Federal Register / Vol. 77, No. 43 / Monday, March 5, 2012 / Proposed Rules 13027 

In the Office of General Counsel, 

contact Mr. Ari Altman, U.S. 

Department of Energy, Office of the 

General Counsel, GC–71, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121, (202) 287– 

6307, Email: Ari.Altman@hq.doe.gov. 

For information on how to submit or 

review public comments, contact Ms. 

Brenda Edwards, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121. 

Telephone (202) 586–2945. Email: 

Brenda.Edwards@ee.doe.gov. 

SUPPLEMENTARY INFORMATION: On 

January 24, 2012, DOE published a 

Federal Register notice announcing the 

availability of its preliminary technical 

support document for energy 

conservation standards for automatic 

commercial ice makers, as well as a 

public meeting to discuss and receive 

comment on the preliminary analysis. 

77 FR 3404. The NOPM provides for the 

submission of comments by March 9, 

2012. The public meeting to discuss the 

preliminary analysis was held on 

February 16, 2012. At the public 

meeting, commenters requested that 

DOE provide additional information not 

contained in the preliminary technical 

support document. DOE agreed to 

provide the additional information. In 

addition, DOE received several requests 

for an extension to the comment period 

to review this additional information. 

Therefore, DOE has determined that an 

extension of the public comment period 

is appropriate to allow for the review of 

the additional information, and is 

hereby extending the comment period. 

DOE will consider any comments 

received by April 22, 2012 to be timely. 

Further Information on Submitting 

Comments 

Under 10 CFR 1004.11, any person 

submitting information that he or she 

believes to be confidential and exempt 

by law from public disclosure should 

submit two copies: One copy of the 

document including all the information 

believed to be confidential, and one 

copy of the document with the 

information believed to be confidential 

deleted. DOE will make its own 

determination about the confidential 

status of the information and treat it 

according to its determination. 

Factors of interest to DOE when 

evaluating requests to treat submitted 

information as confidential include (1) a 

description of the items; (2) whether 

and why such items are customarily 

treated as confidential within the 

industry; (3) whether the information is 

generally known by or available from 

other sources; (4) whether the 

information has previously been made 

available to others without obligation 

concerning its confidentiality; (5) an 

explanation of the competitive injury to 

the submitting person which would 

result from public disclosure (6) when 

such information might lose its 

confidential character due to the 

passage of time; and (7) why disclosure 

of the information would be contrary to 

the public interest. 

Issued in Washington, DC, on February 28, 

2012. 

Kathleen B. Hogan, 

Deputy Assistant Secretary Energy Efficiency, 

Energy Efficiency and Renewable Energy. 

[FR Doc. 2012–5236 Filed 3–2–12; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 16 

[Docket No.: FAA–2012–0176; Notice No. 

12–01] 

RIN 2120–AJ97 

Rules of Practice for FederallyAssisted Airport Enforcement 

Proceedings (Retrospective 

Regulatory Review) 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: This action would update, 

simplify, and streamline rules of 

practice and procedure for filing and 

adjudicating complaints against 

federally-assisted airports. It would 

improve efficiency by enabling parties 

to file submissions with the Federal 

Aviation Administration (FAA) 

electronically, and by incorporating 

modern business practices into how the 

FAA handles complaints. This 

amendment is necessary to reflect 

changes in applicable laws and 

regulations, and to apply lessons 

learned since the existing rules were 

implemented in 1996. 

DATES: Send comments on or before 

May 4, 2012. 

ADDRESSES: Send comments identified 

by docket number FAA–2012–0176 

using any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for sending your 

comments electronically. 

• Mail: Send comments to Docket 

Operations, M–30; U.S. Department of 

Transportation (DOT), 1200 New Jersey 

Avenue SE., Room W12–140, West 

Building Ground Floor, Washington, DC 

20590–0001. 

• Hand Delivery or Courier: Take 

comments to Docket Operations in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

• Fax: Fax comments to Docket 

Operations at 202–493–2251. 

Privacy: The FAA will post all 

comments it receives, without change, 

to http://www.regulations.gov, including 

any personal information the 

commenter provides. Using the search 

function of the docket Web site, anyone 

can find and read the electronic form of 

all comments received into any FAA 

docket, including the name of the 

individual sending the comment (or 

signing the comment for an association, 

business, labor union, etc.). DOT’s 

complete Privacy Act Statement can be 

found in the Federal Register published 

on April 11, 2000 (65 FR 19477–19478), 

as well as at http://DocketsInfo.dot.gov. 

Docket: Background documents or 

comments received may be read at 

http://www.regulations.gov at any time. 

Follow the online instructions for 

accessing the docket or go to Docket 

Operations in Room W12–140 of the 

West Building Ground Floor at 1200 

New Jersey Avenue SE., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

technical or legal questions concerning 

this action, contact Jessie Di Gregory, 

Federal Aviation Administration, Office 

of the Chief Counsel, Airport Law 

Branch (AGC–610), 800 Independence 

Avenue SW., Washington, DC 20591; 

telephone (202) 267–3199; fax (202) 

267–5769; email: 

Jessie.DiGregory@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Authority for This Rulemaking 

The FAA’s authority to issue rules on 

aviation safety is found in Title 49 of the 

United States Code. Subtitle I, Section 

106 describes the authority of the FAA 

Administrator. Subtitle VII, Aviation 

Programs, describes in more detail the 

scope of the agency’s authority. 

This rulemaking is promulgated 

under the authority described in 

Subtitle VII, Part A, Sections 46101, 

‘‘Complaint and Investigations’’ and 

46104, ‘‘Evidence,’’ and Part B, Section 

47122, ‘‘Administrative.’’ Under these 

sections, Congress provided for the FAA 


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13028 Federal Register / Vol. 77, No. 43 / Monday, March 5, 2012 / Proposed Rules 

1 61 FR 53998, October 16, 1996. 

2This list is one of general introductions. It is not 

intended to explain each issue in detail. 

3 49 U.S.C. 47101 et seq. 

4 49 U.S.C. 47151–47153. 

5A person filing under the authority provided in 

49 CFR part 26, Participation by Disadvantaged 

Business Enterprises in Department of 

Transportation Financial Assistance Programs, 

§ 26.105(c) need not be directly and substantially 

affected by the sponsor’s alleged violation. 

6FAA Order 1100.154A, Delegations of 

Authority, para. 6.e.(1), June 12, 1990. 

7The Airports Line of Business’ Office of Airport 

Safety and Standards (AAS) delegated certain 

authority involving Part 16 complaints that allege 

civil rights violations to ACR through a 2002 

Memorandum of Understanding (MOU) from the 

AAS Director to the Deputy Assistant Administrator 

for Civil Rights. See Albuquerque Valet Service, et 

al., v. City of Albuquerque, FAA Docket No. 16–01– 

01, at 3 n.2 (Director’s Determination August 2, 

2002). 

8See 14 CFR part 16, subparts A, B, and C. 

to prescribe regulations for practices, 

methods, and procedures to hear 

complaints concerning compliance by 

federally-assisted airports and carry out 

investigations and conduct proceedings 

in a way conducive to justice and the 

proper dispatch of business. This 

rulemaking is within the scope of that 

authority because it would amend rules 

necessary to investigate, hear, and 

provide rulings on matters related to 

federally-assisted airport conduct. 

I. Overview of the Proposed Rule 

The FAA is required by statute to 

adjudicate complaints on matters within 

the agency’s authority (49 U.S.C. 46014). 

Title 14 CFR part 16, Rules of Practice 

for Federally-Assisted Airport 

Enforcement Proceedings (Part 16), 

provides a process for investigating and 

adjudicating complaints against 

sponsors for violation of federal 

obligations. For this NPRM, a sponsor is 

a recipient of federal assistance, usually 

an airport operator. This rulemaking 

would improve the efficiency of Part 16 

proceedings by providing an electronic 

filing alternative, opportunities for 

sponsors to seek early disposition of 

complaints in certain cases, and 

clarification of processes already 

described in the rule. It would affect 

those parties involved in filing and 

responding to formal complaints. It 

would also affect the FAA offices 

involved in investigating and 

adjudicating those complaints. 

The FAA, sponsors, aeronautical 

users, and other stakeholders have 15 

years of experience with Part 16 as 

implemented in 1996.1 In general, Part 

16 has been a useful process for 

resolving complaints regarding sponsor 

compliance. The FAA does not intend 

to change the basic features of the 

process. Rather, the FAA has identified 

updates to Part 16 that could improve 

the process and reduce time required to 

address certain cases, based on agency 

and stakeholder lessons learned. 

The FAA believes the agency, 

sponsors, aeronautical users, and other 

stakeholders in Part 16 proceedings 

would benefit from adding the following 

to the rule: 

• Procedures for concluding the 

investigation by ‘‘summary judgment’’ 

or dismissal without an answer by the 

sponsor. 

• Termination of complainant 

standing in certain cases where the FAA 

finds the sponsor in noncompliance on 

all issues raised in the complaint. 

• Optional electronic filing 

procedures. 

• Procedures for filing complaints 

under Title 49 CFR part 23, 

Participation of Disadvantaged Business 

Enterprises (DBEs) in Airport 

Concessions, and 49 CFR part 26, 

Participation by DBEs in Department of 

Transportation (DOT) Financial 

Assistance Programs. 

In addition, the FAA believes it would 

be helpful to clarify existing language in 

Part 16 that addresses 2— 

• Intervention and other 

participation. 

• The process for ordering corrective 

action for noncompliant sponsors. 

• Processes involving the Director, 

including procedures for seeking 

rehearing of Director’s Determinations 

upon a showing of good cause. 

• Standard of Proof and Burden of 

Proof requirements. 

• Standards for raising new issues on 

appeal to the Associate Administrator. 

• Consent Orders. 

• Requests for testimony of agency 

employees. 

• Processes involving the Associate 

Administrator, including procedures for 

seeking rehearing of Final Agency 

Decisions upon a showing of good 

cause. 

• Transfer of responsibility for 

decision-making for civil rights cases. 

• Availability of Judicial Review. 

• Extension of the time period for 

filing pleadings by mail. 

Finally, the FAA is proposing minor 

updates to terminology and organization 

within Part 16 as part of its revision. 

These changes are necessary to 

streamline the rule and reflect current 

practices. 

The FAA expects benefits of these 

proposed changes to include a decrease 

in both time spent and volume of paper 

documents required to process Part 16 

complaints. 

II. Background 

A. Current Part 16 Procedures 

Part 16 provides a specific procedure 

for filing and adjudicating formal 

complaints against sponsors where 

these complaints involve violations of 

federal obligations incurred as a 

condition of receiving federal 

assistance. Federal assistance is either a 

grant from the FAA, or transferred 

surplus or non-surplus federal property 

received by a sponsor for airport 

purposes. 

Sponsors agree to a list of standard 

conditions, or grant assurances, when 

accepting a grant.3 Similar requirements 

also attach to the transfer of federal 

surplus property to sponsors and are 

often specified as obligations in surplus 

property deeds.4 Persons directly and 

substantially affected by an alleged 

violation of one of these assurances and/ 

or obligations may file a complaint 

under Part 16 for resolution.5 The 

sponsor must file an answer and may 

include a motion to dismiss the 

complaint in the answer. The 

complainant may then file a reply to the 

answer. The sponsor may then file a 

rebuttal. Through this process the 

complainant and the sponsor each have 

the opportunity to file written 

statements with the FAA. 

The FAA Administrator has delegated 

authority to take action and issue orders 

for airport matters to the FAA Chief 

Counsel and the Associate 

Administrator for Airports.6 The 

authority includes the responsibility of 

investigating and adjudicating 

complaints against sponsors. In practice, 

the Airports and Environmental Law 

Division (AGC–600), the Airports line of 

business’ Office of Airport Compliance 

and Management Analysis (ACO), and, 

in cases involving alleged civil rights 

violations, the FAA Office of Civil 

Rights (ACR), review the complaint.7

The Airports and Environmental Law 

Division reviews the complaint to 

ensure it meets the basic filing and 

docketing requirements of Part 16.8 The 

Airports and Environmental Law 

Division coordinates its docketing or 

dismissal with the Office of Airport 

Compliance and Management Analysis. 

The Airports and Environmental Law 

Division also reviews Director’s 

Determinations and Final Agency 

Decisions for legal sufficiency. A legal 

sufficiency review assesses legal 

standards and includes consideration of 

whether the document substantially 

satisfies applicable procedural and 

regulatory requirements. 

The Director of the Office of Airport 

Compliance and Management Analysis, 


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9 59 FR 29880, June 9, 1994. 

10 61 FR 53998, October 16, 1996. 

11 64 FR 5126, February 2, 1999. 

12See Albuquerque Valet Service, et al., v. City 

of Albuquerque, FAA Docket No. 16–01–01, at 3 n.2 

(Director’s Determination August 2, 2002). 

13FAA Notice 1100.318, para. 4, April 29, 2008. 

14FAA Notice 1100.333, para. 5, May 6, 2011. 

the Deputy Assistant Administrator for 

the Office of Civil Rights, or their 

respective designee (‘‘Director’’) either 

dismisses the complaint, or conducts an 

investigation and issues a Director’s 

Determination. If the Director’s 

Determination includes a finding of 

noncompliance, it generally requires 

corrective action to return the sponsor 

to compliance. A sponsor may be 

entitled to a hearing on the Director’s 

Determination. Either party may appeal 

the Director’s Determination, or, if a 

hearing is held, the hearing officer’s 

initial decision. A party makes such an 

appeal to the Associate Administrator 

for Airports or the Assistant 

Administrator for Civil Rights, as 

appropriate, for issuance of a Final 

Agency Decision. A party may then file 

an appeal of the Final Agency Decision 

to a United States Court of Appeals. 

B. History 

The FAA published an NPRM in 1994 

(the 1994 NPRM) first proposing to set 

up specific rules of practice for the 

filing of complaints and adjudication of 

compliance matters involving federallyassisted airports.9 The resulting Final 

Rule, published in 1996 (the 1996 Final 

Rule), addressed exclusively airport 

compliance matters arising under the 

Airport and Airway Improvement Act 

(AAIA) of 1982, as amended and 

recodified; certain airport-related 

provisions of the Federal Aviation Act 

of 1958, as amended; the Surplus 

Property Act, as amended; predecessors 

to those acts; and rules, grant 

agreements, and documents of 

conveyance issued or made under those 

acts.10 Before 1996, the FAA handled 

complaints filed against sponsors under 

the agency’s general complaint 

procedures in 14 CFR part 13, 

Investigative and Enforcement 

Procedures (Part 13). The FAA had 

found these processes to be cumbersome 

and inefficient for addressing 

complaints against airports involving 

financial assistance matters. Amending 

Part 13 and establishing Part 16 

provided a dedicated procedure to the 

airport community for resolution of 

such complaints. The informal 

complaint procedures of Part 13 (§ 13.1), 

however, may be utilized to facilitate a 

Part 16 complainant meeting the precomplaint resolution requirements of 14 

CFR 16.21. Under that section, potential 

complainants are required to engage in 

good faith efforts to resolve the disputed 

matter informally with potentially 

responsible respondents before filing a 

formal Part 16 complaint. Informal 

resolution may include mediation, 

arbitration, use of a dispute resolution 

board, or other form of third party 

assistance, including assistance from the 

responsible FAA ADO or regional 

airports division. When filing a Part 16 

complaint, the complainant must certify 

that good faith efforts have been made 

to achieve informal resolution. In our 

experience, the informal resolution 

process has been effective in bringing 

both parties together in a timely manner 

to resolve differences and 

misunderstandings about the rights and 

responsibilities of the airport sponsor 

and the aeronautical user. 

In 1999, DOT cited the FAA’s Part 16 

procedures when it established 49 CFR 

part 26, Participation by Disadvantaged 

Business Enterprises (DBEs), in DOT 

Financial Assistance Programs.11 Title 

49 CFR 26.105(c) allows any person 

who knows of a violation of this part by 

a recipient of FAA funds to file a 

complaint under 14 CFR part 16. A 

person filing a Part 16 complaint under 

the authority provided in 49 CFR 

26.105(c) is accorded the same 

processes as any party filing under Part 

16, but need not be directly and 

substantially affected by the sponsor’s 

alleged violation. 

On July 5, 2001, the Director of 

Airport Safety and Standards issued a 

Notice of Limited Delegation in which 

he transferred authority to the Associate 

Administrator for Civil Rights to serve 

as ‘‘Director’’ in accordance with 14 

CFR 16.31 for a specific case.12 The 

Notice went on to say that most Part 16 

complaints address issues within the 

Director of Airport Safety and 

Standards’ expertise, but that 

complaints filed by DBEs under 49 CFR 

parts 23 and 26 are more properly 

handled by the Office of Civil Rights 

because of that office’s expertise in such 

matters. The Notice also specifically 

limited the delegation to the subject 

case, although it concluded by stating 

that a final delegation of authority 

would be included in an upcoming 

amendment to 14 CFR part 16. 

Subsequently, on February 22, 2002, 

the Director of the Office of Airport 

Safety and Standards and the Associate 

Administrator for Airports each issued 

memoranda delegating blanket authority 

in civil rights violations to the Deputy 

Assistant Administrator for Civil Rights 

and the Assistant Administrator for 

Civil Rights, respectively. These 

memoranda delegated authority to 

prepare and issue Director’s 

Determinations pursuant to 14 CFR 

16.31 and final decisions pursuant to 14 

CFR 16.33 and 16.241(b)–(f), 

respectively. 

Section 16.3 currently defines 

‘‘Director’’ to be the Director of the 

Office of Airport Safety and Standards. 

The Director holds primary 

responsibility for issuing decisions in 

response to Part 16 complaints. In 2008, 

the FAA Administrator created the 

Office of Airport Compliance and Field 

Operations, and reassigned 

responsibility for adjudication of 

complaints filed against sponsors under 

Part 16 to that organization. The goal of 

these changes was to allow the Office of 

Airport Safety and Standards to provide 

greater emphasis on core safety and 

engineering mission requirements.13

With added changes to the FAA 

Airports organization in 2011, the 

Administrator assigned the compliance 

function to the newly reorganized Office 

of Airport Compliance and Management 

Analysis.14

Various stakeholders with experience 

filing or responding to Part 16 

complaints have expressed opinions to 

the FAA on how to improve the 

complaint adjudication process. To 

obtain initial input early in 2011 as the 

agency considered pursuing rulemaking, 

the FAA held ‘‘listening sessions’’ with 

stakeholder organizations whose 

members have been most affected by 

Part 16 proceedings. The FAA met with 

representatives from the following 

associations: 

• Airports Council InternationalNorth America (ACI–NA), whose 

member airport operators may be the 

subject of complaints and therefore be 

required to respond under Part 16 

(February 2011); 

• National Air Transportation 

Association (NATA), whose member 

aviation service businesses such as fixed 

base operators (FBOs), charter 

providers, and aircraft management 

companies are often involved in Part 16 

complaints (March 2011); and 

• Aircraft Owners and Pilots 

Association (AOPA), whose member 

general aviation operators are also often 

involved in Part 16 complaints (April 

2011). 

The FAA has considered stakeholder 

recommendations as it has developed 

proposed changes to Part 16, and looks 

forward to additional input from public 

comments made in response to this 

proposed rule. 

The intent of Part 16 was to expedite 

substantially the handling and 

disposition of airport-related 


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13030 Federal Register / Vol. 77, No. 43 / Monday, March 5, 2012 / Proposed Rules 

15See § 16.19(a). 

16Fed. R. Civ. P. 56. 

17See also National Highway Traffic Safety 

Administration’s Adjudicative Procedures at 49 

CFR 511.25(d)–(e), and Federal Trade Commission 

Rules of Practice for Adjudicative Proceedings at 16 

CFR 3.24. 

18Fed. R. Civ. P. 56. 

19 61 FR 53998–53999, October 16, 1996. 

20See 61 FR 53998–53999, October 16, 1996 and 

14 CFR 16.203(b)(1). 

complaints. The FAA’s experience with 

the use of Part 16 has been positive, in 

that the rule improved on the process 

available to complainants under Part 13 

before Part 16’s implementation. While 

decisions sometimes take longer than 

the basic time frames provided in Part 

16 for many reasons, there is no backlog 

of formal complaints awaiting 

resolution. 

C. Statement of the Problem 

Part 16 has not been updated since its 

original implementation in 1996. As 

described earlier in this preamble, 

existing Part 16 processes have worked 

well but are in need of revision based 

on agency and stakeholder experience 

during the past 15 years. The FAA 

proposes adding new processes and 

revising existing processes to clarify 

Part 16 and apply lessons learned to 

provide for more efficient use of agency 

and stakeholder time and resources 

during complaint proceedings. 

III. Discussion of the Proposal 

A. Motions To Dismiss in Lieu of 

Answers and Loss of Standing by 

Prevailing Complainant 

1. Motions for Summary Judgment or 

Dismissal 

Current § 16.23(d) requires the 

respondent to file an answer to any 

complaint not dismissed by the FAA 

under § 16.25, within 20 days of the 

date of service of the FAA notification 

of docketing. Under the present rule, it 

is not worthwhile for the respondent to 

move to dismiss a complaint prior to 

preparing an answer because the 

submission of a motion to dismiss does 

not suspend the 20-day time-limit for 

filing an answer.15 The FAA has found 

that the respondent usually begins the 

sometimes costly and time-consuming 

effort of drafting an answer, complete 

with supporting documentation, at the 

same time as it drafts the motion to 

dismiss. The practical result is that, as 

suggested by current § 16.23(j), the 

motion to dismiss and the answer are 

almost always submitted at the same 

time. This practice is inconsistent with 

that of other agencies and with the 

Federal Rules of Civil Procedure.16 For 

example, 49 CFR 821.17 of the National 

Transportation Safety Board’s (NTSB) 

Rules of Practice in Air Safety 

Proceedings, found at 49 CFR 821.1, et 

seq., provides an opportunity for the 

NTSB to make a ruling through a 

summary judgment or grant a motion to 

dismiss.17

In addition to lacking consistency 

with other agency rules, the FAA 

believes that the current rule has 

required the full investigation process 

for some complaints that clearly lacked 

sufficient legal basis. The volume of 

complaints filed under Part 16 (231 

through March 2011) creates a 

significant workload for the agency and 

for respondents alike. 

Sponsor representatives in Part 16 

actions have indicated to the FAA that 

the full process under the current rule 

is burdensome in cases where 

complaints may be considered frivolous. 

They have specifically expressed 

concern about complaints they believe 

were filed merely to harass, intimidate, 

or cause financial hardship to a 

respondent. These stakeholders have 

suggested that a responsive motion 

could be used to dispose of frivolous 

complaints. 

The FAA recognizes that ‘‘frivolous’’ 

is in the eye of the beholder. That said, 

it is not consistent with the intent of 

Part 16 or good government to require 

full response and investigation of 

clearly frivolous complaints. Although 

such complaints are clearly subject to 

dismissal under §§ 16.23, 16.25, and 

16.27, the FAA recognizes that there 

may be differences of opinion about 

their applicability. Accordingly, the 

FAA believes it is appropriate to bring 

the Part 16 processes more in line with 

the Federal Rules of Civil Procedure 18

and other agencies’ practices and permit 

respondents’ some recourse and 

opportunity for ‘‘self-help,’’ consistent 

with adequate due process. Therefore, 

the FAA is proposing a new § 16.26, 

Motions to dismiss and motions for 

summary judgment. These proposed 

rules could relieve the respondent and 

the agency from completing a full 

investigative process in certain cases by 

allowing the respondent to file a motion 

to dismiss or a motion for summary 

judgment in lieu of preparing an 

answer. Under proposed § 16.26(e), the 

time-limits for filing an answer would 

begin to run after the Director’s decision 

regarding the motion for dismissal or 

summary judgment. Under proposed 

§ 16.26(f), the time-limits for filing an 

answer would begin to run, in cases 

where the Director does not act on the 

motion, within 30 days of the date an 

answer to a motion is due under 

proposed § 16.26. The proposed change 

provides the FAA, the complainant, and 

the respondent an opportunity to 

narrow the issues, and allows the FAA 

to conserve resources by investigating 

only legitimate, non-frivolous grant 

compliance issues. 

Specifically, proposed § 16.26(a) 

includes a process for summary 

judgment whereby the respondent can 

request, and the FAA can issue, a 

decision as a matter of law when there 

are no genuine issues of material fact. 

Proposed § 16.26(b) includes a process 

whereby the respondent can file, and 

the FAA can grant or deny, a motion to 

dismiss a complaint that fails to state a 

claim or where the claim is legally 

inadequate because the facts do not 

support the claim. Proposed new 

§§ 16.26(c)–(g) provide more 

requirements in these cases. 

2. Termination of Complainant Standing 

The FAA believes that a complainant 

who has prevailed on all issues at the 

Director’s decision stage has received 

due process. Therefore, the FAA is 

proposing to amend § 16.109 so that a 

complainant may not appeal a Director’s 

Determination that has found a 

respondent in noncompliance on all 

issues. Current § 16.109 does not 

address the continuing participation of 

a complainant when the Director finds 

a sponsor in noncompliance on all 

issues identified in the initial 

complaint. It is inconsistent with the 

process for a complainant to appeal an 

action in which the complainant has 

prevailed. Such appeals would produce 

unnecessary workload for the agency 

and respondents. When a complainant 

prevails at the Director’s Determination 

level, the objectives of the Part 16 

process have been met because the 

complainant has identified sponsor 

noncompliance and the FAA has agreed 

through issuance of a Director’s 

Determination. 

In the 1994 NPRM, the FAA proposed 

that the respondent and the agency 

would be parties to the hearing and 

named in the hearing order. The FAA 

received comments stating that the 

complainant should also be a party to 

the hearing. The National Business 

Aviation Association (NBAA) argued 

that ‘‘the complainant’s participation 

will help develop the record of the 

case.’’ 19 As a result, the final rule 

allowed the complainant to be a party 

to the hearing with the respondent and 

the agency.20 In the preamble to the 

final rule, the FAA stated: 


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21 61 FR 53998–53999, October 16, 1996. 

22See Centennial Express Airlines v. Arapahoe 

County Public Airport Authority, FAA Docket No. 

16–98–05, at 10 (Final Agency Decision, February 

18, 1999) (‘‘the [Part 16] Rules of Practice give 

Complainants party status only to assist the FAA in 

the development of the factual record.’’). 23 64 FR 5126, February 2, 1999. 

Under § 16.31(d), a case proceeds to a 

hearing only after the FAA has found against 

the respondent in an initial determination 

that proposes the issuance of a compliance 

order. Thus, at the hearing the FAA has the 

burden of proof to establish the validity of its 

initial determination, including the proposed 

order of compliance under § 16.109. The 

respondent is a party to the hearing who 

seeks reversal of the FAA’s initial 

determination. Although, a complainant’s 

status as an airport user alone does not give 

rise to a sufficient property interests to justify 

party status as a matter of right, party status 

for the complainant will permit it to have an 

opportunity to assist in the development of 

the factual record as pointed out by NBAA. 

In addition, providing automatic party status 

will avoid burdening the hearing officer and 

parties with routine requests for intervention 

by complainant. The rule provides the 

hearing officer with ample powers to control 

the conduct of the hearing and to assure that 

complainant’s participation does not unduly 

delay the proceedings.21

Since the enactment of Part 16, there 

has been confusion about the role of the 

complainant on appeal, given that at the 

hearing stage, the FAA has identified 

the noncompliance and taken over the 

role of complainant. The agency 

therefore becomes the prosecutor in a 

proceeding before a hearing officer. The 

FAA has the burden of proof to establish 

the validity of its initial determination, 

including the proposed order of 

compliance. Therefore, the FAA is 

clarifying that the role of the 

complainant at the hearing stage is 

limited to assisting, as needed, in the 

development of the factual record.22

B. Optional Electronic Filing Procedures 

The existing Part 16 process does not 

include provisions for electronic filing. 

Based on the success of an electronic 

filing test program that the FAA started 

in 2010, the effective implementation of 

such filing programs by other federal 

agencies, and the DOT’s implementation 

of an electronic Part 16 Docket through 

regulations.gov, the FAA is proposing a 

new § 16.13(h) to add an electronic 

filing alternative for parties to use when 

filing pleadings as part of a Part 16 

proceeding. In addition, the FAA is 

proposing new definitions for 

‘‘electronic filing’’ and ‘‘writing or 

written,’’ and amended language for the 

definition of ‘‘mail’’ in § 16.3. 

Use of electronic filing would be an 

alternative rather than a requirement. In 

most cases, the electronic filing process 

would begin at the complaint filing 

stage for the complainant and at the 

answer stage for the respondent. The 

proposed rule would continue to require 

the complainant to serve the respondent 

with the initial complaint by personal 

delivery, facsimile, or mail unless the 

respondent has previously agreed in 

writing to electronic filing. Any party 

that has agreed to file electronically 

would be able to later opt out of the 

electronic filing process. In these cases, 

the proposed rule would require all 

other parties to then serve the party that 

has opted out by personal delivery, 

facsimile, or mail. Finally, unless the 

FAA provides specific notice that it will 

not accept electronic service, any party 

could file pleadings electronically with 

the FAA docket clerk at any stage of the 

Part 16 process except the hearing stage. 

At the hearing stage, a hearing officer 

could direct the parties to serve 

pleadings by another means. 

The FAA expects that introducing the 

proposed electronic filing option would 

save participating parties and the FAA 

both time and money by foregoing the 

need to print documents on paper and 

then send them by delivery or mail. The 

new electronic filing procedures would 

expedite the process, reduce paper file 

storage requirements, and help in 

document transmittal and routing. The 

FAA also expects to reduce 

administrative costs because documents 

submitted electronically are more easily 

placed in the FAA’s electronic docket 

on regulations.gov. 

C. Applicability of Part 16 Proceedings 

for Complaints Initiated Under 49 CFR 

Part 26 

The present rule does not reference 

Disadvantaged Business Enterprises’ 

(DBEs) rights to file complaints under 

the Part 16 process. As described in 

section II.B of this preamble, the current 

rule predates the 1999 implementation 

of 49 CFR part 26, Participation by 

Disadvantaged Business Enterprises in 

DOT Financial Assistance Programs.23

Present Part 16 does not describe how 

persons who are eligible to file a 

complaint in accordance with 49 CFR 

26.105(c) may do so under Part 16, nor 

does it make clear that such a person 

does not have to be directly and 

substantially affected by the alleged 

violation to file a complaint. 

To align with 49 CFR part 26, the 

FAA is proposing to change 14 CFR part 

16 by— 

• Revising the definition of 

Complaint in § 16.3 to include a 

document filed by a person under 49 

CFR 26.105(c) against a recipient of 

FAA funds alleged to have violated a 

provision of 49 CFR parts 23 and/or 26. 

• Adding new §§ 16.21(a) and (b) that 

would relieve persons filing under 49 

CFR 26.105(c) from the informal 

resolution process required by this 

section. 

• Adding language in § 16.23(a) to 

clarify the complaint procedures for 

complainants filing under 49 CFR 

26.105(c). 

• Adding language in § 16.23(b)(4) to 

exclude a complainant filing under 49 

CFR 26.105(c) from the requirement to 

describe how the respondent directly 

and substantially affected him or her by 

‘‘things done or omitted to be done.’’ 

D. Proposals To Streamline and Clarify 

Existing Processes 

1. Intervention and Other Participation 

Current § 16.207 addresses third-party 

intervention and other participation in 

Part 16 proceedings. This section has 

been generally effective, but FAA 

experience has led the agency to 

identify several updates that would 

improve the intervention process and 

reflect current practices. First, the 

current rule does not limit third-party 

participation to the hearing stage, nor 

does it restrict such participation to the 

discretion of the hearing officer. The 

FAA therefore proposes to add a new 

§ 16.207(a) to reflect this. This addition 

would compel the redesignation of 

current paragraphs (a) through (d) as 

newly redesignated paragraphs (b) 

through (e). The FAA also proposes to 

recognize specifically the hearing 

officer’s discretion over participation at 

this stage by replacing ‘‘FAA’’ with 

‘‘hearing officer’’ in current § 16.207(d) 

(which the agency is proposing to 

redesignate as § 16.207(e)). 

The FAA requires, in practice, any 

party that wishes to intervene in Part 16 

proceedings to do so with a written 

motion. To make this practice 

transparent, the FAA is proposing to 

add the word ‘‘written’’ to the language 

in current § 16.207(a), which it is 

proposing to also redesignate as 

§ 16.207(b). 

Currently, § 16.207(b) states that a 

person may be granted leave to 

intervene if that person has a property 

or financial interest that may not be 

addressed adequately by the parties. 

The FAA believes that, as written, 

parties may infer that the intervenor 

may use the Part 16 process for 

monetary gains. This inference would 

be wrong. In practice, neither an 

intervenor nor a complainant should 

expect monetary gains, or, equitable or 

declaratory relief through the Part 16 

process. 


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24See, e.g., Davis v. Jackson Municipal Airport, 

FAA Docket No. 16–10–01, at 17 (Director’s 

Determination January 18, 2011). 25See, e.g., 49 CFR 821.1 et seq. 

26 59 FR 29880, June 9, 1994, and 61 FR 53998, 

54002, October 16, 1996. 

27Steven H. Gifis, Law Dictionary 91 (1975). 

28See Steven H. Gifis, Law Dictionary 91 (1975), 

see also Black’s Law Dictionary (9th ed. 2009). 

29 59 FR 29880, 29882, June 9, 1994. 

The FAA emphasizes that the Part 16 

process is not a means of providing 

compensation to complainants for 

damages incurred due to alleged 

sponsor violations. The purpose of the 

Part 16 process, as established in the 

1996 rule, has been to address sponsor 

noncompliance with federal obligations. 

Monetary relief, equitable relief, and 

declaratory judgment have not been 

available to complainants as remedies. 

Yet, some complainants have included 

in their complaints specific requests for 

monetary or declaratory relief under the 

current rule. Part 16 findings of 

noncompliance cannot and do not result 

in the award of monetary damages.24

The FAA proposes to clarify this point 

by amending language in current 

§ 16.207(b) to replace ‘‘if the person has 

a property or financial interest that may 

not be addressed adequately by the 

parties’’ with ‘‘if the person has an 

interest that will benefit the 

proceedings,’’ as well as redesignating 

this paragraph as § 16.207(c). 

2. Corrective Action Plans 

Presently, Part 16 identifies two 

remedies available for the FAA to 

correct a noncompliant sponsor. First, 

§ 16.109 describes procedures to 

terminate or prohibit federal grants, but 

does not address corrective action. 

Second, current §§ 16.241(c) and (f)(3) 

provide for the Associate Administrator 

to make a statement of corrective action, 

if appropriate, and identifies sanctions 

for continued noncompliance. The FAA 

has found that corrective action can be 

effective at the Director/initial decision 

level, but also could benefit from 

clarified requirements. The FAA 

proposes to allow the Director to have 

the same authority as the Associate 

Administrator to require submission 

and completion of a Corrective Action 

Plan. These changes would expedite the 

benefits of corrective action. 

Proposed new §§ 16.109(c) and 

16.245(d)(1) specify that the Director 

would be able to either enforce a 

Corrective Action Plan, or begin 

proceedings to revoke or deny the 

respondent’s application for federal 

assistance. If a respondent fails to 

complete the Corrective Action Plan 

requirement to the satisfaction of the 

FAA, proposed § 16.109(d) would allow 

the FAA to begin proceedings to revoke 

or deny the sponsor’s application for 

federal assistance. Proposed § 16.109(f) 

would give the process finality when a 

sponsor has fully complied with a 

Corrective Action Plan and/or the 

sponsor has corrected the areas of 

noncompliance by allowing the Director 

to terminate the proceedings. 

In addition, the FAA proposes to add 

language to § 16.33 to address an 

unusual situation concerning the 

interaction of a proposed Corrective 

Action Plan and an appeal of a 

Director’s Determination. This situation 

occurs when the agency finds against 

the sponsor in its initial determination 

and proceeds to work with the sponsor 

on the Corrective Action Plan, but at the 

same time the sponsor appeals the 

Director’s Determination to the 

Associate Administrator for Airports. It 

results in confusion when on the one 

hand, the agency is working with the 

sponsor on correcting its behavior, and 

on the other hand, the sponsor is 

challenging the legal basis for the 

Corrective Action Plan and alleging 

error on the Director’s part. To avoid 

this situation, the FAA is proposing to 

hold any Corrective Action Plan in 

abeyance until the appeal is resolved 

and/or a final order is issued. 

3. Processes Involving the Director 

The FAA has seen the need to clarify 

the role of the Director in certain areas. 

Section 16.11 states, in part, that the 

Director will conduct investigations, 

issue orders, and take such other actions 

as are necessary to fulfill the purposes 

of this part. It goes on to address the 

Director’s authority to set time limits. 

The FAA has experienced situations 

where a party has continued to file 

documents with the Director after the 

issuance of a Director’s Determination. 

Most of these documents challenge the 

determination and some ask for 

reconsideration. Some administrative 

processes used by other agencies allow 

the official making an initial decision to 

retain jurisdiction of a case and address 

the parties’ concerns after rendering a 

decision.25 However, it is the practice 

for the FAA to terminate the initial stage 

with the issuance of the Director’s 

Determination and then to allow the 

Associate Administrator to consider any 

challenges to the Director’s 

Determination. Part 16 does not 

presently have a process that 

specifically allows a party to ask for 

reconsideration of an initial decision. 

Allowing the Associate Administrator to 

take up any challenges to the Director’s 

Determination starting at the issuance of 

the Director’s Determination would 

adequately address parties’ interests and 

uphold due process. 

Therefore, proposed § 16.11(c) 

provides that the Director’s jurisdiction 

terminates at the issuance of a Director’s 

Determination, except where the 

determination contains a Corrective 

Action Plan and the sponsor does not 

appeal the determination. 

The FAA is also proposing to change 

the section title to better describe the 

contents of § 16.11. The authority 

described in this section is broader than 

that described by ‘‘Expedition and other 

modification of process,’’ and would be 

better described by changing this 

section heading to ‘‘General processes.’’ 

Additionally, the FAA finds it 

necessary to clarify whether or not the 

Director may be petitioned for rehearing 

after issuing his or her Director’s 

Determination. The 1994 NPRM 

preamble indicates that the FAA did not 

intend to make rehearings available to 

the parties immediately after issuance of 

the Director’s Determination. However, 

the 1996 Final Rule makes no mention 

of rehearings at that stage in either the 

regulatory text or the preamble, which 

dealt only with the availability of 

appeals to the Associate 

Administrator.26 In order to increase 

clarity and transparency, the FAA is 

proposing language in new § 16.31(e) to 

preclude requests for ‘‘rehearing, 

reargument, reconsideration, or 

modification’’ at this stage without a 

showing of ‘‘good cause.’’ 

Good cause is a ‘‘substantial or legally 

sufficient reason for doing something 

* * * ‘good cause’ might include the 

existence of a fraud, lack of notice to the 

parties or new evidence.’’ 27 It is a strict 

standard under which rehearing, 

reargument or reconsideration is not 

granted lightly.28 The FAA believes that 

full reconsideration after the Director’s 

Determination stage is unnecessary 

because of the availability of an appeal 

to the Associate Administrator. This 

position is consistent with the 1994 

NPRM’s intent to ‘‘[p]rohibit 

interlocutory appeals and requests for 

reconsideration, and focus instead on an 

effective appeals process.’’ 29

4. Standard of Proof and Burden of 

Proof 

The present rule addresses Standard 

of Proof and Burden of Proof only as 

they relate to hearing officer actions, in 

§§ 16.227 and 16.229 respectively. The 

present rule does not provide a 

Standard of Proof and a Burden of Proof 

that the Director and Associate 

Administrator must utilize. However, it 

has been the practice of the Director and 

the Associate Administrator to use the 


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30Title 49 CFR part 821, NTSB Rules of Practice 

in Air Safety Proceedings, include such limitations 

in § 821.49, Issues on appeal. Title 49 CFR part 

1503, Transportation Security Administration 

Investigative and Enforcement Proceedings, include 

such limitations in § 1503.657(b), Appeal from 

Initial Decision, Issues on Appeal. 

31See Steven H. Gifis, Law Dictionary 91 (1975), 

see also Black’s Law Dictionary (9th ed. 2009). 

same Standard of Proof and Burden of 

Proof throughout all stages of Part 16 

proceedings, even though inconsistent 

treatment is permitted under the current 

rules. This inconsistent treatment is 

neither the intent nor the practice of the 

agency. In order to apply the same 

requirements throughout all stages of 

Part 16 proceedings, the agency 

proposes to add new § 16.31(b) 

addressing Standard of Proof, and new 

§§ 16.23(k) and 16.33(e) addressing 

Burden of Proof. 

5. Limitation of Issues for Consideration 

Upon Appeal 

Currently, § 16.33(d) does not 

prescribe any limitations for the scope 

of the proceedings, and does not 

specifically prevent parties from raising 

new issues at the review stage. Parties 

in past cases have attempted to 

introduce new issues, offer additional 

evidence, and expand the scope of the 

complaint at the appeal stage. Such 

practices have delayed the issuance of 

Final Agency Decisions and have 

unfairly required parties responding to 

an appeal to defend extraneous claims. 

Other agencies limit the scope of an 

appeal, presumably for reasons of 

economy and fairness.30 The FAA 

recognizes that such limits are useful, 

and proposes to limit issues for 

consideration on appeal by adding new 

sections addressing proceedings with 

and without hearings. Therefore, under 

§§ 16.33(e) and 16.245(e), if the 

Associate Administrator sustains the 

Director or the hearing officer, the 

Associate Administrator would limit 

review to whether or not— 

• The findings of fact are each 

supported by a preponderance of 

reliable, probative and substantial 

evidence contained in the record; 

• The conclusions are made in 

accordance with law, precedent, and 

policy; 

• The questions on appeal are 

substantial; and 

• Any prejudicial errors have 

occurred. 

Further, under proposed §§ 16.33(f) and 

16.245(f), the Associate Administrator 

would not consider additional issues or 

evidence without a finding of good 

cause. 

6. Provision for Consent Orders at the 

Non-Hearing Stage 

Present § 16.243 provides an 

opportunity for parties to settle a case 

by entering into a consent order at the 

hearing stage of a proceeding. In 

practice, parties have entered into 

consent orders with the approval of the 

FAA at the non-hearing stage as well. 

This has proven to be a viable way to 

settle cases. Therefore, the FAA 

proposes to add a new § 16.34 to 

explicitly provide for this practice. The 

new process for the non-hearing stage in 

proposed § 16.34 would be consistent 

with the process in current § 16.243 for 

the hearing stage. 

7. Limitations to the Deposition of FAA 

Employees 

Current § 16.215 addresses the general 

requirements for depositions at the 

hearing stage of Part 16 proceedings. It 

does not specifically consider the 

deposition of agency employees. The 

FAA believes that this omission has 

provided an opportunity for parties to 

acquire technical data from FAA 

employees to support their case, rather 

than obtaining expert witness support. 

Proposed new § 16.215(e) would remove 

this opportunity. Specifically, new 

§ 16.215(e)(1) would align Part 16 with 

the provisions of 49 CFR part 9, 

Testimony of Employees of the 

Department and Production of Records 

in Legal Proceedings. New § 16.215(e)(2) 

would allow parties to depose agency 

employees only with the specific 

written permission of the Chief Counsel. 

8. Processes Involving the Associate 

Administrator 

The FAA believes that sections in 

current Part 16 pertaining to the 

Associate Administrator’s authority and 

review would benefit from 

consolidation and clarification, 

especially with respect to the authority 

of the Associate Administrator in 

ordering corrective action after a finding 

of noncompliance. The FAA is 

proposing the following changes: 

• Add new § 16.33(f) clarifying the 

requirements for submission of a 

petition to consider new evidence on 

appeal to the Associate Administrator to 

show ‘‘good cause.’’ 31

• Remove the Subpart G heading 

label ‘‘Initial Decisions, Orders and 

Appeals’’ from before §§ 16.241 through 

16.243, since these sections relate to the 

processes concerning hearings and are 

therefore more fittingly included in 

Subpart F, Hearings. 

• Add a new § 16.245, Associate 

Administrator Review after a Hearing, to 

Subpart F, Hearings. New paragraphs 

would include: 

Æ § 16.245(a), providing for 

permanent transfer of authority in civil 

rights cases to the FAA Assistant 

Administrator for Civil Rights (as 

described in section III.D.10 of this 

preamble); 

Æ § 16.245(b), providing a more 

complete description of the 

Administrator’s Authority to change a 

hearing officer’s initial decision or 

remand it to the hearing officer if the 

Associate Administrator finds that the 

hearing officer erred; 

Æ § 16.245(c), describing the 

Associate Administrator’s authority 

after a hearing, as adopted from current 

§ 16.241(f) with an increase of the time 

limit from 30 to 60 days for the 

Associate Administrator to issue a Final 

Agency Decision (to reflect current 

practice and resources); 

Æ § 16.245(d), Orders of Compliance, 

explaining Associate Administrator 

authority to impose a Corrective Action 

Plan when the FAA finds a sponsor in 

violation (proposed § 16.245(d)(1)), and 

to remand the case to the Director for 

enforcement of the Corrective Action 

Plan (proposed § 16.245(d)(2)) (see also 

section III.D.2 of this preamble); 

Æ §§ 16.245(e) and (f), limiting issues 

that the Associate Administrator will 

consider upon appeal (as described in 

section III.D.5 of this preamble); and 

Æ § 16.245(g), providing for appeal of 

Final Agency Decisions issued by the 

Associate Administrator in accordance 

with existing Subpart H, Judicial review 

(which the FAA proposes to redesignate 

as Subpart G). 

9. Transfer of Responsibility for Civil 

Rights Cases 

As discussed at several points in this 

preamble, the present rule predates the 

1999 DOT amendment to 49 CFR parts 

23 and 26 that provided for DBE filing 

of complaints under 14 CFR part 16, and 

does not provide specific direction for 

complaints involving civil rights issues. 

49 CFR part 26 is designed to help 

ensure that there is a level playing field 

for socially and economically 

disadvantaged firms to compete for 

airport contracting and concession 

opportunities. 

Section III.C of this preamble 

specifically addresses the process for 

complainants filing under 49 CFR parts 

23 and 26. However, the FAA also 

believes the new rule should reflect the 

agency practice of transferring the 

investigation and adjudication of part 16 

complaints involving civil rights issues 

to the Office of Civil Rights. The FAA 


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32See Albuquerque Valet Service, et al., v. City 

of Albuquerque, FAA Docket No. 16–01–01, at 3 n. 

2 (Director’s Determination February 11, 2002). 

33 61 FR 53998, 540001 October 16, 1996. 

34 59 FR 29,880–01, 29883, June 9, 1994. 

35 Finnegan v. Director, Office of Workers’ 

Compensation Programs, 69 F.3d 1039, 1040 (9th 

Cir. 1996). See also Elkins v. Gober, 229 F.3d 1369, 

1373 (Fed. Cir. 2000). C.f. State of New York v. 

United States, 568 F.2d 887, 893 (2d Cir. 1977). 

recognizes that its Office of Civil Rights 

is best suited to issue decisions in part 

16 cases filed under 49 CFR parts 23 

and 26.32 The FAA would formalize the 

authority of the FAA Office of Airports 

to transfer appropriate complaints, in 

whole or in part, to the Office of Civil 

Rights by amending the definitions of 

Associate Administrator and Director in 

current § 16.3, and adding new 

§§ 16.11(d), 16.33(a), and 16.245(a) to 

address the involvement of the Office of 

Civil Rights throughout the proceedings. 

10. Availability of Judicial Review 

Presently, § 16.247(a) provides that a 

person may seek judicial review of a 

final decision and order of the Associate 

Administrator. Section 16.247(b) states 

the decisions and determinations that 

do not constitute a final agency order. 

Although § 16.25 states that complaints 

may be dismissed with prejudice, in 

whole or in part for three reasons, the 

regulatory text is silent about whether 

such partial dismissals are interlocutory 

orders or are final orders subject to 

immediate judicial review. The 

discussion of dismissals under § 16.25 

in the preamble to the 1996 Final Rule 

states: 

[b]esides dismissal of complaints that 

clearly do not state a cause of action, or those 

that do not come within the jurisdiction of 

the Administrator, a complaint may also be 

dismissed if the complainant lacks standing 

to file the complaint under §§ 16.3 and 16.23. 

As a final order of the agency, a dismissal 

with prejudice would be appealable to a 

United States Court of Appeals.33

Similarly, the discussion in the 

preamble to the 1994 NPRM states: 

[c]omplaints that clearly do not state a 

cause of action that warrants investigation by 

the jurisdiction of the Administrator, as well 

as those that do not come within the 

jurisdiction of the Administrator under the 

authorities set forth in this part, would be 

dismissed with prejudice, within 20 days 

after receipt of the complaint. As a final order 

of the agency, a dismissal would be 

appealable to a United States Court of 

Appeals.34

An appeal to the Associate 

Administrator for Airports from an 

order of dismissal in these 

circumstances is simply not provided 

for. 

The FAA saves time and resources by 

permitting direct judicial review of 

dismissals based upon the types of 

issues set forth in § 16.25. The parties 

similarly save time and resources. 

Moreover, that position is consistent 

with decisions of United States Courts 

of Appeals, which have found that 

certain orders of administrative agencies 

may be appealed when the claims 

involved in the order are separable from 

others in the case at hand and important 

enough that a decision from the courts, 

without full agency review, is 

desirable.35

At this time, the FAA reiterates, 

consistent with the reasoning in the 

preamble of the current rule and the 

1994 NPRM, the Director has the 

discretion to issue partial as well as 

complete dismissals with prejudice. The 

FAA proposes to amend § 16.247(a) to 

clarify that such orders of dismissal 

with prejudice under § 16.25 are final 

agency orders subject to judicial review. 

11. Adjustment of Time Periods 

Specified for Service by Mail 

Presently, § 16.17(c) provides that 3 

days shall be added to the prescribed 

period after the service if the service of 

a document is by mail. The FAA is 

proposing to extend this time period to 

5 days in the new rule to align it with 

requirements contained in the agency’s 

part 13 Rules of Practice found at 14 

CFR 13.211(e). 

12. Other Updates 

The FAA proposes other minor 

updates to part 16 that include: 

• Replacing the term ‘‘Director’s 

determination’’ with ‘‘Director’s 

Determination’’ throughout the rule to 

reflect what has become a term of art; 

• Replacing references to the FAA 

Office of Airport Safety and Standards 

in the definition of ‘‘Director’’ (§ 16.3) 

with the FAA Office of Airport 

Compliance and Management Analysis, 

to reflect current FAA Office of Airport 

organization (as described in section II.B 

of this preamble); 

• Adding reference to ‘‘other Federal 

obligations’’ to §§ 16.1(a)(3)–(5) to 

ensure that any special conditions, 

terms or requirements incorporated in 

grant agreements are included within 

the provisions of general applicability to 

initiate a part 16 proceeding; 

• Removing § 16.301, Definitions, 

inserting the definitions of ‘‘decisional 

employee’’ and ‘‘ex parte 

communication’’ currently in § 16.301 

to § 16.3, Definitions, and redesignating 

§§ 16.303, 16.305, and 16.307 as 

§§ 16.301, 16.303, and 16.305, 

respectively; 

• Adding citation for 49 U.S.C. 47133, 

Restriction on use of revenues, which 

became effective in 1996 after the 

publication of current part 16, to the 

part 16 List of Authorities and 

§ 16.1(a)(5) (it is technically necessary to 

include references to 49 U.S.C. § 47133, 

Restriction on use of airport revenue, for 

completeness even though it 

supplements and parallels 49 U.S.C. 

47107(b)); 

• Amending the filing address in 

§ 16.13 to reflect that the docket clerk in 

part 16 proceedings is now located in 

AGC–600; 

• Adding clarifying instructions for 

filing motions (§ 16.19); 

• Adding § 16.19(e) Extension by 

motion, requiring that ‘‘[a] party shall 

file a written motion for extension of 

time no later than 3 days before the 

document is due,’’ to ensure clarity and 

transparency to the process of granting 

extensions. The day is described as a 

‘‘business-day’’ to avoid the 3-day limit 

encompassing a Saturday, Sunday, or 

legal holiday; and 

• Adding to § 16.21(c) requirements 

that certifications of a party’s efforts to 

obtain informal resolution involve 

descriptions of efforts that are 

‘‘relatively recent’’ and ‘‘demonstrated 

by pertinent documentation.’’ 

The FAA believes that these updates 

would align the rule with current 

practice and terminology. 

IV. Regulatory Notices and Analyses 

Changes to Federal regulations must 

undergo several economic analyses. 

First, Executive Order 12866 and 

Executive Order 13563 direct that each 

Federal agency shall propose or adopt a 

regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980 (Pub. L. 96–354) requires 

agencies to analyze the economic 

impact of regulatory changes on small 

entities. Third, the Trade Agreements 

Act (Pub. L. 96–39) prohibits agencies 

from setting standards that create 

unnecessary obstacles to the foreign 

commerce of the United States. In 

developing U.S. standards, the Trade 

Act requires agencies to consider 

international standards and, where 

appropriate, that they be the basis of 

U.S. standards. Fourth, the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4) requires agencies to prepare a 

written assessment of the costs, benefits, 

and other effects of proposed or final 

rules that include a Federal mandate 

likely to result in the expenditure by 

State, local, or tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more annually (adjusted 

for inflation with base year of 1995). 

This portion of the preamble 


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summarizes the FAA’s analysis of the 

economic impacts of this proposed rule. 

A. Regulatory Evaluation 

Department of Transportation Order 

DOT 2100.5 prescribes policies and 

procedures for simplification, analysis, 

and review of regulations. If the 

expected cost impact is so minimal that 

a proposed or final rule does not 

warrant a full evaluation, this order 

permits that a statement to that effect 

and the basis for it be included in the 

preamble if a full regulatory evaluation 

of the cost and benefits is not prepared. 

Such a determination has been made for 

this proposed rule. 

The reasoning for this determination 

follows: The FAA’s Office of Airport 

Compliance and Management Analysis 

handles complaints made against 

federally-assisted airports. Part 16 

provides a process for investigating and 

adjudicating complaints against airport 

operators for violation of federal 

obligations. This proposed rule clarifies 

and improves the efficiency of the 

current part 16 regulations for 

adjudicating complaints on matters 

within the agency’s authority. These 

changes would be cost beneficial as they 

decrease time spent and volume of 

paper documents required to process 

part 16 complaints. Resource savings 

would be produced by allowing parties 

and the government to use the new 

electronic filing process and allow a 

respondent to file a motion to dismiss 

or a motion for summary judgment in 

lieu of an answer. Once the complainant 

has prevailed at the Director’s 

Determination, no further positive 

outcome can be obtained through FAA 

action. At this point there is no further 

purpose to be served by the complainant 

and further appeals (and participation) 

are not productive. 

The expected outcome will be a 

minimal impact with positive net 

benefits, and a regulatory evaluation 

was not prepared. The FAA requests 

comments regarding this determination. 

FAA has, therefore, determined that 

this proposed rule is not a ‘‘significant 

regulatory action’’ as defined in section 

3(f) of Executive Order 12866, and is not 

‘‘significant’’ as defined in DOT’s 

Regulatory Policies and Procedures. 

B. Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 1980 

(Pub. L. 96–354) (RFA) establishes ‘‘as a 

principle of regulatory issuance that 

agencies shall endeavor, consistent with 

the objectives of the rule and of 

applicable statutes, to fit regulatory and 

informational requirements to the scale 

of the businesses, organizations, and 

governmental jurisdictions subject to 

regulation. To achieve this principle, 

agencies are required to solicit and 

consider flexible regulatory proposals 

and to explain the rationale for their 

actions to assure that such proposals are 

given serious consideration.’’ The RFA 

covers a wide-range of small entities, 

including small businesses, not-forprofit organizations, and small 

governmental jurisdictions. 

Agencies must perform a review to 

determine whether a rule will have a 

significant economic impact on a 

substantial number of small entities. If 

the agency determines that it will, the 

agency must prepare a regulatory 

flexibility analysis as described in the 

RFA. However, if an agency determines 

that a rule is not expected to have a 

significant economic impact on a 

substantial number of small entities, 

section 605(b) of the RFA provides that 

the head of the agency may so certify 

and a regulatory flexibility analysis is 

not required. The certification must 

include a statement providing the 

factual basis for this determination, and 

the reasoning should be clear. 

As noted above, the proposed changes 

to part 16 are cost relieving. 

Accordingly, the proposed rule would 

not have a significant impact on a 

substantial number of small entities. 

Therefore, the FAA certifies that this 

proposed rule would not have a 

significant economic impact on a 

substantial number of small entities. 

The FAA requests comments regarding 

this determination. Specifically, the 

FAA requests comments on whether the 

proposed rule creates any specific 

compliance costs unique to small 

entities. Please provide detailed 

economic analysis to support any cost 

claims. 

C. International Trade Impact 

Assessment 

The Trade Agreements Act of 1979 

(Pub. L. 96–39), as amended by the 

Uruguay Round Agreements Act (Pub. 

L. 103–465), prohibits Federal agencies 

from establishing standards or engaging 

in related activities that create 

unnecessary obstacles to the foreign 

commerce of the United States. 

Pursuant to these Acts, the 

establishment of standards is not 

considered an unnecessary obstacle to 

the foreign commerce of the United 

States, so long as the standard has a 

legitimate domestic objective, such as 

the protection of safety, and does not 

operate in a manner that excludes 

imports that meet this objective. The 

statute also requires consideration of 

international standards and, where 

appropriate, that they be the basis for 

U.S. standards. The FAA has assessed 

the potential effect of this proposed rule 

and determined that it would have only 

a domestic impact and therefore create 

no obstacles to the foreign commerce of 

the United States. 

D. Unfunded Mandates Assessment 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

requires each Federal agency to prepare 

a written statement assessing the effects 

of any Federal mandate in a proposed or 

final agency rule that may result in an 

expenditure of $100 million or more (in 

1995 dollars) in any one year by State, 

local, and tribal governments, in the 

aggregate, or by the private sector; such 

a mandate is deemed to be a ‘‘significant 

regulatory action.’’ The FAA currently 

uses an inflation-adjusted value of 

$143.1 million in lieu of $100 million. 

This proposed rule does not contain 

such a mandate; therefore, the 

requirements of Title II of the Act do not 

apply. 

E. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3507(d)) requires that the 

FAA consider the impact of paperwork 

and other information collection 

burdens imposed on the public. The 

FAA has determined that there would 

be no new requirement for information 

collection associated with this proposed 

rule. 

F. International Compatibility 

In keeping with U.S. obligations 

under the Convention on International 

Civil Aviation, it is FAA policy to 

conform to International Civil Aviation 

Organization (ICAO) Standards and 

Recommended Practices to the 

maximum extent practicable. The FAA 

has determined that there are no ICAO 

Standards and Recommended Practices 

that correspond to these proposed 

regulations. 

G. Environmental Analysis 

FAA Order 1050.1E, Policies and 

Procedures for Considering 

Environmental Impacts, identifies FAA 

actions that are categorically excluded 

from preparation of an environmental 

assessment or environmental impact 

statement under the National 

Environmental Policy Act in the 

absence of extraordinary circumstances. 

The FAA has determined this 

rulemaking action qualifies for the 

categorical exclusion identified in 

paragraph 312d and involves no 

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V. Executive Order Determinations 

A. Executive Order 13132, Federalism 

The FAA has analyzed this proposed 

rule under the principles and criteria of 

Executive Order 13132, Federalism. The 

agency has determined that this action 

would not have a substantial direct 

effect on the States, or the relationship 

between the Federal Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government, and, 

therefore, would not have Federalism 

implications. 

B. Executive Order 13211, Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use 

The FAA analyzed this proposed rule 

under Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use (May 18, 2001). The 

agency has determined that it would not 

be a ‘‘significant energy action’’ under 

the executive order and would not be 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. 

VI. Additional Information 

A. Comments Invited 

The FAA invites interested persons to 

participate in this rulemaking by 

submitting written comments, data, or 

views. The agency also invites 

comments relating to the economic, 

environmental, energy, or federalism 

impacts that might result from adopting 

the proposals in this document. The 

most helpful comments reference a 

specific portion of the proposal, explain 

the reason for any recommended 

change, and include supporting data. To 

ensure the docket does not contain 

duplicate comments, commenters 

should send only one copy of written 

comments, or if comments are filed 

electronically, commenters should 

submit only one time. 

The FAA will file in the docket all 

comments it receives, as well as a report 

summarizing each substantive public 

contact with FAA personnel concerning 

this proposed rulemaking. Before acting 

on this proposal, the FAA will consider 

all comments it receives on or before the 

closing date for comments. The FAA 

will consider comments filed after the 

comment period has closed if it is 

possible to do so without incurring 

expense or delay. The agency may 

change this proposal in light of the 

comments it receives. 

B. Availability of Rulemaking 

Documents 

An electronic copy of rulemaking 

documents may be obtained from the 

Internet by— 

1. Searching the Federal eRulemaking 

Portal (http://www.regulations.gov); 

2. Visiting the FAA’s Regulations and 

Policies Web page at http:// 

www.faa.gov/regulations_policies or 

3. Accessing the Government Printing 

Office’s Web page at http:// 

www.gpoaccess.gov/fr/index.html. 

Copies may also be obtained by 

sending a request to the Federal 

Aviation Administration, Office of 

Rulemaking, ARM–1, 800 Independence 

Avenue SW., Washington, DC 20591, or 

by calling (202) 267–9680. Commenters 

must identify the docket or notice 

number of this rulemaking. 

All documents the FAA considered in 

developing this proposed rule, 

including economic analyses and 

technical reports, may be accessed from 

the Internet through the Federal 

eRulemaking Portal referenced in item 

(1) above. 

List of Subjects in 14 CFR Part 16 

Administrative practice and 

procedure, Airports, Investigations. 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend chapter I of title 14, 

Code of Federal Regulations as follows: 

PART 16—RULES OF PRACTICE FOR 

FEDERALLY-ASSISTED AIRPORT 

ENFORCEMENT PROCEEDINGS 

1. The authority citation for part 16 is 

revised to read as follows: 

Authority: 49 U.S.C. 106(g), 322, 1110, 

1111, 1115, 1116, 1718 (a) and (b), 1719, 

1723, 1726, 1727, 40103(e), 40113, 40116, 

44502(b), 46101, 46104, 46110, 47104, 

47106(e), 47107, 47108, 47111(d), 47122, 

47123–47125, 47133, 47151–47153, 48103. 

2. Amend § 16.1 by revising 

paragraphs (a) introductory text and 

(a)(3) through (6) to read as follows: 

§ 16.1 Applicability and description of part. 

(a) General. The provisions of this 

part govern all Federal Aviation 

Administration (FAA) proceedings 

involving Federally-assisted airports, 

except for complaints or requests for 

determination filed with the Secretary 

under 14 CFR part 302, whether the 

proceedings are instituted by order of 

the FAA or by filing a complaint with 

the FAA under the following 

authorities: 

* * * * * 

(3) The assurances and other Federal 

obligations contained in grant-in-aid 

agreements issued under the Federal 

Airport Act of 1946, 49 U.S.C. 1101 et 

seq. (repealed 1970). 

(4) The assurances and other Federal 

obligations contained in grant-in-aid 

agreements issued under the Airport 

and Airway Development Act of 1970, 

as amended, 49 U.S.C. 1701 et seq. 

(5) The assurances and other Federal 

obligations contained in grant-in-aid 

agreements issued under the Airport 

and Airway Improvement Act of 1982 

(AAIA), as amended, 49 U.S.C. 47101 et 

seq., specifically section 511(a), 49 

U.S.C. 47107, and 49 U.S.C. 47133. 

(6) Section 505(d) of the Airport and 

Airway Improvement Act of 1982, and 

the requirements concerning civil rights 

and/or Disadvantaged Business 

Enterprise (DBE) issues contained in 49 

U.S.C. 47107(e) and 49 U.S.C. 47113; 49 

U.S.C. 47123; 49 U.S.C. 322, as 

amended; 49 CFR parts 23 and/or 26; 

and/or grant assurance 30 and/or grant 

assurance 37. 

* * * * * 

3. Amend § 16.3 as follows: 

a. Remove the definitions of Director’s 

determination, File, and Final decision 

and order; 

b. Revise the definitions of Agency 

employee, Associate Administrator, 

Complaint, Director, Hearing officer, 

Mail, and Personal delivery; and 

c. Add definitions for Administrator, 

Agency, Decisional employee, Electronic 

filing, Ex parte communication, and 

Writing or written. 

The revisions and additions read as 

follows: 

§ 16.3 Definitions. 

* * * * * 

Administrator means the 

Administrator of the FAA; 

Agency means the FAA. 

* * * * * 

Agency employee means any 

employee of the FAA. 

Associate Administrator means the 

FAA Associate Administrator for 

Airports or a designee. For the purposes 

of this part only, Associate 

Administrator also means the Assistant 

Administrator for Civil Rights or a 

designee for complaints that the FAA 

Associate Administrator for Airports 

transfers to the Assistant Administrator 

for Civil Rights. 

* * * * * 

Complaint means a written document 

meeting the requirements of this part 

and filed under this part: 

(1) By a person directly and 

substantially affected by anything 

allegedly done or omitted to be done by 


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any person in contravention of any 

provision of any Act, as defined in this 

section, as to matters within the 

jurisdiction of the Administrator, or 

(2) By a person under 49 CFR 

26.105(c) against a recipient of FAA 

funds alleged to have violated a 

provision of 49 CFR parts 23 and/or 26. 

Decisional employee means the 

Administrator, Deputy Administrator, 

Associate Administrator, Director, 

hearing officer, or other FAA employee 

who is or who may reasonably be 

expected to be involved in the 

decisional process of the proceeding. 

Director means the Director of the 

FAA Office of Airport Compliance and 

Management Analysis, or a designee. 

For the purposes of this part only, 

Director also means the Deputy 

Assistant Administrator for Civil Rights 

for complaints that the Director of the 

FAA Office of Airport Compliance and 

Management Analysis transfers to the 

Deputy Assistant Administrator for Civil 

Rights or designee. 

Electronic filing means the process of 

sending electronic mail (email) to the 

FAA Part 16 Docket Clerk, with scanned 

documents attached, as a Portable 

Document Format (PDF) file. 

Ex parte communication means an 

oral or written communication not on 

the public record with respect to which 

reasonable prior notice to all parties is 

not given, but it shall not include 

requests for status reports on any matter 

or proceeding covered by this part, or 

communications between FAA 

employees who participate as parties to 

a hearing pursuant to 16.203(b) of this 

part and other parties to a hearing. 

Hearing officer means an attorney 

designated by the Deputy Chief Counsel 

in a hearing order to serve as a hearing 

officer in a hearing under this part. The 

following are not designated as hearing 

officers: the Chief Counsel and Deputy 

Chief Counsel; the Regional or Center 

Counsel and attorneys in the FAA 

region or center in which the 

noncompliance has allegedly occurred 

or is occurring; the Assistant Chief 

Counsel and attorneys in the Airport 

Law Branch of the FAA Office of the 

Chief Counsel; and the Assistant Chief 

Counsel and attorneys in the Litigation 

Division of the FAA Office of Chief 

Counsel. 

* * * * * 

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

certified mail; and U.S. express mail. 

Unless otherwise noted, mail also 

means electronic mail containing PDF 

copies of pleadings or documents 

required herein. 

* * * * * 

Personal delivery means same-day 

hand delivery or overnight express 

delivery service. 

* * * * * 

Writing or written includes paper 

documents that are filed and/or served 

by mail, personal delivery, facsimile, or 

email (as attached PDF files). 

4. Amend § 16.11 by revising the 

section heading and paragraphs (a) and 

(b) introductory text, and adding 

paragraphs (c) and (d) to read as follows: 

§ 16.11 General processes. 

(a) Under the authority of 49 U.S.C. 

40113 and 47121, the Director may 

conduct investigations, issue orders, 

and take such other actions as are 

necessary to fulfill the purposes of this 

part. This includes the extension of any 

time period prescribed, where necessary 

or appropriate for a fair and complete 

consideration of matters before the 

agency, prior to issuance of the 

Director’s Determination. 

(b) Notwithstanding any other 

provision of this part, upon finding that 

circumstances require expedited 

handling of a particular case or 

controversy, the Director may issue an 

order directing any of the following 

prior to the issuance of the Director’s 

Determination: 

* * * * * 

(c) Other than those matters 

concerning a Corrective Action Plan, the 

jurisdiction of the Director terminates 

upon the issuance of the Director’s 

Determination. All matters arising 

during the appeal period, such as 

requests for extension of time to make 

an appeal, will be addressed by the 

Associate Administrator. 

(d) The Director may transfer to the 

FAA Deputy Assistant Administrator for 

Civil Rights or Office of Civil Rights 

designee the authority to prepare and 

issue Director’s Determinations 

pursuant to § 16.31 for complaints 

alleging violations of Section 505(d) of 

the Airport and Airway Improvement 

Act of 1982, and the requirements 

concerning civil rights and/or 

Disadvantaged Business Enterprise 

(DBE) issues contained in 49 U.S.C. 

47107(e) and 49 U.S.C. 47113; 49 U.S.C. 

47123; 49 U.S.C. 322, as amended; 49 

CFR parts 23 and/or 26; and/or grant 

assurance 30 and/or grant assurance 37. 

5. Amend § 16.13 by revising 

paragraphs (a), (b), (c), (d), and (f) and 

adding paragraphs (h) and (i) to read as 

follows: 

§ 16.13 Filing of documents. 

* * * * * 

(a) Filing address. Documents filed 

under this Part shall be filed with the 

Office of the Chief Counsel, Attention: 

FAA Part 16 Docket Clerk, AGC–600, 

Federal Aviation Administration, 800 

Independence Ave., SW., Washington, 

DC 20591. Documents to be filed with 

a hearing officer shall be filed at the 

address and in the manner stated in the 

hearing order. 

(b) Date and method of filing. Filing 

of any document shall be by personal 

delivery or mail as defined in this part, 

by facsimile (when confirmed by filing 

on the same date by one of the foregoing 

methods), or electronically as set forth 

in paragraph (h) of this section. Unless 

the date is shown to be inaccurate, 

documents filed with the FAA shall be 

deemed to be filed on the date of 

personal delivery, on the mailing date 

shown on the certificate of service, on 

the date shown on the postmark if there 

is no certificate of service, on the send 

date shown on the facsimile (provided 

filing has been confirmed through one 

of the foregoing methods), or on the 

mailing date shown by other evidence if 

there is no certificate of service and no 

postmark. Unless the date is shown to 

be inaccurate, documents filed 

electronically shall be deemed to be 

filed on the date shown on the 

certificate of service or, if none, the date 

of electronic transmission to the last 

party required to be served. 

(c) Number of copies. With the 

exception of electronic filing or unless 

otherwise specified, an executed 

original and three copies of each 

document shall be filed with the FAA 

Part 16 Docket Clerk. One of the three 

copies shall not be stapled, bound or 

hole-punched. Copies need not be 

signed, but the name of the person 

signing the original shall be shown. If a 

hearing order has been issued in the 

case, one of the three copies shall be 

filed with the hearing officer unless 

otherwise prescribed by the hearing 

officer. A facsimile neither constitutes 

an executed original nor one of the three 

copies required directly above. 

(d) Form. Documents filed under this 

part shall: 

(1) Be typewritten or legibly printed; 

(2) Include, in the case of docketed 

proceedings, the docket number of the 

proceeding on the front page; and 

(3) Be marked to identify personal, 

privileged or proprietary information. 

Decisions for the publication and 

release of these documents will be made 

in accordance with 5 U.S.C. 552 and 49 

CFR part 7. 

* * * * * 

(f) Designation of person to receive 

service. The initial document filed by 

any person shall state on the first page 

the name, post office address, telephone 

number, facsimile number, if any, and 


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email address, if filing electronically, of 

the person(s) to be served with 

documents in the proceeding. If any of 

these items change during the 

proceeding, the person shall promptly 

file notice of the change with the FAA 

Part 16 Docket Clerk and the hearing 

officer and shall serve the notice on all 

parties. 

* * * * * 

(h) Electronic filing. (1) The initial 

complaint may be served electronically 

upon the respondent only if the 

respondent has previously agreed with 

the complainant in writing to 

participate in electronic filing. 

Documents may be filed under this Part 

electronically by sending an email 

containing (an) attachment(s) of (a) PDF 

file(s) of the required pleading to the 

FAA Docket Clerk, and the person 

designated in paragraph (h)(3) of this 

section. 

(2) The subject line of the email must 

contain the names of the complainant 

and respondent, and must contain the 

FAA docket number (if assigned). The 

size of each email must be less than 10 

MB. Email attachments containing 

executable files (e.g., .exe and .vbs files) 

will not be accepted. 

(3) The email address at which the 

parties may file the documents 

described in this section is 9–AWA– 

AGC–Part-16@faa.gov. No 

acknowledgement or receipt will be 

provided by the FAA to parties using 

this method. A party filing 

electronically as described in this 

section must provide to the FAA Part 16 

Docket Clerk and the opposing party an 

email address of the person designated 

by the party to receive pleadings. 

(4) By filing a pleading or document 

electronically as described in this 

section, a party waives the rights under 

this part for service by the opposing 

party and the FAA by methods other 

than email. If a party subsequently 

decides to ‘‘opt-out’’ of electronic filing, 

that party must so notify the FAA Part 

16 Docket Clerk and the other party in 

writing, from which time the FAA and 

the parties will begin serving the optingout party in accordance with §§ 16.13 

and 16.15. This subsection only 

exempts the parties from the filing and 

service requirements in § 16.13(a) (with 

the exception that ‘‘Documents to be 

filed with a hearing officer shall be filed 

at the address stated in the hearing 

order.’’), the method of filing 

requirements in § 16.13(b), and the 

number of documents requirements in 

§ 16.13(c). 

(i) Internet accessibility of documents 

filed in the Hearing Docket. (1) Unless 

protected from public disclosure, all 

documents filed in the Hearing Docket 

are accessible through the Federal 

Docket Management System (FDMS): 

http://www.regulations.gov. To access a 

particular case file, use the FDMS 

number assigned to the case. 

(2) Determinations issued by the 

Director and Associate Administrator in 

Part 16 cases, indexes of decisions, 

contact information for the FAA Hearing 

Docket, the rules of practice, and other 

information are available on the FAA 

Office of Airport’s Web site at: http:// 

part16.airports.faa.gov/index.cfm. 

6. Amend § 16.15 by revising 

paragraphs (a), (b), (d)(1) and (d)(2), and 

adding paragraph (d)(3) to read as 

follows: 

§ 16.15 Service of documents on the 

parties and the agency. 

* * * * * 

(a) Who must be served. Copies of all 

documents filed with the FAA Part 16 

Docket Clerk shall be served by the 

persons filing them on all parties to the 

proceeding. A certificate of service shall 

accompany all documents when they 

are tendered for filing and shall certify 

concurrent service on the FAA and all 

parties. Certificates of service shall be in 

substantially the following form: 

I hereby certify that I have this day served 

the foregoing [name of document] on the 

following persons at the following addresses, 

facsimile numbers (if also served by 

facsimile), or email address (if served 

electronically in accordance with § 16.13(h)), 

by [specify method of service]: 

[list persons, addresses, facsimile numbers, 

email addresses (as applicable)] 

Dated this ll day of ll, 20ll. 

[signature], for [party] 

(b) Method of service. Except as 

otherwise agreed by the parties and, if 

applicable, the hearing officer, the 

method of service is the same as set 

forth in § 16.13(b) for filing documents. 

* * * * * 

(d) * * * 

(1) When acknowledgment of receipt 

is by a person who customarily or in the 

ordinary course of business receives 

mail at the address of the party or of the 

person designated under § 16.13(f); 

(2) When a properly addressed 

envelope, sent to the most current 

address submitted under § 16.13(f), has 

been returned as undeliverable, 

unclaimed, or refused; or 

(3) When the party serving the 

document electronically has a 

confirmation statement demonstrating 

that the email was properly sent to a 

party correctly addressed. 

* * * * * 

7. Amend § 16.17 by revising 

paragraph (c) to read as follows: 

§ 16.17 Computation of time. 

* * * * * 

(c) Whenever a party has the right or 

is required to do some act within a 

prescribed period after service of a 

document upon the party, and the 

document is served on the party by first 

class mail or certified mail, 5 days shall 

be added to the prescribed period. 

8. Amend § 16.19 by adding 

paragraphs (d) and (e) to read as follows: 

§ 16.19 Motions. 

* * * * * 

(d) Deferred actions on motions. A 

ruling on a motion made before the time 

set for the issuance of the Director’s 

Determination may be deferred to and 

included with the Director’s 

Determination. 

(e) Extension by motion. A party shall 

file a written motion for an extension of 

time not later than 3 business days 

before the document is due unless good 

cause for the late filing is shown. A 

party filing a motion for extension 

should attempt to obtain the 

concurrence of the opposing party. A 

party filing a written motion for an 

extension of time shall file the motion 

as required under § 16.13, and serve a 

copy of the motion on all parties and the 

docket clerk as required under § 16.15. 

9. Revise § 16.21 to read as follows: 

§ 16.21 Pre-complaint resolution. 

(a) Except for those persons filing 

under 49 CFR 26.105(c), prior to filing 

a complaint under this part, a person 

directly and substantially affected by 

the alleged noncompliance shall initiate 

and engage in good faith efforts to 

resolve the disputed matter informally 

with those individuals or entities 

believed responsible for the 

noncompliance. These efforts at 

informal resolution may include, 

without limitation, at the parties’ 

expense, mediation, arbitration, or the 

use of a dispute resolution board, or 

other form of third party assistance. The 

FAA Airports District Office, FAA 

Airports Field Office, FAA Regional 

Airports Division responsible for 

administering financial assistance to the 

sponsor, or the FAA Office of Civil 

Rights will be available upon request to 

assist the parties with informal 

resolution. 

(b) Except for complaints filed under 

49 CFR 26.105(c), a complaint will be 

dismissed under § 16.27 unless the 

person or authorized representative 

filing the complaint certifies that: 

(1) The complainant has made 

substantial and reasonable good faith 

efforts to resolve the disputed matter 

informally prior to filing the complaint; 

and 


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(2) There is no reasonable prospect for 

practical and timely resolution of the 

dispute. 

(c) The certification required under 

paragraph (b) of this section, shall 

include a brief description of the party’s 

efforts to obtain informal resolution but 

shall not include information on 

monetary or other settlement offers 

made but not agreed upon in writing by 

all parties. Such efforts to resolve 

informally should be relatively recent 

and be demonstrated by pertinent 

documentation. There is no required 

form or process for informal resolution, 

but in each case the requirements to 

resolve the matter informally must meet 

the requirements of this paragraph. 

10. Amend § 16.23 by revising the 

section heading; revising paragraphs (a), 

(b)(2), (b)(4), (c), (d), and (j); and adding 

paragraphs (k) and (l) to read as follows: 

§ 16.23 Pleadings. 

(a) A person directly and substantially 

affected by any alleged noncompliance 

or a person qualified under 49 CFR 

26.105(c) may file a complaint under 

this Part. A person doing business with 

an airport and paying fees or rentals to 

the airport shall be considered directly 

and substantially affected by alleged 

revenue diversion as defined in 49 

U.S.C. 47107(b). 

(b) * * * 

(2) Include all documents then 

available in the exercise of reasonable 

diligence, to be offered in support of the 

complaint, and to be served upon all 

persons named in the complaint as 

persons responsible for the alleged 

action(s) or omission(s) upon which the 

complaint is based; 

* * * * * 

(4) Except for complaints filed under 

49 CFR 26.105(c), describe how the 

complainant was directly and 

substantially affected by the things done 

or omitted to be done by the 

respondents. 

(c) Unless the complaint is dismissed 

pursuant to § 16.25 or § 16.27, the FAA 

notifies the complainant and respondent 

in writing within 20 days after the date 

the FAA receives the complaint that the 

complaint has been docketed. 

(d) The respondent shall file an 

answer within 20 days of the date of 

service of the FAA notification or, if a 

motion is filed under § 16.26, within 20 

days of the date of service of an FAA 

order denying all or part of that motion. 

* * * * * 

(j) Amendments or supplements to the 

pleadings described in this section will 

not be allowed without showing good 

cause through a motion and supporting 

documents. 

(k) Burden of Proof. Except as used in 

subpart F of this part, 

(1) The burden of proof is on the 

complainant to show noncompliance 

with an Act or any regulation, order, 

agreement or document of conveyance 

issued under the authority of an Act. 

(2) Except as otherwise provided by 

statute or rule, the proponent of a 

motion, request, or order has the burden 

of proof. 

(3) A party who has asserted an 

affirmative defense has the burden of 

proving the affirmative defense. 

(l) Except for good cause shown 

through motion and supporting 

documents, discovery is not permitted 

except as provided in §§ 16.213 and 

16.215. 

11. Revise § 16.25 to read as follows: 

§ 16.25 Dismissals. 

(a) Within 20 days after the receipt of 

the complaint, unless a motion has been 

filed under § 16.26, the Director will 

dismiss a complaint, or any claim made 

in a complaint, with prejudice if: 

(1) It appears on its face to be outside 

the jurisdiction of the Administrator 

under the Acts listed in § 16.1; 

(2) On its face it does not state a claim 

that warrants an investigation or further 

action by the FAA; or 

(3) The complainant lacks standing to 

file a complaint under §§ 16.3 and 

16.23. 

(b) A dismissal under this section will 

include the reasons for the dismissal. 

12. Add § 16.26 as follows: 

§ 16.26 Motions to dismiss and motions 

for summary judgment. 

(a) In lieu of an answer, the 

respondent may file a motion to dismiss 

the complaint or a motion for summary 

judgment on the complaint. The 

respondent may move for dismissal of 

the entire complaint or move for 

dismissal of particular issues from 

adjudication. The motion must be filed 

within 20 days after the date the FAA 

receives the complaint. 

(b) A motion to dismiss or a motion 

for summary judgment may be based on 

the grounds that there is no genuine 

issue of material fact for adjudication 

and that the complaint, when viewed in 

the light most favorable to the 

complainant, should be dismissed as a 

matter of law because it: 

(1) Fails to state a claim that the 

respondent has violated any obligation 

subject to adjudication under this part; 

(2) Fails to state a claim within the 

jurisdiction of the FAA; or 

(3) Fails to meet the requirements for 

filing a complaint under this part. 

(c) A motion to dismiss or a motion 

for summary judgment shall be 

accompanied by a concise statement of 

the material facts as to which the 

respondent contends there is no genuine 

issue of material fact. The motion may 

include affidavits and documentary 

evidence in support of the contention 

that there is no genuine issue of fact in 

dispute. 

(d) A complainant may file an answer 

to the motion within 10 days of the date 

the motion is served on the 

complainant, or within any other period 

set by the Director. The answer shall be 

accompanied by a concise statement of 

the material facts the complainant 

contends are and are not in dispute, and 

may be accompanied by affidavits and 

other documentary evidence in support 

of that contention. 

(e) Within 30 days of the date an 

answer to a motion is due under this 

section, the Director may issue an order 

granting the motion, in whole or in part. 

If the Director denies the motion in 

whole or in part, then within 20 days of 

when the order is served on the 

respondent, the respondent shall file an 

answer to the complaint. 

(f) If the Director does not act on the 

motion within 30 days of the date an 

answer to a motion is due under this 

section, the respondent shall file an 

answer to the complaint within the next 

20 days. 

13. Revise § 16.27 to read as follows: 

§ 16.27 Incomplete complaints. 

(a) If a complaint is not dismissed 

pursuant to § 16.25 of this part, but is 

deficient as to one or more of the 

requirements set forth in § 16.21 or 

§ 16.23(b), the Director will dismiss the 

complaint within 20 days after receiving 

it. Dismissal will be without prejudice 

to the refiling of the complaint after 

amendment to correct the deficiency. 

The Director’s dismissal will include 

the reasons for the dismissal. 

(b) Dismissals under this section are 

not initial determinations, and appeals 

from decisions under this section will 

not be permitted. 

14. In § 16.29, revise the first sentence 

of paragraph (b)(2) to read as follows: 

§ 16.29 Investigations. 

* * * * * 

(b) * * * 

(2) Obtaining additional oral and 

documentary evidence by use of the 

agency’s authority to compel production 

of such evidence under section 313 of 

the Federal Aviation Act of 1958 as 

amended by 49 U.S.C. 40113 and 46104, 

and section 519 of the Airport and 

Airway Improvement Act, 49 U.S.C. 

47122. * * * 

* * * * * 

15. Revise § 16.31 to read as follows: 


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§ 16.31 Director’s Determinations after 

investigations. 

(a) After consideration of the 

pleadings and other information 

obtained by the FAA after investigation, 

the Director will render an initial 

determination and serve it upon each 

party within 120 days of the date the 

last pleading specified in § 16.23 was 

due. 

(b)(1) The Director’s Determination 

shall include findings of fact and 

conclusions of law, accompanied by 

explanations and based upon all 

material issues of fact, credibility of the 

evidence, law and discretion presented 

on the record, together with a statement 

of the reasons therefor. 

(2) The Director shall issue a 

determination or rule in a party’s favor 

only if the determination or ruling is in 

accordance with law and supported by 

a preponderance of the reliable, 

probative, and substantial evidence 

contained in the record. 

(c) A party adversely affected by the 

Director’s Determination may appeal the 

initial determination as provided in 

§ 16.33. However, if the Director’s 

Determination that is appealed contains 

a Corrective Action Plan, the Director 

has the discretion to suspend the 

Corrective Action Plan until the appeal 

is resolved. 

(d) If the Director’s Determination 

finds the respondent in noncompliance 

and proposes the issuance of a 

compliance order, the initial 

determination will include notice of 

opportunity for a hearing under subpart 

F of this part if a hearing is required by 

statute or otherwise provided by the 

FAA. A hearing may be required by 

statute if the FAA determination would 

terminate eligibility for grants under 49 

U.S.C. 47114(c) or (e), or terminate 

payments on a grant agreement under 49 

U.S.C. subchapter 471. The respondent 

may elect or waive a hearing, as 

provided in subpart E of this part. 

(e) The Director will not consider 

requests for rehearing, reargument, 

reconsideration, or modification of a 

Director’s Determination without a 

finding of good cause. 

16. Revise § 16.33 to read as follows: 

§ 16.33 Final decisions without hearing. 

(a) The Associate Administrator may 

transfer to the FAA Assistant 

Administrator for Civil Rights the 

responsibility to prepare and issue Final 

Agency Decisions pursuant to this 

section for appeals with issues 

concerning civil rights. 

(b) The Associate Administrator will 

issue a final decision on appeal from the 

Director’s Determination, without a 

hearing, where— 

(1) The complaint is dismissed after 

investigation; 

(2) A hearing is not required by 

statute and is not otherwise made 

available by the FAA; or 

(3) The FAA provides opportunity for 

a hearing to the respondent and the 

respondent waives the opportunity for a 

hearing as provided in subpart E of this 

part. 

(c) In the cases described in paragraph 

(a) of this section, within 30 days after 

the date of service of the initial 

determination, a party adversely 

affected by the Director’s Determination 

may file in accordance with § 16.13 and 

serve in accordance with § 16.15 a 

simultaneous Notice of Appeal and 

Brief. 

(d) A reply to an appeal brief may be 

filed within 20 days after the date of 

service of the appeal. 

(e) On appeal, the Associate 

Administrator will consider the issues 

addressed in any order on a motion to 

dismiss or motion for summary 

judgment and any issues accepted in the 

Director’s Determination using the 

following analysis: 

(1) Are the findings of fact each 

supported by a preponderance of 

reliable, probative, and substantial 

evidence contained in the record? 

(2) Are conclusions made in 

accordance with law, precedent and 

policy? 

(3) Are the questions on appeal 

substantial? 

(4) Have any prejudicial errors 

occurred? 

(f) Any new issues or evidence 

presented in an appeal or reply will not 

be considered unless accompanied by a 

petition and good cause found as to why 

the new issue or evidence was not 

presented to the Director. Such a 

petition must: 

(1) Set forth the new matter; 

(2) Contain affidavits of prospective 

witnesses, authenticated documents, or 

both, or an explanation of why such 

substantiation is unavailable; and 

(3) Contain a statement explaining 

why such new issue or evidence could 

not have been discovered in the exercise 

of due diligence prior to the date on 

which the evidentiary record closed. 

(g) The Associate Administrator will 

issue a final decision and order within 

60 days after the due date of the reply. 

(h) If no appeal is filed within the 

time period specified in paragraph (c) of 

this section, the Director’s 

Determination becomes the final 

decision and order of the FAA without 

further action. A Director’s 

Determination that becomes final, 

because there is no administrative 

appeal, is not judicially reviewable. 

(i) No requests for rehearing, 

reargument, reconsideration, or 

modification of a final order will be 

considered without a finding of good 

cause. 

17. Add § 16.34 to read as follows: 

§ 16.34 Consent orders. 

(a) The parties may agree at any time 

before the issuance of a final agency 

decision to dispose of the case by 

issuance of a consent order. Good faith 

efforts to resolve a complaint through 

issuance of a consent order may 

continue throughout the administrative 

process. However, except as provided in 

§ 16.11(a), such efforts may not serve as 

the basis for extensions of the times set 

forth in this part. 

(b) A proposal for a consent order, 

specified in paragraph (a) of this 

section, shall include: 

(1) A proposed consent order; 

(2) An admission of all jurisdictional 

facts; and 

(3) An express waiver of the right to 

further procedural steps and of all rights 

of judicial review. 

(c) If the parties agree to dispose of a 

case by issuance of a consent order 

before the FAA issues a Director’s 

Determination, the proposal for a 

consent order is submitted jointly by the 

parties to the Director, together with a 

request to adopt the consent order and 

dismiss the case. The Director issues the 

consent order as an order of the FAA 

and terminates the proceeding. 

§ 16.105 [Amended] 

18. Amend § 16.105 by removing 

‘‘determination’’ and adding 

‘‘Determination’’ in its place. 

19. Revise § 16.109 to read as follows: 

§ 16.109 Orders terminating eligibility for 

grants, cease and desist orders, and other 

compliance orders. 

(a) The agency will provide the 

opportunity for a hearing if, in the 

Director’s determination, the agency 

issues or proposes to issue an order 

terminating eligibility for grants 

pursuant to 49 U.S.C. 47106(d), an order 

suspending the payment of grant funds 

pursuant to 49 U.S.C. 47111(d), an order 

withholding approval of any new 

application to impose a passenger 

facility charge pursuant to 49 U.S.C. 

47111(e), a cease and desist order, an 

order directing the refund of fees 

unlawfully collected, or any other 

compliance order issued by the 

Administrator to carry out the 

provisions of the Acts, and required to 

be issued after notice and opportunity 

for a hearing. In cases in which a 

hearing is not required by statute, the 

FAA may provide opportunity for a 

hearing at its discretion. 


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(b) In a case in which the agency 

provides the opportunity for a hearing, 

the Director’s Determination issued 

under § 16.31 will include a statement 

of the availability of a hearing under 

subpart F of this part. 

(1) Within 20 days after service of a 

Director’s Determination under § 16.31 

that provides an opportunity for a 

hearing a person subject to the proposed 

compliance order may— 

(i) Request a hearing under subpart F 

of this part; 

(ii) Waive hearing and appeal the 

Director’s Determination in writing, as 

provided in § 16.33; 

(iii) File, jointly with a complainant, 

a motion to withdraw the complaint and 

to dismiss the proposed compliance 

action; or 

(iv) Submit, jointly with the agency, a 

proposed consent order under 

§ 16.34(c). 

(2) If the respondent fails to file an 

appeal in writing within the time 

periods provided in paragraph (c) of this 

section, the Director’s Determination 

becomes final. 

(c) The Director may either direct the 

respondent to submit a Corrective 

Action Plan or initiate proceedings to 

revoke and/or deny the respondent’s 

application for Airport Improvement 

Program discretionary grants under 49 

U.S.C. 47115 and general aviation 

airport grants under 49 U.S.C. 47114(d) 

when a Director’s Determination finds a 

respondent in noncompliance and does 

not provide for a hearing. 

(d) In the event that the respondent 

fails to submit, in accordance with a 

Director’s Determination, a Corrective 

Action Plan acceptable to the FAA 

within the time provided, unless 

extended by the FAA for good cause, 

and/or if the respondent fails to 

complete the Corrective Action Plan as 

specified therein, the Director may 

initiate action to revoke and/or deny 

applications for Airport Improvement 

Program discretionary grants under 49 

U.S.C. 47115 and general aviation 

airport grants under 49 U.S.C. 47114(d). 

(e) For those violations that cannot be 

remedied through corrective action the 

Director may initiate action to revoke 

and/or deny the respondent’s 

applications for Airport Improvement 

Program discretionary grants under 49 

U.S.C. 47115 and general aviation 

airport grants under 49 U.S.C. 47114(d). 

(f) When the Director concludes that 

the respondent has fully complied with 

the Corrective Action Plan and/or when 

the Director determines that the 

respondent has corrected the areas of 

noncompliance, the Director will 

terminate the proceeding. 

(g) A complainant’s standing 

terminates upon the issuance of a 

Director’s Determination that finds a 

respondent in noncompliance on all 

identified issues. The complainant may 

not appeal the Director’s Determination 

if the Director finds noncompliance on 

all identified issues. 

20. Amend § 16.201 by revising 

paragraph (b) to read as follows: 

§ 16.201 Notice and order of hearing. 

* * * * * 

(b) Where there are no genuine issues 

of material fact requiring oral 

examination of witnesses, the hearing 

order may contain a direction to the 

hearing officer to conduct a hearing by 

submission of briefs and oral argument 

without the presentation of testimony or 

other evidence. 

21. Amend § 16.203 by revising 

paragraphs (a)(1), (b)(1), and (b)(2) to 

read as follows: 

§ 16.203 Appearances, parties, and rights 

of parties. 

(a) * * * 

(1) Any party may be accompanied, 

represented, or advised by an attorney 

licensed by a State, the District of 

Columbia, or a territory of the United 

States to practice law or appear before 

the courts of that State or territory, or by 

another person authorized by the 

hearing officer to be the party’s 

representative. 

* * * * * 

(b) * * * 

(1) The parties to the hearing are the 

complainant(s) and respondent(s) 

named in the hearing order, and the 

agency. The style of any pleadings filed 

under this Subpart shall name the 

respondent as the Appellant, and the 

Federal Aviation Administration as the 

Agency. 

(2) Unless otherwise specified in the 

hearing order, the agency attorney will 

serve as prosecutor for the agency from 

the date of issuance of the Director’s 

Determination providing an opportunity 

for hearing. 

22. Revise § 16.207 to read as follows: 

§ 16.207 Intervention and other 

participation. 

(a) Intervention and participation by 

other persons are permitted only at the 

hearing stage of the complaint process 

and with the written approval of the 

hearing officer. 

(b) A person may submit a written 

motion for leave to intervene as a party. 

Except for good cause shown, a motion 

for leave to intervene shall be submitted 

not later than 10 days after the notice of 

hearing and hearing order. 

(c) If the hearing officer finds that 

intervention will not unduly broaden 

the issues or delay the proceedings and, 

if the person has an interest that will 

benefit the proceedings, the hearing 

officer may grant a motion for leave to 

intervene. The hearing officer may 

determine the extent to which an 

intervenor may participate in the 

proceedings. 

(d) Other persons may petition the 

hearing officer for leave to participate in 

the hearing. Participation is limited to 

the filing of a posthearing brief and 

reply to the hearing officer and the 

Associate Administrator. Such a brief 

shall be filed and served on all parties 

in the same manner as the parties’ 

posthearing briefs are filed. 

(e) Participation under this section is 

at the discretion of the hearing officer, 

and no decision permitting participation 

shall be deemed to constitute an 

expression that the participant has such 

a substantial interest in the proceeding 

as would entitle it to judicial review of 

such decision. 

23. In § 16.211, revise the last 

sentence in paragraph (c) to read as 

follows: 

§ 16.211 Prehearing conference. 

* * * * * 

(c) * * * In addition, the hearing 

officer establishes the schedule, which 

shall provide for the issuance of an 

initial decision not later than 110 days 

after issuance of the Director’s 

Determination order unless otherwise 

provided in the hearing order. 

24. Amend § 16.215 by adding 

paragraph (e) to read as follows: 

§ 16.215 Depositions. 

* * * * * 

(e) Depositions of agency employees. 

(1) Depositions of Agency Employees 

will not be allowed except under the 

provisions of 49 CFR part 9. 

(2) Such depositions will be allowed 

only with the specific written 

permission of the Chief Counsel or his 

designee. 

25. Revise § 16.227 to read as follows: 

§ 16.227 Standard of proof. 

The hearing officer shall issue an 

initial decision or rule in a party’s favor 

only if the decision or ruling is in 

accordance with law and supported by 

a preponderance of the reliable, 

probative, and substantial evidence 

contained in the record. 

26. Amend § 16.229 by adding 

introductory text to read as follows: 

§ 16.229 Burden of proof. 

As used in this subpart, the burden of 

proof is as follows: 

* * * * * 

27. Revise § 16.233 to read as follows: 


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§ 16.233 Record. 

(a) Exclusive record. The transcript of 

all testimony in the hearing, all exhibits 

received into evidence, all motions, 

applications requests and rulings, all 

documents included in the hearing 

record and the Director’s Determination 

shall constitute the exclusive record for 

decision in the proceedings and the 

basis for the issuance of any orders. 

(b) Examination and copy of record. 

A copy of the record will be filed by the 

FAA Part 16 Docket Clerk in the Federal 

Docket Management System (FDMS). 

Any person desiring to review the 

record may then do so at http:// 

www.regulations.gov. 

28. Amend § 16.235 by revising 

paragraph (b) to read as follows: 

§ 16.235 Argument before the hearing 

officer. 

* * * * * 

(b) Posthearing Briefs. The hearing 

officer may request or permit the parties 

to submit posthearing briefs. The 

hearing officer may provide for the 

filing of simultaneous reply briefs as 

well, if such filing will not unduly delay 

the issuance of the hearing officer’s 

initial decision. Posthearing briefs shall 

include proposed findings of fact and 

conclusions of law; exceptions to 

rulings of the hearing officer; references 

to the record in support of the findings 

of fact; and supporting arguments for 

the proposed findings, proposed 

conclusions, and exceptions. 

§§ 16.241 and 16.243 [Transferred to 

Subpart F] 

29. Sections 16.241 and 16.243 are 

transferred from subpart G to subpart F. 

Subpart G—[Removed and Reserved] 

30. Remove and reserve subpart G. 

31. Amend § 16.241 by revising 

paragraphs (a) and (c) and removing 

paragraph (f). 

The revisions read as follows: 

§ 16.241 Initial decisions, order, and 

appeals. 

(a) The hearing officer shall issue an 

initial decision based on the record 

developed during the proceeding and 

shall send the initial decision to the 

parties not later than 110 days after the 

Director’s Determination unless 

otherwise provided in the hearing order. 

* * * * * 

(c) If an appeal is filed, the Associate 

Administrator reviews the entire record 

and issues a final agency decision and 

order within 60 days of the due date of 

the reply. If no appeal is filed, the 

Associate Administrator may take 

review of the case on his or her own 

motion. If the Associate Administrator 

finds that the respondent is not in 

compliance with any Act or any 

regulation, agreement, or document of 

conveyance issued or made under such 

Act, the final agency order includes, in 

accordance with § 16.245(d), a statement 

of corrective action, if appropriate, and 

identifies sanctions for continued 

noncompliance. 

* * * * * 

32. Add § 16.245 to subpart F to read 

as follows: 

§ 16.245 Associate Administrator review 

after a hearing. 

(a) The Associate Administrator may 

transfer to the FAA Assistant 

Administrator for Civil Rights the 

authority to prepare and issue Final 

Agency Decisions pursuant to § 16.241 

for appeals from a hearing concerning 

civil rights issues. 

(b) After a hearing is held, and, after 

considering the issues as set forth in 

§ 16.245(e), if the Associate 

Administrator determines that the 

hearing officer’s initial decision or order 

should be changed, the Associate 

Administrator may: 

(1) Make any necessary findings and 

issue an order in lieu of the hearing 

officer’s initial decision or order, or 

(2) Remand the proceeding for any 

such purpose as the Associate 

Administrator may deem necessary. 

(c) If the Associate Administrator 

takes review of the hearing officer’s 

initial decision on the Associate 

Administrator’s own motion, the 

Associate Administrator issues a notice 

of review within 20 days of the actual 

date the initial decision is issued. 

(1) The notice sets forth the specific 

findings of fact and conclusions of law 

in the initial decision that are subject to 

review by the Associate Administrator. 

(2) Parties may file one brief on 

review to the Associate Administrator or 

rely on their posthearing brief to the 

hearing officer. A brief on review shall 

be filed not later than 10 days after 

service of the notice of review. Filing 

and service of a brief on review shall be 

by personal delivery. 

(3) The Associate Administrator 

issues a final agency decision and order 

within 30 days of the due date of the 

brief. If the Associate Administrator 

finds that the respondent is not in 

compliance with any Act or any 

regulation, agreement or document of 

conveyance issued under such Act, the 

final agency order includes a statement 

of corrective action, if appropriate. 

(d) When the final agency decision 

finds a respondent in noncompliance, 

and where a respondent fails to properly 

appeal the final agency decision as set 

forth in subpart G, of this part, the 

Associate Administrator will issue an 

order remanding the case to the Director 

for the following action: 

(1) In the event that the respondent 

fails to submit, in accordance with the 

final agency decision, a Corrective 

Action Plan acceptable to the FAA 

within the time provided, unless 

extended by the FAA for good cause, 

and/or if the respondent fails to 

complete the Corrective Action Plan as 

specified therein, the Director may 

initiate action to revoke and/or deny 

applications for Airport Improvement 

Program grants under 49 U.S.C. 

47114(c)–(e) and 47115. When the 

Director concludes that the respondent 

has fully complied with the Corrective 

Action Plan, the Director will issue an 

Order terminating the proceeding. 

(2) For those violations that cannot be 

remedied through corrective action the 

Director may initiate action to revoke 

and/or deny the respondent’s 

applications for Airport Improvement 

Program grants under 49 U.S.C. 

47114(c)–(e) and 47115. 

(e) On appeal from a hearing officer’s 

initial decision, the Associate 

Administrator will consider the 

following issues: 

(1) Are the findings of fact each 

supported by a preponderance of 

reliable, probative and substantial 

evidence. 

(2) Are conclusions made in 

accordance with law, precedent and 

policy. 

(3) Are the questions on appeal 

substantial. 

(4) Have any prejudicial errors 

occurred. 

(f) Any new issues or evidence 

presented in an appeal or reply will not 

be allowed unless accompanied by a 

certified petition and good cause found 

as to why the new matter was not 

presented to the Director. Such a 

petition must: 

(1) Set forth the new matter; 

(2) Contain affidavits of prospective 

witnesses, authenticated documents, or 

both, or an explanation of why such 

substantiation is unavailable; and 

(3) Contain a statement explaining 

why such new matter could not have 

been discovered in the exercise of due 

diligence prior to the date on which the 

evidentiary record closed. 

(g) A Final Agency Decision may be 

appealed in accordance with subpart G 

of this part. 

Subparts H and I—[Redesignated as 

Subparts G and H] 

33. Redesignate subpart H, consisting 

of § 16.247, and subpart I, consisting of 

§§ 16.301, 16.303, 16.305, and 16.307, as 

subparts G and H, respectively. 


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34. In § 16.247, revise paragraphs (a), 

(b)(2), and (b)(4) to read as follows: 

§ 16.247 Judicial review of a final decision 

and order. 

(a) A person may seek judicial review, 

in a United States Court of Appeals, of 

a final decision and order of the 

Associate Administrator, and of an 

order of dismissal with prejudice issued 

by the Director, as provided in 49 U.S.C. 

46110 or section 519(b)(4) of the Airport 

and Airway Improvement Act of 1982 

(AAIA), as amended and recodified, 49 

U.S.C. 47106(d) and 47111(d). A party 

seeking judicial review shall file a 

petition for review with the Court not 

later than 60 days after the order has 

been served on the party or within 60 

days after the entry of an order under 49 

U.S.C. 40101 et seq. 

(b) * * * 

(2) A Director’s Determination; 

* * * * * 

(4) A Director’s Determination or an 

initial decision of a hearing officer that 

becomes the final decision of the 

Associate Administrator because it was 

not appealed within the applicable time 

periods provided under §§ 16.33(c) and 

16.241(b). 

§ 16.301 [Removed] 

35. Remove § 16.301 from newly 

redesignated subpart H. 

§§ 16.303, 16.305, and 16.307 

[Redesignated as §§ 16.301, 16.303, and 

16.305] 

36. In newly redesignated subpart H, 

redesignate §§ 16.303, 16.305, and 

16.307 as §§ 16.301, 16.303, and 16.305, 

respectively. 

Issued in Washington, DC, on February 22, 

2012. 

Daphne A. Fuller, 

Manager, Airports and Environmental Law 

Division. 

[FR Doc. 2012–4993 Filed 3–2–12; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2010–0480; Directorate 

Identifier 2010–NM–035–AD] 

RIN 2120–AA64 

Airworthiness Directives; The Boeing 

Company Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Supplemental notice of 

proposed rulemaking (NPRM); 

reopening of comment period. 

SUMMARY: We are revising an earlier 

proposed airworthiness directive (AD) 

for certain The Boeing Company Model 

747–400 and 747–400D series airplanes. 

That NPRM proposed installing 

aluminum gutter reinforcing brackets to 

the forward and aft drip shield gutters 

of the main equipment center (MEC); 

and adding a reinforcing fiberglass 

overcoat to the top surface of the MEC 

drip shield, including an inspection for 

cracking and holes in the MEC drip 

shield, and corrective actions if 

necessary. That NPRM also provided for 

an option to install an MEC drip shield 

drain system, which, if accomplished, 

would extend the compliance time for 

adding the reinforcing fiberglass 

overcoat to the top surface of the MEC 

drip shield. That NPRM was prompted 

by a report of a multi-power system loss 

in flight of #1, #2, and #3 alternating 

current electrical power systems located 

in the MEC. This action revises that 

NPRM by revising the locating 

dimensions of the brackets and 

changing the routing of the forward 

drain tubes. We are proposing this 

supplemental NPRM to prevent water 

penetration into the MEC, which could 

result in the loss of flight critical 

systems. Since these actions impose an 

additional burden over that proposed in 

the NPRM, we are reopening the 

comment period to allow the public the 

chance to comment on these proposed 

changes. 

DATES: We must receive comments on 

this supplemental NPRM by April 19, 

2012. 

ADDRESSES: You may send comments, 

using the procedures found in 14 CFR 

11.43 and 11.45, by any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 202–493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–140, 1200 New Jersey 

Avenue SE., Washington, DC 20590. 

• Hand Delivery: U.S. Department of 

Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–140, 1200 New Jersey 

Avenue SE., Washington, DC 20590, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

For service information identified in 

this AD, contact Boeing Commercial 

Airplanes, Attention: Data & Services 

Management, P.O. Box 3707, MC 2H–65, 

Seattle, Washington 98124–2207; 

telephone 206–544–5000, extension 1; 

fax 206–766–5680; email 

me.boecom@boeing.com; Internet 

https://www.myboeingfleet.com. You 

may review copies of the referenced 

service information at the FAA, 

Transport Airplane Directorate, 1601 

Lind Avenue SW., Renton, Washington. 

For information on the availability of 

this material at the FAA, call 425–227– 

1221. 

Examining the AD Docket 

You may examine the AD docket on 

the Internet at http:// 

www.regulations.gov; or in person at the 

Docket Management Facility between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. The AD 

docket contains this proposed AD, the 

regulatory evaluation, any comments 

received, and other information. The 

street address for the Docket Office 

(phone: 800–647–5527) is in the 

ADDRESSES section. Comments will be 

available in the AD docket shortly after 

receipt. 

FOR FURTHER INFORMATION CONTACT: 

Francis Smith, Aerospace Engineer, 

Cabin Safety and Environmental 

Systems Branch, ANM–150S, FAA, 

Seattle Aircraft Certification Office, 

1601 Lind Avenue SW., Renton, 

Washington 98057–3356; phone: 425– 

917–6596; fax: 425–917–6590; email: 

francis.smith@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

We invite you to send any written 

relevant data, views, or arguments about 

this proposed AD. Send your comments 

to an address listed under the 

ADDRESSES section. Include ‘‘Docket No. 

FAA–2010–0480; Directorate Identifier 

2010–NM–035–AD’’ at the beginning of 

your comments. We specifically invite 

comments on the overall regulatory, 

economic, environmental, and energy 

aspects of this proposed AD. We will 

consider all comments received by the 

closing date and may amend this 

proposed AD because of those 

comments. 

We will post all comments we 

receive, without change, to http:// 

www.regulations.gov, including any 

personal information you provide. We 

will also post a report summarizing each 

substantive verbal contact we receive 

about this proposed AD. 

Discussion 

We issued an NPRM to amend 14 CFR 

part 39 to include an AD that would 

apply to Model 747–400 and 747–400D 

series airplanes. That NPRM was 

published in the Federal Register on 

May 19, 2010 (75 FR 27966). That 

NPRM proposed to require installing 

aluminum gutter reinforcing brackets to 


erowe on DSK2VPTVN1PROD with PROPOSALS-1