[Federal Register Volume 77, Number 43 (Monday, March 5, 2012)]
[Proposed Rules]
[Pages 13027-13043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-4993]


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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 Federally-Assisted Airport Enforcement 
Proceedings (Retrospective Regulatory Review)

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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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:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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: <a href="/cdn-cgi/l/email-protection#276d4254544e4209634e6055424048555e6741464609404851"><span class="__cf_email__" data-cfemail="c882adbbbba1ade68ca18fbaadafa7bab188aea9a9e6afa7be">[email protected]</span></a>.

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

[[Page 13028]]

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.
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    \1\ 61 FR 53998, October 16, 1996.
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    The FAA believes the agency, sponsors, aeronautical users, and 
other stakeholders in Part 16 proceedings would benefit from adding the 
following to the rule:
    <bullet> Procedures for concluding the investigation by ``summary 
judgment'' or dismissal without an answer by the sponsor.
    <bullet> Termination of complainant standing in certain cases where 
the FAA finds the sponsor in noncompliance on all issues raised in the 
complaint.
    <bullet> Optional electronic filing procedures.
    <bullet> 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\--
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    \2\ This list is one of general introductions. It is not 
intended to explain each issue in detail.
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    <bullet> Intervention and other participation.
    <bullet> The process for ordering corrective action for 
noncompliant sponsors.
    <bullet> Processes involving the Director, including procedures for 
seeking rehearing of Director's Determinations upon a showing of good 
cause.
    <bullet> Standard of Proof and Burden of Proof requirements.
    <bullet> Standards for raising new issues on appeal to the 
Associate Administrator.
    <bullet> Consent Orders.
    <bullet> Requests for testimony of agency employees.
    <bullet> Processes involving the Associate Administrator, including 
procedures for seeking rehearing of Final Agency Decisions upon a 
showing of good cause.
    <bullet> Transfer of responsibility for decision-making for civil 
rights cases.
    <bullet> Availability of Judicial Review.
    <bullet> 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.
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    \3\ 49 U.S.C. 47101 et seq.
    \4\ 49 U.S.C. 47151-47153.
    \5\ A person filing under the authority provided in 49 CFR part 
26, Participation by Disadvantaged Business Enterprises in 
Department of Transportation Financial Assistance Programs, Sec.  
26.105(c) need not be directly and substantially affected by the 
sponsor's alleged violation.
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    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.
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    \6\ FAA Order 1100.154A, Delegations of Authority, para. 
6.e.(1), June 12, 1990.
    \7\ The 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).
    \8\ See 14 CFR part 16, subparts A, B, and C.
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    The Director of the Office of Airport Compliance and Management 
Analysis,

[[Page 13029]]

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 federally-assisted 
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 (Sec.  13.1), however, may be utilized to 
facilitate a Part 16 complainant meeting the pre-complaint 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.
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    \9\ 59 FR 29880, June 9, 1994.
    \10\ 61 FR 53998, October 16, 1996.
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    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.
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    \11\ 64 FR 5126, February 2, 1999.
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    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.
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    \12\ 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).
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    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\
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    \13\ FAA Notice 1100.318, para. 4, April 29, 2008.
    \14\ FAA Notice 1100.333, para. 5, May 6, 2011.
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    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:
    <bullet> Airports Council International-North America (ACI-NA), 
whose member airport operators may be the subject of complaints and 
therefore be required to respond under Part 16 (February 2011);
    <bullet> 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
    <bullet> 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

[[Page 13030]]

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 Sec.  16.23(d) requires the respondent to file an answer to 
any complaint not dismissed by the FAA under Sec.  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 Sec.  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\
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    \15\ See Sec.  16.19(a).
    \16\ Fed. R. Civ. P. 56.
    \17\ See 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.
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    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 Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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.
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    \18\ Fed. R. Civ. P. 56.
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    Specifically, proposed Sec.  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 Sec.  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 Sec. Sec.  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 Sec.  16.109 so that a complainant may 
not appeal a Director's Determination that has found a respondent in 
noncompliance on all issues. Current Sec.  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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    \19\ 61 FR 53998-53999, October 16, 1996.
    \20\ See 61 FR 53998-53999, October 16, 1996 and 14 CFR 
16.203(b)(1).


[[Page 13031]]


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    Under Sec.  16.31(d), a case proceeds to a hearing only after 
the FAA has found against the respondent in an initial determination 
that proposes the issuance of a compliance order. Thus, at the 
hearing the FAA has the burden of proof to establish the validity of 
its initial determination, including the proposed order of 
compliance under Sec.  16.109. The respondent is a party to the 
hearing who seeks reversal of the FAA's initial determination. 
Although, a complainant's status as an airport user alone does not 
give rise to a sufficient property interests to justify party status 
as a matter of right, party status for the complainant will permit 
it to have an opportunity to assist in the development of the 
factual record as pointed out by NBAA. In addition, providing 
automatic party status will avoid burdening the hearing officer and 
parties with routine requests for intervention by complainant. The 
rule provides the hearing officer with ample powers to control the 
conduct of the hearing and to assure that complainant's 
participation does not unduly delay the proceedings.\21\
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    \21\ 61 FR 53998-53999, October 16, 1996.

    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\
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    \22\ See 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.'').
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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 Sec.  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 Sec.  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.
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    \23\ 64 FR 5126, February 2, 1999.
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    To align with 49 CFR part 26, the FAA is proposing to change 14 CFR 
part 16 by--
    <bullet> Revising the definition of Complaint in Sec.  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.
    <bullet> Adding new Sec. Sec.  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.
    <bullet> Adding language in Sec.  16.23(a) to clarify the complaint 
procedures for complainants filing under 49 CFR 26.105(c).
    <bullet> Adding language in Sec.  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 Sec.  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 Sec.  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 Sec.  16.207(d) (which the agency is 
proposing to redesignate as Sec.  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 Sec.  16.207(a), which it is proposing to 
also redesignate as Sec.  16.207(b).
    Currently, Sec.  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.

[[Page 13032]]

    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 Sec.  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 Sec.  16.207(c).
---------------------------------------------------------------------------

    \24\ See, e.g., Davis v. Jackson Municipal Airport, FAA Docket 
No. 16-10-01, at 17 (Director's Determination January 18, 2011).
---------------------------------------------------------------------------

2. Corrective Action Plans
    Presently, Part 16 identifies two remedies available for the FAA to 
correct a noncompliant sponsor. First, Sec.  16.109 describes 
procedures to terminate or prohibit federal grants, but does not 
address corrective action. Second, current Sec. Sec.  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 Sec. Sec.  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 Sec.  
16.109(d) would allow the FAA to begin proceedings to revoke or deny 
the sponsor's application for federal assistance. Proposed Sec.  
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 Sec.  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.
---------------------------------------------------------------------------

    \25\ See, e.g., 49 CFR 821.1 et seq.
---------------------------------------------------------------------------

    Therefore, proposed Sec.  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 Sec.  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 Sec.  
16.31(e) to preclude requests for ``rehearing, reargument, 
reconsideration, or modification'' at this stage without a showing of 
``good cause.''
---------------------------------------------------------------------------

    \26\ 59 FR 29880, June 9, 1994, and 61 FR 53998, 54002, October 
16, 1996.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \27\ Steven H. Gifis, Law Dictionary 91 (1975).
    \28\ See Steven H. Gifis, Law Dictionary 91 (1975), see also 
Black's Law Dictionary (9th ed. 2009).
    \29\ 59 FR 29880, 29882, June 9, 1994.
---------------------------------------------------------------------------

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 Sec. Sec.  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

[[Page 13033]]

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 Sec.  16.31(b) addressing Standard of Proof, and 
new Sec. Sec.  16.23(k) and 16.33(e) addressing Burden of Proof.
5. Limitation of Issues for Consideration Upon Appeal
    Currently, Sec.  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 Sec. Sec.  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--
---------------------------------------------------------------------------

    \30\ Title 49 CFR part 821, NTSB Rules of Practice in Air Safety 
Proceedings, include such limitations in Sec.  821.49, Issues on 
appeal. Title 49 CFR part 1503, Transportation Security 
Administration Investigative and Enforcement Proceedings, include 
such limitations in Sec.  1503.657(b), Appeal from Initial Decision, 
Issues on Appeal.
---------------------------------------------------------------------------

    <bullet> The findings of fact are each supported by a preponderance 
of reliable, probative and substantial evidence contained in the 
record;
    <bullet> The conclusions are made in accordance with law, 
precedent, and policy;
    <bullet> The questions on appeal are substantial; and
    <bullet> Any prejudicial errors have occurred.

Further, under proposed Sec. Sec.  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 Sec.  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 Sec.  16.34 to explicitly provide for this practice. The 
new process for the non-hearing stage in proposed Sec.  16.34 would be 
consistent with the process in current Sec.  16.243 for the hearing 
stage.
7. Limitations to the Deposition of FAA Employees
    Current Sec.  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 Sec.  16.215(e) 
would remove this opportunity. Specifically, new Sec.  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 Sec.  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:
    <bullet> Add new Sec.  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\
---------------------------------------------------------------------------

    \31\ See Steven H. Gifis, Law Dictionary 91 (1975), see also 
Black's Law Dictionary (9th ed. 2009).
---------------------------------------------------------------------------

    <bullet> Remove the Subpart G heading label ``Initial Decisions, 
Orders and Appeals'' from before Sec. Sec.  16.241 through 16.243, 
since these sections relate to the processes concerning hearings and 
are therefore more fittingly included in Subpart F, Hearings.
    <bullet> Add a new Sec.  16.245, Associate Administrator Review 
after a Hearing, to Subpart F, Hearings. New paragraphs would include:
    [cir] Sec.  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);
    [cir] Sec.  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;
    [cir] Sec.  16.245(c), describing the Associate Administrator's 
authority after a hearing, as adopted from current Sec.  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);
    [cir] Sec.  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 Sec.  16.245(d)(1)), and to 
remand the case to the Director for enforcement of the Corrective 
Action Plan (proposed Sec.  16.245(d)(2)) (see also section III.D.2 of 
this preamble);
    [cir] Sec. Sec.  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
    [cir] Sec.  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

[[Page 13034]]

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 Sec.  16.3, and adding new Sec. Sec.  16.11(d), 
16.33(a), and 16.245(a) to address the involvement of the Office of 
Civil Rights throughout the proceedings.
---------------------------------------------------------------------------

    \32\ See 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).
---------------------------------------------------------------------------

10. Availability of Judicial Review
    Presently, Sec.  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 Sec.  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 Sec.  
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 Sec. Sec.  
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\
---------------------------------------------------------------------------

    \33\ 61 FR 53998, 540001 October 16, 1996.

---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------

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

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 Sec.  
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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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 Sec.  16.247(a) to clarify that 
such orders of dismissal with prejudice under Sec.  16.25 are final 
agency orders subject to judicial review.
11. Adjustment of Time Periods Specified for Service by Mail
    Presently, Sec.  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:
    <bullet> Replacing the term ``Director's determination'' with 
``Director's Determination'' throughout the rule to reflect what has 
become a term of art;
    <bullet> Replacing references to the FAA Office of Airport Safety 
and Standards in the definition of ``Director'' (Sec.  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);
    <bullet> Adding reference to ``other Federal obligations'' to 
Sec. Sec.  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;
    <bullet> Removing Sec.  16.301, Definitions, inserting the 
definitions of ``decisional employee'' and ``ex parte communication'' 
currently in Sec.  16.301 to Sec.  16.3, Definitions, and redesignating 
Sec. Sec.  16.303, 16.305, and 16.307 as Sec. Sec.  16.301, 16.303, and 
16.305, respectively;
    <bullet> 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 Sec.  
16.1(a)(5) (it is technically necessary to include references to 49 
U.S.C. Sec.  47133, Restriction on use of airport revenue, for 
completeness even though it supplements and parallels 49 U.S.C. 
47107(b));
    <bullet> Amending the filing address in Sec.  16.13 to reflect that 
the docket clerk in part 16 proceedings is now located in AGC-600;
    <bullet> Adding clarifying instructions for filing motions (Sec.  
16.19);
    <bullet> Adding Sec.  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
    <bullet> Adding to Sec.  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

[[Page 13035]]

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-for-profit 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 extraordinary 
circumstances.

[[Page 13036]]

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 Sec.  16.1 by revising paragraphs (a) introductory text 
and (a)(3) through (6) to read as follows:


Sec.  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 Sec.  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:


Sec.  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

[[Page 13037]]

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 Sec.  16.11 by revising the section heading and paragraphs 
(a) and (b) introductory text, and adding paragraphs (c) and (d) to 
read as follows:


Sec.  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 
Sec.  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 Sec.  16.13 by revising paragraphs (a), (b), (c), (d), and 
(f) and adding paragraphs (h) and (i) to read as follows:


Sec.  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

[[Page 13038]]

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 <a href="/cdn-cgi/l/email-protection#d3eafe928492fe929490fe83b2a1a7fee2e593b5b2b2fdb4bca5"><span class="__cf_email__" data-cfemail="330a1e7264721e7274701e635241471e0205735552521d545c45">[email protected]</span></a>. No 
acknowledgement or receipt will be provided by the FAA to parties using 
this method. A party filing electronically as described in this section 
must provide to the FAA Part 16 Docket Clerk and the opposing party an 
email address of the person designated by the party to receive 
pleadings.
    (4) By filing a pleading or document electronically as described in 
this section, a party waives the rights under this part for service by 
the opposing party and the FAA by methods other than email. If a party 
subsequently decides to ``opt-out'' of electronic filing, that party 
must so notify the FAA Part 16 Docket Clerk and the other party in 
writing, from which time the FAA and the parties will begin serving the 
opting-out party in accordance with Sec. Sec.  16.13 and 16.15. This 
subsection only exempts the parties from the filing and service 
requirements in Sec.  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 Sec.  
16.13(b), and the number of documents requirements in Sec.  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 Sec.  16.15 by revising paragraphs (a), (b), (d)(1) and 
(d)(2), and adding paragraph (d)(3) to read as follows:


Sec.  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 Sec.  16.13(h)), by 
[specify method of service]:

[list persons, addresses, facsimile numbers, email addresses (as 
applicable)]

Dated this ---- day of ----, 20----.

[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 Sec.  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 Sec.  16.13(f);
    (2) When a properly addressed envelope, sent to the most current 
address submitted under Sec.  16.13(f), has been returned as 
undeliverable, unclaimed, or refused; 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 Sec.  16.17 by revising paragraph (c) to read as follows:


Sec.  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 Sec.  16.19 by adding paragraphs (d) and (e) to read as 
follows:


Sec.  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 Sec.  16.13, and serve a 
copy of the motion on all parties and the docket clerk as required 
under Sec.  16.15.
    9. Revise Sec.  16.21 to read as follows:


Sec.  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 Sec.  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

[[Page 13039]]

    (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 Sec.  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:


Sec.  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 Sec.  16.25 or 
Sec.  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 Sec.  
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 Sec. Sec.  
16.213 and 16.215.
    11. Revise Sec.  16.25 to read as follows:


Sec.  16.25  Dismissals.

    (a) Within 20 days after the receipt of the complaint, unless a 
motion has been filed under Sec.  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 Sec.  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 
Sec. Sec.  16.3 and 16.23.
    (b) A dismissal under this section will include the reasons for the 
dismissal.
    12. Add Sec.  16.26 as follows:


Sec.  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 Sec.  16.27 to read as follows:


Sec.  16.27  Incomplete complaints.

    (a) If a complaint is not dismissed pursuant to Sec.  16.25 of this 
part, but is deficient as to one or more of the requirements set forth 
in Sec.  16.21 or Sec.  16.23(b), the Director will dismiss the 
complaint within 20 days after receiving it. Dismissal will be without 
prejudice to the refiling of the complaint after amendment to correct 
the deficiency. The Director's dismissal will include the reasons for 
the dismissal.
    (b) Dismissals under this section are not initial determinations, 
and appeals from decisions under this section will not be permitted.
    14. In Sec.  16.29, revise the first sentence of paragraph (b)(2) 
to read as follows:


Sec.  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 Sec.  16.31 to read as follows:

[[Page 13040]]

Sec.  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 Sec.  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 Sec.  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 Sec.  16.33 to read as follows:


Sec.  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 Sec.  16.13 and serve in accordance with Sec.  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 Sec.  16.34 to read as follows:


Sec.  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 Sec.  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.


Sec.  16.105  [Amended]

    18. Amend Sec.  16.105 by removing ``determination'' and adding 
``Determination'' in its place.
    19. Revise Sec.  16.109 to read as follows:


Sec.  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.

[[Page 13041]]

    (b) In a case in which the agency provides the opportunity for a 
hearing, the Director's Determination issued under Sec.  16.31 will 
include a statement of the availability of a hearing under subpart F of 
this part.
    (1) Within 20 days after service of a Director's Determination 
under Sec.  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 Sec.  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 Sec.  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 Sec.  16.201 by revising paragraph (b) to read as 
follows:


Sec.  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 Sec.  16.203 by revising paragraphs (a)(1), (b)(1), and 
(b)(2) to read as follows:


Sec.  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 Sec.  16.207 to read as follows:


Sec.  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 Sec.  16.211, revise the last sentence in paragraph (c) to 
read as follows:


Sec.  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 Sec.  16.215 by adding paragraph (e) to read as follows:


Sec.  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 Sec.  16.227 to read as follows:


Sec.  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 Sec.  16.229 by adding introductory text to read as 
follows:


Sec.  16.229  Burden of proof.

    As used in this subpart, the burden of proof is as follows:
* * * * *
    27. Revise Sec.  16.233 to read as follows:

[[Page 13042]]

Sec.  16.233  Record.

    (a) Exclusive record. The transcript of all testimony in the 
hearing, all exhibits received into evidence, all motions, applications 
requests and rulings, 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 Sec.  16.235 by revising paragraph (b) to read as 
follows:


Sec.  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.


Sec. Sec.  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 Sec.  16.241 by revising paragraphs (a) and (c) and 
removing paragraph (f).
    The revisions read as follows:


Sec.  16.241  Initial decisions, order, and appeals.

    (a) The hearing officer shall issue an initial decision based on 
the record developed during the proceeding and shall send the initial 
decision to the parties not later than 110 days after the Director's 
Determination unless otherwise provided in the hearing order.
* * * * *
    (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 Sec.  16.245(d), a statement of corrective 
action, if appropriate, and identifies sanctions for continued 
noncompliance.
* * * * *
    32. Add Sec.  16.245 to subpart F to read as follows:


Sec.  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 Sec.  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 Sec.  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 Sec.  16.247, and subpart 
I, consisting of Sec. Sec.  16.301, 16.303, 16.305, and 16.307, as 
subparts G and H, respectively.

[[Page 13043]]

    34. In Sec.  16.247, revise paragraphs (a), (b)(2), and (b)(4) to 
read as follows:


Sec.  16.247  Judicial review of a final decision and order.

    (a) A person may seek judicial review, in a United States Court of 
Appeals, of a final decision and order of the Associate Administrator, 
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 Sec. Sec.  16.33(c) and 16.241(b).


Sec.  16.301  [Removed]

    35. Remove Sec.  16.301 from newly redesignated subpart H.


Sec. Sec.  16.303, 16.305, and 16.307  [Redesignated as Sec. Sec.  
16.301, 16.303, and 16.305]

    36. In newly redesignated subpart H, redesignate Sec. Sec.  16.303, 
16.305, and 16.307 as Sec. Sec.  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


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