds for property transferred pursuant to section 16 of the Federal Airport Act (49 U.S.C. 1115), section 23 of the Airport and Airway Development Act (49 U.S.C. 1723), or section 516 of the Airport and Airway Improvement Act (49 U.S.C. 47125).
(8) Obligations contained in property deeds for property transferred under the Surplus Property Act (49 U.S.C. 47151-47153).
(b) Other agencies. Where a grant assurance concerns a statute, executive order, regulation, or other authority that provides an administrative process for the investigation or adjudication of complaints by a Federal agency other than the FAA, persons shall use the administrative process established by those authorities. Where a grant assurance concerns a statute, executive order, regulation, or other authority that enables a Federal agency other than the FAA to investigate, adjudicate, and enforce compliance under those authorities on its own initiative, the FAA may defer to that Federal agency.
(c) Other enforcement. If a complaint or action initiated by the FAA involves a violation of the 49 U.S.C. subtitle VII or FAA regulations, except as specified in paragraphs (a)(1) and (a)(2) of this section, the FAA may take investigative and enforcement action under 14 CFR part 13, “Investigative and Enforcement Procedures.”
(d) Effective date. This part applies to a complaint filed with the FAA and to an investigation initiated by the FAA on or after December 16, 1996.
§ 16.3 Definitions.
Terms defined in the Acts are used as so defined. As used in this part:
Act means a statute listed in § 16.1 and any regulation, agreement, or document of conveyance issued or made under that statute.
Administrator means the Administrator of the FAA.
Agency means the FAA.
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 FAA.
Associate Administrator means the FAA Associate Administrator for Airports or a designee. For the purposes of this part only, Associate Administrator also means the Assistant Administrator for Civil Rights or a designee for complaints that the FAA Associate Administrator for Airports transfers to the Assistant Administrator for Civil Rights.
Complainant means the person submitting a complaint.
Complaint means a written document meeting the requirements of this part and filed under this part:
(1) 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, or
(2) By a person under 49 CFR 26.105(c) against a recipient of FAA funds alleged to have violated a provision of 49 CFR parts 23 and/or 26.
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.
Director means the Director of the FAA Office of Airport Compliance and Management Analysis, or a designee. For the purposes of this part only, Director also means the Deputy Assistant Administrator for Civil Rights for complaints that the Director of the FAA Office of Airport Compliance and Management Analysis transfers to the Deputy Assistant Administrator for Civil Rights or designee.
Electronic filing means the process of sending electronic mail (email) to the FAA Part 16 Docket Clerk, with scanned documents attached, as a Portable Document Format (PDF) file.
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.
Hearing officer means an attorney designated by the Deputy Chief Counsel 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 Regional or Center 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. Unless otherwise noted, mail also means electronic mail containing PDF copies of pleadings or documents required herein.
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 § 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 same-day 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.
Writing or written includes paper documents that are filed and/or served by mail, personal delivery, facsimile, or email (as attached PDF files).
§ 16.5 Separation of functions.
(a) Proceedings under this part, including hearings under subpart F of this part, will be prosecuted by an agency attorney.
(b) After issuance of an initial determination in which the FAA provides the opportunity for a hearing, an agency employee engaged in the performance of investigative or prosecutorial functions in a proceeding under this part will not, in that case or a factually related case, participate or give advice in an initial decision by the hearing officer, or a final decision by the Associate Administrator or designee on written appeal, and will not, except as counsel or as witness in the public proceedings, engage in any substantive communication regarding that case or a related case with the hearing officer, the Associate Administrator on written appeal, or agency employees advising those officials in that capacity.
(c) The Chief Counsel, the Assistant Chief Counsel for Litigation, or an attorney on the staff of the Assistant Chief Counsel for Litigation advises the Associate Administrator regarding an initial decision, an appeal, or a final decision regarding any case brought under this part.
Subpart B—General Rules Applicable to Complaints, Proceedings Initiated by the FAA, and Appeals
§ 16.11 General processes.
(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. This includes the extension of any time period prescribed, where necessary or appropriate for a fair and complete consideration of matters before the agency, prior to issuance of the Director’s Determination.
(b) Notwithstanding any other provision of this part, upon finding that circumstances require expedited handling of a particular case or controversy, the Director may issue an order directing any of the following prior to the issuance of the Director’s Determination:
(1) Shortening the time period for any action under this part consistent with due process;
(2) If other adequate opportunity to respond to pleadings is available, eliminating the reply, rebuttal, or other actions prescribed by this part;
(3) Designating alternative methods of service; or
(4) Directing such other measures as may be required.
(c) Other than those matters concerning a Corrective Action Plan, the jurisdiction of the Director terminates upon the issuance of the Director’s Determination. All matters arising during the appeal period, such as requests for extension of time to make an appeal, will be addressed by the Associate Administrator.
(d) The Director may transfer to the FAA Deputy Assistant Administrator for Civil Rights or Office of Civil Rights designee the authority to prepare and issue Director’s Determinations pursuant to § 16.31 for complaints alleging violations of section 505(d) of the Airport and Airway Improvement Act of 1982, and the requirements concerning civil rights and/or Disadvantaged Business Enterprise (DBE) issues contained in 49 U.S.C. 47107(e) and 49 U.S.C. 47113; 49 U.S.C. 47123; 49 U.S.C. 322, as amended; 49 CFR parts 23 and/or 26; and/or grant assurance 30 and/or grant assurance 37.
§ 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 filed under this Part shall be filed with the Office of the Chief Counsel, Attention: FAA Part 16 Docket Clerk, AGC-600, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591. Documents to be filed with a hearing officer shall be filed at the address and in the manner 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, by facsimile (when confirmed by filing on the same date by one of the foregoing methods), or electronically as set forth in paragraph (h) of this section. Unless the date is shown to be inaccurate, documents 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. Unless the date is shown to be inaccurate, documents filed electronically shall be deemed to be filed on the date shown on the certificate of service or, if none, the date of electronic transmission to the last party required to be served.
(c) Number of copies. With the exception of electronic filing or unless otherwise specified, an executed original and three copies of each document shall be filed with the FAA Part 16 Docket Clerk. One of the three copies shall not be stapled, bound or hole-punched. 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 unless otherwise prescribed by the hearing officer.
(d) Form. Documents filed under this part shall:
(1) Be typewritten or legibly printed;
(2) Include, in the case of docketed proceedings, the docket number of the proceeding on the front page; and
(3) Be marked to identify personal, privileged or proprietary information. Decisions for the publication and release of these documents will be made in accordance with 5 U.S.C. 552 and 49 CFR part 7.
(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, physical address, telephone number, facsimile number, if any, and email address, if filing electronically, 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 Docket Clerk 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.
(h) Electronic filing. (1) The initial complaint may be served electronically upon the respondent only if the respondent has previously agreed with the complainant in writing to participate in electronic filing. Documents may be filed under this Part electronically by sending an email containing (an) attachment(s) of (a) PDF file(s) of the required pleading to the FAA Docket Clerk, and the person designated in paragraph (h)(3) of this section.
(2) The subject line of the email must contain the names of the complainant and respondent, and must contain the FAA docket number (if assigned). The size of each email must be less than 10 MB. Email attachments containing executable files (e.g., .exe and .vbs files) will not be accepted.
(3) The email address at which the parties may file the documents described in this section is [email protected]. No acknowledgement or receipt will be provided by the FAA to parties using this method. A party filing electronically as described in this section must provide to the FAA Part 16 Docket Clerk and the opposing party an email address of the person designated by the party to receive pleadings.
(4) By filing a pleading or document electronically as described in this section, a party waives the rights under this part for service by the opposing party and the FAA by methods other than email. If a party subsequently decides to “opt-out” of electronic filing, that party must so notify the FAA Part 16 Docket Clerk and the other party in writing, from which time the FAA and the parties will begin serving the opting-out party in accordance with §§ 16.13 and 16.15. This subsection only exempts the parties from the filing and service requirements in § 16.13(a) (with the exception that “Documents to be filed with a hearing officer shall be filed at the address and in the manner stated in the hearing order.”), the method of filing requirements in § 16.13(b), and the number of documents requirements in § 16.13(c).
(i) Internet accessibility of documents filed in the Hearing Docket. (1) Unless protected from public disclosure, all documents filed in the Hearing Docket are accessible through the Federal Docket Management System (FDMS): http://www.regulations.gov. To access a particular case file, use the FDMS number assigned to the case.
(2) Determinations issued by the Director and Associate Administrator in Part 16 cases, indexes of decisions, contact information for the FAA Hearing Docket, the rules of practice, and other information are available on the FAA Office of Airports’ Web site at: http://part16.airports.faa.gov/index.cfm.
§ 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) Whom must be served. Copies of all documents filed with the FAA Part 16 Docket Clerk 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, facsimile numbers (if also served by facsimile), or email address (if served electronically in accordance with § 16.13(h)), by [specify method of service]:
(b) Method of service. Except as otherwise agreed by the parties and, if applicable, the hearing officer, the method of service is the same as set forth in § 16.13(b) for filing documents.
(c) Where service shall be made. Service shall be made to the persons identified in accordance with § 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 § 16.13(f);
(2) When a properly addressed envelope, sent to the most current address submitted under § 16.13(f), has been returned as undeliverable, unclaimed, or refused; or
(3) When the party serving the document electronically has a confirmation statement demonstrating that the email was properly sent to a party correctly addressed.
(e) Date of service. The date of service shall be determined in the same manner as the filing date under § 16.13(b).
§ 16.17 Computation of time.
This section applies to any period of time prescribed or allowed by this part, by notice or order of the hearing officer, or by an applicable statute.
(a) The date of an act, event, or default, after which a designated time period begins to run, is not included in a computation of time under this part.
(b) The last day of a time period is included in a computation of time unless it is a Saturday, Sunday, or legal holiday for the FAA, in which case, the time period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday.
(c) Whenever a party has the right or is required to do some act within a prescribed period after service of a document upon the party, and the document is served on the party by first class mail or certified mail, 5 days shall be added to the prescribed period.
§ 16.19 Motions.
(a) General. An application for an order or ruling not otherwise specifically provided for in this part shall be by motion. Unless otherwise ordered by the agency, the filing of a motion will not stay the date that any action is permitted or required by this part.
(b) Form and contents. Unless made during a hearing, motions shall be made in writing, shall state with particularity the relief sought and the grounds for the relief sought, and shall be accompanied by affidavits or other evidence relied upon. Motions introduced during hearings may be made orally on the record, unless the hearing officer directs otherwise.
(c) Answers to motions. Except as otherwise provided in this part, or except when a motion is made during a hearing, any party may file an answer in support of or in opposition to a motion, accompanied by affidavits or other evidence relied upon, provided that the 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.
(d) Deferred actions on motions. A ruling on a motion made before the time set for the issuance of the Director’s Determination may be deferred to and included with the Director’s Determination.
(e) Extension by motion. A party shall file a written motion for an extension of time not later than 3 business days before the document is due unless good cause for the late filing is shown. A party filing a motion for extension should attempt to obtain the concurrence of the opposing party. A party filing a written motion for an extension of time shall file the motion as required under § 16.13, and serve a copy of the motion on all parties and the docket clerk as required under § 16.15.
Subpart C—Special Rules Applicable to Complaints
§ 16.21 Pre-complaint resolution.
(a) Except for those persons filing under 49 CFR 26.105(c), 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, FAA Regional Airports Division responsible for administering financial assistance to the sponsor, or the FAA Office of Civil Rights will be available upon request to assist the parties with informal resolution.
(b) Except for complaints filed under 49 CFR 26.105(c), a complaint will be dismissed under § 16.27 unless the person or authorized representative filing the complaint certifies that:
(1) The complainant has made substantial and reasonable good faith efforts to resolve the disputed matter informally prior to filing the complaint; and
(2) There is no reasonable prospect for practical and timely resolution of the dispute.
(c) The certification required under paragraph (b) of this section, 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. Such efforts to resolve informally should be relatively recent and be demonstrated by pertinent documentation. There is no required form or process for informal resolution, but in each case the requirements to resolve the matter informally must meet the requirements of this paragraph.
§ 16.23 Pleadings.
(a) A person directly and substantially affected by any alleged noncompliance or a person qualified under 49 CFR 26.105(c) may file a complaint under this part. 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) Include all documents then available in the exercise of reasonable diligence, to be offered in support of the complaint, and to be served 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) Except for complaints filed under 49 CFR 26.105(c), describe how the complainant was directly and substantially affected by the things done or omitted to be done by the respondents.
(c) Unless the complaint is dismissed pursuant to § 16.25 or § 16.27, the FAA notifies the complainant and respondent in writing within 20 days after the date the FAA receives the complaint that the complaint has been docketed.
(d) The respondent shall file an answer within 20 days of the date of service of the FAA notification or, if a motion is filed under § 16.26, within 20 days of the date of service of an FAA order denying all or part of that motion.
(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) Amendments or supplements to the pleadings described in this section will not be allowed without showing good cause through a motion and supporting documents.
(k) Burden of proof. Except as used in subpart F of this part,
(1) The burden of proof is on the complainant to show noncompliance with an Act or any regulation, order, agreement or document of conveyance issued under the authority of an Act.
(2) Except as otherwise provided by statute or rule, the proponent of a motion, request, or order has the burden of proof.
(3) A party who has asserted an affirmative defense has the burden of proving the affirmative defense.
(l) Except for good cause shown through motion and supporting documents, discovery is not permitted except as provided in §§ 16.213 and 16.215.
§ 16.25 Dismissals.
(a) Within 20 days after the receipt of the complaint, unless a motion has been filed under § 16.26, the Director will dismiss a complaint, or any claim made in a complaint, with prejudice if:
(1) It appears on its face to be outside the jurisdiction of the Administrator under the Acts listed in § 16.1;
(2) On its face it does not state a claim that warrants an investigation or further action by the FAA; or
(3) The complainant lacks standing to file a complaint under §§ 16.3 and 16.23.
(b) A dismissal under this section will include the reasons for the dismissal.
§ 16.26 Motions to dismiss and motions for summary judgment.
(a) In lieu of an answer, the respondent may file a motion to dismiss the complaint or a motion for summary judgment on the complaint. The respondent may move for dismissal of the entire complaint or move for dismissal of particular issues from adjudication. The motion must be filed within 20 days after the date of service of the FAA notification of docketing.
(b) Motions to dismiss. (1) A motion to dismiss shall be accompanied by a concise statement of the reasons for seeking dismissal. The respondent must show that the complaint should be dismissed, with prejudice, if:
(i) It appears on its face to be outside the jurisdiction of the Administrator under the Acts listed in § 16.1;
(ii) On its face it does not state a claim that warrants an investigation or further action by the FAA; or
(iii) The complainant lacks standing to file a complaint under §§ 16.3 and 16.23.
(2) A motion to dismiss may seek dismissal of the entire complaint or the dismissal of specified claims in the complaint. A motion to dismiss shall be accompanied by a supporting memorandum of points and authorities.
(3) A complainant may file an answer to the motion to dismiss within 10 days of the date the motion is served on the complainant, or within any other period set by the Director. The answer shall be accompanied by a concise statement of reasons for opposing dismissal, and may be accompanied by affidavits and other documentary evidence in support of that contention.
(4) Within 30 days of the date an answer to a motion to dismiss is due under this section, the Director may issue an order disposing of the motion. If the Director denies the motion to dismiss in whole or in part, or grants the motion in part, then within 20 days of when the order is served on the respondent, the respondent shall file an answer to the complaint.
(5) If the Director does not act on the motion to dismiss within 30 days of the date an answer to a motion is due under this section, the respondent shall file an answer to the complaint within the next 20 days.
(c) Motions for summary judgment. (1) A motion for summary judgment may be based upon the ground that there is no genuine issue of material fact for adjudication and that the complaint, when viewed in the light most favorable to the complainant, should be summarily adjudicated in favor of the respondent as a matter of law. A motion for summary judgment may seek dismissal of the entire complaint or dismissal of specified claims or issues in the complaint.
(2) The motion for summary judgment shall be accompanied by a concise statement of the material facts as to which the respondent contends there is no genuine issue of material fact. The motion may include affidavits and documentary evidence in support of the contention that there is no genuine issue of material fact in dispute.
(3) A complainant may file an answer to the motion for summary judgment within 10 days of the date the motion is served on the complainant, or within any other period set by the Director. The answer shall be accompanied by a concise statement of the material facts as to which the complainant contends there is a genuine issue, and may be accompanied by affidavits and other documentary evidence in support of that contention.
(4) Within 30 days of the date an answer to a motion for summary judgment is due under this section, the Director may issue an order disposing of the motion. If the Director denies the motion in whole or in part, or grants the motion in part, then within 20 days of when the order is served on the respondent, the respondent shall file an answer to the complaint.
(5) If the Director does not act on the motion for summary judgment within 30 days of the date an answer to a motion is due under this section, the respondent shall file an answer to the complaint within the next 20 days.
§ 16.27 Incomplete complaints.
(a) If a complaint is not dismissed pursuant to § 16.25, but is deficient as to one or more of the requirements set forth in § 16.21 or § 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 deficiencies. The Director’s dismissal will include the reasons for the dismissal.
(b) Dismissals under this section are not initial determinations, and appeals from decisions under this section will not be permitted.
§ 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 49 U.S.C. 40113 and 46104, and 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.
§ 16.31 Director’s Determinations after investigations.
(a) After consideration of the pleadings and other information obtained by the FAA after investigation, the Director will render an initial determination and serve it upon each party within 120 days of the date the last pleading specified in § 16.23 was due.
(b)(1) The Director’s Determination shall include findings of fact and conclusions of law, accompanied by explanations and based upon all material issues of fact, credibility of the evidence, law and discretion presented on the record, together with a statement of the reasons therefor.
(2) The Director shall issue a determination or rule in a party’s favor only if the determination or ruling is in accordance with law and supported by a preponderance of the reliable, probative, and substantial evidence contained in the record.
(c) A party adversely affected by the Director’s Determination may appeal the initial determination as provided in § 16.33. However, if the Director’s Determination that is appealed contains a Corrective Action Plan, the Director has the discretion to suspend the Corrective Action Plan until the appeal is resolved.
(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 a hearing is required by statute or otherwise provided by the FAA. A hearing may be required by statute if the FAA determination would terminate eligibility for grants under 49 U.S.C. 47114(c) or (e), or terminate payments on a grant agreement under 49 U.S.C. subchapter 471. The respondent may elect or waive a hearing, as provided in subpart E of this part.
(e) The Director will not consider requests for rehearing, reargument, reconsideration, or modification of a Director’s Determination without a finding of good cause.
§ 16.33 Final decisions without hearing.
(a) The Associate Administrator may transfer to the FAA Assistant Administrator for Civil Rights the responsibility to prepare and issue Final Agency Decisions pursuant to this section for appeals with issues concerning civil rights.
(b) 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.
(c) In the cases described in paragraph (b) of this section, within 30 days after the date of service of the initial determination, a party adversely affected by the Director’s Determination may file in accordance with § 16.13 and serve in accordance with § 16.15 a simultaneous Notice of Appeal and Brief.
(d) A reply to an appeal brief may be filed within 20 days after the date of service of the appeal.
(e) On appeal, the Associate Administrator will consider the issues addressed in any order on a motion to dismiss or motion for summary judgment and any issues accepted in the Director’s Determination using the following analysis:
(1) Are the findings of fact each supported by a preponderance of reliable, probative, and substantial evidence contained in the record?
(2) Are conclusions made in accordance with law, precedent and policy?
(3) Are the questions on appeal substantial?
(4) Have any prejudicial errors occurred?
(f) Any new issues or evidence presented in an appeal or reply will not be considered unless accompanied by a petition and good cause found as to why the new issue or evidence was not presented to the Director. Such a petition must:
(1) Set forth the new matter;
(2) Contain affidavits of prospective witnesses, authenticated documents, or both, or an explanation of why such substantiation is unavailable; and
(3) Contain a statement explaining why such new issue or evidence could not have been discovered in the exercise of due diligence prior to the date on which the evidentiary record closed.
(g) The Associate Administrator will issue a final decision and order within 60 days after the due date of the reply.
(h) If no appeal is filed within the time period specified in paragraph (c) 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.
(i) No requests for rehearing, reargument, reconsideration, or modification of a final order will be considered without a finding of good cause.
§ 16.34 Consent orders.
(a) The parties may agree at any time before the issuance of a final agency decision to dispose of the case by proposing a consent order. Good faith efforts to resolve a complaint through issuance of a consent order may continue throughout the administrative process. However, except as provided in § 16.11(a), 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; and
(3) An express waiver of the right to further procedural steps and of all rights of judicial review.
(c) If the parties agree to dispose of a case by issuance of a consent order before the FAA issues a Director’s Determination, the proposal for a consent order is submitted jointly by the parties to the Director, together with a request to adopt the consent order and dismiss the case. The Director may issue the consent order as an order of the FAA and terminate the proceeding.
Subpart D—Special Rules Applicable to Proceedings Initiated by the FAA
§ 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 § 16.29(b).
§ 16.103 Notice of investigation.
Following the initiation of an investigation under § 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.
§ 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 § 16.31.
Subpart E—Proposed Orders of Compliance
§ 16.109 Orders terminating eligibility for grants, cease and desist orders, and other compliance orders.
(a) The agency will provide the opportunity for a hearing if, in the Director’s determination, the agency issues or proposes to issue an order terminating eligibility for grants pursuant to 49 U.S.C. 47106(d), an order suspending the payment of grant funds pursuant to 49 U.S.C. 47111(d); an order withholding approval of any new application to impose a passenger facility charge pursuant to 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 § 16.31 will include a statement of the availability of a hearing under subpart F of this part.
(1) Within 20 days after service of a Director’s Determination under § 16.31 that provides an opportunity for a hearing a person subject to the proposed compliance order may—
(i) Request a hearing under subpart F of this part;
(ii) Waive hearing and appeal the Director’s Determination in writing, as provided in § 16.33;
(iii) File, jointly with a complainant, a motion to withdraw the complaint and to dismiss the proposed compliance action; or
(iv) Submit, jointly with the agency, a proposed consent order under § 16.34(c).
(2) If the respondent fails to file an appeal in writing within the time periods provided in paragraph (c) of this section, the Director’s Determination becomes final.
(c) The Director may either direct the respondent to submit a Corrective Action Plan or initiate proceedings to revoke and/or deny the respondent’s application for Airport Improvement Program discretionary grants under 49 U.S.C. 47115 and general aviation airport grants under 49 U.S.C. 47114(d) when a Director’s Determination finds a respondent in noncompliance and does not provide for a hearing.
(d) In the event that the respondent fails to submit, in accordance with a Director’s Determination, a Corrective Action Plan acceptable to the FAA within the time provided, unless extended by the FAA for good cause, and/or if the respondent fails to complete the Corrective Action Plan as specified therein, the Director may initiate action to revoke and/or deny applications for Airport Improvement Program discretionary grants under 49 U.S.C. 47115 and general aviation airport grants under 49 U.S.C. 47114(d).
(e) For those violations that cannot be remedied through corrective action, the Director may initiate action to revoke and/or deny the respondent’s applications for Airport Improvement Program discretionary grants under 49 U.S.C. 47115 and general aviation airport grants under 49 U.S.C. 47114(d).
(f) When the Director concludes that the respondent has fully complied with the Corrective Action Plan and/or when the Director determines that the respondent has corrected the areas of noncompliance, the Director will terminate the proceeding.
(g) A complainant’s standing terminates upon the issuance of a Director’s Determination that finds a respondent in noncompliance on all identified issues. The complainant may not appeal the Director’s Determination if the Director finds noncompliance on all identified issues.
Subpart F—Hearings
§ 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.
§ 16.202 Powers of a hearing officer.
In accordance with the rules of this subpart, a hearing officer may:
(a) Give notice of, and hold, prehearing conferences and hearings;
(b) Administer oaths and affirmations;
(c) Issue subpoenas authorized by law and issue notices of deposition requested by the parties;
(d) Limit the frequency and extent of discovery;
(e) Rule on offers of proof;
(f) Receive relevant and material evidence;
(g) Regulate the course of the hearing in accordance with the rules of this part to avoid unnecessary and duplicative proceedings in the interest of prompt and fair resolution of the matters at issue;
(h) Hold conferences to settle or to simplify the issues by consent of the parties;
(i) Dispose of procedural motions and requests;
(j) Examine witnesses; and
(k) Make findings of fact and conclusions of law, and issue an initial decision.
§ 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 person authorized by the hearing officer to be the party’s representative.
(2) An attorney, or other duly authorized representative, who represents a party shall file a notice of appearance in accordance with § 16.13.
(b) Parties and agency participation. (1) The parties to the hearing are the complainant(s) and respondent(s) named in the hearing order, and the agency. The style of any pleadings filed under this Subpart shall name the respondent as the Appellant, and the Federal Aviation Administration as 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.
§ 16.207 Intervention and other participation.
(a) Intervention and participation by other persons are permitted only at the hearing stage of the complaint process and with the written approval of the hearing officer.
(b) A person may submit a written 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.
(c) If the hearing officer finds that intervention will not unduly broaden the issues or delay the proceedings and, if the person has an interest that will benefit the proceedings, 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.
(d) Other persons may petition the hearing officer for leave to participate in the hearing. Participation is limited to the filing of a posthearing brief and reply to the hearing officer and the Associate Administrator. Such a brief shall be filed and served on all parties in the same manner as the parties’ posthearing briefs are filed.
(e) Participation under this section is at the discretion of the hearing officer, and no decision permitting participation shall be deemed to constitute an expression that the participant has such a substantial interest in the proceeding as would entitle it to judicial review of such decision.
§ 16.209 Extension of time.
(a) Extension by oral agreement. The parties may agree to extend for a reasonable period of time for filing a document under this part. If the parties agree, the hearing officer shall grant one extension of time to each party. The party seeking the extension of time shall submit a draft order to the hearing officer to be signed by the hearing officer and filed with the hearing docket. The hearing officer may grant additional oral requests for an extension of time where the parties agree to the extension.
(b) Extension by motion. A party shall file a written motion for an extension of time with the hearing officer not later than 7 days before the document is due unless good cause for the late filing is shown. A party filing a written motion for an extension of time shall serve a copy of the motion on each party.
(c) Failure to rule. If the hearing officer fails to rule on a written motion for an extension of time by the date the document was due, the motion for an extension of time is deemed denied.
(d) Effect on time limits. In a hearing required by section 519(b) of the Airport and Airways Improvement Act, as amended in 1987, 49 U.S.C. 47106(e) and 47111(d), the due date for the hearing officer’s initial decision and for the final agency decision are extended by the length of the extension granted by the hearing officer only if the hearing officer grants an extension of time as a result of an agreement by the parties as specified in paragraph (a) of this section or, if the hearing officer grants an extension of time as a result of the sponsor’s failure to adhere to the hearing schedule. In any other hearing, an extension of time granted by the hearing officer for any reason extends the due date for the hearing officer’s initial decision and for the final agency decision by the length of time of the hearing officer’s decision.
§ 16.211 Prehearing conference.
(a) Prehearing conference notice. The hearing officer schedules a prehearing conference and serves a prehearing conference notice on the parties promptly after being designated as a hearing officer.
(1) The prehearing conference notice specifies the date, time, place, and manner (in person or by telephone) of the prehearing conference.
(2) The prehearing conference notice may direct the parties to exchange proposed witness lists, requests for evidence and the production of documents in the possession of another party, responses to interrogatories, admissions, proposed procedural schedules, and proposed stipulations before the date of the prehearing conference.
(b) The prehearing conference. The prehearing conference is conducted by telephone or in person, at the hearing officer’s discretion. The prehearing conference addresses matters raised in the prehearing conference notice and such other matters as the hearing officer determines will assist in a prompt, full and fair hearing of the issues.
(c) Prehearing conference report. At the close of the prehearing conference, the hearing officer rules on any requests for evidence and the production of documents in the possession of other parties, responses to interrogatories, and admissions; on any requests for depositions; on any proposed stipulations; and on any pending applications for subpoenas as permitted by § 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.
§ 16.213 Discovery.
(a) Discovery is limited to requests for admissions, requests for production of documents, interrogatories, and depositions as authorized by § 16.215.
(b) The hearing officer shall limit the frequency and extent of discovery permitted by this section if a party shows that—
(1) The information requested is cumulative or repetitious;
(2) The information requested may be obtained from another less burdensome and more convenient source;
(3) The party requesting the information has had ample opportunity to obtain the information through other discovery methods permitted under this section; or
(4) The method or scope of discovery requested by the party is unduly burdensome or expensive.
§ 16.215 Depositions.
(a) General. For good cause shown, the hearing officer may order that the testimony of a witness may be taken by deposition and that the witness produce documentary evidence in connection with such testimony. Generally, an order to take the deposition of a witness is entered only if:
(1) The person whose deposition is to be taken would be unavailable at the hearing;
(2) The deposition is deemed necessary to perpetuate the testimony of the witness; or
(3) The taking of the deposition is necessary to prevent undue and excessive expense to a party and will not result in undue burden to other parties or in undue delay.
(b) Application for deposition. Any party desiring to take the deposition of a witness shall make application therefor to the hearing officer in writing, with a copy of the application served on each party. The application shall include:
(1) The name and residence of the witness;
(2) The time and place for the taking of the proposed deposition;
(3) The reasons why such deposition should be taken; and
(4) A general description of the matters concerning which the witness will be asked to testify.
(c) Order authorizing deposition. If good cause is shown, the hearing officer, in his or her discretion, issues an order authorizing the deposition and specifying the name of the witness to be deposed, the location and time of the deposition and the general scope and subject matter of the testimony to be taken.
(d) Procedures for deposition. (1) Witnesses whose testimony is taken by deposition shall be sworn or shall affirm before any questions are put to them. Each question propounded shall be recorded and the answers of the witness transcribed verbatim.
(2) Objections to questions or evidence shall be recorded in the transcript of the deposition. The interposing of an objection shall not relieve the witness of the obligation to answer questions, except where the answer would violate a privilege.
(3) The written transcript shall be subscribed by the witness, unless the parties by stipulation waive the signing, or the witness is ill, cannot be found, or refuses to sign. The reporter shall note the reason for failure to sign.
(e) Depositions of agency employees. (1) Depositions of Agency Employees will not be allowed except under the provisions of 49 CFR part 9.
(2) Such depositions will be allowed only with the specific written permission of the Chief Counsel or his or her designee.
§ 16.217 Witnesses.
(a) Each party may designate as a witness any person who is able and willing to give testimony that is relevant and material to the issues in the hearing case, subject to the limitation set forth in paragraph (b) of this section.
(b) The hearing officer may exclude testimony of witnesses that would be irrelevant, immaterial, or unduly repetitious.
(c) Any witness may be accompanied by counsel. Counsel representing a nonparty witness has no right to examine the witness or otherwise participate in the development of testimony.
§ 16.219 Subpoenas.
(a) Request for subpoena. A party may apply to the hearing officer, within the time specified for such applications in the prehearing conference report, for a subpoena to compel testimony at a hearing or to require the production of documents only from the following persons:
(1) Another party;
(2) An officer, employee, or agent of another party;
(3) Any other person named in the complaint as participating in or benefiting from the actions of the respondent alleged to have violated any Act;
(4) An officer, employee, or agent of any other person named in the complaint as participating in or benefiting from the actions of the respondent alleged to have violated any Act.
(b) Issuance and service of subpoena. (1) The hearing officer issues the subpoena if the hearing officer determines that the evidence to be obtained by the subpoena is relevant and material to the resolution of the issues in the case.
(2) Subpoenas shall be served by personal service, or upon an agent designated in writing for the purpose, or by certified mail, return receipt addressed to such person or agent. Whenever service is made by registered or certified mail, the date of mailing shall be considered as the time when service is made.
(3) A subpoena issued under this part is effective throughout the United States or any territory or possession thereof.
(c) Motions to quash or modify subpoena. (1) A party or any person upon whom a subpoena has been served may file a motion to quash or modify the subpoena with the hearing officer at or before the time specified in the subpoena for the filing of such motions. The applicant shall describe in detail the basis for the application to quash or modify the subpoena including, but not limited to, a statement that the testimony, document, or tangible evidence is not relevant to the proceeding, that the subpoena is not reasonably tailored to the scope of the proceeding, or that the subpoena is unreasonable and oppressive.
(2) A motion to quash or modify the subpoena stays the effect of the subpoena pending a decision by the hearing officer on the motion.
§ 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.
§ 16.223 Evidence.
(a) General. A party may submit direct and rebuttal evidence in accordance with this section.
(b) Requirement for written testimony and evidence. Except in the case of evidence obtained by subpoena, or in the case of a special ruling by the hearing officer to admit oral testimony, a party’s direct and rebuttal evidence shall be submitted in written form in advance of the oral hearing pursuant to the schedule established in the hearing officer’s prehearing conference report. Written direct and rebuttal fact testimony shall be certified by the witness as true and correct. Subject to the same exception (for evidence obtained by subpoena or subject to a special ruling by the hearing officer), oral examination of a party’s own witness is limited to certification of the accuracy of written evidence, including correction and updating, if necessary, and reexamination following cross-examination by other parties.
(c) Subpoenaed testimony. Testimony of witnesses appearing under subpoena may be obtained orally.
(d) Cross-examination. A party may conduct cross-examination that may be required for disclosure of the facts, subject to control by the hearing officer for fairness, expedition and exclusion of extraneous matters.
(e) Hearsay evidence. Hearsay evidence is admissible in proceedings governed by this part. The fact that evidence is hearsay goes to the weight of evidence and does not affect its admissibility.
(f) Admission of evidence. The hearing officer admits evidence introduced by a party in support of its case in accordance with this section, but may exclude irrelevant, immaterial, or unduly repetitious evidence.
(g) Expert or opinion witnesses. An employee of the FAA or DOT may not be called as an expert or opinion witness for any party other than the agency except as provided in Department of Transportation regulations at 49 CFR part 9.
§ 16.225 Public disclosure of evidence.
(a) Except as provided in this section, the hearing shall be open to the public.
(b) The hearing officer may order that any information contained in the record be withheld from public disclosure. Any person may object to disclosure of information in the record by filing a written motion to withhold specific information with the hearing officer. The person shall state specific grounds for nondisclosure in the motion.
(c) The hearing officer shall grant the motion to withhold information from public disclosure if the hearing officer determines that disclosure would be in violation of the Privacy Act, would reveal trade secrets or privileged or confidential commercial or financial information, or is otherwise prohibited by law.
§ 16.227 Standard of proof.
The hearing officer shall issue an initial decision or rule in a party’s favor only if the decision or ruling is in accordance with law and supported by a preponderance of the reliable, probative, and substantial evidence contained in the record.
§ 16.229 Burden of proof.
As used in this subpart, the burden of proof is as follows:
(a) The burden of proof of noncompliance with an Act or any regulation, order, agreement or document of conveyance issued under the authority of an Act is on the agency.
(b) Except as otherwise provided by statute or rule, the proponent of a motion, request, or order has the burden of proof.
(c) A party who has asserted an affirmative defense has the burden of proving the affirmative defense.
§ 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.
§ 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, all documents included in the hearing record and the Director’s Determination 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. A copy of the record will be filed by the FAA Part 16 Docket Clerk in the Federal Docket Management System (FDMS). Any person desiring to review the record may then do so at http://www.regulations.gov.
§ 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.
§ 16.237 Waiver of procedures.
(a) The hearing officer shall waive such procedural steps as all parties to the hearing agree to waive before issuance of an initial decision.
(b) Consent to a waiver of any procedural step bars the raising of this issue on appeal.
(c) The parties may not by consent waive the obligation of the hearing officer to enter an initial decision on the record.
§ 16.241 Initial decisions, order, and appeals.
(a) The hearing officer shall issue an initial decision based on the record developed during the proceeding and shall send the initial decision to the parties not later than 110 days after the Director’s Determination unless otherwise provided in the hearing order.
(b) Each party adversely affected by the hearing officer’s initial decision may file an appeal with the Associate Administrator within 15 days of the date the initial decision is issued. Each party may file a reply to an appeal within 10 days after it is served on the party. Filing and service of appeals and replies shall be by personal delivery.
(c) If an appeal is filed, the Associate Administrator reviews the entire record and issues a final agency decision and order within 60 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, in accordance with § 16.245(d), 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.
§ 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 § 16.209, such efforts may not serve as the basis for extensions of the times set forth in this part.
(b) A proposal for a consent order, specified in paragraph (a) of this section, shall include:
(1) A proposed consent order;
(2) An admission of all jurisdictional facts;
(3) An express waiver of the right to further procedural steps and of all rights of judicial review; and
(4) The hearing order, if issued, and an acknowledgment that the hearing order may be used to construe the terms of the consent order.
(c) If the issuance of a consent order has been agreed upon by all parties to the hearing, the proposed consent order shall be filed with the hearing officer, along with a draft order adopting the consent decree and dismissing the case, for the hearing officer’s adoption.
(d) The deadline for the hearing officer’s initial decision and the final agency decision is extended by the amount of days elapsed between the filing of the proposed consent order with the hearing officer and the issuance of the hearing officer’s order continuing the hearing.
(e) If the agency attorney and sponsor agree to dispose of a case by issuance of a consent order before the FAA issues a hearing order, the proposal for a consent order is submitted jointly to the official authorized to issue a hearing order, together with a request to adopt the consent order and dismiss the case. The official authorized to issue the hearing order issues the consent order as an order of the FAA and terminates the proceeding.
§ 16.245 Associate Administrator review after a hearing.
(a) The Associate Administrator may transfer to the FAA Assistant Administrator for Civil Rights the authority to prepare and issue Final Agency Decisions pursuant to § 16.241 for appeals from a hearing concerning civil rights issues.
(b) After a hearing is held, and, after considering the issues as set forth in § 16.245(e), if the Associate Administrator determines that the hearing officer’s initial decision or order should be changed, the Associate Administrator may:
(1) Make any necessary findings and issue an order in lieu of the hearing officer’s initial decision or order, or
(2) Remand the proceeding for any such purpose as the Associate Administrator may deem necessary.
(c) If the Associate Administrator takes review of the hearing officer’s initial decision on the Associate Administrator’s own motion, the Associate Administrator will issue a notice of review within 20 days of 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 brief to the hearing officer. A brief on review shall be filed not later than 10 days after service of the notice of review. Filing and service of a brief on review shall be by personal delivery.
(3) The Associate Administrator issues a final agency decision and order within 30 days of the due date of the brief. 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.
(d) When the final agency decision finds a respondent in noncompliance, and where a respondent fails to properly seek judicial review of the final agency decision as set forth in subpart G of this part, the Associate Administrator will issue an order remanding the case to the Director for the following action:
(1) In the event that the respondent fails to submit, in accordance with the final agency decision, a Corrective Action Plan acceptable to the FAA within the time provided, unless extended by the FAA for good cause, and/or if the respondent fails to complete the Corrective Action Plan as specified therein, the Director may initiate action to revoke and/or deny applications for Airport Improvement Program grants issued under 49 U.S.C. 47114(c)-(e) and 47115. When the Director concludes that the respondent has fully complied with the Corrective Action Plan, the Director will issue an Order terminating the proceeding.
(2) For those violations that cannot be remedied through corrective action, the Director may initiate action to revoke and/or deny the respondent’s applications for Airport Improvement Program grants issued under 49 U.S.C. 47114(c)-(e) and 47115.
(e) On appeal from a hearing officer’s initial decision, the Associate Administrator will consider the following questions:
(1) Are the findings of fact each supported by a preponderance of reliable, probative and substantial evidence?
(2) Are conclusions made in accordance with law, precedent and policy?
(3) Are the questions on appeal substantial?
(4) Have any prejudicial errors occurred?
(f) Any new issues or evidence presented in an appeal or reply will not be allowed unless accompanied by a certified petition and good cause found as to why the new matter was not presented to the Director. Such a petition must:
(1) Set forth the new issues or evidence;
(2) Contain affidavits of prospective witnesses, authenticated documents, or both, or an explanation of why such substantiation is unavailable; and
(3) Contain a statement explaining why such new matter could not have been discovered in the exercise of due diligence prior to the date on which the evidentiary record closed.
(g) A Final Agency Decision may be appealed in accordance with subpart G of this part.
Subpart G—Judicial Review
§ 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, and of an order of dismissal with prejudice issued by the Director, as provided in 49 U.S.C. 46110 or 49 U.S.C. 47106(d) and 47111(d). A party seeking judicial review shall file a petition for review with the Court not later than 60 days after the order has been served on the party or within 60 days after the entry of an order under 49 U.S.C. 46110.
(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 § 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 becomes the final decision of the Associate Administrator because it was not appealed within the applicable time periods provided under §§ 16.33(c) and 16.241(b).
Subpart H—Ex Parte Communications
§ 16.301 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.
§ 16.303 Procedures for handling ex parte communications.
A decisional employee who receives or who makes or knowingly causes to be made a communication prohibited by § 16.303 shall place in the public record of the proceeding:
(a) All such written communications;
(b) Memoranda stating the substance of all such oral communications; and
(c) All written responses, and memoranda stating the substance of all oral responses, to the materials described in paragraphs (a) and (b) of this section.
§ 16.305 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 § 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.
PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES
Subpart A—General
§ 17.1 Applicability.
This part applies to all Acquisition Management System (AMS) bid protests and contract disputes involving the FAA that are filed at the Office of Dispute Resolution for Acquisition (ODRA) on or after October 7, 2011, with the exception of those contract disputes arising under or related to FAA contracts entered into prior to April 1, 1996, where such contracts have not been modified to be made subject to the FAA AMS. This part also applies to pre-disputes as described in subpart G of this part.
§ 17.3 Definitions.
(a) Accrual means to come into existence as a legally enforceable claim.
(b) Accrual of a contract claim means that all events relating to a claim have occurred, which fix liability of either the government or the contractor and permit assertion of the claim, regardless of when the claimant actually discovered those events. For liability to be fixed, some injury must have occurred. Monetary damages need not have been incurred, but if the claim is for money, such damages must be capable of reasonable estimation. The accrual of a claim or the running of the limitations period may be tolled on equitable grounds, including but not limited to active concealment, fraud, or if the facts were inherently unknowable.
(c) Acquisition Management System (AMS) establishes the policies, guiding principles, and internal procedures for the FAA’s acquisition system.
(d) Adjudicative Process is an administrative adjudicatory process used to decide protests and contract disputes where the parties have not achieved resolution through informal communication or the use of ADR. The Adjudicative Process is conducted by a Dispute Resolution Officer (DRO) or Special Master selected by the ODRA Director to preside over the case in accordance with Public Law 108-176, Section 224, Codified at 49 U.S.C. 40110(d)(4).
(e) Administrator means the Administrator of the Federal Aviation Administration.
(f) Alternative Dispute Resolution (ADR) is the primary means of voluntary dispute resolution that is employed by the ODRA. See Appendix A of this part.
(g) Compensated Neutral refers to an impartial third party chosen by the parties to act as a facilitator, mediator, or arbitrator functioning to resolve the protest or contract dispute under the auspices of the ODRA. The parties pay equally for the services of a compensated neutral, unless otherwise agreed to by the parties. An ODRA DRO or neutral cannot be a compensated neutral.
(h) Contract Dispute, as used in this part, means a written request to the ODRA seeking, as a matter of right under an FAA contract subject to the AMS, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or for other relief arising under, relating to, or involving an alleged breach of that contract. A contract dispute does not require, as a prerequisite, the issuance of a Contracting Officer final decision. Contract disputes, for purposes of ADR only, may also involve contracts not subject to the AMS.
(i) Counsel refers to a Legal Representative who is 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.
(j) Contractor is a party in contractual privity with the FAA and responsible for performance of a contract’s requirements.
(k) Discovery is the procedure whereby opposing parties in a protest or contract dispute may, either voluntarily or to the extent ordered by the ODRA, obtain testimony from, or documents and information held by, other parties or non-parties.
(l) Dispute Resolution Officer (DRO) is an attorney and member of the ODRA staff. The term DRO can include the Director of the ODRA.
(m) Interested party, in the context of a bid protest, is one whose direct economic interest has been or would be affected by the award or failure to award an FAA contract. Proposed subcontractors are not “interested parties” within this definition and are not eligible to submit protests to the ODRA. Subcontractors not in privity with the FAA are not interested parties in the context of a contract dispute.
(n) Intervenor is an interested party other than the protester whose participation in a protest is allowed by the ODRA. For a post-award protest, the awardee of the contract that is the subject of the protest will be allowed, upon timely request, to participate as an intervenor in the protest. In such a protest, no other interested parties will be allowed to participate as intervenors.
(o) Legal Representative is an individual(s) designated to act on behalf of a party in matters before the ODRA. Unless otherwise provided under §§ 17.15(c)(2), 17.27(a)(1), or 17.59(a)(6), a Notice of Appearance must be filed with the ODRA containing the name, address, telephone and facsimile (Fax) numbers of a party’s legal representative.
(p) Neutral refers to an impartial third party in the ADR process chosen by the parties to act as a facilitator, mediator, arbitrator, or otherwise to aid the parties in resolving a protest or contract dispute. A neutral can be a DRO or a person not an employee of the ODRA.
(q) ODRA is the FAA’s exclusive forum acting on behalf of the Administrator, pursuant to the statutory authority granted by Public Law 108-176, Section 224, to provide dispute resolution services and to adjudicate matters within its jurisdiction. The ODRA may also provide non-binding dispute resolution services in matters outside of its jurisdiction where mutually requested to do so by the parties involved.
(r) Parties include the protester(s) or the contractor, the FAA, and any intervenor(s).
(s) Pre-Disputes mean an issue(s) in controversy concerning an FAA contract or solicitation that, by mutual agreement of the parties, is filed with the ODRA. See subpart G of this part.
(t) Product Team, as used in these rules, refers to the FAA organization(s) responsible for the procurement or contracting activity, without regard to funding source, and includes the Contracting Officer (CO). The Product Team, acting through assigned FAA counsel, is responsible for all communications with and submissions to the ODRA in pending matters.
(u) Screening Information Request (SIR or Solicitation) means a request by the FAA for documentation, information, presentations, proposals, or binding offers concerning an approach to meeting potential acquisition requirements established by the FAA.
(v) A Special Master is a non-FAA attorney or judge who has been assigned by the ODRA to act as its finder of fact, and to make findings and recommendations based upon AMS policy and applicable law and authorities in the Adjudicative Process.
(a) The authority of the Administrator to conduct dispute resolution and adjudicative proceedings concerning acquisition matters is delegated to the Director of the ODRA.
(b) The Director of the ODRA may redelegate to Special Masters and DROs such delegated authority in paragraph (a) of this section as deemed necessary by the Director for efficient resolution of an assigned protest or contract dispute, including the imposition of sanctions for the filing of frivolous pleadings, making false statements, or other disciplinary actions. See subpart F of this part.
§ 17.7 Filing and computation of time.
(a) Filing of a protest or contract dispute may be accomplished by overnight delivery, by hand delivery, by Fax, or, if permitted by Order of the ODRA, by electronic filing. A protest or contract dispute is considered to be filed on the date it is received by the ODRA during normal business hours. The ODRA’s normal business hours are from 8:30 a.m. to 5 p.m. Eastern Time. A protest or contract dispute received after the time period prescribed for filing shall not be considered timely filed. Service shall also be made on the Contracting Officer (CO) pursuant to §§ 17.15(e) and 17.27(d).
(b) Submissions to the ODRA after the initial filing of a protest or contract dispute may be accomplished by any means available in paragraph (a) of this section. Copies of all such submissions shall be served on the opposing party or parties.
(c) The time limits stated in this part are calculated in business days, which exclude weekends, Federal holidays and other days on which Federal Government offices in Washington, DC are not open. In computing time, the day of the event beginning a period of time shall not be included. If the last day of a period falls on a weekend or a Federal holiday, the first business day following the weekend or holiday shall be considered the last day of the period.
(d) Electronic Filing—Procedures for electronic filing may be utilized where permitted by Order of the ODRA on a case-by-case basis or pursuant to a Standing Order of the ODRA permitting electronic filing.
§ 17.9 Protective orders.
(a) The ODRA may issue protective orders addressing the treatment of protected information, including protected information in electronic form, either at the request of a party or upon its own initiative. Such information may include proprietary, confidential, or source-selection-sensitive material, or other information the release of which could result in a competitive advantage to one or more firms.
(b) The terms of the ODRA’s standard protective order may be altered to suit particular circumstances, by negotiation of the parties, subject to the approval of the ODRA. The protective order establishes procedures for application for access to protected information, identification and safeguarding of that information, and submission of redacted copies of documents omitting protected information.
(c) After a protective order has been issued, counsel or consultants retained by counsel appearing on behalf of a party may apply for access to the material under the order by submitting an application to the ODRA, with copies furnished simultaneously to all parties. The application shall establish that the applicant is not involved in competitive decision-making for any firm that could gain a competitive advantage from access to the protected information and that the applicant will diligently protect any protected information received from inadvertent disclosure. Objections to an applicant’s admission shall be raised within two (2) days of the application, although the ODRA may consider objections raised after that time for good cause.
(d) Any violation of the terms of a protective order may result in the imposition of sanctions, including but not limited to removal of the violator from the protective order and reporting of the violator to his or her bar association(s), and the taking of other actions as the ODRA deems appropriate. Additional civil or criminal penalties may apply.
Subpart B—Protests
§ 17.11 Matters not subject to protest.
The following matters may not be protested before the ODRA, except for review of compliance with the AMS:
(a) FAA purchases from or through, State, local, and tribal governments and public authorities;
(b) FAA purchases from or through other Federal agencies;
(c) Grants;
(d) Cooperative agreements;
(e) Other transactions.
§ 17.13 Dispute resolution process for protests.
(a) Protests concerning FAA SIRs, solicitations, or contract awards shall be resolved pursuant to this part.
(b) Potential protestors should, where possible, attempt to resolve any issues concerning potential protests with the CO. Such attempts are not a prerequisite to filing a protest with the ODRA.
(c) Offerors or prospective offerors shall file a protest with the ODRA in accordance with § 17.15. The protest time limitations set forth in § 17.15 will not be extended by attempts to resolve a potential protest with the CO. Other than the time limitations specified in § 17.15 for the filing of protests, the ODRA retains the discretion to modify any timeframes established herein in connection with protests.
(d) In accordance with § 17.17(b), the ODRA shall convene an initial status conference for the purpose of scheduling proceedings in the protest and to encourage the parties to consider using the ODRA’s ADR process to attempt to resolve the protest, pursuant to subpart D of this part. It is the Agency’s policy to use voluntary ADR to the maximum extent practicable. If the parties elect not to attempt ADR, or if ADR efforts do not completely resolve the protest, the protest will proceed under the ODRA Adjudicative Process set forth in subpart E of this part. Informal ADR techniques may be utilized simultaneously with ongoing adjudication.
(e) The ODRA Director shall designate DROs, outside neutrals or Special Masters as potential neutrals for the resolution of protests through ADR. The ultimate choice of an ADR neutral is made by the parties participating in the ADR. The ODRA Director also shall, at his or her sole discretion, designate an adjudicating DRO or Special Master for each matter. A person serving as a neutral in an ADR effort in a matter, shall not serve as an adjudicating DRO or Special Master for that matter.
(f) Multiple protests concerning the same SIR, solicitation, or contract award may be consolidated at the discretion of the ODRA Director, and assigned to a single DRO or Special Master for adjudication.
(g) Procurement activities, and, where applicable, contractor performance pending resolution of a protest, shall continue during the pendency of a protest, unless there is a compelling reason to suspend all or part of the procurement activities or contractor performance. Pursuant to §§ 17.15(d) and 17.17(a), the ODRA may impose a temporary suspension and recommend suspension of award or contract performance, in whole or in part, for a compelling reason. A decision to suspend procurement activities or contractor performance is made in writing by the Administrator or the Administrator’s delegee upon recommendation of the ODRA.
§ 17.15 Filing a protest.
(a) An interested party may initiate a protest by filing with the ODRA in accordance with § 17.7(a) within the timeframes set forth in this Section. Protests that are not timely filed shall be dismissed. The timeframes applicable to the filing of protests are as follows:
(1) Protests based upon alleged SIR or solicitation improprieties that are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for the receipt of initial proposals.
(2) In procurements where proposals are requested, alleged improprieties that do not exist in the initial solicitation, but which are subsequently incorporated into the solicitation, must be protested not later than the next closing time for receipt of proposals following the incorporation.
(3) For protests other than those related to alleged solicitation improprieties, the protest must be filed on the later of the following two dates:
(i) Not later than seven (7) business days after the date the protester knew or should have known of the grounds for the protest; or
(ii) If the protester has requested a post-award debriefing from the FAA Product Team, not later than five (5) business days after the date on which the Product Team holds that debriefing.
(b) Protests shall be filed with the ODRA, AGC-70, Federal Aviation Administration, telephone (202) 267-3290 as follows:
(1) 600 Independence Avenue SW., Room 2W100, Washington, DC 20591 for filing by hand delivery, courier or other form of in-person delivery;
(2) 800 Independence Avenue SW., Washington, DC 20591 [Attention: AGC-70, Wilbur Wright Bldg., Room 2W100] for filing by U.S. Mail; or
(3) Numbers (202) 267-3720 or alternate (202) 267-1293 for filing by facsimile.
(c) A protest shall be in writing, and set forth:
(1) The protester’s name, address, telephone number, and FAX number;
(2) The name, address, telephone number, and FAX number of the protester’s legal representative, and who shall be duly authorized to represent the protester, to be the point of contact;
(3) The SIR number or, if available, the contract number and the name of the CO;
(4) The basis for the protester’s status as an interested party;
(5) The facts supporting the timeliness of the protest;
(6) Whether the protester requests a protective order, the material to be protected, and attach a redacted copy of that material;
(7) A detailed statement of both the legal and factual grounds of the protest, and one (1) copy of each relevant document;
(8) The remedy or remedies sought by the protester, as set forth in § 17.23;
(9) The signature of the legal representative, or another person duly authorized to represent the protester.
(d) If the protester wishes to request a suspension of the procurement or contract performance, in whole or in part, and believes that a compelling reason(s) exists to suspend the procurement or contract performance because of the protested action, the protester shall, in its initial filing:
(1) Set forth such compelling reason(s), supply all facts and documents supporting the protester’s position; and
(2) Demonstrate—
(i) The protester has alleged a substantial case;
(ii) The lack of a suspension would be likely to cause irreparable injury;
(iii) The relative hardships on the parties favor a suspension; and
(iv) That a suspension is in the public interest.
(3) Failure of a protester to provide information or documents in support of a requested suspension or failure to address the elements of paragraph (d)(2) of this section may result in the summary rejection of the request for suspension, or a requirement that the protester supplement its request prior to the scheduling of a Product Team response to the request under § 17.17(a).
(e) Concurrent with the filing of a protest with the ODRA, the protester shall serve a copy of the protest on the CO and any other official designated in the SIR for receipt of protests, by means reasonably calculated to be received by the CO on the same day as it is to be received by the ODRA. The protest shall include a signed statement from the protester, certifying to the ODRA the manner of service, date, and time when a copy of the protest was served on the CO and other designated official(s).
(f) Upon receipt of the protest, the CO shall notify the awardee of a challenged contract award in writing of the existence of the protest. The awardee and/or interested parties shall notify the ODRA in writing, of their interest in participating in the protest as intervenors within two (2) business days of receipt of the CO’s notification, and shall, in such notice, designate a person as the point of contact for the ODRA.
(g) The ODRA has discretion to designate the parties who shall participate in the protest as intervenors. In protests of awarded contracts, only the awardee may participate as an intervenor as a matter of right.
§ 17.17 Initial protest procedures.
(a) If, as part of its initial protest filing, the protester requests a suspension of procurement activities or contractor performance in whole or in part, in accordance with § 17.15(d), the Product Team shall submit a response to the request to the ODRA by no later than the close of business on the date of the initial scheduling conference or on such other date as is established by the ODRA. Copies of the response shall be furnished to the protester and any intervenor(s) so as to be received within the same timeframe. The protester and any intervenor(s) shall have the opportunity of providing additional comments on the response within two (2) business days of receiving it. Based on its review of such submissions, the ODRA, in its discretion, may—
(1) Decline the suspension request; or
(2) Recommend such suspension to the Administrator or the Administrator’s designee. The ODRA also may impose a temporary suspension of no more than ten (10) business days, where it is recommending that the Administrator impose a suspension.
(b) Within five (5) business days of the filing of a protest, or as soon thereafter as practicable, the ODRA shall convene an initial status conference for purposes of:
(1) Reviewing the ODRA’s ADR and adjudication procedures and establishing a preliminary schedule;
(2) Identifying legal or other preliminary or potentially dispositive issues and answering the parties’ questions regarding the ODRA process;
(3) Dealing with issues related to protected information and the issuance of any needed protective order;
(4) Encouraging the parties to consider using ADR;
(5) Appointing a DRO as a potential ADR neutral to assist the parties in considering ADR options and developing an ADR agreement; and
(6) For any other reason deemed appropriate by the DRO or by the ODRA.
(c) The Product Team and protester will have five (5) business days from the date of the initial status conference to decide whether they will attempt to use an ADR process in the case. With the agreement of the ODRA, ADR may be used concurrently with the adjudication of a protest. See § 17.37(e).
(d) If the Product Team and protester elect to use ADR proceedings to resolve the protest, they will agree upon the neutral to conduct the ADR proceedings (either an ODRA DRO or a compensated neutral of their own choosing) pursuant to § 17.37, and shall execute and file with the ODRA a written ADR agreement. Agreement of any intervenor(s) to the use of ADR or the resolution of a dispute through ADR shall not be required.
(e) If the Product Team or protester indicate that ADR proceedings will not be used, or if ADR is not successful in resolving the entire protest, the ODRA Director upon being informed of the situation, will schedule an adjudication of the protest.
§ 17.19 Motions practice and dismissal or summary decision of protests.
(a) Separate motions generally are discouraged in ODRA bid protests. Counsel and parties are encouraged to incorporate any such motions in their respective agency responses or comments. Parties and counsel are encouraged to attempt to resolve typical motions issues through the ODRA ADR process. The ODRA may rule on any non-dispositive motion, where appropriate and necessary, after providing an opportunity for briefing on the motion by all affected parties. Unjustifiable, inappropriate use of motions may result in the imposition of sanctions. Where appropriate, a party may request by dispositive motion to the ODRA, or the ODRA may recommend or order, that:
(1) The protest, or any count or portion of a protest, be dismissed for lack of jurisdiction, timeliness, or standing to pursue the protest;
(2) The protest, or any count or portion of a protest, be dismissed, if frivolous or without basis in fact or law, or for failure to state a claim upon which relief may be had;
(3) A summary decision be issued with respect to the protest, or any count or portion of a protest, if there are no material facts in dispute and a party is entitled to summary decision as a matter of law.
(b) In connection with consideration of possible dismissal or summary decision, the ODRA shall consider any material facts in dispute, in a light most favorable to the party against whom the dismissal or summary decision would operate and draw all factual inferences in favor of the non-moving party.
(c) Either upon motion by a party or on its own initiative, the ODRA may, at any time, exercise its discretion to:
(1) Recommend to the Administrator dismissal or the issuance of a summary decision with respect to the entire protest;
(2) Dismiss the entire protest or issue a summary decision with respect to the entire protest, if delegated that authority by the Administrator; or
(3) Dismiss or issue a summary decision with respect to any count or portion of a protest.
(d) A dismissal or summary decision regarding the entire protest by either the Administrator, or the ODRA by delegation, shall be construed as a final agency order. A dismissal or summary decision that does not resolve all counts or portions of a protest shall not constitute a final agency order, unless and until such dismissal or decision is incorporated or otherwise adopted in a decision by the Administrator (or the ODRA, by delegation) regarding the entire protest.
(e) Prior to recommending or entering either a dismissal or a summary decision, either in whole or in part, the ODRA shall afford all parties against whom the dismissal or summary decision is to be entered the opportunity to respond to the proposed dismissal or summary decision.
§ 17.21 Adjudicative Process for protests.
(a) Other than for the resolution of preliminary or dispositive matters, the Adjudicative Process for protests will be commenced by the ODRA Director pursuant to § 17.17(e).
(b) The Director of the ODRA shall appoint a DRO or a Special Master to conduct the adjudication proceedings, develop the administrative record, and prepare findings and recommendations for review of the ODRA Director.
(c) The DRO or Special Master may conduct such proceedings and prepare procedural orders for the proceedings as deemed appropriate; and may require additional submissions from the parties.
(d) The Product Team response to the protest will be due to be filed and served ten (10) business days from the commencement of the ODRA Adjudication process. The Product Team response shall consist of a written chronological, supported statement of proposed facts, and a written presentation of applicable legal or other defenses. The Product Team response shall cite to and be accompanied by all relevant documents, which shall be chronologically indexed, individually tabbed, and certified as authentic and complete. A copy of the response shall be furnished so as to be received by the protester and any intervenor(s) on the same date it is filed with the ODRA. In all cases, the Product Team shall indicate the method of service used.
(e) Comments of the protester and the intervenor on the Product Team response will be due to be filed and served five (5) business days after their receipt of the response. Copies of such comments shall be provided to the other participating parties by the same means and on the same date as they are furnished to the ODRA. Comments may include any supplemental relevant documents.
(f) The ODRA may alter the schedule for filing of the Product Team response and the comments for good cause or to accommodate the circumstances of a particular protest.
(g) The DRO or Special Master may convene the parties and/or their representatives, as needed for the Adjudicative Process.
(h) If, in the sole judgment of the DRO or Special Master, the parties have presented written material sufficient to allow the protest to be decided on the record presented, the DRO or Special Master shall have the discretion to decide the protest on that basis.
(i) The parties may engage in limited, focused discovery with one another and, if justified, with non-parties, so as to obtain information relevant to the allegations of the protest.
(1) The DRO or Special Master shall manage the discovery process, including limiting its length and availability, and shall establish schedules and deadlines for discovery, which are consistent with timeframes established in this part and with the FAA policy of providing fair and expeditious dispute resolution.
(2) The DRO or Special Master may also direct the parties to exchange, in an expedited manner, relevant, non-privileged documents.
(3) Where justified, the DRO or Special Master may direct the taking of deposition testimony, however, the FAA dispute resolution process does not contemplate extensive discovery.
(4) The use of interrogatories and requests for admission is not permitted in ODRA bid protests.
(5) Where parties cannot voluntarily reach agreement on a discovery-related issue, they may timely seek assistance from an ODRA ADR neutral or may file an appropriate motion with the ODRA. Parties may request a subpoena.
(6) Discovery requests and responses are not part of the record and will not be filed with the ODRA, except in connection with a motion or other permissible filing.
(7) Unless timely objection is made, documents properly filed with the ODRA will be deemed admitted into the administrative record.
(j) Hearings are not typically held in bid protests. The DRO or Special Master may conduct hearings, and may limit the hearings to the testimony of specific witnesses and/or presentations regarding specific issues. The DRO or Special Master shall control the nature and conduct of all hearings, including the sequence and extent of any testimony. Hearings will be conducted:
(1) Where the DRO or Special Master determines that there are complex factual issues in dispute that cannot adequately or efficiently be developed solely by means of written presentations and/or that resolution of the controversy will be dependent on his/her assessment of the credibility of statements provided by individuals with first-hand knowledge of the facts; or
(2) Upon request of any party to the protest, unless the DRO or Special Master finds specifically that a hearing is unnecessary and that no party will be prejudiced by limiting the record in the adjudication to the parties’ written submissions. All witnesses at any such hearing shall be subject to cross-examination by the opposing party and to questioning by the DRO or Special Master.
(k) The Director of the ODRA may review the status of any protest in the Adjudicative Process with the DRO or Special Master.
(l) After the closing of the administrative record, the DRO or Special Master will prepare and submit findings and recommendations to the ODRA that shall contain the following:
(1) Findings of fact;
(2) Application of the principles of the AMS, and any applicable law or authority to the findings of fact;
(3) A recommendation for a final FAA order; and
(4) If appropriate, suggestions for future FAA action.
(m) In preparing findings and recommendations in protests, the DRO or Special Master, using the preponderance of the evidence standard, shall consider whether the Product Team actions in question were consistent with the requirements of the AMS, had a rational basis, and whether the Product Team decision was arbitrary, capricious or an abuse of discretion. Notwithstanding the above, allegations that government officials acted with bias or in bad faith must be established by clear and convincing evidence.
(n) The DRO or Special Master has broad discretion to recommend a remedy that is consistent with § 17.23.
(o) A DRO or Special Master shall submit findings and recommendations only to the Director of the ODRA or the Director’s designee. The findings and recommendations will be released to the parties and to the public upon issuance of the final FAA order in the case. If an ODRA protective order was issued in connection with the protest, or if a protest involves proprietary or competition-sensitive information, a redacted version of the findings and recommendations, omitting any protected information, shall be prepared wherever possible and released to the public, as soon as is practicable, along with a copy of the final FAA order. Only persons admitted by the ODRA under the protective order and Government personnel shall be provided copies of the unredacted findings and recommendations that contain proprietary or competition-sensitive information.
(p) Other than communications regarding purely procedural matters or ADR, there shall be no substantive ex parte communication between ODRA personnel and any principal or representative of a party concerning a pending or potentially pending matter. A potential or serving ADR neutral may communicate on an ex parte basis to establish or conduct the ADR.
§ 17.23 Protest remedies.
(a) The ODRA has broad discretion to recommend and impose protest remedies that are consistent with the AMS and applicable law. Such remedies may include, but are not limited to one or a combination of, the following:
(1) Amend the SIR;
(2) Refrain from exercising options under the contract;
(3) Issue a new SIR;
(4) Require a recompetition or revaluation;
(5) Terminate an existing contract for the FAA’s convenience;
(6) Direct an award to the protester;
(7) Award bid and proposal costs; or
(8) Any other remedy consistent with the AMS that is appropriate under the circumstances.
(b) In determining the appropriate recommendation, the ODRA may consider the circumstances surrounding the procurement or proposed procurement including, but not limited to: the nature of the procurement deficiency; the degree of prejudice to other parties or to the integrity of the acquisition system; the good faith of the parties; the extent of performance completed; the feasibility of any proposed remedy; the urgency of the procurement; the cost and impact of the recommended remedy; and the impact on the Agency’s mission.
(c) Attorney’s fees of a prevailing protester are allowable to the extent permitted by the Equal Access to Justice Act, 5 U.S.C. 504(a)(1) (EAJA) and 14 CFR part 14.
Subpart C—Contract Disputes
§ 17.25 Dispute resolution process for contract disputes.
(a) All contract disputes arising under contracts subject to the AMS shall be resolved under this subpart.
(b) Contract disputes shall be filed with the ODRA pursuant to § 17.27.
(c) The ODRA has broad discretion to recommend remedies for a contract dispute that are consistent with the AMS and applicable law, including such equitable remedies or other remedies as it deems appropriate.
§ 17.27 Filing a contract dispute.
(a) Contract disputes must be in writing and should contain:
(1) The contractor’s name, address, telephone and Fax numbers and the name, address, telephone and Fax numbers of the contractor’s legal representative(s) (if any) for the contract dispute;
(2) The contract number and the name of the Contracting Officer;
(3) A detailed chronological statement of the facts and of the legal grounds underlying the contract dispute, broken down by individual claim item, citing to relevant contract provisions and attaching copies of the contract and other relevant documents;
(4) Information establishing the ODRA’s jurisdiction and the timeliness of the contract dispute;
(5) A request for a specific remedy, and the amount, if known, of any monetary remedy requested, together with pertinent cost information and documentation (e.g., invoices and cancelled checks). Supporting documentation should be broken down by individual claim item and summarized; and
(6) The signature of a duly authorized representative of the initiating party.
(b) Contract Disputes shall be filed with the ODRA, AGC-70, Federal Aviation Administration, telephone (202) 267-3290 as follows:
(1) 600 Independence Avenue SW., Room 2W100, Washington, DC 20591 for filing by hand delivery, courier or other form of in-person delivery;
(2) 800 Independence Avenue SW., Washington, DC 20591 [Attention: AGC-70, Wilbur Wright Bldg., Room 2W100] for filing by U.S. Mail; or
(3) Numbers (202) 267-3720 or alternate (202) 267-1293 for filing by facsimile.
(c) A contract dispute against the FAA shall be filed with the ODRA within two (2) years of the accrual of the contract claim involved. A contract dispute by the FAA against a contractor (excluding contract disputes alleging warranty issues, fraud or latent defects) likewise shall be filed within two (2) years of the accrual of the contract claim. If an underlying contract entered into prior to the effective date of this part provides for time limitations for filing of contract disputes with the ODRA, which differ from the aforesaid two (2) year period, the limitation periods in the contract shall control over the limitation period of this section. In no event will either party be permitted to file with the ODRA a contract dispute seeking an equitable adjustment or other damages after the contractor has accepted final contract payment, with the exception of FAA contract disputes related to warranty issues, gross mistakes amounting to fraud or latent defects. FAA contract disputes against the contractor based on warranty issues must be filed within the time specified under applicable contract warranty provisions. Any FAA contract disputes against the contractor based on gross mistakes amounting to fraud or latent defects shall be filed with the ODRA within two (2) years of the date on which the FAA knew or should have known of the presence of the fraud or latent defect.
(d) A party shall serve a copy of the contract dispute upon the other party, by means reasonably calculated to be received on the same day as the filing is received by the ODRA.
(e) With the exception of the time limitations established herein for the filing of contract disputes, the ODRA retains the discretion to modify any timeframe established herein in connection with contract disputes.
§ 17.29 Informal resolution period.
(a) The ODRA process for contract disputes includes an informal resolution period of twenty (20) business days from the date of filing in order for the parties to attempt to informally resolve the contract dispute either through direct negotiation or with the assistance of the ODRA. The CO, with the advice of FAA legal counsel, has full discretion to settle contract disputes, except where the matter involves fraud.
(b) During the informal resolution period, if the parties request it, the ODRA will appoint a DRO for ADR who will discuss ADR options with the parties, offer his or her services as a potential neutral, and assist the parties to enter into an agreement for a formal ADR process. A person serving as a neutral in an ADR effort in a matter shall not serve as an adjudicating DRO or Special Master for that matter.
(c) The informal resolution period may be extended at the request of the parties for good cause.
(d) If the matter has not been resolved informally, the parties shall file joint or separate statements with the ODRA no later than twenty (20) business days after the filing of the contract dispute. The ODRA may extend this time, pursuant to § 17.27(e). The statement(s) shall include either:
(1) A joint request for ADR, or an executed ADR agreement, pursuant to § 17.37(d), specifying which ADR techniques will be employed; or
(2) Written explanation(s) as to why ADR proceedings will not be used and why the Adjudicative Process will be needed.
(e) If the contract dispute is not completely resolved during the informal resolution period, the ODRA’s Adjudicative Process will commence unless the parties have reached an agreement to attempt a formal ADR effort. As part of such an ADR agreement the parties, with the concurrence of the ODRA, may agree to defer commencement of the adjudication process pending completion of the ADR or that the ADR and adjudication process will run concurrently. If a formal ADR is attempted but does not completely resolve the contract dispute, the Adjudicative Process will commence.
(f) The ODRA shall hold a status conference with the parties within ten (10) business days, or as soon thereafter as is practicable, of the ODRA’s receipt of a written notification that ADR proceedings will not be used, or have not fully resolved the Contract Dispute. The purpose of the status conference will be to commence the Adjudicative Process and establish the schedule for adjudication.
(g) The submission of a statement which indicates that ADR will not be utilized will not in any way preclude the parties from engaging in non-binding ADR techniques during the Adjudicative Process, pursuant to subpart D of this part.
§ 17.31 Dismissal or summary decision of contract disputes.
(a) Any party may request by motion, or the ODRA on its own initiative may recommend or direct, that a contract dispute be dismissed, or that a count or portion thereof be stricken, if:
(1) It was not timely filed;
(2) It was filed by a subcontractor or other person or entity lacking standing;
(3) It fails to state a matter upon which relief may be had; or
(4) It involves a matter not subject to the jurisdiction of the ODRA.
(b) Any party may request by motion, or the ODRA on its own initiative may recommend or direct, that a summary decision be issued with respect to a contract dispute, or any count or portion thereof if there are no material facts in dispute and a party is entitled to a summary decision as a matter of law.
(c) In connection with any potential dismissal of a contract dispute, or summary decision, the ODRA will consider any material facts in dispute in a light most favorable to the party against whom the dismissal or summary decision would be entered, and draw all factual inferences in favor of that party.
(d) At any time, whether pursuant to a motion or on its own initiative and at its discretion, the ODRA may:
(1) Dismiss or strike a count or portion of a contract dispute or enter a partial summary decision;
(2) Recommend to the Administrator that the entire contract dispute be dismissed or that a summary decision be entered; or
(3) With a delegation from the Administrator, dismiss the entire contract dispute or enter a summary decision with respect to the entire contract dispute.
(e) An order of dismissal of the entire contract dispute or summary decision with respect to the entire contract dispute, issued either by the Administrator or by the ODRA, on the grounds set forth in this section, shall constitute a final agency order. An ODRA order dismissing or striking a count or portion of a contract dispute or entering a partial summary judgment shall not constitute a final agency order, unless and until such ODRA order is incorporated or otherwise adopted in a final agency decision of the Administrator or the Administrator’s delegee regarding the remainder of the dispute.
(f) Prior to recommending or entering either a dismissal or a summary decision, either in whole or in part, the ODRA shall afford all parties against whom the dismissal or summary decision would be entered the opportunity to respond to a proposed dismissal or summary decision.
§ 17.33 Adjudicative Process for contract disputes.
(a) The Adjudicative Process for contract disputes will be commenced by the ODRA Director upon being notified by the ADR neutral or by any party that either—
(1) The parties will not be attempting ADR; or
(2) The parties have not settled all of the dispute issues via ADR, and it is unlikely that they can do so within the time period allotted and/or any reasonable extension.
(b) In cases initiated by a contractor against the FAA, within twenty (20) business days of the commencement of the Adjudicative Process or as scheduled by the ODRA, the Product Team shall prepare and submit to the ODRA, with a copy to the contractor, a chronologically arranged and indexed substantive response, containing a legal and factual position regarding the dispute and all documents relevant to the facts and issues in dispute. The contractor will be entitled, at a specified time, to supplement the record with additional documents.
(c) In cases initiated by the FAA against a contractor, within twenty (20) business days of the commencement of the Adjudicative Process or as scheduled by the ODRA, the contractor shall prepare and submit to the ODRA, with a copy to the Product Team counsel, a chronologically arranged and indexed substantive response, containing a legal and factual position regarding the dispute and all documents relevant to the facts and issues in dispute. The Product Team will be entitled, at a specified time, to supplement the record with additional documents.
(d) Unless timely objection is made, documents properly filed with the ODRA will be deemed admitted into the administrative record. Discovery requests and responses are not part of the record and will not be filed with the ODRA, except in connection with a motion or other permissible filing. Designated, relevant portions of such documents may be filed, with the permission of the ODRA.
(e) The Director of the ODRA shall assign a DRO or a Special Master to conduct adjudicatory proceedings, develop the administrative adjudication record and prepare findings and recommendations for the review of the ODRA Director or the Director’s designee.
(f) The DRO or Special Master may conduct a status conference(s) as necessary and issue such orders or decisions as are necessary to promote the efficient resolution of the contract dispute.
(g) At any such status conference, or as necessary during the Adjudicative Process, the DRO or Special Master will:
(1) Determine the appropriate amount of discovery required;
(2) Review the need for a protective order, and if one is needed, prepare a protective order pursuant to § 17.9;
(3) Determine whether any issue can be stricken; and
(4) Prepare necessary procedural orders for the proceedings.
(h) Unless otherwise provided by the DRO or Special Master, or by agreement of the parties with the concurrence of the DRO or Special Master, responses to written discovery shall be due within thirty (30) business days from the date received.
(i) At a time or at times determined by the DRO or Special Master, and in advance of the decision of the case, the parties shall make individual final submissions to the ODRA and to the DRO or Special Master, which submissions shall include the following:
(1) A statement of the issues;
(2) A proposed statement of undisputed facts related to each issue together with citations to the administrative record or other supporting materials;
(3) Separate statements of disputed facts related to each issue, with appropriate citations to documents in the Dispute File, to pages of transcripts of any hearing or deposition, or to any affidavit or exhibit which a party may wish to submit with its statement;
(4) Separate legal analyses in support of the parties’ respective positions on disputed issues.
(j) Each party shall serve a copy of its final submission on the other party by means reasonably calculated so that the other party receives such submissions on the same day it is received by the ODRA.
(k) The DRO or Special Master may decide the contract dispute on the basis of the administrative record and the submissions referenced in this section, or may, in the DRO or Special Master’s discretion, direct the parties to make additional presentations in writing. The DRO or Special Master may conduct hearings, and may limit the hearings to the testimony of specific witnesses and/or presentations regarding specific issues. The DRO or Special Master shall control the nature and conduct of all hearings, including the sequence and extent of any testimony. Evidentiary hearings on the record shall be conducted by the ODRA:
(1) Where the DRO or Special Master determines that there are complex factual issues in dispute that cannot adequately or efficiently be developed solely by means of written presentations and/or that resolution of the controversy will be dependent on his/her assessment of the credibility of statements provided by individuals with first-hand knowledge of the facts; or
(2) Upon request of any party to the contract dispute, unless the DRO or Special Master finds specifically that a hearing is unnecessary and that no party will be prejudiced by limiting the record in the adjudication to the parties’ written submissions. All witnesses at any such hearing shall be subject to cross-examination by the opposing party and to questioning by the DRO or Special Master.
(l) The DRO or Special Master shall prepare findings and recommendations, which will contain findings of fact, application of the principles of the AMS and other law or authority applicable to the findings of fact, and a recommendation for a final FAA order.
(m) The DRO or Special Master shall conduct a de novo review using the preponderance of the evidence standard, unless a different standard is prescribed for a particular issue. Notwithstanding the above, allegations that government officials acted with bias or in bad faith must be established by clear and convincing evidence.
(n) The Director of the ODRA may review the status of any contract dispute in the Adjudicative Process with the DRO or Special Master.
(o) A DRO or Special Master shall submit findings and recommendations to the Director of the ODRA or the Director’s designee. The findings and recommendations will be released to the parties and to the public, upon issuance of the final FAA order in the case. Should an ODRA protective order be issued in connection with the contract dispute, or should the matter involve proprietary or competition-sensitive information, a redacted version of the findings and recommendations omitting any protected information, shall be prepared wherever possible and released to the public, as soon as is practicable, along with a copy of the final FAA order. Only persons admitted by the ODRA under the protective order and Government personnel shall be provided copies of the unredacted findings and recommendations.
(p) Attorneys’ fees of a qualified prevailing contractor are allowable to the extent permitted by the EAJA, 5 U.S.C. 504(a)(1). See 14 CFR part 14.
(q) Other than communications regarding purely procedural matters or ADR, there shall be no substantive ex parte communication between ODRA personnel and any principal or representative of a party concerning a pending or potentially pending matter. A potential or serving ADR neutral may communicate on an ex parte basis to establish or conduct the ADR.
Subpart D—Alternative Dispute Resolution
§ 17.35 Use of alternative dispute resolution.
(a) By statutory mandate, it is the policy of the FAA to use voluntary ADR to the maximum extent practicable to resolve matters pending at the ODRA. The ODRA therefore uses voluntary ADR as its primary means of resolving all factual, legal, and procedural controversies.
(b) The parties are encouraged to make a good faith effort to explore ADR possibilities in all cases and to employ ADR in every appropriate case. The ODRA uses ADR techniques such as mediation, neutral evaluation, binding arbitration or variations of these techniques as agreed by the parties and approved by the ODRA. At the beginning of each case, the ODRA assigns a DRO as a potential neutral to explore ADR options with the parties and to convene an ADR process. See § 17.35(b).
(c) The ODRA Adjudicative Process will be used where the parties cannot achieve agreement on the use of ADR; where ADR has been employed but has not resolved all pending issues in dispute; or where the ODRA concludes that ADR will not provide an expeditious means of resolving a particular dispute. Even where the Adjudicative Process is to be used, the ODRA, with the parties’ consent, may employ informal ADR techniques concurrently with the adjudication.
§ 17.37 Election of alternative dispute resolution process.
(a) The ODRA will make its personnel available to serve as Neutrals in ADR proceedings and, upon request by the parties, will attempt to make qualified non-FAA personnel available to serve as Neutrals through neutral-sharing programs and other similar arrangements. The parties may elect to employ a mutually acceptable compensated neutral at their expense.
(b) The parties using an ADR process to resolve a protest shall submit an executed ADR agreement containing the information outlined in paragraph (d) of this section to the ODRA pursuant to § 17.17(c). The ODRA may extend this time for good cause.
(c) The parties using an ADR process to resolve a contract dispute shall submit an executed ADR agreement containing the information outlined in paragraph (d) of this section to the ODRA pursuant to § 17.29.
(d) The parties to a protest or contract dispute who elect to use ADR must submit to the ODRA an ADR agreement setting forth:
(1) The agreed ADR procedures to be used; and
(2) The name of the neutral. If a compensated neutral is to be used, the agreement must address how the cost of the neutral’s services will be reimbursed.
(e) Non-binding ADR techniques are not mutually exclusive, and may be used in combination if the parties agree that a combination is most appropriate to the dispute. The techniques to be employed must be determined in advance by the parties and shall be expressly described in their ADR agreement. The agreement may provide for the use of any fair and reasonable ADR technique that is designed to achieve a prompt resolution of the matter. An ADR agreement for non-binding ADR shall provide for a termination of ADR proceedings and the commencement of adjudication under the Adjudicative Process, upon the election of any party. Notwithstanding such termination, the parties may still engage with the ODRA in ADR techniques (neutral evaluation and/or informal mediation) concurrently with adjudication.
(f) Binding arbitration is available through the ODRA, subject to the provisions of applicable law and the ODRA Binding Arbitration Guidance dated October 2001 as developed in consultation with the Department of Justice.
(g) The parties may, where appropriate in a given case, submit to the ODRA a negotiated protective order for use in ADR in accordance with the requirements of § 17.9.
§ 17.39 Confidentiality of ADR.
(a) The provisions of the Administrative Dispute Resolution Act of 1996, 5 U.S.C. 571, et seq., shall apply to ODRA ADR proceedings.
(b) The ODRA looks to the principles of Rule 408 of the Federal Rules of Evidence in deciding admissibility issues related to ADR communications.
(c) ADR communications are not part of the administrative record unless otherwise agreed by the parties.
Subpart E—Finality and Review
§ 17.41 Final orders.
All final FAA orders regarding protests or contract disputes under this part are to be issued by the FAA Administrator or by a delegee of the Administrator.
§ 17.43 Judicial review.
(a) A protester or contractor may seek review of a final FAA order, pursuant to 49 U.S.C. 46110, only after the administrative remedies of this part have been exhausted.
(b) A copy of the petition for review shall be filed with the ODRA and the FAA Chief Counsel on the date that the petition for review is filed with the appropriate circuit court of appeals.
§ 17.45 Conforming amendments.
The FAA shall amend pertinent provisions of the AMS, standard contract forms and clauses, and any guidance to contracting officials, so as to conform to the provisions of this part.
§ 17.47 Reconsideration.
The ODRA will not entertain requests for reconsideration as a routine matter, or where such requests evidence mere disagreement with a decision or restatements of previous arguments. A party seeking reconsideration must demonstrate either clear errors of fact or law in the underlying decision or previously unavailable evidence that warrants reversal or modification of the decision. In order to be considered, requests for reconsideration must be filed within ten (10) business days of the date of issuance of the public version of the subject decision or order.
Subpart F—Other Matters
§ 17.49 Sanctions.
If any party or its representative fails to comply with an Order or Directive of the ODRA, the ODRA may enter such orders and take such other actions as it deems necessary and in the interest of justice.
§ 17.51 Decorum and professional conduct.
Legal representatives are expected to conduct themselves at all times in a civil and respectful manner appropriate to an administrative forum. Additionally, counsel are expected to conduct themselves at all times in a professional manner and in accordance with all applicable rules of professional conduct.
§ 17.53 Orders and subpoenas for testimony and document production.
(a) Parties are encouraged to seek cooperative and voluntary production of documents and witnesses prior to requesting a subpoena or an order under this section.
(b) Upon request by a party, or on his or her own initiative, a DRO or Special Master may, for good cause shown, order a person to give testimony by deposition and to produce records. Section 46104(c) of Title 49 of the United States Code governs the conduct of depositions or document production.
(c) Upon request by a party, or on his or her own initiative, a DRO or Special Master may, for good cause shown, subpoena witnesses or records related to a hearing from any place in the United States to the designated place of a hearing.
(d) A subpoena or order under this section may be served by a United States marshal or deputy marshal, or by any other person who is not a party and not less than 18 years of age. Service upon a person named therein shall be made by personally delivering a copy to that person and tendering the fees for one day’s attendance and the mileage provided by 28 U.S.C. 1821 or other applicable law; however, where the subpoena is issued on behalf of the Product Team, money payments need not be tendered in advance of attendance. The person serving the subpoena or order shall file a declaration of service with the ODRA, executed in the form required by 28 U.S.C. 1746. The declaration of service shall be filed promptly with the ODRA, and before the date on which the person served must respond to the subpoena or order.
(e) Upon written motion by the person subpoenaed or ordered under this section, or by a party, made within ten (10) business days after service, but in any event not later than the time specified in the subpoena or order for compliance, the DRO may—
(1) Rescind or modify the subpoena or order if it is unreasonable and oppressive or for other good cause shown, or
(2) Require the party on whose behalf the subpoena or order was issued to advance the reasonable cost of producing documentary evidence. Where circumstances require, the DRO may act upon such a motion at any time after a copy has been served upon all parties.
(f) The party that requests the DRO to issue a subpoena or order under this section shall be responsible for the payment of fees and mileage, as required by 49 U.S.C. 46104(d), for witnesses, officers who serve the order, and the officer before whom a deposition is taken.
(g) Subpoenas and orders issued under this section may be enforced in a judicial proceeding under 49 U.S.C. 46104(b).
§ 17.55 Standing orders of the ODRA Director.
The Director may issue such Standing Orders as necessary for the orderly conduct of business before the ODRA.
Subpart G—Pre-Disputes
§ 17.57 Dispute resolution process for Pre-disputes.
(a) All potential disputes arising under contracts or solicitations with the FAA may be resolved with the consent of the parties to the dispute under this subpart.
(b) Pre-disputes shall be filed with the ODRA pursuant to § 17.59.
(c) The time limitations for the filing of Protests and Contract Disputes established in §§ 17.15(a) and 17.27(c) will not be extended by efforts to resolve the dispute under this subpart.
§ 17.59 Filing a Pre-dispute.
(a) A Pre-dispute must be in writing, affirmatively state that it is a Pre-dispute pursuant to this subpart, and shall contain:
(1) The party’s name, address, telephone and Fax numbers and the name, address, telephone and Fax numbers of the contractor’s legal representative(s) (if any);
(2) The contract or solicitation number and the name of the Contracting Officer;
(3) A chronological statement of the facts and of the legal grounds for the party’s positions regarding the dispute citing to relevant contract or solicitation provisions and documents and attaching copies of those provisions and documents; and
(4) The signature of a duly authorized legal representative of the initiating party.
(b) Pre-disputes shall be filed with the ODRA, AGC-70, Federal Aviation Administration, telephone (202) 267-3290 as follows:
(1) 600 Independence Avenue SW., Room 2W100, Washington, DC 20591 for filing by hand delivery, courier or other form of in-person delivery;
(2) 800 Independence Avenue SW., Washington, DC 20591 [Attention: AGC-70, Wilbur Wright Bldg., Room 2W100] for filing by U.S. Mail; or
(3) Numbers (202) 267-3720 or alternate (202) 267-1293 for filing by facsimile.
(c) Upon the filing of a Pre-dispute with the ODRA, the ODRA will contact the opposing party to offer its services pursuant to § 17.57. If the opposing party agrees, the ODRA will provide Pre-dispute services. If the opposing party does not agree, the ODRA Pre-dispute file will be closed and no service will be provided.
§ 17.61 Use of alternative dispute resolution.
(a) Only non-binding, voluntary ADR will be used to attempt to resolve a Pre-dispute pursuant to § 17.37.
(b) ADR conducted under this subpart is subject to the confidentiality requirements of § 17.39.
Appendix A to Part 17—Alternative Dispute Resolution (ADR)
A. The FAA dispute resolution procedures encourage the parties to protests and contract disputes to use ADR as the primary means to resolve protests and contract disputes, pursuant to the Administrative Dispute Resolution Act of 1996, Public Law 104-320, 5 U.S.C. 570-579, and Department of Transportation and FAA policies to utilize ADR to the maximum extent practicable. Under the procedures presented in this part, the ODRA encourages parties to consider ADR techniques such as case evaluation, mediation, or arbitration.
B. ADR encompasses a number of processes and techniques for resolving protests or contract disputes. The most commonly used types include:
(1) Mediation. The neutral or compensated neutral ascertains the needs and interests of both parties and facilitates discussions between or among the parties and an amicable resolution of their differences, seeking approaches to bridge the gaps between the parties” respective positions. The neutral or compensated neutral can meet with the parties separately, conduct joint meetings with the parties” representatives, or employ both methods in appropriate cases.
(2) Neutral Evaluation. At any stage during the ADR process, as the parties may agree, the neutral or compensated neutral will provide a candid assessment and opinion of the strengths and weaknesses of the parties” positions as to the facts and law, so as to facilitate further discussion and resolution.
(3) Binding Arbitration. The ODRA, after consultation with the United States Department of Justice in accordance with the provisions of the Administrative Disputes Resolution Act offers true binding arbitration in cases within its jurisdiction. The ODRA’s Guidance for the Use of Binding Arbitration may be found on its website at: http://www.faa.gov/go/odra.
SUBCHAPTER C—AIRCRAFT
PART 21—CERTIFICATION PROCEDURES FOR PRODUCTS AND ARTICLES
2. Nomenclature changes to part 21 appear at 74 FR 53384, Oct. 16, 2009.
Special Federal Aviation Regulation No. 88—Fuel Tank System Fault Tolerance Evaluation Requirements
1. Applicability. This SFAR applies to the holders of type certificates, and supplemental type certificates that may affect the airplane fuel tank system, for turbine-powered transport category airplanes, provided the type certificate was issued after January 1, 1958, and the airplane has either a maximum type certificated passenger capacity of 30 or more, or a maximum type certificated payload capacity of 7,500 pounds or more. This SFAR also applies to applicants for type certificates, amendments to a type certificate, and supplemental type certificates affecting the fuel tank systems for those airplanes identified above, if the application was filed before June 6, 2001, the effective date of this SFAR, and the certificate was not issued before June 6, 2001.
2. Compliance: Each type certificate holder, and each supplemental type certificate holder of a modification affecting the airplane fuel tank system, must accomplish the following within the compliance times specified in paragraph (e) of this section:
(a) Conduct a safety review of the airplane fuel tank system to determine that the design meets the requirements of §§ 25.901 and 25.981(a) and (b) of this chapter. If the current design does not meet these requirements, develop all design changes to the fuel tank system that are necessary to meet these requirements. The responsible Aircraft Certification Service office for the affected airplane may grant an extension of the 18-month compliance time for development of design changes if:
(1) The safety review is completed within the compliance time;
(2) Necessary design changes are identified within the compliance time; and
(3) Additional time can be justified, based on the holder’s demonstrated aggressiveness in performing the safety review, the complexity of the necessary design changes, the availability of interim actions to provide an acceptable level of safety, and the resulting level of safety.
(b) Develop all maintenance and inspection instructions necessary to maintain the design features required to preclude the existence or development of an ignition source within the fuel tank system of the airplane.
(c) Submit a report for approval to the responsible Aircraft Certification Service office for the affected airplane, that:
(1) Provides substantiation that the airplane fuel tank system design, including all necessary design changes, meets the requirements of §§ 25.901 and 25.981(a) and (b) of this chapter; and
(2) Contains all maintenance and inspection instructions necessary to maintain the design features required to preclude the existence or development of an ignition source within the fuel tank system throughout the operational life of the airplane.
(d) The responsible Aircraft Certification Service office for the affected airplane, may approve a report submitted in accordance with paragraph 2(c) if it determines that any provisions of this SFAR not complied with are compensated for by factors that provide an equivalent level of safety.
(e) Each type certificate holder must comply no later than December 6, 2002, or within 18 months after the issuance of a type certificate for which application was filed before June 6, 2001, whichever is later; and each supplemental type certificate holder of a modification affecting the airplane fuel tank system must comply no later than June 6, 2003, or within 18 months after the issuance of a supplemental type certificate for which application was filed before June 6, 2001, whichever is later.
Subpart A—General
§ 21.1 Applicability and definitions.
(a) This part prescribes—
(1) Procedural requirements for issuing and changing—
(i) Design approvals;
(ii) Production approvals;
(iii) Airworthiness certificates; and
(iv) Airworthiness approvals;
(2) Rules governing applicants for, and holders of, any approval or certificate specified in paragraph (a)(1) of this section; and
(3) Procedural requirements for the approval of articles.
(b) For the purposes of this part—
(1) Airworthiness approval means a document, issued by the FAA for an aircraft, aircraft engine, propeller, or article, which certifies that the aircraft, aircraft engine, propeller, or article conforms to its approved design and is in a condition for safe operation, unless otherwise specified;
(2) Article means a material, part, component, process, or appliance;
(3) Commercial part means an article that is listed on an FAA-approved Commercial Parts List included in a design approval holder’s Instructions for Continued Airworthiness required by § 21.50;
(4) Design approval means a type certificate (including amended and supplemental type certificates) or the approved design under a PMA, TSO authorization, letter of TSO design approval, or other approved design;
(5) Interface component means an article that serves as a functional interface between an aircraft and an aircraft engine, an aircraft engine and a propeller, or an aircraft and a propeller. An interface component is designated by the holder of the type certificate or the supplemental type certificate who controls the approved design data for that article;
(6) Product means an aircraft, aircraft engine, or propeller;
(7) Production approval means a document issued by the FAA to a person that allows the production of a product or article in accordance with its approved design and approved quality system, and can take the form of a production certificate, a PMA, or a TSO authorization;
(8) State of Design means the country or jurisdiction having regulatory authority over the organization responsible for the design and continued airworthiness of a civil aeronautical product or article;
(9) State of Manufacture means the country or jurisdiction having regulatory authority over the organization responsible for the production and airworthiness of a civil aeronautical product or article.
(10) Supplier means a person at any tier in the supply chain who provides a product, article, or service that is used or consumed in the design or manufacture of, or installed on, a product or article.
§ 21.2 Falsification of applications, reports, or records.
(a) A person may not make or cause to be made—
(1) Any fraudulent, intentionally false, or misleading statement on any application for a certificate or approval under this part;
(2) Any fraudulent, intentionally false, or misleading statement in any record or report that is kept, made, or used to show compliance with any requirement of this part;
(3) Any reproduction for a fraudulent purpose of any certificate or approval issued under this part.
(4) Any alteration of any certificate or approval issued under this part.
(b) The commission by any person of an act prohibited under paragraph (a) of this section is a basis for—
(1) Denying issuance of any certificate or approval under this part; and
(2) Suspending or revoking any certificate or approval issued under this part and held by that person.
§ 21.3 Reporting of failures, malfunctions, and defects.
(a) The holder of a type certificate (including amended or supplemental type certificates), a PMA, or a TSO authorization, or the licensee of a type certificate must report any failure, malfunction, or defect in any product or article manufactured by it that it determines has resulted in any of the occurrences listed in paragraph (c) of this section.
(b) The holder of a type certificate (including amended or supplemental type certificates), a PMA, or a TSO authorization, or the licensee of a type certificate must report any defect in any product or article manufactured by it that has left its quality system and that it determines could result in any of the occurrences listed in paragraph (c) of this section.
(c) The following occurrences must be reported as provided in paragraphs (a) and (b) of this section:
(1) Fires caused by a system or equipment failure, malfunction, or defect.
(2) An engine exhaust system failure, malfunction, or defect which causes damage to the engine, adjacent aircraft structure, equipment, or components.
(3) The accumulation or circulation of toxic or noxious gases in the crew compartment or passenger cabin.
(4) A malfunction, failure, or defect of a propeller control system.
(5) A propeller or rotorcraft hub or blade structural failure.
(6) Flammable fluid leakage in areas where an ignition source normally exists.
(7) A brake system failure caused by structural or material failure during operation.
(8) A significant aircraft primary structural defect or failure caused by any autogenous condition (fatigue, understrength, corrosion, etc.).
(9) Any abnormal vibration or buffeting caused by a structural or system malfunction, defect, or failure.
(10) An engine failure.
(11) Any structural or flight control system malfunction, defect, or failure which causes an interference with normal control of the aircraft for which derogates the flying qualities.
(12) A complete loss of more than one electrical power generating system or hydraulic power system during a given operation of the aircraft.
(13) A failure or malfunction of more than one attitude, airspeed, or altitude instrument during a given operation of the aircraft.
(d) The requirements of paragraph (a) of this section do not apply to—
(1) Failures, malfunctions, or defects that the holder of a type certificate (including amended or supplemental type certificates), PMA, TSO authorization, or the licensee of a type certificate determines—
(i) Were caused by improper maintenance or use;
(ii) Were reported to the FAA by another person under this chapter; or
(iii) Were reported under the accident reporting provisions of 49 CFR part 830 of the regulations of the National Transportation Safety Board.
(2) Failures, malfunctions, or defects in products or articles—
(i) Manufactured by a foreign manufacturer under a U.S. type certificate issued under § 21.29 or under an approval issued under § 21.621; or
(ii) Exported to the United States under § 21.502.
(e) Each report required by this section—
(1) Must be made to the FAA within 24 hours after it has determined that the failure, malfunction, or defect required to be reported has occurred. However, a report that is due on a Saturday or a Sunday may be delivered on the following Monday and one that is due on a holiday may be delivered on the next workday;
(2) Must be transmitted in a manner and form acceptable to the FAA and by the most expeditious method available; and
(3) Must include as much of the following information as is available and applicable:
(i) The applicable product and article identification information required by part 45 of this chapter;
(ii) Identification of the system involved; and
(iii) Nature of the failure, malfunction, or defect.
(f) If an accident investigation or service difficulty report shows that a product or article manufactured under this part is unsafe because of a manufacturing or design data defect, the holder of the production approval for that product or article must, upon request of the FAA, report to the FAA the results of its investigation and any action taken or proposed by the holder of that production approval to correct that defect. If action is required to correct the defect in an existing product or article, the holder of that production approval must send the data necessary for issuing an appropriate airworthiness directive to the FAA.
§ 21.4 ETOPS reporting requirements.
(a) Early ETOPS: reporting, tracking, and resolving problems. The holder of a type certificate for an airplane-engine combination approved using the Early ETOPS method specified in part 25, Appendix K, of this chapter must use a system for reporting, tracking, and resolving each problem resulting in one of the occurrences specified in paragraph (a)(6) of this section.
(1) The system must identify how the type certificate holder will promptly identify problems, report them to the responsible Aircraft Certification Service office, and propose a solution to the FAA to resolve each problem. A proposed solution must consist of—
(i) A change in the airplane or engine type design;
(ii) A change in a manufacturing process;
(iii) A change in an operating or maintenance procedure; or
(iv) Any other solution acceptable to the FAA.
(2) For an airplane with more than two engines, the system must be in place for the first 250,000 world fleet engine-hours for the approved airplane-engine combination.
(3) For two-engine airplanes, the system must be in place for the first 250,000 world fleet engine-hours for the approved airplane-engine combination and after that until—
(i) The world fleet 12-month rolling average IFSD rate is at or below the rate required by paragraph (b)(2) of this section; and
(ii) The FAA determines that the rate is stable.
(4) For an airplane-engine combination that is a derivative of an airplane-engine combination previously approved for ETOPS, the system need only address those problems specified in the following table, provided the type certificate holder obtains prior authorization from the FAA:
| If the change does not require a new airplane type certificate and . . . | Then the Problem Tracking and Resolution System must address . . . |
|---|---|
| (i) Requires a new engine type certificate | All problems applicable to the new engine installation, and for the remainder of the airplane, problems in changed systems only. |
| (ii) Does not require a new engine type certificate | Problems in changed systems only. |
(5) The type certificate holder must identify the sources and content of data that it will use for its system. The data must be adequate to evaluate the specific cause of any in-service problem reportable under this section or § 21.3(c) that could affect the safety of ETOPS.
(6) In implementing this system, the type certificate holder must report the following occurrences:
(i) IFSDs, except planned IFSDs performed for flight training.
(ii) For two-engine airplanes, IFSD rates.
(iii) Inability to control an engine or obtain desired thrust or power.
(iv) Precautionary thrust or power reductions.
(v) Degraded ability to start an engine in flight.
(vi) Inadvertent fuel loss or unavailability, or uncorrectable fuel imbalance in flight.
(vii) Turn backs or diversions for failures, malfunctions, or defects associated with an ETOPS group 1 significant system.
(viii) Loss of any power source for an ETOPS group 1 significant system, including any power source designed to provide backup power for that system.
(ix) Any event that would jeopardize the safe flight and landing of the airplane on an ETOPS flight.
(x) Any unscheduled engine removal for a condition that could result in one of the reportable occurrences listed in this paragraph.
(b) Reliability of two-engine airplanes—(1) Reporting of two-engine airplane in-service reliability. The holder of a type certificate for an airplane approved for ETOPS and the holder of a type certificate for an engine installed on an airplane approved for ETOPS must report monthly to their respective Aircraft Certification Service office on the reliability of the world fleet of those airplanes and engines. The report provided by both the airplane and engine type certificate holders must address each airplane-engine combination approved for ETOPS. The FAA may approve quarterly reporting if the airplane-engine combination demonstrates an IFSD rate at or below those specified in paragraph (b)(2) of this section for a period acceptable to the FAA. This reporting may be combined with the reporting required by § 21.3. The responsible type certificate holder must investigate any cause of an IFSD resulting from an occurrence attributable to the design of its product and report the results of that investigation to its responsible Aircraft Certification Service office. Reporting must include:
(i) Engine IFSDs, except planned IFSDs performed for flight training.
(ii) The world fleet 12-month rolling average IFSD rates for all causes, except planned IFSDs performed for flight training.
(iii) ETOPS fleet utilization, including a list of operators, their ETOPS diversion time authority, flight hours, and cycles.
(2) World fleet IFSD rate for two-engine airplanes. The holder of a type certificate for an airplane approved for ETOPS and the holder of a type certificate for an engine installed on an airplane approved for ETOPS must issue service information to the operators of those airplanes and engines, as appropriate, to maintain the world fleet 12-month rolling average IFSD rate at or below the following levels:
(i) A rate of 0.05 per 1,000 world-fleet engine-hours for an airplane-engine combination approved for up to and including 120-minute ETOPS. When all ETOPS operators have complied with the corrective actions required in the configuration, maintenance and procedures (CMP) document as a condition for ETOPS approval, the rate to be maintained is at or below 0.02 per 1,000 world-fleet engine-hours.
(ii) A rate of 0.02 per 1,000 world-fleet engine-hours for an airplane-engine combination approved for up to and including 180-minute ETOPS, including airplane-engine combinations approved for 207-minute ETOPS in the North Pacific operating area under appendix P, section I, paragraph (h), of part 121 of this chapter.
(iii) A rate of 0.01 per 1,000 world-fleet engine-hours for an airplane-engine combination approved for ETOPS beyond 180 minutes, excluding airplane-engine combinations approved for 207-minute ETOPS in the North Pacific operating area under appendix P, section I, paragraph (h), of part 121 of this chapter.
§ 21.5 Airplane or Rotorcraft Flight Manual.
(a) With each airplane or rotorcraft not type certificated with an Airplane or Rotorcraft Flight Manual and having no flight time before March 1, 1979, the holder of a type certificate (including amended or supplemental type certificates) or the licensee of a type certificate must make available to the owner at the time of delivery of the aircraft a current approved Airplane or Rotorcraft Flight Manual.
(b) The Airplane or Rotorcraft Flight Manual required by paragraph (a) of this section must contain the following information:
(1) The operating limitations and information required to be furnished in an Airplane or Rotorcraft Flight Manual or in manual material, markings, and placards, by the applicable regulations under which the airplane or rotorcraft was type certificated.
(2) The maximum ambient atmospheric temperature for which engine cooling was demonstrated must be stated in the performance information section of the Flight Manual, if the applicable regulations under which the aircraft was type certificated do not require ambient temperature on engine cooling operating limitations in the Flight Manual.
(3) Documentation of compliance with part 38 of this chapter, in an FAA-approved section of any approved airplane flight manual. Such material must include the fuel efficiency metric value as calculated under § 38.11 of this chapter, and the specific paragraph of § 38.17 of this chapter with which compliance has been shown for that airplane.