Title 14--Aeronautics and Space
CHAPTER I--FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
SUBCHAPTER B--PROCEDURAL RULES
PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
Subpart A--Investigative Procedures
Sec. 13.1 Reports of violations.
Sec. 13.3 Investigations (general).
Sec. 13.5 Formal complaints.
Sec. 13.7 Records, documents and reports.
Subpart B--Administrative Actions
Sec. 13.11 Administrative disposition of certain violations.
Subpart C--Legal Enforcement Actions
Sec. 13.13 Consent orders.
Sec. 13.15 Civil penalties: Federal Aviation Act of 1958
involving an amount in controversy in excess of $50,000; an
in rem action; seizure of aircraft; or injunctive relief.
Sec. 13.16 Civil penalties: Federal Aviation Act of 1958,
involving an amount in controversy not exceeding $50,000;
Hazardous Materials Transportation Act.
Sec. 13.17 Seizure of aircraft.
Sec. 13.19 Certificate action.
Sec. 13.20 Orders of compliance, cease and desist orders,
orders of denial, and other orders.
Sec. 13.21 Military personnel.
Sec. 13.23 Criminal penalties.
Sec. 13.25 Injunctions.
Sec. 13.27 Final order of Hearing Officer in certificate of
aircraft registration proceedings.
Subpart D--Rules of Practice for FAA Hearings
Sec. 13.31 Applicability.
Sec. 13.33 Appearances.
Sec. 13.35 Request for hearing.
Sec. 13.37 Hearing Officer's powers.
Sec. 13.39 Disqualification of Hearing Officer.
Sec. 13.41 [Reserved]
Sec. 13.43 Service and filing of pleadings, motions, and
documents.
Sec. 13.44 Computation of time and extension of time.
Sec. 13.45 Amendment of notice and answer.
Sec. 13.47 Withdrawal of notice or request for hearing.
Sec. 13.49 Motions.
Sec. 13.51 Intervention.
Sec. 13.53 Depositions.
Sec. 13.55 Notice of hearing.
Sec. 13.57 Subpoenas and witness fees.
Sec. 13.59 Evidence.
Sec. 13.61 Argument and submittals.
Sec. 13.63 Record.
Subpart E--Orders of Compliance Under the Hazardous Materials
Transportation Act
Sec. 13.71 Applicability.
Sec. 13.73 Notice of proposed order of compliance.
Sec. 13.75 Reply or request for hearing.
Sec. 13.77 Consent order of compliance.
Sec. 13.79 Hearing.
Sec. 13.81 Order of immediate compliance.
Sec. 13.83 Appeal.
Sec. 13.85 Filing, service and computation of time.
Sec. 13.87 Extension of time.
Subpart F--Formal Fact-Finding Investigation Under an Order of
Investigation
Sec. 13.101 Applicability.
Sec. 13.103 Order of investigation.
Sec. 13.105 Notification.
Sec. 13.107 Designation of additional parties.
Sec. 13.109 Convening the investigation.
Sec. 13.111 Subpoenas.
Sec. 13.113 Noncompliance with the investigative process.
Sec. 13.115 Public proceedings.
Sec. 13.117 Conduct of investigative proceeding or deposition.
Sec. 13.119 Rights of persons against self-incrimination.
Sec. 13.121 Witness fees.
Sec. 13.123 Submission by party to the investigation.
Sec. 13.125 Depositions.
Sec. 13.127 Reports, decisions and orders.
Sec. 13.129 Post-investigation action.
Sec. 13.131 Other procedures.
Subpart G--Rules of Practice in FAA Civil Penalty Actions
Sec. 13.201 Applicability.
Sec. 13.202 Definitions.
Sec. 13.203 Separation of functions.
Sec. 13.204 Appearances and rights of parties.
Sec. 13.205 Administrative law judges.
Sec. 13.206 Intervention.
Sec. 13.207 Certification of documents.
Sec. 13.208 Complaint.
Sec. 13.209 Answer.
Sec. 13.210 Filing of documents.
Sec. 13.211 Service of documents.
Sec. 13.212 Computation of time.
Sec. 13.213 Extension of time.
Sec. 13.214 Amendment of pleadings.
Sec. 13.215 Withdrawal of complaint or request for hearing.
Sec. 13.216 Waivers.
Sec. 13.217 Joint procedural or discovery schedule.
Sec. 13.218. Motions.
Sec. 13.219 Interlocutory appeals.
Sec. 13.220 Discovery.
Sec. 13.221 Notice of hearing.
Sec. 13.222 Evidence.
Sec. 13.223 Standard of proof.
Sec. 13.224 Burden of proof.
Sec. 13.225 Offer of proof.
Sec. 13.226 Public disclosure of evidence.
Sec. 13.227 Expert or opinion witnesses.
Sec. 13.228 Subpoenas.
Sec. 13.229 Witness fees.
Sec. 13.230 Record.
Sec. 13.231 Argument before the administrative law judge.
Sec. 13.232 Initial decision.
Sec. 13.233 Appeal from initial decision.
Sec. 13.234 Petition to reconsider or modify a final decision
and order of the FAA decisionmaker on appeal.
Sec. 13.235 Judicial review of a final decision and order.
Subpart A--Investigative Procedures
Sec. 13.1 Reports of violations.
(a) Any person who knows of a violation of the Federal Aviation Act of
1958, as amended, the Hazardous Materials Transportation Act relating to the
transportation or shipment by air of hazardous materials, the Airport and
Airway Development Act of 1970, the Airport and Airway Improvement Act of
1982, the Airport and Airway Improvement Act of 1982 as amended by the
Airport and Airway Safety and Capacity Expansion Act of 1987, or any rule,
regulation, or order issued thereunder, should report it to appropriate
personnel of any FAA regional or district office.
(b) Each report made under this section, together with any other
information the FAA may have that is relevant to the matter reported, will be
reviewed by FAA personnel to determine the nature and type of any additional
investigation or enforcement action the FAA will take.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-17, 53 FR
33783, Aug. 31, 1988]
Sec. 13.3 Investigations (general).
(a) Under the Federal Aviation Act of 1958, as amended, (49 U.S.C. 1301 et
seq.), the Hazardous Materials Transportation Act (49. U.S.C. 1801 et seq.),
the Airport and Airway Development Act of 1970 (49 U.S.C. 1701 et seq.), the
Airport and Airway Improvement Act of 1982 (49 U.S.C. 2201 et seq.), the
Airport and Airway Improvement Act of 1982 (as amended, 49 U.S.C. App. 2201
et seq., Airport and Airway Safety and Capacity Expansion Act of 1987), and
the Regulations of the Office of the Secretary of Transportation (49 CFR 1 et
seq.), the Administrator may conduct investigations, hold hearings, issue
subpoenas, require the production of relevant documents, records, and
property, and take evidence and depositions.
(b) For the purpose of investigating alleged violations of the Federal
Aviation Act of 1958, as amended the Hazardous Materials Transportation Act,
the Airport and Airway Development Act of 1970, the Airport and Airway
Improvement Act of 1982, the Airport and Airway Improvement Act of 1982 as
amended by the Airport and Airway Safety and Capacity Expansion Act of 1987,
or any rule, regulation, or order issued thereunder, the Administrator's
authority has been delegated to the various services and or offices for
matters within their respective areas for all routine investigations. When
the compulsory processes of sections 313 and 1004 (49 U.S.C. 1354 and 1484)
of the Federal Aviation Act, or section 109 of the Hazardous Materials
Transportation Act (49 U.S.C. 1808) are invoked, the Administrator's
authority has been delegated to the Chief Counsel, the Deputy Chief Counsel,
and each Assistant Chief Counsel.
(c) In conducting formal investigations, the Chief Counsel, the Deputy
Chief Counsel, and each Assistant Chief Counsel may issue an order of
investigation in accordance with Subpart F of this part.
(a) Any person may file a complaint with the Administrator with respect to
anything done or omitted to be done by any person in contravention of any
provision of any Act or of any regulation or order issued under it, as to
matters within the jurisdiction of the Administrator. This section does not
apply to complaints against the Administrator or employees of the FAA acting
within the scope of their employment.
(b) Complaints filed under this section must--
(1) Be submitted in writing and identified as a complaint filed for the
purpose of seeking an appropriate order or other enforcement action;
(2) Be submitted to the Federal Aviation Administration, Office of the
Chief Counsel, Attention: Enforcement Docket (AGC-10), 800 Independence
Avenue, S.W., Washington, D.C. 20591;
(3) Set forth the name and address, if known, of each person who is the
subject of the complaint and, with respect to each person, the specific
provisions of the Act or regulation or order that the complainant believes
were violated;
(4) Contain a concise but complete statement of the facts relied upon to
substantiate each allegation;
(5) State the name, address and telephone number of the person filing the
complaint; and
(6) Be signed by the person filing the complaint or a duly authorized
representative.
(c) Complaints which do not meet the requirements of paragraph (b) of this
section will be considered reports under Sec. 13.1.
(d) Complaints which meet the requirements of paragraph (b) of this section
will be docketed and a copy mailed to each person named in the complaint.
(e) Any complaint filed against a member of the Armed Forces of the United
States acting in the performance of official duties shall be referred to the
Secretary of the Department concerned for action in accordance with the
procedures set forth in Sec. 13.21 of this part.
(f) The person named in the complaint shall file an answer within 20 days
after service of a copy of the complaint.
(g) After the complaint has been answered or after the allotted time in
which to file an answer has expired, the Administrator shall determine if
there are reasonable grounds for investigating the complaint.
(h) If the Administrator determines that a complaint does not state facts
which warrant an investigation or action, the complaint may be dismissed
without a hearing and the reason for the dismissal shall be given, in
writing, to the person who filed the complaint and the person named in the
complaint.
(i) If the Administrator determines that reasonable grounds exist, an
informal investigation may be initiated or an order of investigation may be
issued in accordance with Subpart F of this part, or both. Each person named
in the complaint shall be advised which official has been delegated the
responsibility under Sec. 13.3(b) or (c) for conducting the investigation.
(j) If the investigation substantiates the allegations set forth in the
complaint, a notice of proposed order may be issued or other enforcement
action taken in accordance with this part.
(k) The complaint and other pleadings and official FAA records relating to
the disposition of the complaint are maintained in current docket form in the
Enforcement Docket (AGC-209), Office of the Chief Counsel, Federal Aviation
Administration, 800 Independence Avenue, S.W., Washington, D. C. 20591. Any
interested person may examine any docketed material at that office, at any
time after the docket is established, except material that is ordered
withheld from the public under applicable law or regulations, and may obtain
a photostatic or duplicate copy upon paying the cost of the copy.
(Secs. 313(a), 314(a), 601 through 610, and 1102 of the Federal Aviation Act
of 1958 (49 U.S.C. 1354(a), 1421 through 1430, 1502); sec. 6(c), Dept. of
Transportation Act (49 U.S.C. 1655(c)))
[Doc. No 13-14, 44 FR 63723, Nov. 5, 1979; as amended by Amdt. 13-16, 45 FR
35307, May 27, 1980; Amdt. 13-19, 54 FR 39290, Sept. 25, 1989]
Sec. 13.7 Records, documents and reports.
Each record, document and report that the Federal Aviation Regulations
require to be maintained, exhibited or submitted to the Administrator may be
used in any investigation conducted by the Administrator; and, except to the
extent the use may be specifically limited or prohibited by the section which
imposes the requirement, the records, documents and reports may be used in
any civil penalty action, certificate action, or other legal proceeding.
Subpart B--Administrative Actions
Sec. 13.11 Administrative disposition of certain violations.
(a) If it is determined that a violation or an alleged violation of the
Federal Aviation Act of 1958, or an order or regulation issued under it, or
of the Hazardous Materials Transportation Act, or an order or regulation
issued under it, does not require legal enforcement action, an appropriate
official of the FAA field office responsible for processing the enforcement
case or other appropriate FAA official may take administrative action in
disposition of the case.
(b) An administrative action under this section does not constitute a
formal adjudication of the matter, and may be taken by issuing the alleged
violator--
(1) A "Warning Notice" which recites available facts and information about
the incident or condition and indicates that it may have been a violation; or
(2) A "Letter of Correction" which confirms the FAA decision in the matter
and states the necessary corrective action the alleged violator has taken or
agrees to take. If the agreed corrective action is not fully completed, legal
enforcement action may be taken.
Subpart C--Legal Enforcement Actions
Sec. 13.13 Consent orders.
(a) At any time before the issuance of an order under this subpart, the
official who issued the notice and the person subject to the notice may agree
to dispose of the case by the issuance of a consent order by the official.
(b) A proposal for a consent order, submitted to the official who issued
the notice, under this section must include--
(1) A proposed order;
(2) An admission of all jurisdictional facts;
(3) An express waiver of the right to further procedural steps and of all
rights to judicial review; and
(4) An incorporation by reference of the notice and an acknowledgment that
the notice may be used to construe the terms of the order.
(c) If the issuance of a consent order has been agreed upon after the
filing of a request for hearing in accordance with Subpart D of this part,
the proposal for a consent order shall include a request to be filed with the
Hearing Officer withdrawing the request for a hearing and requesting that the
case be dismissed.
Sec. 13.15 Civil penalties: Federal Aviation Act of 1958 involving an amount
in controversy in excess of $50,000; an in rem action; seizure of
aircraft; or injunctive relief.
(a) The following penalties apply to persons who violate the Federal
Aviation Act of l958, as amended:
(1) Any person who violates any provision of Title III, V, VI, or XII of
the Federal Aviation Act of 1958, as amended, or any rule, regulation, or
order issued thereunder, is subject to a civil penalty of not more than the
amount specified in the Act for each violation in accordance with section 901
of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1471, et seq.).
(2) Any person who violates section 404(d) of the Federal Aviation Act of
1958, as amended, or any rule, regulation, or order issued thereunder, is
subject to a civil penalty of not more than the amount specified in the Act
for each violation in accordance with section 404(d) or section 901 of the
Federal Aviation Act of 1958, as amended (49 U.S.C. 1374, 1471, et seq.).
(3) Any person who operates aircraft for the carriage of persons or
property for compensation or hire (other than an airman serving in the
capacity of an airman) is subject to a civil penalty of not more than $10,000
for each violation of Title III, VI, or XII of the Federal Aviation Act of
1958, as amended, or any rule, regulation, or order issued thereunder,
occurring after December 30, 1987, in accordance with section 901 of the
Federal Aviation Act of l958, as amended (49 U.S.C. 1471 et seq.).
(b) The authority of the Administrator, under section 901 of the Federal
Aviation Act of 1958, as amended, to propose a civil penalty for a violation
of that Act, or a rule, regulation, or order issued thereunder, and the
ability to refer cases to the United States Attorney General, or the delegate
of the Attorney General, for prosecution of civil penalty actions proposed by
the Administrator, involving an amount in controversy in excess of $50,000,
an in rem action, seizure of aircraft subject to lien, or suit for injunctive
relief, or for collection of an assessed civil penalty, is delegated to the
Chief Counsel, the Assistant Chief Counsel for Regulations and Enforcement,
and the Assistant Chief Counsel for a region or center.
(c) The Administrator may compromise any civil penalty, proposed in
accordance with section 901 of the Federal Aviation Act of 1958, as amended,
involving an amount in controversy in excess of $50,000, an in rem action,
seizure of aircraft subject to lien, or suit for injunctive relief, prior to
referral of the civil penalty action to the United States Attorney General,
or the delegate of the Attorney General, for prosecution.
(1) The Administrator, through the Chief Counsel, the Assistant Chief
Counsel for Regulations and Enforcement, and the Assistant Chief Counsel for
a region or center, sends a civil penalty letter to the person charged with a
violation of the Federal Aviation Act of 1958, as amended, or a rule,
regulation, or order issued thereunder. The civil penalty letter contains a
statement of the charges, the applicable law, rule, regulation, or order, the
amount of civil penalty that the Administrator will accept in full settlement
of the action or an offer to compromise the civil penalty.
(2) Not later than 30 days after receipt of the civil penalty letter, the
person charged with a violation may present any material or information in
answer to the charges to the agency attorney, either orally or in writing,
that may explain, mitigate, or deny the violation or that may show
extenuating circumstances. The Administrator will consider any material or
information submitted in accordance with this paragraph to determine whether
the person is subject to a civil penalty or to determine the amount for which
the Administrator will compromise the action.
(3) If the person charged with the violation offers to compromise for a
specific amount, that person shall send a certified check or money order for
that amount, payable to the Federal Aviation Administration, to the agency
attorney. The Chief Counsel, the Assistant Chief Counsel for Regulations and
Enforcement, or the Assistant Chief Counsel for a region or center, may
accept the certified check or money order or may refuse and return the
certified check or money order.
(4) If the offer to compromise is accepted by the Administrator, the agency
attorney will send a letter to the person charged with the violation stating
that the certified check or money order is accepted in full settlement of the
civil penalty action.
(5) If the parties cannot agree to compromise the civil penalty action or
the offer to compromise is rejected and the certified check or money order
submitted in compromise is returned, the Administrator may refer the civil
penalty action to the United States Attorney General, or the delegate of the
Attorney General, to begin proceedings in a United States District Court,
pursuant to the authority in section 903 of the Federal Aviation Act, as
amended (49 U.S.C. 1473), to prosecute and collect the civil penalty.
[Amdt. 13-18, 53 FR 34653, Sept. 7, 1988, as amended at Amdt. No. 13-20,
55 FR 15128, Apr. 20, 1990]
SUMMARY: This final rule adopts changes to the rules of practice in FAA
civil penalty actions not exceeding $50,000 for a violation of the Federal
Aviation Act of 1958, or of any rule, regulation, or order issued
thereunder, and in actions regardless of amount for a violation of the
Hazardous Materials Transportation Act, or any rule, regulation, or order
issued thereunder. In response to a commitment made to the Subcommittee on
Aviation of the House Committee on Public Works and Transportation, the FAA
issued a notice of proposed rulemaking soliciting comment on specific
objections to the rules of practice raised by individuals and by
organizations representing air carriers, airport operators, and pilots. In
addition to soliciting written comments, the FAA also held a public meeting
to allow interested persons to comment orally on the proposed changes and
several policy issues.
The final rule is intended to fulfill the agency's commitment to the
Subcommittee, to respond to the concerns of the aviation community, and to
adopt specific changes to the rules of practice recommended by the Committee
on Adjudication of the Administrative Conference of the United States. The
changes adopted herein will apply to all pending cases as explained more
fully in the preamble. The FAA also issued concurrently with this final rule
a notice of proposed rulemaking, setting forth the rules of practice in their
entirety; that notice is published in a separate part of today's Federal
Register.
DATES: Effective date: April 20, 1990.
Effective date suspended: April 20, 1990, until further notice published in
the Federal Register.
Sec. 13.16 Civil penalties: Federal Aviation Act of 1958, involving an
amount in controversy not exceeding $50,000; Hazardous Materials
Transportation Act.
(a) General. The following penalties apply to persons who violate the
Federal Aviation Act of 1958, as amended, and the Hazardous Materials
Transportation Act:
(1) Any person who violates any provision of title III, V, VI, or XII of
the Federal Aviation Act of 1958, as amended, or any rule, regulation, or
order issued thereunder, is subject to a civil penalty of not more than the
amount specified in the Act for each violation in accordance with section 901
of the Federal Aviation Act, of 1958, as amended (49 U.S.C. 1471, et seq.).
(2) Any person who violates section 404(d) of the Federal Aviation Act of
1958, as amended, or any rule, regulation, or order issued thereunder, is
subject to a civil penalty of not more than the amount specified in the Act
for each violation in accordance with section 404(d) or section 901 of the
Federal Aviation Act of 1958, as amended (49 U.S.C. 1374, 1471, et seq.).
(3) Any person who operates aircraft for the carriage of persons or
property for compensation or hire (other than an airman serving in the
capacity of an airman) is subject to a civil penalty of not more than $10,000
for each violation of title III, VI, or XII of the Federal Aviation Act of
1958, as amended, or any rule, regulation, or order issued thereunder,
occurring after December 30, 1987, in accordance with section 901 of the
Federal Aviation Act of 1958, as amended (49 U.S.C. 1471, et seq.).
(4) Any person who knowingly commits an act in violation of the Hazardous
Materials Transportation Act, or any rule, regulation, or order issued
thereunder, is subject to a civil penalty of not more than $10,000 for each
violation in accordance with section 901 of the Federal Aviation Act of 1958,
as amended, and section 110 of the Hazardous Materials Transportation Act (49
U.S.C. 1471 and 1809, et seq.). An order assessing civil penalty for a
violation under the Hazardous Materials Transportation Act, or a rule,
regulation, or order issued thereunder, will be issued only after
consideration of--
(i) The nature and circumstances of the violation;
(ii) The extent and gravity of the violation;
(iii) The person's degree of culpability;
(iv) The person's history of prior violations;
(v) The person's ability to pay the civil penalty;
(vi) The effect on the person's ability to continue in business; and
(vii) Such other matters as justice may require.
(b) Order assessing civil penalty. An order assessing civil penalty may be
issued for a violation described in paragraph (a) of this section, or as
otherwise provided by statute, after notice and opportunity for a hearing. A
person charged with a violation may be subject to an order assessing civil
penalty in the following circumstances:
(1) An order assessing civil penalty may be issued if a person charged with
a violation submits or agrees to submit a civil penalty for a violation.
(2) An order assessing civil penalty may be issued if a person charged with
a violation does not request a hearing under paragraph (e)(2)(ii) of this
section within 15 days after receipt of a final notice of proposed civil
penalty.
(3) Unless an appeal is filed with the FAA decisionmaker in a timely
manner, an initial decision or order of an administrative law judge shall be
considered an order assessing civil penalty if an administrative law judge
finds that an alleged violation occurred and determines that a civil penalty,
in an amount found appropriate by the administrative law judge, is warranted.
(4) Unless a petition for review is filed with a U.S. Court of Appeals in a
timely manner, a final decision and order of the Administrator shall be
considered an order assessing civil penalty if the FAA decisionmaker finds
that an alleged violation occurred and a civil penalty is warranted.
(c) Delegation of authority. The authority of the Administrator, under
section 901 and section 905 of the Federal Aviation Act of 1958, as amended,
and section 110 of the Hazardous Materials Transportation Act, to initiate
and assess civil penalties for a violation of those Acts, or a rule,
regulation, or order issued thereunder, is delegated to the Deputy Chief
Counsel, the Assistant Chief Counsel for Regulations and Enforcement, and the
Assistant Chief Counsel for a region or center. The authority of the
Administrator to refer cases to the Attorney General of the United States, or
the delegate of the Attorney General, for the collection of civil penalties,
is delegated to the Chief Counsel, the Deputy Chief Counsel, the Assistant
Chief Counsel for Regulations and Enforcement, and the Assistant Chief
Counsel for a region or center.
(d) Notice of proposed civil penalty. A civil penalty action is initiated
by sending a notice of proposed civil penalty to the person charged with a
violation of the Federal Aviation Act of 1958, as amended, the Hazardous
Materials Transportation Act, or a rule, regulation, or order issued
thereunder. A notice of proposed civil penalty will be sent to the individual
charged with a violation or to the president of the corporation or company
charged with a violation. In response to a notice of proposed civil penalty,
a corporation or company may designate in writing another person to receive
documents in that civil penalty action. The notice of proposed civil penalty
contains a statement of the charges and the amount of the proposed civil
penalty. Not later than 30 days after receipt of the notice of proposed civil
penalty, the person charged with a violation shall--
(1) Submit the amount of the proposed civil penalty or an agreed-upon
amount, in which case either an order assessing civil penalty or compromise
order shall be issued in that amount;
(2) Submit to the agency attorney one of the following:
(i) Written information, including documents and witness statements,
demonstrating that a violation of the regulations did not occur or that a
penalty or the amount of the penalty is not warranted by the circumstances.
(ii) A written request to reduce the proposed civil penalty, the amount of
reduction, and the reasons and any documents supporting a reduction of the
proposed civil penalty, including records indicating a financial inability to
pay or records showing that payment of the proposed civil penalty would
prevent the person from continuing in business.
(iii) A written request for an informal conference to discuss the matter
with the agency attorney and to submit relevant information or documents; or
(3) Request a hearing in which case a complaint shall be filed with the
hearing docket clerk.
(e) Final notice of proposed civil penalty. A final notice of proposed
civil penalty may be issued after participation in informal procedures
provided in paragraph (d)(2) of this section or failure to respond in a tim1y
manner to a notice of proposed civil penalty. A final notice of proposed
civil penalty will be sent to the individual charged with a violation, to the
president of the corporation or company charged with a violation, or a person
previously designated in writing by the individual, corporation, or company
to receive documents in that civil penalty action. If not previously done in
response to a notice of proposed civil penalty, a corporation or company may
designate in writing another person to receive documents in that civil
penalty action. The final notice of proposed civil penalty contains a
statement of the charges and the amount of the proposed civil penalty and, as
a result of information submitted to the agency attorney during informal
procedures, may modify an allegation or a proposed civil penalty contained in
a notice of proposed civil penalty.
(1) A final notice of proposed civil penalty may be issued--
(i) If the person charged with a violation fails to respond to the notice
of proposed civil penalty within 30 days after receipt of that notice; or
(ii) If the parties participated in any informal procedures under paragraph
(d)(2) of this section and the parties have not agreed to compromise the
action or the agency attorney has not agreed to withdraw the notice of
proposed civil penalty.
(2) Not later than 15 days after receipt of the final notice of proposed
civil penalty, the person charged with a violation shall do one of the
following--
(i) Submit the amount of the proposed civil penalty or an agreed-upon
amount, in which case either an order assessing civil penalty or a compromise
order shall be issued in that amount; or
(ii) Request a hearing in which case a complaint shall be filed with the
hearing docket clerk.
(f) Request for a hearing. Any person charged with a violation may request
a hearing, pursuant to paragraph (d)(3) or paragraph (e)(2)(ii) of this
section, to be conducted in accordance with the procedures in subpart G of
this part. A person requesting a hearing shall file a written request for a
hearing with the hearing docket clerk (Hearing Docket, Federal Aviation
Administration, 800 Independence Avenue, SW., Room 924A, Washington, DC
20591, Attention: Hearing Docket Clerk) and shall mail a copy of the request
to the agency attorney. The request for a hearing may be in the form of a
letter but must be dated and signed by the person requesting a hearing. The
request for a hearing may be typewritten or may be legibly handwritten.
(g) Hearing. If the person charged with a violation requests a hearing
pursuant to paragraph (d)(3) or paragraph (e)(2)(ii) of this section, the
original complaint shall be filed with the hearing docket clerk and a copy
shall be sent to the person requesting the hearing. The procedural rules in
subpart G of this part apply to the hearing and any appeal. At the close of
the hearing, the administrative law judge shall issue, either orally on the
record or in writing, an initial decision, including the reasons for the
decision, that contains findings or conclusions on the allegations contained,
and the civil penalty sought, in the complaint.
(h) Appeal. Either party may appeal the administrative law judge's initial
decision to the FAA decisionmaker pursuant to the procedures in subpart G of
this part. If a party files a notice of appeal pursuant to Sec. 13.233 of
subpart G, the effectiveness of the initial decision is stayed until a final
decision and order of the Administrator have been entered on the record. The
FAA decisionmaker shall review the record and issue a final decision and
order of the Administrator that affirm, modify, or reverse the initial
decision. The FAA decisionmaker may assess a civil penalty but shall not
assess a civil penalty in an amount greater than that sought in the
complaint.
(i) Payment. A person shall pay a civil penalty by sending a certified
check or money order, payable to the Federal Aviation Administration, to the
agency attorney.
(j) Collection of civil penalties. If a person does not pay a civil penalty
imposed by an order assessing civil penalty or a compromise order within 60
days after service of the order, the Administrator may refer the order to the
United States Attorney General, or the delegate of the Attorney General, to
begin proceedings to collect the civil penalty. The action shall be brought
in a United States District Court, pursuant to the authority in section 903
of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1473), or section
110 of the Hazardous Materials Transportation Act (49 U.S.C. 1809).
(k) Exhaustion of administrative remedies. A party may only petition for
review of a final decision and order of the Administrator to the courts of
appeals of the United States or the United States Court of Appeals for the
District of Columbia pursuant to section 1006 of the Federal Aviation Act of
1958, as amended. Neither an initial decision or order issued by an
administrative law judge, that has not been appealed to the FAA
decisionmaker, nor an order compromising a civil penalty action constitutes a
final order of the Administrator for the purposes of judicial appellate
review under section 1006 of the Federal Aviation Act of 1958, as amended.
(l) Compromise. The FAA may compromise any civil penalty action initiated
in accordance with section 901 and section 905 of the Federal Aviation Act of
1958, as amended, involving an amount in controversy not exceeding $50,000,
or any civil penalty action initiated in accordance with section 901 of the
Federal Aviation Act of 1958, as amended, and section 110 of the Hazardous
Materials Transportation Act, at any time before referring the action to the
United States Attorney for collection.
(1) An agency attorney may compromise any civil penalty action where a
person charged with a violation agrees to pay a civil penalty and the FAA
agrees to make no finding of violation. Pursuant to such agreement, a
compromise order shall be issued, stating:
(i) The person agrees to pay a civil penalty.
(ii) The FAA makes no finding of a violation.
(iii) The compromise order shall not be used as evidence of a prior
violation in any subsequent civil penalty proceeding or certificate action
proceeding.
(2) An agency attorney may compromise the amount of any civil penalty
proposed in a notice, assessed in an order, or imposed in a compromise order.
[Doc. No. 25690, Amdt. 13-21, 55 FR 27574, July 3, 1990; Amdt. 13-21, 55 FR
29293, July 18, 1990; Amdt. 13-21, 55 FR 31027, July 30, 1990]
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) Under section 903 of the Federal Aviation Act of 1958 (49 U.S.C. 1473),
a State or Federal law enforcement officer, or a Federal Aviation
Administration safety inspector, authorized in an order of seizure issued by
the Regional Administrator of the region, or by the Chief Counsel, may
summarily seize an aircraft that is involved in a violation for which a civil
penalty may be imposed on its owner or operator.
(b) Each person seizing an aircraft under this section shall place it in
the nearest available and adequate public storage facility in the judicial
district in which it was seized.
(c) The Regional Administrator or Chief Counsel, without delay, sends a
written notice and a copy of this section, to the registered owner of the
seized aircraft, and to each other persons shown by FAA records to have an
interest in it, stating the--
(1) Time, date, and place of seizure;
(2) Name and address of the custodian of the aircraft;
(3) Reasons for the seizure, including the violations believed, or
judicially determined, to have been committed; and
(4) Amount that may be tendered as--
(i) A compromise of a civil penalty for the alleged violation; or
(ii) Payment for a civil penalty imposed by a Federal court for a proven
violation.
(d) The Chief Counsel or Assistant Chief Counsel of the region, in which an
aircraft is seized under this section immediately sends a report to the
United States District Attorney for the judicial district in which it was
seized, requesting the District Attorney to institute proceedings to enforce
a lien against the aircraft.
(e) The Regional Administrator or Chief Counsel directs the release of a
seized aircraft whenever--
(1) The alleged violator pays a civil penalty or an amount agreed upon in
compromise, and the costs of seizing, storing, and maintaining the aircraft;
(2) The aircraft is seized under an order of a Federal Court in proceedings
in rem to enforce a lien against the aircraft, or the United States District
Attorney for the judicial district concerned notifies the FAA that the
District Attorney refuses to institute those proceedings; or
(3) A bond in the amount and with the sureties prescribed by the Chief
Counsel or the Assistant Chief Counsel is deposited, conditioned on payment
of the penalty, or the compromise amount, and the costs of seizing, storing,
and maintaining the aircraft.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19, 54 FR
39290, Sept. 25, 1989]
Sec. 13.19 Certificate action.
(a) Under section 609 of the Federal Aviation Act of 1958 (49 U.S.C. 1429),
the Administrator may reinspect any civil aircraft, aircraft engine,
propeller, appliance, air navigation facility, or air agency, and may re-
examine any civil airman. Under section 501(e) of the FA Act, any Certificate
of Aircraft Registration may be suspended or revoked by the Administrator for
any cause that renders the aircraft ineligible for registration.
(b) If, as a result of such a reinspection re-examination, or other
investigation made by the Administrator under section 609 of the FA Act, the
Administrator determines that the public interest and safety in air commerce
requires it, the Administrator may issue an order amending, suspending, or
revoking, all or part of any type certificate, production certificate,
airworthiness certificate, airman certificate, air carrier operating
certificate, air navigation facility certificate, or air agency certificate.
This authority may be exercised for remedial purposes in cases involving the
Hazardous Materials Transportation Act (49 U.S.C. 1801 et seq.) or
regulations issued under that Act. This authority is also exercised by the
Chief Counsel, the Assistant Chief Counsel for Regulations and Enforcement,
and the Assistant Chief Counsel for the region or the Aeronautical Center. If
the Administrator finds that any aircraft registered under Part 47 of this
chapter is ineligible for registration or if the holder of a Certificate of
Aircraft Registration has refused or failed to submit AC Form 8050-73, as
required by Sec. 47.51 of this chapter, the Administrator issues an order
suspending or revoking that certificate. This authority as to aircraft found
ineligible for registration is also exercised by the Assistant Chief Counsel
for the Aeronautical Center or for the region.
(c) Before issuing an order under paragraph (b) of this section, the Chief
Counsel, the Assistant Chief Counsel for Regulations and Enforcement, the
Assistant Chief Counsel for the Aeronautical Center advises the certificate
holder of the charges or other reasons upon which the Administrator bases the
proposed action and, except in an emergency, allows the holder to answer any
charges and to be heard as to why the certificate should not be amended,
suspended, or revoked. The holder may, by checking the appropriate box on the
form that is sent to the holder with the notice of proposed certificate
action, elect to--
(1) Admit the charges and surrender his or her certificate;
(2) Answer the charges in writing;
(3) Request that an order be issued in accordance with the notice of
proposed certificate action so that the certificate holder may appeal to the
National Transportation Safety Board, if the charges concerning a matter
under Title VI of the FA Act;
(4) Request an opportunity to be heard in an informal conference with the
FAA counsel; or
(5) Request a hearing in accordance with Subpart D of this part if the
charges concern a matter under Title V of the FA Act.
Except as provided in Sec. 13.35(b), unless the certificate holder returns
the form and, where required, an answer or motion, with a postmark of not
later than 15 days after the date of receipt of the notice, the order of the
Administrator is issued as proposed. If the certificate holder has requested
an informal conference with the FAA counsel and the charges concern a matter
under Title V of the FAAct, the holder may after that conference also request
a formal hearing in writing with a postmark of not later than 10 days after
the close of the conference. After considering any information submitted by
the certificate holder, the Chief Counsel, the Assistant Chief Counsel for
Regulations and Enforcement, the Regional Counsel concerned, or the
Aeronautical Center Counsel (as to matters under Title V of the FA Act)
issues the order of the Administrator, except that if the holder has made a
valid request for a formal hearing on a matter under Title V of the FA Act
initially or after an informal conference, Subpart D of this part governs
further proceedings.
(d) Any person whose certificate is affected by an order issued under this
section may appeal to the National Transportation Safety Board. If the
certificate holder files an appeal with the Board, the Administrator's order
is stayed unless the Administrator advises the Board that an emergency exists
and safety in air commerce requires that the order become effective
immediately. If the Board is so advised, the order remains effective and the
Board shall finally dispose of the appeal within 60 days after the date of
the advice. This paragraph does not apply to any person whose Certificate of
Aircraft Registration is affected by an order issued under this section.
[Doc. No. 13-14, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-15, 45 FR
20773, Mar. 31, 1980; Amdt. 13-19, 54 FR 39290, Sept. 25, 1989]
Sec. 13.20 Orders of compliance, cease and desist orders, orders of denial,
and other orders.
(a) This section applies to orders of compliance, cease and desist orders,
orders of denial, and other orders issued by the Administrator to carry out
the provisions of the Federal Aviation Act of 1958, as amended, the Hazardous
Materials Transportation Act, the Airport and Airway Development Act of 1970,
and the Airport and Airway Improvement Act of 1982, or the Airport and Airway
Improvement Act of 1982 as amended by the Airport and Airway Safety and
Capacity Expansion Act of 1987. This section does not apply to orders issued
pursuant to section 602 or section 609 of the Federal Aviation Act of 1958,
as amended.
(b) Unless the Administrator determines that an emergency exists and safety
in air commerce requires the immediate issuance of an order under this
section, the person subject to the order shall be provided with notice prior
to issuance.
(c) Within 30 days after service of the notice, the person subject to the
order may reply in writing or request a hearing in accordance with Subpart D
of this part.
(d) If a reply is filed, as to any charges not dismissed or not subject to
a consent order, the person subject to the order may, within 10 days after
receipt of notice that the remaining charges are not dismissed, request a
hearing in accordance with Subpart D of this part.
(e) Failure to request a hearing within the period provided in paragraphs
(c) or (d) of this section--
(1) Constitutes a waiver of the right to appeal and the right to a hearing,
and
(2) Authorizes the official who issued the notice to find the facts to be
as alleged in the notice, or as modified as the official may determine
necessary based on any written response, and to issue an appropriate order,
without further notice or proceedings.
(f) If a hearing is requested in accordance with paragraph (c) or (d) of
this section, the procedure of Subpart D of this part applies. At the close
of the hearing, the Hearing Officer, on the record or subsequently in
writing, shall set forth findings and conclusions and the reasons therefor,
and either--
(1) Dismiss the notice; or
(2) Issue an order.
(g) Any party to the hearing may appeal from the order of the Hearing
Officer by filing a notice of appeal with the Administrator within 20 days
after the date of issuance of the order.
(h) If a notice of appeal is not filed from the order issued by a Hearing
Officer, such order is the final agency order.
(i) Any person filing an appeal authorized by paragraph (g) of this section
shall file an appeal brief with the Administrator within 40 days after the
date of issuance of the order, and serve a copy on the other party. A reply
brief must be filed within 20 days after service of the appeal brief and a
copy served on the appellant.
(j) On appeal the Administrator reviews the available record of the
proceeding, and issues an order dismissing, reversing, modifying or affirming
the order. The Administrator's order includes the reasons for the
Administrator's action.
(k) For good cause shown, requests for extensions of time to file any
document under this section may be granted by--
(1) The official who issued the order, if the request is filed prior to the
designation of a Hearing Officer; or
(2) The Hearing Officer, if the request is filed prior to the filing of a
notice of appeal; or
(3) The Administrator, if the request is filed after the filing of a notice
of appeal.
(l) Except in the case of an appeal from the decision of a Hearing Officer,
the authority of the Administrator under this section is also exercised by
the Chief Counsel, Deputy Chief Counsel, each Assistant Chief Counsel and the
Assistant Chief Counsel for the region or the Aeronautical Center (as to
matters under Title V of the Federal Aviation Act of 1958).
(m) Filing and service of documents under this section shall be
accomplished in accordance with Sec. 13.43; and the periods of time specified
in this section shall be computed in accordance with Sec. 13.44.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-17, 53 FR
33783, Aug. 31, 1988; Amdt. 13-19, 54 FR 39290, Sept. 25, 1989]
Sec. 13.21 Military personnel.
If a report made under this part indicates that, while performing official
duties, a member of the Armed Forces, or a civilian employee of the
Department of Defense who is subject to the Uniform Code of Military Justice
(10 U.S.C. Ch. 47), has violated the Federal Aviation Act of 1958, or a
regulation or order issued under it, the Chief Counsel, the Assistant Chief
Counsel for Regulations and Enforcement, or the Assistant Chief Counsel for
the region or the Aeronautical Center concerned sends a copy of the report to
the appropriate military authority for such disciplinary action as that
authority considers appropriate and a report to the Administrator thereon.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19, 54 FR
39290, Sept. 25, 1989]
Sec. 13.23 Criminal penalties.
(a) Sections 902 and 1203 of the Federal Aviation Act of 1958 (49 U.S.C.
1472 and 1523), provide criminal penalties for any person who knowingly and
willfully violates specified provisions of that Act, or any regulation or
order issued under those provisions. Section 110(b) of the Hazardous
Materials Transportation Act (49 U.S.C. 1809(b)) provides for a criminal
penalty of a fine of not more than $25,000, imprisonment for not more than
five years, or both, for any person who willfully violates a provision of
that Act or a regulation or order issued under it.
(b) If an inspector or other employee of the FAA becomes aware of a
possible violation of any criminal provision of the Federal Aviation Act of
1958 (except a violation of section 902 (i) through (m) which is reported
directly to the Federal Bureau of Investigation), or of the Hazardous
Materials Transportation Act, relating to the transportation or shipment by
air of hazardous materials, he or she shall report it to the Office of the
Chief Counsel or the Assistant Chief Counsel for the region concerned. If
appropriate, that office refers the report to the Department of Justice for
criminal prosecution of the offender. If such an inspector or other employee
becomes aware of a possible violation of a Federal statute that is within the
investigatory jurisdiction of another Federal agency, he or she shall
immediately report it to that agency according to standard FAA practices.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19, 54 FR
39290, Sept. 25, 1989]
Sec. 13.25 Injunctions.
(a) Whenever it is determined that a person has engaged, or is about to
engage, in any act or practice constituting a violation of the Federal
Aviation Act of 1958, or any regulation or order issued under it for which
the FAA exercises enforcement responsibility, or, with respect to the
transportation or shipment by air of any hazardous materials, in any act or
practice constituting a violation of the Hazardous Materials Transportation
Act, or any regulation or order issued under it for which the FAA exercises
enforcement responsibility, the Chief Counsel, the Assistant Chief Counsel
for Regulations and Enforcement the Assistant Chief Counsel for the region
concerned, or the Assistant Chief Counsel for the Aeronautical Center may
request the United States Attorney General, or the delegate of the Attorney
General, to bring an action in the appropriate United States District Court
for such relief as is necessary or appropriate, including mandatory or
prohibitive injunctive relief, interim equitable relief, and punitive
damages, as provided by section 1007 of the Federal Aviation Act of 1958 (49
U.S.C. 1487) and section 111(a) of the Hazardous Materials Transportation Act
(49 U.S.C. 1810).
(b) Whenever it is determined that there is substantial likelihood that
death, serious illness, or severe personal injury, will result from the
transportation by air of a particular hazardous material before an order of
compliance proceeding, or other administrative hearing or formal proceeding
to abate the risk of the harm can be completed, the Chief Counsel, the
Assistant Chief Counsel for Regulations and Enforcement, or the Regional
Counsel concerned may bring, or request the United States Attorney General to
bring, an action in the appropriate United States District Court for an order
suspending or restricting the transportation by air of the hazardous material
or for such other order as is necessary to eliminate or ameliorate the
imminent hazard, as provided by section 111(b) of the Hazardous Materials
Transportation Act (49 U.S.C. 1810).
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19, 54 FR
39290, Sept. 25, 1989]
Sec. 13.27 Final order of Hearing Officer in certificate of aircraft
registration proceedings.
(a) If, in proceedings under section 501(b) of the Federal Aviation Act of
1958 (49 USC 1401), the Hearing Officer determines that the holder of the
Certificate of Aircraft Registration has refused or failed to submit AC Form
8050-73, as required by Sec. 47.51 of this chapter, or that the aircraft is
ineligible for a Certificate of Aircraft Registration, the Hearing Officer
shall suspend or revoke the respondent's certificate, as proposed in the
notice of proposed certificate action.
(b) If the final order of the Hearing Officer makes a decision on the
merits, it shall contain a statement of the findings and conclusions of law
on all material issues of fact and law. If the Hearing Officer finds that the
allegations of the notice have been proven, but that no sanction is required,
the Hearing Officer shall make appropriate findings and issue an order
terminating the notice. If the Hearing Officer finds that the allegations of
the notice have not been proven, the Hearing Officer shall issue an order
dismissing the notice. If the Hearing Officer finds it to be equitable and in
the public interest, the Hearing Officer shall issue an order terminating the
proceeding upon payment by the respondent of a civil penalty in an amount
agreed upon by the parties.
(c) If the order is issued in writing, it shall be served upon the parties.
[Doc. No. 13-14, 44 FR 63723, Nov. 5, 1979; as amended by Amdt. 13-15, 45 FR
20773, Mar. 31, 1980]
Subpart D--Rules of Practice for FAA Hearings
Sec. 13.31 Applicability.
This subpart applies to proceedings in which a hearing has been requested
in accordance with Secs. 13.19(c)(5), 13.20(c), 13.20(d), 13.75(a)(2),
13.75(b), or 13.81(e).
[Amdt. 13-18, 53 FR 34655, Sept. 7, 1988]
Sec. 13.33 Appearances.
Any party to a proceeding under this subpart may appear and be heard in
person or by attorney.
Sec. 13.35 Request for hearing.
(a) A request for hearing must be made in writing to the Hearing Docket,
Room 924A, Federal Aviation Administration, 800 Independence Avenue, S.W.,
Washington, D.C. 20591. It must describe briefly the action proposed by the
FAA, and must contain a statement that a hearing is requested. A copy of the
request for hearing and a copy of the answer required by paragraph (b) of
this section must be served on the official who issued the notice of proposed
action.
(b) An answer to the notice of proposed action must be filed with the
request for hearing. All allegations in the notice not specifically denied in
the answer are deemed admitted.
(c) Within 15 days after service of the copy of the request for hearing,
the official who issued the notice of proposed action forwards a copy of that
notice, which serves as the complaint, to the Hearing Docket.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19, 54 FR
39290, Sept. 25, 1989]
Sec. 13.37 Hearing Officer's powers.
Any Hearing Officer may--
(a) Give notice concerning, and hold, prehearing conferences and hearings;
(b) Administrator oaths and affirmations;
(c) Examine witnesses;
(d) Adopt procedures for the submission of evidence in written form;
(e) Issue subpoenas and take depositions or cause them to be taken;
(f) Rule on offers of proof;
(g) Receive evidence;
(h) Regulate the course of the hearing;
(i) Hold conferences, before and during the hearing, to settle and simplify
issues by consent of the parties;
(j) Dispose of procedural requests and similar matters; and
(k) Issue decisions, make findings of fact, make assessments, and issue
orders, as appropriate.
Sec. 13.39 Disqualification of Hearing Officer.
If disqualified for any reason, the Hearing Officer shall withdraw from the
case.
Sec. 13.41 [Reserved]
Sec. 13.43 Service and filing of pleadings, motions, and documents.
(a) Copies of all pleadings, motions, and documents filed with the Hearing
Docket must be served upon all parties to the proceedings by the person
filing them.
(b) Service may be made by personal delivery or by mail.
(c) A certificate of service shall accompany all documents when they are
tendered for filing and shall consist of a certificate of personal delivery
or a certificate of mailing, executed by the person making the personal
delivery or mailing the document.
(d) Whenever proof of service by mail is made, the date of mailing or the
date as shown on the postmark shall be the date of service, and where
personal service is made, the date of personal delivery shall be the date of
service.
(e) The date of filing is the date the document is actually received.
Sec. 13.44 Computation of time and extension of time.
(a) In computing any period of time prescribed or allowed by this subpart,
the date of the act, event, default, notice or order after which the
designated period of time begins to run is not to be included in the
computation. The last day of the period so computed is to be included unless
it is a Saturday, Sunday, or legal holiday for the FAA, in which event the
period runs until the end of the next day which is neither a Saturday, Sunday
nor a legal holiday.
(b) Upon written request filed with the Hearing Docket and served upon all
parties, and for good cause shown, a Hearing Officer may grant an extension
of time to file any documents specified in this subpart.
Sec. 13.45 Amendment of notice and answer.
At any time more than 10 days before the date of hearing, any party may
amend his or her notice, answer, or other pleading, by filing the amendment
with the Hearing Officer and serving a copy of it on each other party. After
that time, amendments may be allowed only in the discretion of the Hearing
Officer. If an amendment to an initial pleading has been allowed, the Hearing
Officer shall allow the other parties a reasonable opportunity to answer.
Sec. 13.47 Withdrawal of notice or request for hearing.
At any time before the hearing, the FAA counsel may withdraw the notice of
proposed action, and the party requesting the hearing may withdraw the
request for hearing.
Sec. 13.49 Motions.
(a) Motion to dismiss for insufficiency. A respondent who requests a formal
hearing may, in place of an answer, file a motion to dismiss for failure of
the allegations in the notice of proposed action to state a violation of the
FA Act or of this chapter or to show lack of qualification of the respondent.
If the Hearing Officer denies the motion, the respondent shall file an answer
within 10 days.
(b) [Reserved]
(c) Motion for more definite statement. The certificate holder may, in
place of an answer, file a motion that the allegations in the notice be made
more definite and certain. If the Hearing Officer grants the motion, the FAA
counsel shall comply within 10 days after the date it is granted. If the
Hearing Officer denies the motion the certificate holder shall file an answer
within 10 days after the date it is denied.
(d) Motion for judgment on the pleadings. After the pleadings are closed,
either party may move for a judgment on the pleadings.
(e) Motion to strike. Upon motion of either party, the Hearing Officer may
order stricken, from any pleadings, any insufficient allegation or defense,
or any immaterial, impertinent, or scandalous matter.
(f) Motion for production of documents. Upon motion of any party showing
good cause, the Hearing Officer may, in the manner provided by Rule 34,
Federal Rules of Civil Procedure, order any party to produce any designated
document, paper, book, account, letter, photograph, object, or other tangible
thing, that is not privileged, that constitutes or contains evidence relevant
to the subject matter of the hearings, and that is in the party's possession,
custody, or control.
(g) Consolidation of motions. A party who makes a motion under this section
shall join with it all other motions that are then available to the party.
Any objection that is not so raised is considered to be waived.
(h) Answers to motions. Any party may file an answer to any motion under
this section within 5 days after service of the motion.
Sec. 13.51 Intervention.
Any person may move for leave to intervene in a proceeding and may become a
party thereto, if the Hearing Officer, after the case is sent to the Hearing
Officer for hearing, finds that the person may be bound by the order to be
issued in the proceedings or has a property or financial interest that may
not be adequately represented by existing parties, and that the intervention
will not unduly broaden the issues or delay the proceedings. Except for good
cause shown, a motion for leave to intervene may not be considered if it is
filed less than 10 days before the hearing.
Sec. 13.53 Depositions.
After the respondent has filed a request for hearing and an answer, either
party may take testimony by deposition in accordance with section 1004 of the
Federal Aviation Act of 1958 (49 U.S.C. 1484) or Rule 26, Federal Rules of
Civil Procedure.
Sec. 13.55 Notice of hearing.
The Hearing Officer shall set a reasonable date, time, and place for the
hearing, and shall give the parties adequate notice thereof and of the nature
of the hearing. Due regard shall be given to the convenience of the parties
with respect to the place of the hearing.
Sec. 13.57 Subpoenas and witness fees.
(a) The Hearing Officer to whom a case is assigned may, upon application by
any party to the proceeding, issue subpoenas requiring the attendance of
witnesses or the production of documentary or tangible evidence at a hearing
or for the purpose of taking depositions. However, the application for
producing evidence must show its general relevance and reasonable scope. This
paragraph does not apply to the attendance of FAA employees or to the
production of documentary evidence in the custody of such an employee at a
hearing.
(b) A person who applies for the production of a document in the custody of
an FAA employee must follow the procedure in Sec. 13.49(f). A person who
applies for the attendance of an FAA employee must send the application, in
writing, to the Hearing Officer setting forth the need for that employee's
attendance.
(c) A witness in a proceeding under this subpart is entitled to the same
fees and mileage as is paid to a witness in a court of the United States
under comparable circumstances. The party at whose instance the witness is
subpoenaed or appears shall pay the witness fees.
(d) Notwithstanding the provisions of paragraph (c) of this section, the
FAA pays the witness fees and mileage if the Hearing Officer who issued the
subpoena determines, on the basis of a written request and good cause shown,
that--
(1) The presence of the witness will materially advance the proceeding; and
(2) The party at whose instance the witness is subpoenaed would suffer a
serious hardship if required to pay the witness fees and mileage.
Sec. 13.59 Evidence.
(a) Each party to a hearing may present the party's case or defense by oral
or documentary evidence, submit evidence in rebuttal, and conduct such cross-
examination as may be needed for a full disclosure of the facts.
(b) Except with respect to affirmative defenses and orders of denial, the
burden of proof is upon the FAA counsel.
(c) The Hearing Officer may order information contained in any report or
document filed or in any testimony given pursuant to this subpart withheld
from public disclosure when, in the judgment of the Hearing Officer,
disclosure would adversely affect the interests of any person and is not
required in the public interest or is not otherwise required by statute to be
made available to the public. Any person may make written objection to the
public disclosure of such information, stating the ground for such objection.
Sec. 13.61 Argument and submittals.
The Hearing Officer shall give the parties adequate opportunity to present
arguments in support of motions, objections, and the final order. The Hearing
Officer may determine whether arguments are to be oral or written. At the end
of the hearing the Hearing Officer may, in the discretion of the Hearing
Officer, allow each party to submit written proposed findings and conclusions
and supporting reasons for them.
Sec. 13.63 Record.
The testimony and exhibits presented at a hearing, together with all
papers, requests, and rulings filed in the proceedings are the exclusive
basis for the issuance of an order. Either party may obtain a transcript from
the official reporter upon payment of the fees fixed therefor.
Subpart E--Orders of Compliance Under the Hazardous Materials Transportation
Act
Sec. 13.71 Applicability.
Whenever the Chief Counsel, the Assistant Chief Counsel for Regulations and
Enforcement, or the Assistant Chief Counsel for the region concerned has
reason to believe that a person is engaging in the transportation or shipment
by air of hazardous materials in violation of the Hazardous Materials
Transportation Act, or any regulation or order issued under it for which the
FAA exercises enforcement responsibility, and the circumstances do not
require the issuance of an order of immediate compliance, he may conduct
proceedings pursuant to section 109 of that Act (49 U.S.C. 1808) to determine
the nature and extent of the violation, and may thereafter issue an order
directing compliance.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19, 54 FR
39290, Sept. 25, 1989]
Sec. 13.73 Notice of proposed order of compliance.
A compliance order proceeding commences when the Chief Counsel, the
Assistant Chief Counsel for Regulations and Enforcement, or the Assistant
Chief Counsel for the region concerned sends the alleged violator a notice of
proposed order of compliance advising the alleged violator of the charges and
setting forth the remedial action sought in the form of a proposed order of
compliance.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19, 54 FR
39290, Sept. 25, 1989]
Sec. 13.75 Reply or request for hearing.
(a) Within 30 days after service upon the alleged violator of a notice of
proposed order of compliance, the alleged violator may--
(1) File a reply in writing with the official who issued the notice; or
(2) Request a hearing in accordance with Subpart D of this part.
(b) If a reply is filed, as to any charges not dismissed or not subject to
a consent order of compliance, the alleged violator may, within 10 days after
receipt of notice that the remaining charges are not dismissed, request a
hearing in accordance with Subpart D of this part.
(c) Failure of the alleged violator to file a reply or request a hearing
within the period provided in paragraph (a) or (b) of this section--
(1) Constitutes a waiver of the right to a hearing and the right to an
appeal, and
(2) Authorizes the official who issued the notice to find the facts to be
as alleged in the notice and to issue an appropriate order directing
compliance, without further notice or proceedings.
Sec. 13.77 Consent order of compliance.
(a) At any time before the issuance of an order of compliance, the official
who issued the notice and the alleged violator may agree to dispose of the
case by the issuance of a consent order of compliance by the official.
(b) A proposal for a consent order submitted to the official who issued the
notice under this section must include--
(1) A proposed order of compliance;
(2) An admission of all jurisdictional facts;
(3) An express waiver of right to further procedural steps and of all
rights to judicial review;
(4) An incorporation by reference of the notice and an acknowledgement that
the notice may be used to construe the terms of the order of compliance; and
(5) If the issuance of a consent order has been agreed upon after the
filing of a request for hearing in accordance with Subpart D of this part,
the proposal for a consent order shall include a request to be filed with the
Hearing Officer withdrawing the request for a hearing and requesting that the
case be dismissed.
Sec. 13.79 Hearing.
If an alleged violator requests a hearing in accordance with Sec. 13.75,
the procedure of Subpart D of this part applies. At the close of the hearing,
the Hearing Officer, on the record or subsequently in writing, sets forth the
Hearing Officer's findings and conclusion and the reasons therefor, and
either--
(a) Dismisses the notice of proposed order of compliance; or
(b) Issues an order of compliance.
Sec. 13.81 Order of immediate compliance.
(a) Notwithstanding Secs. 13.73 through 13.79, the Chief Counsel, the
Assistant Chief Counsel for Regulations and Enforcement, or the Assistant
Chief Counsel for the region concerned may issue an order of immediate
compliance, which is effective upon issuance, if the person who issues the
order finds that--
(1) There is strong probability that a violation is occurring or is about
to occur;
(2) The violation poses a substantial risk to health or to safety of life
or property; and
(3) The public interest requires the avoidance or amelioration of that risk
through immediate compliance and waiver of the procedures afforded under
Secs. 13.73 through 13.79.
(b) An order of immediate compliance is served promptly upon the person
against whom the order is issued by telephone or telegram, and a written
statement of the relevant facts and the legal basis for the order, including
the findings required by paragraph (a) of this section, is served promptly by
personal service or by mail.
(c) The official who issued the order of immediate compliance may rescind
or suspend the order if it appears that the criteria set forth in paragraph
(a) of this section are no longer satisfied, and, when appropriate, may issue
a notice of proposed order of compliance under Sec. 13.73 in lieu thereof.
(d) If at any time in the course of a proceeding commenced in accordance
with Sec. 13.73 the criteria set forth in paragraph (a) of this section are
satisfied, the offical who issued the notice may issue an order of immediate
compliance, even if the period for filing a reply or requesting a hearing
specified in Sec. 13.75 has not expired.
(e) Within three days after receipt of service of an order of immediate
compliance, the alleged violator may request a hearing in accordance with
Subpart D of this part and the procedure in that subpart will apply except
that--
(1) The case will be heard within fifteen days after the date of the order
of immediate compliance unless the alleged violator requests a later date;
(2) The order will serve as the complaint; and
(3) The Hearing Officer shall issue his decision and order dismissing,
reversing, modifying, or affirming the order of immediate compliance on the
record at the close of the hearing.
(f) The filing of a request for hearing in accordance with paragraph (e) of
this section does not stay the effectiveness of an order of immediate
compliance.
(g) At any time after an order of immediate compliance has become
effective, the official who issued the order may request the United States
Attorney General, or the delegate of the Attorney General, to bring an action
for appropriate relief in accordance with Sec. 13.25.
[Doc. No. 18848, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19, 54 FR
39290, Sept. 25, 1989]
Sec. 13.83 Appeal.
(a) Any party to the hearing may appeal from the order of the Hearing
Officer by filing a notice of appeal with the Administrator within 20 days
after the date of issuance of the order.
(b) Any person against whom an order of immediate compliance has been
issued in accordance with Sec. 13.81 or the official who issued the order of
immediate compliance may appeal from the order of the Hearing Officer by
filing a notice of appeal with the Administrator within three days after the
date of issuance of the order by the Hearing Officer.
(c) Unless the Administrator expressly so provides, the filing of a notice
of appeal does not stay the effectiveness of an order of immediate
compliance.
(d) If a notice of appeal is not filed from the order of compliance issued
by a Hearing Officer, such order is the final agency order of compliance.
(e) Any person filing an appeal authorized by paragraph (a) of this section
shall file an appeal brief with the Administrator within 40 days after the
date of the issuance of the order, and serve a copy on the other party. Any
reply brief must be filed within 20 days after service of the appeal brief. A
copy of the reply brief must be served on the appellant.
(f) Any person filing an appeal authorized by paragraph (b) of this section
shall file an appeal brief with the Administrator with the notice of appeal
and serve a copy on the other party. Any reply brief must be filed within 3
days after receipt of the appeal brief. A copy of the reply brief must be
served on the appellant.
(g) On appeal the Administrator reviews the available record of the
proceeding, and issues an order dismissing, reversing, modifying or affirming
the order of compliance or the order of immediate compliance. The
Administrator's order includes the reasons for the action.
(h) In cases involving an order of immediate compliance, the
Administrator's order on appeal is issued within ten days after the filing of
the notice of appeal.
Sec. 13.85 Filing, service and computation of time.
Filing and service of documents under this subpart shall be accomplished in
accordance with Sec. 13.43 except service of orders of immediate compliance
under Sec. 13.81(b); and the periods of time specified in this subpart shall
be computed in accordance with Sec. 13.44.
Sec. 13.87 Extension of time.
(a) The official who issued the notice of proposed order of compliance, for
good cause shown, may grant an extension of time to file any document
specified in this subpart, except documents to be filed with the
Administrator.
(b) Extensions of time to file documents with the Administrator may be
granted by the Administrator upon written request, served upon all parties,
and for good cause shown.
Subpart F--Formal Fact-Finding Investigation Under an Order of Investigation
Sec. 13.101 Applicability.
(a) This subpart applies to fact-finding investigations in which an order
of investigation has been issued under Sec. 13.3(c) or Sec. 13.5(i) of this
part.
(b) This subpart does not limit the authority of duly designated persons to
issue subpoenas, administer oaths, examine witnesses and receive evidence in
any informal investigation as provided for in sections 313 and 1004(a) of the
Federal Aviation Act (49 U.S.C. 1354 and 1484(a)) and section 109(a) of the
Hazardous Materials Transportation Act (49 U.S.C. 1808(a)).
Sec. 13.103 Order of investigation.
The order of investigation--
(a) Defines the scope of the investigation by describing the information
sought in terms of its subject matter or its relevancy to specified FAA
functions;
(b) Sets forth the form of the investigation which may be either by
individual deposition or investigative proceeding or both; and
(c) Names the official who is authorized to conduct the investigation and
serve as the Presiding Officer.
Sec. 13.105 Notification.
Any person under investigation and any person required to testify and
produce documentary or physical evidence during the investigation will be
advised of the purpose of the investigation, and of the place where the
investigative proceeding or deposition will be convened. This may be
accomplished by a notice of investigation or by a subpoena. A copy of the
order of investigation may be sent to such persons, when appropriate.
Sec. 13.107 Designation of additional parties.
(a) The Presiding Officer may designate additional persons as parties to
the investigation, if in the discretion of the Presiding Officer, it will aid
in the conduct of the investigation.
(b) The Presiding Officer may designate any person as a party to the
investigation if that person--
(1) Petitions the Presiding Officer to participate as a party; and
(2) Is so situated that the disposition of the investigation may as a
practical matter impair the ability to protect that person's interest unless
allowed to participate as a party, and
(3) Is not adequately represented by existing parties.
Sec. 13.109 Convening the investigation.
The investigation shall be conducted at such place or places designated by
the Presiding Officer, and as convenient to the parties involved as
expeditious and efficient handling of the investigation permits.
Sec. 13.111 Subpoenas.
(a) Upon motion of the Presiding Officer, or upon the request of a party to
the investigation, the Presiding Officer may issue a subpoena directing any
person to appear at a designated time and place to testify or to produce
documentary or physical evidence relating to any matter under investigation.
(b) Subpoenas shall be served by personal service, or upon an agent
designated in writing for the purpose, or by registered or certified mail
addressed to such person or agent. Whenever service is made by registered or
certified mail, the date of mailing shall be considered as the time when
service is made.
(c) Subpoenas shall extend in jurisdiction throughout the United States or
any territory or possession thereof.
Sec. 13.113 Noncompliance with the investigative process.
If any person fails to comply with the provisions of this subpart or with
any subpoena or order issued by the Presiding Officer or the designee of the
Presiding Officer, judicial enforcement may be initiated against that person
under applicable statutes.
Sec. 13.115 Public proceedings.
(a) All investigative proceedings and depositions shall be public unless
the Presiding Officer determines that the public interest requires otherwise.
(b) The Presiding Officer may order information contained in any report or
document filed or in any testimony given pursuant to this subpart withheld
from public disclosure when, in the judgment of the Presiding Officer,
disclosure would adversely affect the interests of any person and is not
required in the public interest or is not otherwise required by statute to be
made available to the public. Any person may make written objection to the
public disclosure of such information, stating the grounds for such
objection.
Sec. 13.117 Conduct of investigative proceeding or deposition.
(a) The Presiding Officer or the designee of the Presiding Officer may
question witnesses.
(b) Any witness may be accompanied by counsel.
(c) Any party may be accompanied by counsel and either the party or counsel
may--
(1) Question witnesses, provided the questions are relevant and material to
the matters under investigation and would not unduly impede the progress of
the investigation; and
(2) Make objections on the record and argue the basis for such objections.
(d) Copies of all notices or written communications sent to a party or
witness shall upon request be sent to that person's attorney of record.
Sec. 13.119 Rights of persons against self-incrimination.
(a) Whenever a person refuses, on the basis of a privilege against self-
incrimination, to testify or provide other information during the course of
any investigation conducted under this subpart, the Presiding Officer may,
with the approval of the Attorney General of the United States, issue an
order requiring the person to give testimony or provide other information.
However, no testimony or other information so compelled (or any information
directly or indirectly derived from such testimony or other information) may
be used against the person in any criminal case, except in a prosecution for
perjury, giving a false statement, or otherwise failing to comply with the
order.
(b) The Presiding Officer may issue an order under this section if--
(1) The testimony or other information from the witness may be necessary to
the public interest; and
(2) The witness has refused or is likely to refuse to testify or provide
other information on the basis of a privilege against self-incrimination.
(c) Immunity provided by this section will not become effective until the
person has refused to testify or provide other information on the basis of a
privilege against self-incrimination, and an order under this section has
been issued. An order, however, may be issued prospectively to become
effective in the event of a claim of the privilege.
Sec. 13.121 Witness fees.
All witnesses appearing shall be compensated at the same rate as a witness
appearing before a United States District Court.
Sec. 13.123 Submission by party to the investigation.
(a) During an investigation conducted under this subpart, a party may
submit to the Presiding Officer--
(1) A list of witnesses to be called, specifying the subject matter of the
expected testimony of each witness, and
(2) A list of exhibits to be considered for inclusion in the record.
(b) If the Presiding Officer determines that the testimony of a witness or
the receipt of an exhibit in accordance with paragraph (a) of this section
will be relevant, competent and material to the investigation, the Presiding
Officer may subpoena the witness or use the exhibit during the investigation.
Sec. 13.125 Depositions.
Depositions for investigative purposes may be taken at the discretion of
the Presiding Officer with reasonable notice to the party under
investigation. Such depositions shall be taken before the Presiding Officer
or other person authorized to administer oaths and designated by the
Presiding Officer. The testimony shall be reduced to writing by the person
taking the deposition, or under the direction of that person, and where
possible shall then be subscribed by the deponent. Any person may be
compelled to appear and testify and to produce physical and documentary
evidence.
Sec. 13.127 Reports, decisions and orders.
The Presiding Officer shall issue a written report based on the record
developed during the formal investigation, including a summary of principal
conclusions. A summary of principal conclusions shall be prepared by the
official who issued the order of investigation in every case which results in
no action, or no action as to a particular party to the investigation. All
such reports shall be furnished to the parties to the investigation and filed
in the public docket. Insertion of the report in the Public Docket shall
constitute "entering of record" and publication as prescribed by section
313(b) of the Federal Aviation Act.
Sec. 13.129 Post-investigation action.
A decision on whether to initiate subsequent action shall be made on the
basis of the record developed during the formal investigation and any other
information in the possession of the Administrator.
Sec. 13.131 Other procedures.
Any question concerning the scope or conduct of a formal investigation not
covered in this subpart may be ruled on by the Presiding Officer on motion of
the Presiding Officer, or on the motion of a party or a person testifying or
producing evidence.
Subpart G--Rules of Practice in FAA Civil Penalty Actions
(a) This subpart applies to the following actions:
(1) A civil penalty action in which a complaint has been issued for an
amount not exceeding $50,000 for a violation arising under the Federal
Aviation Act of 1958, as amended (49 U.S.C. 1301, et seq.), or a rule,
regulation, or order issued thereunder.
(2) A civil penalty action in which a complaint has been issued for a
violation arising under the Federal Aviation Act of 1958, as amended (49
U.S.C. 1471, et seq.) and the Hazardous Materials Transportation Act (49
U.S.C. 1801 et seq.), or a rule, regulation, or order issued thereunder.
(b) This subpart applies only to proceedings initiated after September 7,
1988. All other cases, hearings, or other proceedings pending or in progress
before September 7, 1988, are not affected by the rules in this subpart.
(c) Notwithstanding the provisions of paragraph (a) of this section, the
United States district courts shall have exclusive jurisdiction of any civil
penalty action initiated by the Administrator:
(1) Which involves an amount in controversy in excess of $50,000;
(2) Which is an in rem action or in which an in rem action based on the
same violation has been brought;
(3) Regarding which an aircraft subject to lien has been seized by the
United States; and
(4) In which a suit for injunctive relief based on the violation giving
rise to the civil penalty has also been brought.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
Administrative law judge means an administrative law judge appointed
pursuant to the provisions of 5 U.S.C. 3105.
Agency attorney means the Deputy Chief Counsel, the Assistant Chief Counsel
for Regulations and Enforcement, the Assistant Chief Counsel for a region or
center, or an attorney on the staff of the Assistant Chief Counsel for
Regulations and Enforcement or the Assistant Chief Counsel for a region or
center who prosecutes a civil penalty action. An agency attorney shall not
include:
(1) The Chief Counsel, the Assistant Chief Counsel for Litigation, or the
Special Counsel and Director of Civil Penalty Adjudications; or
(2) Any attorney on the staff of either the Assistant Chief Counsel for
Litigation or the Special Counsel and Director of Civil Penalty Adjudications
who advises the FAA decisionmaker regarding an initial decision or any appeal
to the FAA decisionmaker; or
(3) Any attorney who is supervised in a civil penalty action by a person
who provides such advice to the FAA decisionmaker in that action or a
factually-related action.
Attorney means a person licensed by a state, the District of Columbia, or a
territory of the United States to practice law or appear before the courts of
that state or territory.
Complaint means a document issued by an agency attorney alleging a
violation of the Federal Aviation Act of 1958, as amended, or a rule,
regulation, or order issued thereunder, or the Hazardous Materials
Transportation Act, or a rule, regulation, or order issued thereunder that
has been filed with the hearing docket after a hearing has been requested
pursuant to Sec. 13.16(d)(3) or Sec. 13.16(e)(2)(ii) of this part.
FAA decisionmaker means the Administrator of the Federal Aviation
Administration, acting in the capacity of the decisionmaker on appeal, or any
person to whom the Administrator has delegated the Administrator's
decisionmaking authority in a civil penalty action. As used in this subpart,
the FAA decisionmaker is the official authorized to issue a final decision
and order of the Administrator in a civil penalty action.
Mail includes U.S. certified mail, U.S. registered mail, or use of an
overnight express courier service.
Order assessing civil penalty means a document that contains a finding of
violation of the Federal Aviation Act of 1958, as amended, or a rule,
regulation, or order issued thereunder, or the Hazardous Materials
Transportation Act, or a rule, regulation, or order issued thereunder and may
direct payment of a civil penalty. Unless an appeal is filed with the FAA
decisionmaker in a timely manner, an initial decision or order of an
administrative law judge shall be considered an order assessing civil penalty
if an administrative law judge finds that an alleged violation occurred and
determines that a civil penalty, in an amount found appropriate by the
administrative law judge, is warranted. Unless a petition for review is filed
with a U.S. Court of Appeals in a timely manner, a final decision and order
of the Administrator shall be considered an order assessing civil penalty if
the FAA decisionmaker finds that an alleged violation occurred and a civil
penalty is warranted.
Party means the respondent or the Federal Aviation Administration (FAA).
Personal delivery includes hand-delivery or use of a contract or express
messenger service. "Personal delivery" does not include the use of Government
interoffice mail service.
Pleading means a complaint, an answer, and any amendment of these documents
permitted under this subpart.
Properly addressed means a document that shows an address contained in
agency records, a residential, business, or other address submitted by a
person on any document provided under this subpart, or any other address
shown by other reasonable and available means.
Respondent means a person, corporation, or company named in a complaint.
[Doc. No. 25690, Amdt. 13-21, 55 FR 27576, July 3, 1990, as amended by Amdt.
13-24, 58 FR 50241, Sept. 24, 1993]
SUMMARY: This final rule amends the Rules of Practice in Civil Penalty
Actions, by adding to the FAA decisionmaker's advisors the Special Counsel
and Director of Civil Penalty Adjudications (Special Counsel). The position
of Special Counsel recently has been created, with duties that include
advising the FAA decisionmaker. This rule will update the Federal Aviation
Regulations to cover the duties of the new Special Counsel.
(a) Civil penalty proceedings, including hearings, shall be prosecuted by
an agency attorney.
(b) An agency employee engaged in the performance of investigative or
prosecutorial functions in a civil penalty action shall not, in that case or
a factually-related case, participate or give advice in a decision by the
administrative law judge or by the FAA decisionmaker on appeal, except as
counsel or a witness in the public proceedings.
(c) The Chief Counsel, the Assistant Chief Counsel for Litigation, the
Special Counsel and Director of Civil Penalty Adjudications, or an attorney
on the staff of either the Assistant Chief Counsel for Litigation or the
Special Counsel and Director of Civil Penalty Adjudications, will advise the
FAA decisionmaker regarding an initial decision or any appeal of a civil
penalty action to the FAA decisionmaker.
[Doc. No. 25690, Amdt. 13-21, 55 FR 27576, July 3, 1990, as amended by Amdt.
13-24, 58 FR 50241, Sept. 24, 1993]
SUMMARY: This final rule amends the Rules of Practice in Civil Penalty
Actions, by adding to the FAA decisionmaker's advisors the Special Counsel
and Director of Civil Penalty Adjudications (Special Counsel). The position
of Special Counsel recently has been created, with duties that include
advising the FAA decisionmaker. This rule will update the Federal Aviation
Regulations to cover the duties of the new Special Counsel.
(a) Any party may appear and be heard in person.
(b) Any party may be accompanied, represented, or advised by an attorney or
representative designated by the party and may be examined by that attorney
or representative in any proceeding governed by this subpart. An attorney or
representative who represents a party may file a notice of appearance in the
action, in the manner provided in Sec. 13.210 of this subpart, and shall
serve a copy of the notice of appearance on each party, in the manner
provided in Sec. 13.211 of this subpart, before participating in any
proceeding governed by this subpart. The attorney or representative shall
include the name, address, and telephone number of the attorney or
representative in the notice of appearance.
(c) Any person may request a copy of a document upon payment of reasonable
costs. A person may keep an original document, data, or evidence, with the
consent of the administrative law judge, by substituting a legible copy of
the document for the record.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(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 authorized by law and issue notices of deposition
requested by the parties;
(4) Rule on offers of proof;
(5) Receive relevant and material evidence;
(6) Regulate the course of the hearing in accordance with the rules of this
subpart;
(7) Hold conferences to settle or to simplify the issues by consent of the
parties;
(8) Dispose of procedural motions and requests; and
(9) Make findings of fact and conclusions of law, and issue an initial
decision.
(b) Limitations on the power of the administrative law judge. The
administrative law judge shall not issue an order of contempt, award costs to
any party, or impose any sanction not specified in this subpart. If the
administrative law judge imposes any sanction not specified in this subpart,
a party may file an interlocutory appeal of right with the FAA decisionmaker
pursuant to Sec. 13.219(c)(4) of this subpart. This section does not preclude
an administrative law judge from issuing an order that bars a person from a
specific proceeding based on a finding of obstreperous or disruptive behavior
in that specific proceeding.
(c) Disqualification. The administrative law judge may disqualify himself
or herself at any time. A party may file a motion, pursuant to Sec.
13.218(f)(6), requesting that an administrative law judge be disqualified
from the proceedings.
[Doc. No. 25690, Amdt. 13-21, 55 FR 27575, July 3, 1990; Amdt. 13-21, 55 FR
29293, July 18, 1990]
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) A person may submit a motion for leave to intervene as a party in a
civil penalty action. Except for good cause shown, a motion for leave to
intervene shall be submitted not later than 10 days before the hearing.
(b) If the administrative law judge finds that intervention will not unduly
broaden the issues or delay the proceedings, the administrative law judge may
grant a motion for leave to intervene if the person will be bound by any
order or decision entered in the action or the person has a property,
financial, or other legitimate interest that may not be addressed adequately
by the parties. The administrative law judge may determine the extent to
which an intervenor may participate in the proceedings.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) Signature required. The attorney of record, the party, or the party's
representative shall sign each document tendered for filing with the hearing
docket clerk, the administrative law judge, the FAA decisionmaker on appeal,
or served on each party.
(b) Effect of signing a document. By signing a document, the attorney of
record, the party, or the party's representative certifies that the attorney,
the party, or the party's representative has read the document and, based on
reasonable inquiry and to the best of that person's knowledge, information,
and belief, the document is--
(1) Consistent with these rules;
(2) Warranted by existing law or that a good faith argument exists for
extension, modification, or reversal of existing law; and
(3) Not unreasonable or unduly burdensome or expensive, not made to harass
any person, not made to cause unnecessary delay, not made to cause needless
increase in the cost of the proceedings, or for any other improper purpose.
(c) Sanctions. If the attorney of record, the party, or the party's
representative signs a document in violation of this section, the
administrative law judge or the FAA decisionmaker shall:
(1) Strike the pleading signed in violation of this section;
(2) Strike the request for discovery or the discovery response signed in
violation of this section and preclude further discovery by the party;
(3) Deny the motion or request signed in violation of this section;
(4) Exclude the document signed in violation of this section from the
record;
(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.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) Filing. The agency attorney shall file the original and one copy of the
complaint with the hearing docket clerk, or may file a written motion
pursuant to Sec. l3.218(f)(2)(i) of this subpart instead of filing a
complaint, not later than 20 days after receipt by the agency attorney of a
request for hearing.
The agency attorney should suggest a location for the hearing when filing
the complaint.
(b) Service. An agency attorney shall personally deliver or mail a copy of
the complaint on the respondent, the president of the corporation or company
named as a respondent, or a person designated by the respondent to accept
service of documents in the civil penalty action.
(c) Contents. A complaint shall set forth the facts alleged, any regulation
allegedly violated by the respondent, and the proposed civil penalty in
sufficient detail to provide notice of any factual or legal allegation and
proposed civil penalty.
(d) Motion to dismiss allegations or complaint. Instead of filing an answer
to the complaint, a respondent may move to dismiss the complaint, or that
part of the complaint, alleging a violation that occurred on or after August
2, 1990, and more than 2 years before an agency attorney issued a notice of
proposed civil penalty to the respondent.
(1) An administrative law judge may not grant the motion and dismiss the
complaint or part of the complaint if the administrative law judge finds that
the agency has shown good cause for any delay in issuing the notice of
proposed civil penalty.
(2) If the agency fails to show good cause for any delay, an administrative
law judge may dismiss the complaint, or that part of the complaint, alleging
a violation that occurred more than 2 years before an agency attorney issued
the notice of proposed civil penalty to the respondent.
(3) A party may appeal the administrative law judge's ruling on the motion
to dismiss the complaint or any part of the complaint in accordance with Sec.
13.219(b) of this subpart.
EFFECTIVE DATE NOTE: At 55 FR 27575, July 3, 1990, Sec. 13.208 was added
effective Aug. 2, 1990.
[Doc. No. 25690, Amdt. 13-21, 55 FR 27575, July 3, 1990, as amended by Amdt.
13-22, 55 FR 31176, Aug. 1, 1990]
SUMMARY: In a final rule issued in June 1990, the FAA adopted a 2-year
limitations period that applies to civil penalty actions brought under the
agency's general assessment authority. The rule provides for dismissal of a
civil penalty action in which a notice of proposed civil penalty was issued
more than two years after an alleged violation. The preamble to the rule made
it clear that this limitations period applied to actions in which an alleged
violation occurred on or after the effective date of the June 1990 final
rule. This amendment clarifies the limitations period by expressly providing
that the 2-year limitations period does not apply to actions alleging a
violation that occurred before the effective date of the June 1990 final
rule. This action will ensure that the rule accurately reflects the intended
applicability of the limitations period to future civil penalty actions
brought under the agency's general assessment authority.
(a) Writing required. A respondent shall file a written answer to the
complaint, or may file a written motion pursuant to Sec. 13.208(d) or Sec.
13.218(f)(1-4) of this subpart instead of filing an answer, not later than 30
days after service of the complaint. The answer may be in the form of a
letter but must be dated and signed by the person responding to the
complaint. An answer may be typewritten or may be legibly handwritten.
(b) Filing and address. A person filing an answer shall personally deliver
or mail the original and one copy of the answer for filing with the hearing
docket clerk, not later than 30 days after service of the complaint, to the
Hearing Docket, Federal Aviation Administration, 800 Independence Avenue,
SW., Room 924A, Washington, DC 20591, Attention: Hearing Docket Clerk. The
person filing an answer should suggest a location for the hearing when filing
the answer.
(c) Service. A person filing an answer shall serve a copy of the answer on
the agency attorney who filed the complaint.
(d) Contents. An answer shall specifically state any affirmative defense
that the respondent intends to assert at the hearing. A person filing an
answer may include a brief statement of any relief requested in the answer.
(e) Specific denial of allegations required. A person filing an answer
shall admit, deny, or state that the person is without sufficient knowledge
or information to admit or deny, each numbered paragraph of the complaint.
Any statement or allegation contained in the complaint that is not
specifically denied in the answer may be deemed an admission of the truth of
that allegation. A general denial of the complaint is deemed a failure to
file an answer.
(f) Failure to file answer. A person's failure to file an answer without
good cause shall be deemed an admission of the truth of each allegation
contained in the complaint.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) Address and method of filing. A person tendering a document for filing
shall personally deliver or mail the signed original and one copy of each
document to the Hearing Docket, Federal Aviation Administration, 800
Independence Avenue, SW., Room 924A, Washington, DC 20591, Attention: Hearing
Docket Clerk. A person shall serve a copy of each document on each party in
accordance with Sec. 13.211 of this subpart.
(b) Date of filing. A document shall be considered to be filed on the date
of personal delivery; or if mailed, the mailing date shown on the certificate
of service, the date shown on the postmark if there is no certificate of
service, or other mailing date shown by other evidence if there is no
certificate of service or postmark.
(c) Form. Each document shall be typewritten or legibly handwritten.
(d) Contents. Unless otherwise specified in this subpart, each document
must contain a short, plain statement of the facts on which the person's case
rests and a brief statement of the action requested in the document.
[Doc. No. 25690, Amdt. 13-21, 55 FR 27575, July 3, 1990; Amdt. 13-21, 55 FR
29293, July 18, 1990]
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) General. A person shall serve a copy of any document filed with the
Hearing Docket on each party at the time of filing. Service on a party's
attorney of record or a party's designated representative may be considered
adequate service on the party.
(b) Type of service. A person may serve documents by personal delivery or
by mail.
(c) Certificate of service. A person may attach a certificate of service to
a document tendered for filing with the hearing docket clerk. A certificate
of service shall consist of a statement, dated and signed by the person
filing the document, that the document was personally delivered or mailed to
each party on a specific date.
(d) Date of service. The date of service shall be the date of personal
delivery; or if mailed, the mailing date shown on the certificate of service,
the date shown on the postmark if there is no certificate of service, or
other mailing date shown by other evidence if there is no certificate of
service or postmark.
(e) Additional time after service by mail. Whenever a party has a right or
a duty to act or to make any response within a prescribed period after
service by mail, or on a date certain after service by mail, 5 days shall be
added to the prescribed period.
(f) Service by the administrative law judge. The administrative law judge
shall serve a copy of each document including, but not limited to, notices of
prehearing conferences and hearings, rulings on motions, decisions, and
orders, upon each party to the proceedings by personal delivery or by mail.
(g) Valid service. A document that was properly addressed, was sent in
accordance with this subpart, and that was returned, that was not claimed, or
that was refused, is deemed to have been served in accordance with this
subpart. The service shall be considered valid as of the date and the time
that the document was deposited with a contract or express messenger, the
document was mailed, or personal delivery of the document was refused.
(h) Presumption of service. There shall be a presumption of service where a
party or a person, who customarily receives mail, or receives it in the
ordinary course of business, at either the person's residence or the person's
principal place of business, acknowledges receipt of the document.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) This section applies to any period of time prescribed or allowed by
this subpart, by notice or order of the administrative law judge, or by any
applicable statute.
(b) The date of an act, event, or default, after which a designated time
period begins to run, is not included in a computation of time under this
subpart.
(c) The last day of a time period is included in a computation of time
unless it is a Saturday, Sunday, or a legal holiday. If the last day of the
time period is a Saturday, Sunday, or legal holiday, the time period runs
until the end of the next day that is not a Saturday, Sunday, or legal
holiday.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) Oral requests. The parties may agree to extend for a reasonable period
the time for filing a document under this subpart. If the parties agree, the
administrative law judge shall grant one extension of time to each party. The
party seeking the extension of time shall submit a draft order to the
administrative law judge to be signed by the administrative law judge and
filed with the hearing docket clerk. The administrative law judge may grant
additional oral requests for an extension of time where the parties agree to
the extension.
(b) Written motion. A party shall file a written motion for an extension of
time with the administrative law judge not later than 7 days before the
document is due unless good cause for the late filing is shown. A party
filing a written motion for an extension of time shall serve a copy of the
motion on each party. The administrative law judge may grant the extension of
time if good cause for the extension is shown.
(c) Failure to rule. If the administrative law judge fails to rule on a
written motion for an extension of time by the date the document was due, the
motion for an extension of time is deemed granted for no more than 20 days
after the original date the document was to be filed.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) Filing and service. A party shall file the amendment with the
administrative law judge and shall serve a copy of the amendment on all
parties to the proceeding.
(b) Time. A party shall file an amendment to a complaint or an answer
within the following:
(1) Not later than 15 days before the scheduled date of a hearing, a party
may amend a complaint or an answer without the consent of the administrative
law judge.
(2) Less than 15 days before the scheduled date of a hearing, the
administrative law judge may allow amendment of a complaint or an answer only
for good cause shown in a motion to amend.
(c) Responses. The administrative law judge shall allow a reasonable time,
but not more than 20 days from the date of filing, for other parties to
respond if an amendment to a complaint, answer, or other pleading has been
filed with the administrative law judge.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
Sec. 13.215 Withdrawal of complaint or request for hearing.
At any time before or during a hearing, an agency attorney may withdraw a
complaint or a party may withdraw a request for a hearing without the consent
of the administrative law judge. If an agency attorney withdraws the
complaint or a party withdraws the request for a hearing and the answer, the
administrative law judge shall dismiss the proceedings under this subpart
with prejudice.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
Waivers of any rights provided by statute or regulation shall be in writing
or by stipulation made at a hearing and entered into the record. The parties
shall set forth the precise terms of the waiver and any conditions.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
Sec. 13.217 Joint procedural or discovery schedule.
(a) General. The parties may agree to submit a schedule for filing all
prehearing motions, a schedule for conducting discovery in the proceedings,
or a schedule that will govern all prehearing motions and discovery in the
proceedings.
(b) Form and content of schedule. If the parties agree to a joint
procedural or discovery schedule, one of the parties shall file the joint
schedule with the administrative law judge, setting forth the dates to which
the parties have agreed, and shall serve a copy of the joint schedule on each
party.
(1) The joint schedule may include, but need not be limited to, requests
for discovery, any objections to discovery requests, responses to discovery
requests to which there are no objections, submission of prehearing motions,
responses to prehearing motions, exchange of exhibits to be introduced at the
hearing, and a list of witnesses that may be called at the hearing.
(2) Each party shall sign the original joint schedule to be filed with the
administrative law judge.
(c) Time. The parties may agree to submit all prehearing motions and
responses and may agree to close discovery in the proceedings under the joint
schedule within a reasonable time before the date of the hearing, but not
later than 15 days before the hearing.
(d) Order establishing joint schedule. The administrative law judge shall
approve the joint schedule filed by the parties. One party shall submit a
draft order establishing a joint schedule to the administrative law judge to
be signed by the administrative law judge and filed with the hearing docket
clerk.
(e) Disputes. The administrative law judge shall resolve disputes regarding
discovery or disputes regarding compliance with the joint schedule as soon as
possible so that the parties may continue to comply with the joint schedule.
(f) Sanctions for failure to comply with joint schedule. If a party fails
to comply with the administrative law judge's order establishing a joint
schedule, the administrative law judge may direct that party to comply with a
motion to discovery request or, limited to the extent of the party's failure
to comply with a motion or discovery request, the administrative law judge
may:
(1) Strike that portion of a party's pleadings;
(2) Preclude prehearing or discovery motions by that party;
(3) Preclude admission of that portion of a party's evidence at the
hearing, or
(4) Preclude that portion of the testimony of that party's witnesses at the
hearing.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) General. A party applying for an order or ruling not specifically
provided in this subpart shall do so by motion. A party shall comply with the
requirements of this section when filing a motion with the administrative law
judge. A party shall serve a copy of each motion on each party.
(b) Form and contents. A party shall state the relief sought by the motion
and the particular grounds supporting that relief. If a party has evidence in
support of a motion, the party shall attach any supporting evidence,
including affidavits, to the motion.
(c) Filing of motions. A motion made prior to the hearing must be in
writing. Unless otherwise agreed by the parties or for good cause shown, a
party shall file any prehearing motion, and shall serve a copy on each party,
not later than 30 days before the hearing. Motions introduced during a
hearing may be made orally on the record unless the administrative law judge
directs otherwise.
(d) Answers to motions. Any party may file an answer, with affidavits or
other evidence in support of the answer, not later than 10 days after service
of a written motion on that party. When a motion is made during a hearing,
the answer may be made at the hearing on the record, orally or in writing,
within a reasonable time determined by the administrative law judge.
(e) Rulings on motions. The administrative law judge shall rule on all
motions as follows:
(1) Discovery motions. The administrative law judge shall resolve all
pending discovery motions not later than 10 days before the hearing.
(2) Prehearing motions. The administrative law judge shall resolve all
pending prehearing motions not later than 7 days before the hearing. If the
administrative law judge issues a ruling or order orally, the administrative
law judge shall serve a written copy of the ruling or order, within 3 days,
on each party. In all other cases, the administrative law judge shall issue
rulings and orders in writing and shall serve a copy of the ruling or order
on each party.
(3) Motions made during the hearing. The administrative law judge may issue
rulings and orders on motions made during the hearing orally. Oral rulings or
orders on motions must be made on the record.
(f) Specific motions. A party may file the following motions with the
administrative law judge:
(1) Motion to dismiss for insufficiency. A respondent may file a motion to
dismiss the complaint for insufficiency instead of filing an answer. If the
administrative law judge denies the motion to dismiss the complaint for
insufficiency, the respondent shall file an answer not later than 10 days
after service of the administrative law judge's denial of the motion. A
motion to dismiss the complaint for insufficiency must show that the
complaint fails to state a violation of the Federal Aviation Act of 1958, as
amended, or a rule, regulation, or order issued thereunder, or a violation of
the Hazardous Materials Transportation Act, or a rule, regulation, or order
issued thereunder.
(2) Motion to dismiss. A party may file a motion to dismiss, specifying the
grounds for dismissal. If an administrative law judge grants a motion to
dismiss in part, a party may appeal the administrative law judge's ruling on
the motion to dismiss under Sec. 13.219(b) of this subpart.
(i) Motion to dismiss a request for a hearing. An agency attorney may file
a motion to dismiss a request for a hearing instead of filing a complaint. If
the motion to dismiss is not granted, the agency attorney shall file the
complaint and shall serve a copy of the complaint on each party not later
than 10 days after service of the administrative law judge's ruling or order
on the motion to dismiss. If the motion to dismiss is granted and the
proceedings are terminated without a hearing, the respondent may file an
appeal pursuant to Sec. 13.233 of this subpart. If required by the decision
on appeal, the agency attorney shall file a complaint and shall serve a copy
of the complaint on each party not later than 10 days after service of the
decision on appeal.
(ii) Motion to dismiss a complaint. A respondent may file a motion to
dismiss a complaint instead of filing an answer. If the motion to dismiss is
not granted, the respondent shall file an answer and shall serve a copy of
the answer on each party not later than 10 days after service of the
administrative law judge's ruling or order on the motion to dismiss. If the
motion to dismiss is granted and the proceedings are terminated without a
hearing, the agency attorney may file an appeal pursuant to Sec. 13.233 of
this subpart. If required by the decision on appeal, the respondent shall
file an answer and shall serve a copy of the answer on each party not later
than 10 days after service of the decision on appeal.
(3) Motion for more definite statement. A party may file a motion for more
definite statement of any pleading which requires a response under this
subpart. A party shall set forth, in detail, the indefinite or uncertain
allegations contained in a complaint or response to any pleading and shall
submit the details that the party believes would make the allegation or
response definite and certain.
(i) Complaint. A respondent may file a motion requesting a more definite
statement of the allegations contained in the complaint instead of filing an
answer. If the administrative law judge grants the motion, the agency
attorney shall supply a more definite statement not later than 15 days after
service of the ruling granting the motion. If the agency attorney fails to
supply a more definite statement, the administrative law judge shall strike
the allegations in the complaint to which the motion is directed. If the
administrative law judge denies the motion, the respondent shall file an
answer and shall serve a copy of the answer on each party not later than 10
days after service of the order of denial.
(ii) Answer. An agency attorney may file a motion requesting a more
definite statement if an answer fails to respond clearly to the allegations
in the complaint. If the administrative law judge grants the motion, the
respondent shall supply a more definite statement not later than 15 days
after service of the ruling on the motion. If the respondent fails to supply
a more definite statement, the administrative law judge shall strike those
statements in the answer to which the motion is directed. The respondent's
failure to supply a more definite statement may be deemed an admission of
unanswered allegations in the complaint.
(4) Motion to strike. Any party may make a motion to strike any
insufficient allegation or defense, or any redundant, immaterial, or
irrelevant matter in a pleading. A party shall file a motion to strike with
the administrative law judge and shall serve a copy on each party before a
response is required under this subpart or, if a response is not required,
not later than 10 days after service of the pleading.
(5) Motion for decision. A party may make a motion for decision, regarding
all or any part of the proceedings, at any time before the administrative law
judge has issued an initial decision in the proceedings. The administrative
law judge shall grant a party's motion for decision if the pleadings,
depositions, answers to interrogatories, admissions, matters that the
administrative law judge has officially noticed, or evidence introduced
during the hearing show that there is no genuine issue of material fact and
that the party making the motion is entitled to a decision as a matter of
law. The party making the motion for decision has the burden of showing that
there is no genuine issue of material fact disputed by the parties.
(6) Motion for disqualification. A party may file a motion for
disqualification with the administrative law judge and shall serve a copy on
each party. A party may file the motion at any time after the administrative
law judge has been assigned to the proceedings but shall make the motion
before the administrative law judge files an initial decision in the
proceedings.
(i) Motion and supporting affidavit. A party shall state the grounds for
disqualification, including, but not limited to, personal bias, pecuniary
interest, or other factors showing disqualification, in the motion for
disqualification. A party shall submit an affidavit with the motion for
disqualification that sets forth, in detail, the matters alleged to
constitute grounds for disqualification.
(ii) Answer. A party shall respond to the motion for disqualification not
later than 5 days after service of the motion for disqualification.
(iii) Decision on motion for disqualification. The administrative law judge
shall render a decision on the motion for disqualification not later than 15
days after the motion has been filed. If the administrative law judge finds
that the motion for disqualification and supporting affidavit show a basis
for disqualification, the administrative law judge shall withdraw from the
proceedings immediately. If the administrative law judge finds that
disqualification is not warranted, the administrative law judge shall deny
the motion and state the grounds for the denial on the record. If the
administrative law judge fails to rule on a party's motion for
disqualification within 15 days after the motion has been filed, the motion
is deemed granted.
(iv) Appeal. A party may appeal the administrative law judge's denial of
the motion for disqualification in accordance with Sec. 13.219(b) of this
subpart.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) General. Unless otherwise provided in this subpart, a party may not
appeal a ruling or decision of the administrative law judge to the FAA
decisionmaker until the initial decision has been entered on the record. A
decision or order of the FAA decisionmaker on the interlocutory appeal does
not constitute a final order of the Administrator for the purposes of
judicial appellate review under section 1006 of the Federal Aviation Act of
1958, as amended.
(b) Interlocutory appeal for cause. If a party files a written request for
an interlocutory appeal for cause with the administrative law judge, or
orally requests an interlocutory appeal for cause, the proceedings are stayed
until the administrative law judge issues a decision on the request. If the
administrative law judge grants the request, the proceedings are stayed until
the FAA decisionmaker issues a decision on the interlocutory appeal. The
administrative law judge shall grant an interlocutory appeal for cause if a
party shows that delay of the appeal would be detrimental to the public
interest or would result in undue prejudice to any party.
(c) Interlocutory appeals of right. If a party notifies the administrative
law judge of an interlocutory appeal of right, the proceedings are stayed
until the FAA decisionmaker issues a decision on the interlocutory appeal. A
party may file an interlocutory appeal with the FAA decisionmaker, without
the consent of the administrative law judge, before an initial decision has
been entered in the case of:
(1) A ruling or order by the administrative law judge barring a person from
the proceedings.
(2) Failure of the administrative law judge to dismiss the proceedings in
accordance with Sec. 13.215 of this subpart.
(3) A ruling or order by the administrative law judge in violation of Sec.
13.205(b) of this subpart.
(d) Procedure. A party shall file a notice of interlocutory appeal, with
supporting documents, with the FAA decisionmaker and the hearing docket
clerk, and shall serve a copy of the notice and supporting documents on each
party and the administrative law judge, not later than 10 days after the
administrative law judge's decision forming the basis of an interlocutory
appeal of right or not later than 10 days after the administrative law
judge's decision granting an interlocutory appeal for cause, whichever is
appropriate. A party shall file a reply brief, if any, with the FAA
decisionmaker and serve a copy of the reply brief on each party, not later
than 10 days after service of the appeal brief. The FAA decisionmaker shall
render a decision on the interlocutory appeal, on the record and as a part of
the decision in the proceedings, within a reasonable time after receipt of
the interlocutory appeal.
(e) The FAA decisionmaker may reject frivolous, repetitive, or dilatory
appeals, and may issue an order precluding one or more parties from making
further interlocutory appeals in a proceeding in which there have been
frivolous, repetitive, or dilatory interlocutory appeals.
SUMMARY: In a final rule issued in June 1990, the FAA revised the
initiation procedures and the rules of practice for civil penalty actions
brought under the agency's assessment authority. The revised procedures and
rules were effective on August 2, 1990. In late July 1990, a commenter in
the rulemaking proceedings submitted a letter to the FAA, noting what the
commenter perceives to be errors or inconsistencies in the provisions of the
final rule issued in June 1990. This final rule corrects two sections of the
rules of practice in which changes were inadvertently omitted or material was
unintentionally deleted when the rules were revised and republished. These
corrections will ensure that the rules of practice accurately reflect the
agency's intent in revising the rules and will promote clear understanding
and consistent interpretation of the revised rules.
(a) Initiation of discovery. Any party may initiate discovery described in
this section, without the consent or approval of the administrative law
judge, at any time after a complaint has been filed in the proceedings.
(b) Methods of discovery. The following methods of discovery are permitted
under this section: depositions on oral examination or written questions of
any person; written interrogatories directed to a party; requests for
production of documents or tangible items to any person; and requests for
admission by a party. A party is not required to file written interrogatories
and responses, requests for production of documents or tangible items and
responses, and requests for admission and response with the administrative
law judge or the hearing docket clerk. In the event of a discovery dispute, a
party shall attach a copy of these documents in support of a motion made
under this section.
(c) Service on the agency. A party shall serve each discovery request
directed to the agency or any agency employee on the agency attorney of
record.
(d) Time for response to discovery requests. Unless otherwise directed by
this subpart or agreed by the parties, a party shall respond to a request for
discovery, including filing objections to a request for discovery, not later
than 30 days of service of the request.
(e) Scope of discovery. Subject to the limits on discovery set forth in
paragraph (f) of this section, a party may discover any matter that is not
privileged and that is relevant to the subject matter of the proceeding. A
party may discover information that relates to the claim or defense of any
party including the existence, description, nature, custody, condition, and
location of any document or other tangible item and the identity and location
of any person having knowledge of discoverable matter. A party may discover
facts known, or opinions held, by an expert who any other party expects to
call to testify at the hearing. A party has no ground to object to a
discovery request on the basis that the information sought would not be
admissible at the hearing if the information sought during discovery is
reasonably calculated to lead to the discovery of admissible evidence.
(f) Limiting discovery. The administrative law judge shall limit the
frequency and extent of discovery permitted by this section if a party shows
that--
(1) The information requested is cumulative or repetitious;
(2) The information requested can be obtained from another less burdensome
and more convenient source;
(3) The party requesting the information has had ample opportunity to
obtain the information through other discovery methods permitted under this
section; or
(4) The method or scope of discovery requested by the party is unduly
burdensome or expensive.
(g) Confidential orders. A party or person who has received a discovery
request for information that is related to a trade secret, confidential or
sensitive material, competitive or commercial information, proprietary data,
or information on research and development, may file a motion for a
confidential order with the administrative law judge and shall serve a copy
of the motion for a confidential order on each party.
(1) The party or person making the motion must show that the confidential
order is necessary to protect the information from disclosure to the public.
(2) If the administrative law judge determines that the requested material
is not necessary to decide the case, the administrative law judge shall
preclude any inquiry into the matter by any party.
(3) If the administrative law judge determines that the requested material
may be disclosed during discovery, the administrative law judge may order
that the material may be discovered and disclosed under limited conditions or
may be used only under certain terms and conditions.
(4) If the administrative law judge determines that the requested material
is necessary to decide the case and that a confidential order is warranted,
the administrative law judge shall provide:
(i) An opportunity for review of the document by the parties off the
record;
(ii) Procedures for excluding the information from the record; and
(iii) Order that the parties shall not disclose the information in any
manner and the parties shall not use the information in any other proceeding.
(h) Protective orders. A party or a person who has received a request for
discovery may file a motion for protective order with the administrative law
judge and shall serve a copy of the motion for protective order on each
party. The party or person making the motion must show that the protective
order is necessary to protect the party or the person from annoyance,
embarrassment, oppression, or undue burden or expense. As part of the
protective order, the administrative law judge may:
(1) Deny the discovery request;
(2) Order that discovery be conducted only on specified terms and
conditions, including a designation of the time or place for discovery or a
determination of the method of discovery; or
(3) Limit the scope of discovery or preclude any inquiry into certain
matters during discovery.
(i) Duty to supplement or amend responses. A party who has responded to a
discovery request has a duty to supplement or amend the response, as soon as
the information is known, as follows:
(1) A party shall supplement or amend any response to a question requesting
the identity and location of any person having knowledge of discoverable
matters.
(2) A party shall supplement or amend any response to a question requesting
the identity of each person who will be called to testify at the hearing as
an expert witness and the subject matter and substance of that witness'
testimony.
(3) A party shall supplement or amend any response that was incorrect when
made or any response that was correct when made but is no longer correct,
accurate, or complete.
(j) Depositions. The following rules apply to depositions taken pursuant to
this section:
(1) Form. A deposition shall be taken on the record and reduced to writing.
The person being deposed shall sign the deposition unless the parties agree
to waive the requirement of a signature.
(2) Administration of oaths. Within the United States, or a territory or
possession subject to the jurisdiction of the United States, a party shall
take a deposition before a person authorized to administer oaths by the laws
of the United States or authorized by the law of the place where the
examination is held. In foreign countries, a party shall take a deposition in
any manner allowed by the Federal Rules of Civil Procedure.
(3) Notice of deposition. A party shall serve a notice of deposition,
stating the time and place of the deposition and the name and address of each
person to be examined, on the person to be deposed, on the administrative law
judge, on the hearing docket clerk, and on each party not later than 7 days
before the deposition. A party may serve a notice of deposition less than 7
days before the deposition only with consent of the administrative law judge.
If a subpoena duces tecum is to be served on the person to be examined, the
party shall attach a copy of the subpoena duces tecum that describes the
materials to be produced at the deposition to the notice of deposition.
(4) Use of depositions. A party may use any part or all of a deposition at
a hearing authorized under this subpart only upon a showing of good cause.
The deposition may be used against any party who was present or represented
at the deposition or who had reasonable notice of the deposition.
(k) Interrogatories. A party, the party's attorney, or the party's
representative may sign the party's responses to interrogatories. A party
shall answer each interrogatory separately and completely in writing. If a
party objects to an interrogatory, the party shall state the objection and
the reasons for the objection. An opposing party may use any part or all of a
party's responses to interrogatories at a hearing authorized under this
subpart to the extent that the response is relevant, material, and not
repetitious.
(1) A party shall not serve more than 30 interrogatories to each other
party. Each subpart of an interrogatory shall be counted as a separate
interrogatory.
(2) A party shall file a motion for leave to serve additional
interrogatories on a party with the administrative law judge before serving
additional interrogatories on a party. The administrative law judge shall
grant the motion only if the party shows good cause for the party's failure
to inquire about the information previously and that the information cannot
reasonably be obtained using less burdensome discovery methods or be obtained
from other sources.
(l) Requests for admission. A party may serve a written request for
admission of the truth of any matter within the scope of discovery under this
section or the authenticity of any document described in the request. A party
shall set forth each request for admission separately. A party shall serve
copies of documents referenced in the request for admission unless the
documents have been provided or are reasonably available for inspection and
copying.
(1) Time. A party's failure to respond to a request for admission, in
writing and signed by the attorney or the party, not later than 30 days after
service of the request, is deemed an admission of the truth of the statement
or statements contained in the request for admission. The administrative law
judge may determine that a failure to respond to a request for admission is
not deemed an admission of the truth if a party shows that the failure was
due to circumstances beyond the control of the party or the party's attorney.
(2) Response. A party may object to a request for admission and shall state
the reasons for objection. A party may specifically deny the truth of the
matter or describe the reasons why the party is unable to truthfully deny or
admit the matter. If a party is unable to deny or admit the truth of the
matter, the party shall show that the party has made reasonable inquiry into
the matter or that the information known to, or readily obtainable by, the
party is insufficient to enable the party to admit or deny the matter. A
party may admit or deny any part of the request for admission. If the
administrative law judge determines that a response does not comply with the
requirements of this rule or that the response is insufficient, the matter is
deemed admitted.
(3) Effect of admission. Any matter admitted or deemed admitted under this
section is conclusively established for the purpose of the hearing and
appeal.
(m) Motion to compel discovery. A party may make a motion to compel
discovery if a person refuses to answer a question during a deposition, a
party fails or refuses to answer an interrogatory, if a person gives an
evasive or incomplete answer during a deposition or when responding to an
interrogatory, or a party fails or refuses to produce documents or tangible
items. During a deposition, the proponent of a question may complete the
deposition or may adjourn the examination before making a motion to compel if
a person refuses to answer.
(n) Failure to comply with a discovery order or order to compel. If a party
fails to comply with a discovery order or an order to compel, the
administrative law judge, limited to the extent of the party's failure to
comply with the discovery order or motion to compel, may:
(1) Strike that portion of a party's pleadings;
(2) Preclude prehearing or discovery motions by that party;
(3) Preclude admission of that portion of a party's evidence at the
hearing; or
(4) Preclude that portion of the testimony of that party's witnesses at the
hearing.
SUMMARY: In a final rule issued in June 1990, the FAA revised the
initiation procedures and the rules of practice for civil penalty actions
brought under the agency's assessment authority. The revised procedures and
rules were effective on August 2, 1990. In late July 1990, a commenter in
the rulemaking proceedings submitted a letter to the FAA, noting what the
commenter perceives to be errors or inconsistencies in the provisions of the
final rule issued in June 1990. This final rule corrects two sections of the
rules of practice in which changes were inadvertently omitted or material was
unintentionally deleted when the rules were revised and republished. These
corrections will ensure that the rules of practice accurately reflect the
agency's intent in revising the rules and will promote clear understanding
and consistent interpretation of the revised rules.
(a) Notice. The administrative law judge shall give each party at least 60
days notice of the date, time, and location of the hearing.
(b) Date, time, and location of the hearing. The administrative law judge
to whom the proceedings have been assigned shall set a reasonable date, time,
and location for the hearing. The administrative law judge shall consider the
need for discovery and any joint procedural or discovery schedule submitted
by the parties when determining the hearing date. The administrative law
judge shall give due regard to the convenience of the parties, the location
where the majority of the witnesses reside or work, and whether the location
is served by a scheduled air carrier.
(c) Earlier hearing. With the consent of the administrative law judge, the
parties may agree to hold the hearing on an earlier date than the date
specified in the notice of hearing.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) General. A party is entitled to present the party's case or defense by
oral, documentary, or demonstrative evidence, to submit rebuttal evidence,
and to conduct any cross-examination that may be required for a full and true
disclosure of the facts.
(b) Admissibility. A party may introduce any oral, documentary, or
demonstrative evidence in support of the party's case or defense. The
administrative law judge shall admit any oral, documentary, or demonstrative
evidence introduced by a party but shall exclude irrelevant, immaterial, or
unduly repetitious evidence.
(c) Hearsay evidence. Hearsay evidence is admissible in proceedings
governed by this subpart. The fact that evidence submitted by a party is
hearsay goes only to the weight of the evidence and does not affect its
admissibility.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
The administrative law judge shall issue an initial decision or shall rule
in a party's favor only if the decision or ruling is supported by, and in
accordance with, the reliable, probative, and substantial evidence contained
in the record. In order to prevail, the party with the burden of proof shall
prove the party's case or defense by a preponderance of reliable, probative,
and substantial evidence.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(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.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume@nitiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) The administrative law judge may order that any information contained
in the record be withheld from public disclosure. Any person may object to
disclosure of information in the record by filing a written motion to
withhold specific information with the administrative law judge and serving a
copy of the motion on each party. The party shall state the specific grounds
for nondisclosure in the motion.
(b) The administrative law judge shall grant the motion to withhold
information in the record if, based on the motion and any response to the
motion, the administrative law judge determines that disclosure would be
detrimental to aviation safety, disclosure would not be in the public
interest, or that the information is not otherwise required to be made
available to the public.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
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.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) Request for subpoena. A party may obtain a subpoena to compel the
attendance of a witness at a deposition or hearing or to require the
production of documents or tangible items from the hearing docket clerk. The
hearing docket clerk shall deliver the subpoena, signed by the hearing docket
clerk or an administrative law judge but otherwise in blank, to the party.
The party shall complete the subpoena, stating the title of the action and
the date and time for the witness' attendance or production of documents or
items. The party who obtained the subpoena shall serve the subpoena on the
witness.
(b) Motion to quash or modify the subpoena. A party, or any person upon
whom a subpoena has been served, may file a motion to quash or modify the
subpoena with the administrative law judge at or before the time specified in
the subpoena for compliance. The applicant shall describe, in detail, the
basis for the application to quash or modify the supoena including, but not
limited to, a statement that the testimony, document, or tangible evidence is
not relevant to the proceeding, that the subpoena is not reasonably tailored
to the scope of the proceeding, or that the subpoena is unreasonable and
oppressive. A motion to quash or modify the subpoena will stay the effect of
the subpoena pending a decision by the administrative law judge on the
motion.
(c) Enforcement of subpoena. Upon a showing that a person has failed or
refused to comply with a subpoena, a party may apply to the local Federal
district court to seek judicial enforcement of the subpoena in accordance
with section 1004 of the Federal Aviation Act of 1958, as amended.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) General. Unless otherwise authorized by the administrative law judge,
the party who applies for a subpoena to compel the attendance of a witness at
a deposition or hearing, or the party at whose request a witness appears at a
deposition or hearing, shall pay the witness fees described in this section.
(b) Amount. Except for an employee of the agency who appears at the
direction of the agency, a witness who appears at a deposition or hearing is
entitled to the same fees and mileage expenses as are paid to a witness in a
court of the United States in comparable circumstances.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) Exclusive record. The transcript of all testimony in the hearing, all
exhibits received into evidence, and all motions, applications, requests, and
rulings shall constitute the exclusive record for decision of the proceedings
and the basis for the issuance of any orders in the proceeding. Any
proceedings regarding the disqualification of an administrative law judge
shall be included in the record.
(b) Examination and copying of record. Any person may examine the record at
the Hearing Docket, Federal Aviation Administration, 800 Independence Avenue,
SW., Room 924A, Washington, DC 20591. Any person may have a copy of the
record after payment of reasonable costs to copy the record.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
Sec. 13.231 Argument before the administrative law judge.
(a) Arguments during the hearing. During the hearing, the administrative
law judge shall give the parties a reasonable opportunity to present
arguments on the record supporting or opposing motions, objections, and
rulings if the parties request an opportunity for argument. The
administrative law judge may request written arguments during the hearing if
the administrative law judge finds that submission of written arguments would
be reasonable.
(b) Final oral argument. At the conclusion of the hearing and before the
administrative law judge issues an initial decision in the proceedings, the
parties are entitled to submit oral proposed findings of fact and conclusions
of law, exceptions to rulings of the administrative law judge, and supporting
arguments for the findings, conclusions, or exceptions. At the conclusion of
the hearing, a party may waive final oral argument.
(c) Posthearing briefs. The administrative law judge may request written
posthearing briefs before the administrative law judge issues an initial
decision in the proceedings if the administrative law judge finds that
submission of written arguments would be reasonable. If a party files a
written posthearing brief, the party shall include proposed findings of fact
and conclusions of law, exceptions to rulings of the administrative law
judge, and supporting arguments for the findings, conclusions, or exceptions.
The administrative law judge shall give the parties a reasonable opportunity,
not more than 30 days after receipt of the transcript, to prepare and submit
the briefs.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) Contents. The administrative law judge shall issue an initial decision
at the conclusion of the hearing. In each oral or written decision, the
administrative law judge shall include findings of fact and conclusions of
law, and the grounds supporting those findings and conclusions, upon all
material issues of fact, the credibility of witnesses, the applicable law,
any exercise of the administrative law judge's discretion, the amount of any
civil penalty found appropriate by the administrative law judge, and a
discussion of the basis for any order issued in the proceedings. The
administrative law judge is not required to provide a written explanation for
rulings on objections, procedural motions, and other matters not directly
relevant to the substance of the initial decision. If the administrative law
judge refers to any previous unreported or unpublished initial decision, the
administrative law judge shall make copies of that initial decision available
to all parties and the FAA decisionmaker.
(b) Oral decision. Except as provided in paragraph (c) of this section, at
the conclusion of the hearing, the administrative law judge shall issue the
initial decision and order orally on the record.
(c) Written decision. The administrative law judge may issue a written
initial decision not later than 30 days after the conclusion of the hearing
or submission of the last posthearing brief if the administrative law judge
finds that issuing a written initial decision is reasonable. The
administrative law judge shall serve a copy of any written initial decision
on each party.
(d) Order assessing civil penalty. Unless appealed pursuant to Sec. 13.233
of this subpart, the initial decision issued by the administrative law judge
shall be considered an order assessing civil penalty if the administrative
law judge finds that an alleged violation occurred and determines that a
civil penalty, in an amount found appropriate by the administrative law
judge, is warranted.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
(a) Notice of appeal. A party may appeal the initial decision, and any
decision not previously appealed pursuant to Sec. 13.219, by filing a notice
of appeal with the FAA decisionmaker. A party shall file the notice of appeal
with the Federal Aviation Administration, 800 Independence Avenue, SW., Room
924A, Washington, DC 20591, Attention: Appellate Docket Clerk. A party shall
file the notice of appeal not later than 10 days after entry of the oral
initial decision on the record or service of the written initial decision on
the parties and shall serve a copy of the notice of appeal on each party.
(b) Issues on appeal. A party may appeal only the following issues:
(1) Whether each filing of fact is supported by a preponderance of
reliable, probative, and substantial evidence;
(2) Whether each conclusion of law is made in accordance with applicable
law, precedent, and public policy; and
(3) Whether the administrative law judge committed any prejudicial errors
during the hearing that support the appeal.
(c) Perfecting an appeal. Unless otherwise agreed by the parties, a party
shall perfect an appeal, not later than 50 days after entry of the oral
initial decision on the record or service of the written initial decision on
the party, by filing an appeal brief with the FAA decisionmaker.
(1) Extension of time by agreement of the parties. The parties may agree to
extend the time for perfecting the appeal with the consent of the FAA
decisionmaker. If the FAA decisionmaker grants an extension of time to
perfect the appeal, the appellate docket clerk shall serve a letter
confirming the extension of time on each party.
(2) Written motion for extension. If the parties do not agree to an
extension of time for perfecting an appeal, a party desiring an extension of
time may file a written motion for an extension with the FAA decisionmaker
and shall serve a copy of the motion on each party. The FAA decisionmaker may
grant an extension if good cause for the extension is shown in the motion.
(d) Appeal briefs. A party shall file the appeal brief with the FAA
decisionmaker and shall serve a copy of the appeal brief on each party.
(1) A party shall set forth, in detail, the party's specific objections to
the initial decision or rulings in the appeal brief. A party also shall set
forth, in detail, the basis for the appeal, the reasons supporting the
appeal, and the relief requested in the appeal. If the party relies on
evidence contained in the record for the appeal, the party shall specifically
refer to the pertinent evidence contained in the transcript in the appeal
brief.
(2) The FAA decisionmaker may dismiss an appeal, on the FAA decisionmaker's
own initiative or upon motion of any other party, where a party has filed a
notice of appeal but fails to perfect the appeal by timely filing an appeal
brief with the FAA decisionmaker.
(e) Reply brief. Unless otherwise agreed by the parties, any party may file
a reply brief with the FAA decisionmaker not later than 35 days after the
appeal brief has been served on that party. The party filing the reply brief
shall serve a copy of the reply brief on each party. If the party relies on
evidence contained in the record for the reply, the party shall specifically
refer to the pertinent evidence contained in the transcript in the reply
brief.
(1) Extension of time by agreement of the parties. The parties may agree to
extend the time for filing a reply brief with the consent of the FAA
decisionmaker. If the FAA decisionmaker grants an extension of time to file
the reply brief, the appellate docket clerk shall serve a letter confirming
the extension of time on each party.
(2) Written motion for extension. If the parties do not agree to an
extension of time for filing a reply brief, a party desiring an extension of
time may file a written motion for an extension with the FAA decisionmaker
and shall serve a copy of the motion on each party. The FAA decisionmaker may
grant an extension if good cause for the extension is shown in the motion.
(f) Other briefs. The FAA decisionmaker may allow any person to submit an
amicus curiae brief in an appeal of an initial decision. A party may not file
more than one appeal brief or reply brief. A party may petition the FAA
decisionmaker, in writing, for leave to file an additional brief and shall
serve a copy of the petition on each party. The party may not file the
additional brief with the petition. The FAA decisionmaker may grant leave to
file an additional brief if the party demonstrates good cause for allowing
additional argument on the appeal. The FAA decisionmaker will allow a
reasonable time for the party to file the additional brief.
(g) Number of copies. A party shall file the original appeal brief or the
original reply brief, and two copies of the brief, with the FAA
decisionmaker.
(h) Oral argument. The FAA decisionmaker has sole discretion to permit oral
argument on the appeal. On the FAA decisionmaker's own initiative or upon
written motion by any party, the FAA decisionmaker may find that oral
argument will contribute substantially to the development of the issues on
appeal and may grant the parties an opportunity for oral argument.
(i) Waiver of objections on appeal. If a party fails to object to any
alleged error regarding the proceedings in an appeal or a reply brief, the
party waives any objection to the alleged error. The FAA decisionmaker is not
required to consider any objection in an appeal brief or any argument in the
reply brief if a party's objection is based on evidence contained on the
record and the party does not specifically refer to the pertinent evidence
from the record in the brief.
(j) FAA decisionmaker's decision on appeal. The FAA decisionmaker will
review the briefs on appeal and the oral argument, if any, to determine if
the administrative law judge committed prejudicial error in the proceedings
or that the initial decision should be affirmed, modified, or reversed. The
FAA decisionmaker may affirm, modify, or reverse the initial decision, make
any necessary findings, or may remand the case for any proceedings that the
FAA decisionmaker determines may be necessary.
(1) The FAA decisionmaker may raise any issue, on the FAA decisionmaker's
own initiative, that is required for proper disposition of the proceedings.
The FAA decisionmaker will give the parties a reasonable opportunity to
submit arguments on the new issues before making a decision on appeal. If an
issue raised by the FAA decisionmaker requires the consideration of
additional testimony or evidence, the FAA decisionmaker will remand the case
to the administrative law judge for further proceedings and an initial
decision related to that issue. If an issue raised by the FAA decisionmaker
is solely an issue of law or the issue was addressed at the hearing but was
not raised by a party in the briefs on appeal, a remand of the case to the
administrative law judge for further proceedings is not required but may be
provided in the discretion of the FAA decisionmaker.
(2) The FAA decisionmaker will issue the final decision and order of the
Administrator on appeal in writing and will serve a copy of the decision and
order on each party. Unless a petition for review is filed pursuant to Sec.
13.235, a final decision and order of the Administrator shall be considered
an order assessing civil penalty if the FAA decisionmaker finds that an
alleged violation occurred and a civil penalty is warranted.
(3) A final decision and order of the Administrator after appeal is
precedent in any other civil penalty action. Any issue, finding or
conclusion, order, ruling, or initial decision of an administrative law judge
that has not been appealed to the FAA decisionmaker is not precedent in any
other civil penalty action.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
Sec. 13.234 Petition to reconsider or modify a final decision and order of
the FAA decisionmaker on appeal.
(a) General. Any party may petition the FAA decisionmaker to reconsider or
modify a final decision and order issued by the FAA decisionmaker on appeal
from an initial decision. A party shall file a petition to reconsider or
modify with the FAA decisionmaker not later than 30 days after service of the
FAA decisionmaker's final decision and order on appeal and shall serve a copy
of the petition on each party. The FAA decisionmaker will not reconsider or
modify an initial decision and order issued by an administrative law judge
that has not been appealed by any party to the FAA decisionmaker.
(b) Form and number of copies. A party shall file a petition to reconsider
or modify, in writing, with the FAA decisionmaker. The party shall file the
original petition with the FAA decisionmaker and shall serve a copy of the
petition on each party.
(c) Contents. A party shall state briefly and specifically the alleged
errors in the final decision and order on appeal, the relief sought by the
party, and the grounds that support the petition to reconsider or modify.
(1) If the petition is based, in whole or in part, on allegations regarding
the consequences of the FAA decisionmaker's decision, the party shall
describe these allegations and shall describe, and support, the basis for the
allegations.
(2) If the petition is based, in whole or in part, on new material not
previously raised in the proceedings, the party shall set forth the new
material and include affidavits of prospective witnesses and authenticated
documents that would be introduced in support of the new material. The party
shall explain, in detail, why the new material was not discovered through due
diligence prior to the hearing.
(d) Repetitious and frivolous petitions. The FAA decisionmaker will not
consider repetitious or frivolous petitions. The FAA decisionmaker may
summarily dismiss repetitious or frivolous petitions to reconsider or modify.
(e) Reply petitions. Any other party may reply to a petition to reconsider
or modify, not later than 10 days after service of the petition on that
party, by filing a reply with the FAA decisionmaker. A party shall serve a
copy of the reply on each party.
(f) Effect of filing petition. Unless otherwise ordered by the FAA
decisionmaker, filing of a petition pursuant to this section will not stay or
delay the effective date of the FAA decisionmaker's final decision and order
on appeal and shall not toll the time allowed for judicial review.
(g) FAA decisionmaker's decision on petition. The FAA decisionmaker has
sole discretion to grant or deny a petition to reconsider or modify. The FAA
decisionmaker will grant or deny a petition to reconsider or modify within a
reasonable time after receipt of the petition or receipt of the reply
petition, if any. The FAA decisionmaker may affirm, modify, or reverse the
final decision and order on appeal, or may remand the case for any
proceedings that the FAA decisionmaker determines may be necessary.
[Doc. No. 25690, Amdt. 13-21, 55 FR 27575, July 3, 1990; Amdt. 13-21, 55 FR
29293, July 18, 1990]
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
Sec. 13.235 Judicial review of a final decision and order.
A person may seek judicial review of a final decision and order of the
Administrator as provided in section 1006 of the Federal Aviation Act of
1958, as amended. A party seeking judicial review of a final decision and
order shall file a petition for review not later than 60 days after the final
decision and order has been served on the party.
SUMMARY: In accordance with a decision of the United States Court of
Appeals for the District of Columbia, issued on April 13, 1990, the FAA
published the rules of practice for civil penalty actions for comment by
interested persons. This final rule adopts and republishes, with certain
changes discussed herein, the initiation procedures and the rules of
practice for FAA civil penalty actions (1) not exceeding $50,000 for a
violation of the Federal Aviation Act of 1958, or of any rule, regulation,
or order issued thereunder, and, (2) regardless of amount, for a violation
of the Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder. Adoption of the final rule is necessary so that the
FAA may resume initiation, prosecution, and adjudication of civil penalty
actions under its statutory authority. The final rule is intended to
complete the rulemaking action issued after the court's decision.
DATES: Effective date: August 2, 1990. Effective date of the final rule
issued on April 17, 1990 (55 FR 15110; April 20, 1990): August 2, 1990.
