Federal Register / Vol. 78, No. 177 / Thursday, September 12, 2013 / Rules and Regulations 56135 

promulgates or is expected to lead to 

promulgation of a final rule, and that: 

(1) Is a significant regulatory action 

under Executive Order 12866, or any 

successor order; and (2) is likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy, or 

(3) is designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

Today’s regulatory action is not a 

significant energy action. Accordingly, 

DOE has not prepared a Statement of 

Energy Effects. 

K. Administrative Procedure Act 

The regulatory changes in this notice 

of final rulemaking consist of technical 

amendments to remove references a 

program that no longer exists and to a 

form that is no longer in use, and to 

conform references to position 

descriptions that relate solely to internal 

agency organization, management or 

personnel. As such, pursuant to 5 U.S.C. 

553(a)(2), this rule is not subject to the 

rulemaking requirements of the 

Administrative Procedure Act, 

including the requirements to provide 

prior notice and an opportunity for 

public comment and a 30-day delay in 

effective date. 

L. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

submit to Congress a report regarding 

the issuance of today’s final rule prior 

to the effective date set forth at the 

outset of this notice. The report will 

state that it has been determined that 

the rule is not a ‘‘major rule’’ as defined 

by 5 U.S.C. 801(2). 

List of Subjects in 10 CFR Part 712 

Administrative practice and 

procedure, Alcohol abuse, Classified 

information, Drug abuse, Government 

contracts, Government employees, 

Health, Occupational safety and health, 

Radiation protection, Security measures. 

Issued in Washington, DC on August 29, 

2013. 

Glenn Podonsky, 

Chief Health, Safety and Security Officer. 

For the reasons set forth in the 

preamble, DOE amends part 712 of 

chapter III, title 10, Code of Federal 

Regulations, as set forth below: 

PART 712—HUMAN RELIABILITY 

PROGRAM 

■ 1. The authority citation for part 712 

continues to read as follows: 

Authority: 42 U.S.C. 2165; 42 U.S.C. 2201; 

42 U.S.C. 5814–5815; 42 U.S.C. 7101 et seq.; 

50 U.S.C. 2401 et seq.; E.O. 10450, 3 CFR 

1949–1953 Comp., p. 936, as amended; E.O. 

10865, 3 CFR 1959–1963 Comp., p. 398, as 

amended; 3 CFR Chap. IV. 

■ 2. Section 712.3 is amended by: 

■ a. Removing the definition of 

‘‘Accelerated Access Authorization 

Program.’’ 

■ b. Revising the definition of 

‘‘Manager’’ to read as follows: 

§ 712.3 Definitions. 

* * * * * 

Manager means the senior Federal 

line manager at a departmental site or 

Federal office with HRP-designated 

positions. 

* * * * * 

■ 3. Revise § 712.11(a)(1) and (2) to read 

as follows: 

§ 712.11 General requirements for HRP 

certification. 

(a) * * * 

(1) A DOE ‘‘Q’’ access authorization 

based on a background investigation; 

(2) An annual review of the personnel 

security file; 

* * * * * 

§ 712.12 [Amended] 

■ 4. Sections 712.12(e) and 712.12(f)(1) 

are amended by removing ‘‘Policy’’ after 

‘‘Office of’’ and adding in its place 

‘‘Security, or designee.’’ 

[FR Doc. 2013–22231 Filed 9–11–13; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 16 

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

No. 16–1] 

RIN 2120–AJ97 

Rules of Practice for FederallyAssisted Airport Enforcement 

Proceedings (Retrospective 

Regulatory Review) 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This action updates, 

simplifies, and streamlines rules of 

practice and procedure for filing and 

adjudicating complaints against 

federally-assisted airports. It improves 

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: Effective November 12, 2013. 

ADDRESSES: For information on where to 

obtain copies of rulemaking documents 

and other information related to this 

final rule, see ‘‘How to Obtain 

Additional Information’’ in the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: For 

technical or legal questions concerning 

this action, contact Jessie Di Gregory, 

Federal Aviation Administration, Office 

of the Chief Counsel, Airport Law 

Branch (AGC–610), 800 Independence 

Avenue SW., Washington, DC 20591; 

telephone (202) 267–3199; fax (202) 

267–5769; email: Jessie.DiGregory@

faa.gov. 

SUPPLEMENTARY INFORMATION: 

Authority for This Rulemaking 

The FAA’s authority to issue rules on 

aviation safety is found in Title 49 of the 

United States Code. Subtitle I, Section 

106 describes the authority of the FAA 

Administrator. Subtitle VII, Aviation 

Programs, describes in more detail the 

scope of the agency’s authority. 

This rulemaking is promulgated 

under the authority described in 

Subtitle VII, Part A, Sections 46101, 

‘‘Complaint and Investigations’’ and 

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

47122, ‘‘Administrative.’’ Under these 

sections, Congress provided for the FAA 

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 Final 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 


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56136 Federal Register / Vol. 78, No. 177 / Thursday, September 12, 2013 / Rules and Regulations 

1 61 FR 53998, October 16, 1996. 

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

intended to explain each issue in detail. 

3 77 FR 13027. 

4 77 FR 29250. 5 Id. 

sponsors for violation of federal 

obligations. For this final rule, a sponsor 

is a recipient of federal assistance, 

usually an airport operator. This final 

rule improves 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 affects those 

parties involved in filing and 

responding to formal complaints. It also 

affects the FAA offices involved in 

investigating and adjudicating those 

complaints. 

The FAA, sponsors, aeronautical 

users, and other stakeholders have 17 

years of experience with Part 16 as 

implemented in 1996.1 In general, Part 

16 has been a useful process for 

resolving complaints regarding sponsor 

compliance. The FAA does not intend 

to change the basic features of the 

process. Rather, the FAA has identified 

updates to Part 16 that could improve 

the process and reduce time required to 

address certain cases, based on agency 

and stakeholder lessons learned. 

The FAA has determined that the 

agency, sponsors, aeronautical users, 

and other stakeholders in Part 16 

proceedings will benefit from adding 

the following to the rule: 

• Procedures for concluding the 

investigation by ‘‘summary judgment’’ 

or dismissal without an answer by the 

sponsor. 

• Termination of complainant 

standing in certain cases where the FAA 

finds the sponsor in noncompliance on 

all issues raised in the complaint. 

• Optional electronic filing 

procedures. 

• Procedures for filing complaints 

under Title 49 CFR part 23, 

Participation of Disadvantaged Business 

Enterprises (DBEs) in Airport 

Concessions, and 49 CFR part 26, 

Participation by DBEs in Department of 

Transportation (DOT) Financial 

Assistance Programs. 

In addition, the FAA has determined it 

will be helpful to clarify existing 

language in Part 16 that addresses 2— 

• Intervention and other 

participation. 

• The process for ordering corrective 

action for noncompliant sponsors. 

• Processes involving the Director, 

including procedures for seeking 

rehearing of Director’s Determinations 

upon a showing of good cause. 

• Standard of Proof and Burden of 

Proof requirements. 

• Standards for raising new issues on 

appeal to the Associate Administrator. 

• Consent Orders. 

• Requests for testimony of agency 

employees. 

• Processes involving the Associate 

Administrator, including procedures for 

seeking rehearing of Final Agency 

Decisions upon a showing of good 

cause. 

• Transfer of responsibility for 

decision-making for civil rights cases. 

• Availability of judicial review. 

• Extension of the time period for 

filing pleadings by mail. 

Finally, the FAA is making minor 

updates to terminology and organization 

within Part 16 as part of its revision. 

These changes streamline the rule and 

reflect current practices. 

The FAA expects benefits of these 

changes to include a decrease in both 

time spent and volume of paper 

documents required to process Part 16 

complaints. 

II. Background 

A. Statement of the Problem 

Part 16 has not been updated since its 

original implementation in 1996. As 

described earlier in this preamble and in 

the NPRM, 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 is 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. 

B. Summary of the NPRM 

The FAA proposed to update, 

simplify, and streamline rules of 

practice and procedure for filing and 

adjudicating complaints against 

federally-assisted airports found in 14 

CFR part 16 (Part 16) with an NPRM 

published in the Federal Register on 

March 5, 2012.3 The NPRM provided a 

60-day period for the public to file 

comments on the proposal. 

On May 17, 2012, the FAA re-opened 

the comment period with a Notice 

published in the Federal Register in 

response to a request from the Airports 

Council International-North America 

(ACI–NA), an association representing 

the local, regional and state governing 

bodies that own and operate the 

principal airports served by scheduled 

air carriers in North America.4 ACI–NA 

sought additional time to complete its 

review and coordinate comments 

received from members that would be 

impacted by the proposed changes. The 

re-opened comment period closed on 

June 7, 2012.5

C. General Overview of Comments 

The FAA received five comments. 

Two groups representing airports (the 

Airports Council International-North 

America (ACI–NA) and the American 

Association of Airport Executives 

(AAAE) provided supportive comments 

with suggestions to improve the rule, as 

did the Port Authority of New York and 

New Jersey. All three of these 

commenters have experience with 

responding to complaints filed under 

Part 16. In addition, an individual who 

represents complainants in Part 16 

complaints also indicated support while 

offering specific suggestions. One 

private citizen commented as well, 

indicating general support for the FAA’s 

effort to revise and streamline the rule. 

Commenters raised eleven issues 

regarding the proposal, from concerns 

and suggestions to improve new options 

for motions to dismiss and motions for 

summary judgment to minor editorial 

corrections. 

III. Discussion of Public Comments and 

Final Rule 

A. Motions to Dismiss and Motions for 

Summary Judgment (§§ 16.25 and 16.26) 

The Port Authority of New York and 

New Jersey (Port Authority) and ACI– 

NA commented on the new options for 

motions to dismiss and motions for 

summary judgment proposed in 

§§ 16.25 and 16.26. ACI–NA encouraged 

the FAA to carefully scrutinize 

complaints and not docket complaints 

in accordance with § 16.25 that fall 

outside of the FAA’s jurisdiction, fail to 

state a claim that warrants investigation, 

or where the complainant lacks 

standing. ACI–NA then pointed out that 

the new provisions for motions are 

meant to reduce paperwork for 

respondents and the FAA, and not 

increase it by requiring respondents to 

submit motions to dismiss in response 

to complaints that should not have been 

docketed in the first place. ACI–NA 

indicated that the FAA should ‘‘be more 

vigilant’’ in assessing complaints at the 

docketing stage. Finally, ACI–NA 

pointed out that as proposed in the 

NPRM, § 16.26 draws no distinction 

between motions to dismiss and 

motions for summary judgment. Since 

there are differences between the two 

motions, ACI–NA recommended that to 

avoid confusion, the FAA should 


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6Paskar, et al. v. City of New York and Port 

Authority of New York and New Jersey, FAA Docket 

No. 16–11–04. 

7Paskar and Friends of LaGuardia Airport v. 

FAA, No. 11–2720–ag, 478 Fed.Appx. 707. 8 49 CFR 26.105(c). 

distinguish between these dispositive 

motions in the rule and proposed 

specific language. ACI–NA also urged 

the FAA to distinguish between these 

two kinds of motions so that this rule 

would be consistent with the Federal 

Rules of Civil Procedure. 

ACI–NA suggested substituting the 

word ‘‘dockets’’ for the word ‘‘receives’’ 

in proposed § 16.26(a) for greater 

consistency with deadlines throughout 

the rule. 

The Port Authority and ACI–NA 

expressed concern that these sections 

would require the filing of motions 

before the docketing of a complaint. The 

Port Authority further stated that the 

provisions of § 16.26 are not consistent 

with the stated intent of relieving 

respondents of unnecessary effort in 

drafting an answer and compiling 

supporting documents, and achieving 

consistency with the Federal Rules of 

Civil Procedure. The Port Authority 

indicated its concern that there is a 

possibility under the current proposal 

that a respondent might be required to 

file an answer prior to the FAA’s 

determination on the motion to dismiss 

or motion for summary judgment. The 

Port Authority proposed that the FAA 

delete § 16.26(f) to make the rule 

consistent with the Federal Rules of 

Civil Procedure, which stay the time for 

filing and service of an answer during 

deliberations on the motion. 

The Port Authority and ACI–NA also 

recommended that the rules for 

dispositive motions be located in a new 

§ 16.28 since both §§ 16.25 and 16.27 

address actions to be taken by the FAA 

before docketing a complaint. 

The FAA continues to closely 

scrutinize incoming Part 16 complaints 

to make certain that they are in 

compliance with the rule. The FAA 

routinely returns Part 16 complaints 

prior to the official docketing (so that no 

answer is due from the respondent) 

when one or more requirements in the 

rule are not met. In a May 24, 2011 

partial dismissal order, the FAA 

dismissed the city of New York as a 

party since it was not a ‘‘respondent’’ 

within the meaning of Part 16.6 The U.S. 

Court of Appeals for the Second Circuit 

upheld the FAA’s order on June 12, 

2012.7

The FAA is aware of the fact that 

parties to a Part 16 proceeding often 

have differing levels of legal expertise 

and familiarity with the rule. The FAA 

also recognizes that some of those who 

file complaints under Part 16 do so pro 

se, that is, without the benefit of legal 

counsel. While the FAA closely 

scrutinizes complaints filed under Part 

16, it will docket complaints that have 

any basis for filing under the rule. If a 

respondent feels that a complaint 

contains frivolous or extraneous issues, 

it can avail itself of the motions 

described in § 16.26. The FAA believes 

that these new provisions for motions 

will help to reduce paperwork for 

respondents and the agency. 

The FAA agrees with ACI–NA’s 

suggestion to more clearly differentiate 

between motions to dismiss and 

motions for summary judgment. The 

FAA is including the provisions on 

motions to dismiss under § 16.26(b). 

The FAA is including the provisions 

addressing motions for summary 

judgment under § 16.26(c). Sections 

16.26(e) and 16.26(f), as proposed in the 

NPRM, are renumbered as §§ 16.26(b)(4) 

and (5) and 16.26(c)(4) and (5), 

respectively. Additionally, the FAA has 

restructured § 16.26(c) to streamline it. 

The FAA also has added language in 

renumbered § 16.26(c)(4) for 

clarification. 

The FAA is modifying section 

headings, organization, and 

introductory language to make clear that 

motions to dismiss are addressed in 

§ 16.26(b), and motions for summary 

judgment are addressed in § 16.26(c). As 

a result, motions to dismiss and motions 

for summary judgment continue to have 

the same effect on filings, deadlines, 

and orders. 

The FAA agrees with ACI–NA’s 

suggestion to change § 16.26(a) by 

substituting language similar to that 

used in § 16.23(d). However, the FAA 

notes that § 16.23(d) requires an answer 

to be filed ‘‘within 20 days of the date 

of service of the FAA notification [of 

docketing].’’ This differs from ACI–NA’s 

assertion in their comment that 

§ 16.23(d) requires an answer to be filed 

within 20 days of the FAA docketing a 

complaint. 

B. Method of Filing (§§ 16.13 and 16.17) 

Two commenters recommended 

improvements to the provisions 

regarding electronic filing and postal 

submissions. AAAE encouraged the 

FAA to improve its technological 

capabilities so that parties might upload 

and access documents through an 

electronic docket. 

The Port Authority noted that the 

term ‘‘post office address’’ (§ 16.13(f)) is 

no longer accurate. It also suggested that 

one day be added to a prescribed period 

for a right or requirement to perform an 

act after service of a document if the 

document is served by overnight 

express delivery. 

The FAA partially agrees with these 

comments. The FAA believes that the 

changes proposed to § 16.13 in the 

NPRM address AAAE’s interest in 

modernizing the filing process. Anyone 

may access all documents regarding a 

particular complaint via the electronic 

docket on http://www.regulations.gov. 

AAAE correctly stated that parties may 

not upload documents to 

regulations.gov. The FAA does not find 

it necessary for parties to be able to do 

so. Proposed § 16.13 gives parties an 

opportunity to email their pleadings to 

the Docket Clerk, who will then send 

the pleadings to the DOT Docket Staff 

for submission to http://

www.regulations.gov. 

The FAA agrees with the Port 

Authority’s suggestion to replace the 

term ‘‘post office address’’ with the term 

‘‘physical address’’ in § 16.13(f). 

However, the FAA finds it unnecessary 

to add a day to deadlines when parties 

choose overnight, express delivery. 

C. Complaints Related to Civil Rights 

and Disadvantaged Business Enterprises 

Filed Under 49 CFR 26.105(c) (§§ 16.3 

and 16.21) 

The Port Authority questioned the 

proposal to permit someone who is not 

‘‘directly and substantially affected’’ by 

a sponsor’s alleged violations to file a 

Part 16 complaint. The Port Authority 

also objected to the exemption of 

persons filing complaints under 49 CFR 

26.105(c) from good faith efforts at 

informal resolution required of other 

Part 16 complainants. ACI–NA 

expressed support for these comments 

by reference. 

The FAA notes that the provisions of 

49 CFR part 26 are outside the scope of 

this rulemaking. Participation of 

Disadvantaged Business Enterprises 

(DBEs) in the Airport Improvement 

Program (AIP) is governed by 49 CFR 

part 26. Under this regulation, 

complainants are not required to be 

directly and substantially affected by 

the sponsor’s alleged violations and 

‘‘[a]ny person who knows of a violation 

of this part by a recipient of FAA funds 

may file a complaint.’’ 8 Additionally, 

49 CFR § 26.105 does not mandate 

informal dispute resolution before filing 

a complaint under Part 16. 

D. Oral Argument Before the Associate 

Administrator and Availability of a 

Hearing (§§ 16.33 and 16.241) 

Three commenters expressed 

confusion over the role of oral 

arguments and hearings in the Part 16 


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56138 Federal Register / Vol. 78, No. 177 / Thursday, September 12, 2013 / Rules and Regulations 

9 77 FR 13027, March 7, 2012. 

10 59 FR 29880, 29882, June 9, 1994. 

11 ID. at 29881. 

12See Black’s Law Dictionary, 9th ed. 2009, See 

also, e.g., National Union Fire Insurance Co. of 

Pittsburgh v. City Savings FSB, 28 F.3d 376, 393 (3d 

Cir. 1994), and Starnes Family Office, LLC v. 

McCullar, 765 F.Supp.2d 1036, 1048 (W.D. Tenn., 

2011). 

process. The Port Authority, and ACI– 

NA by reference, suggested allowing 

oral argument before the Associate 

Administrator on appeal from a 

Director’s Determination in certain 

circumstances to provide assistance to 

the Associate Administrator. AAAE 

complained that it was unclear when a 

sponsor may request a hearing to appeal 

the Director’s Determination and to 

challenge the Director’s orders. 

The FAA notes that oral argument for 

all complaints appealed to the Associate 

Administrator is not required by law. A 

hearing, with oral argument, is required 

for either withholding approval or 

payment of grants as stated in 49 U.S.C. 

47106(d), 49 U.S.C. 47111, and 47114(c) 

and (e). Title 49 of the United States 

Code, 47114(d), does not require the 

FAA to provide a hearing for 

withholding discretionary grant funds 

from general aviation airports. 

Moreover, the FAA believes that 

allowing oral argument for all appeals of 

Director’s Determinations would cause 

undue delay. When not required by 

statute, the FAA finds oral argument 

unnecessary for a fair, just, and 

complete process. 

E. Timing of Pleadings, Director’s 

Determinations, and Final Agency 

Decisions 

ACI, AAAE, and a private citizen 

contended that the deadlines in the 

current rule are unrealistic and 

suggested extending them throughout 

the process. AAAE encouraged the FAA 

to do so while maintaining the 

expedited nature of the process. The 

private citizen made general suggestions 

for further revision of procedures. 

The FAA did not propose changes to 

the timing for pleadings, Director’s 

Determinations, or Final Agency 

Decisions in the NPRM because the 

existing process allows flexibility as 

needed for all parties involved. 

Therefore, any changes to the time 

periods for steps in the Part 16 

complaint process are outside the scope 

of the NPRM.9

The FAA notes that deadlines for 

service of pleadings in §§ 16.19 and 

16.23 are subject to parties’ petitions for 

extension under current § 16.11. Parties 

are able to determine if they can meet 

the deadlines, and can request 

extensions if they feel more time is 

necessary to complete the process fairly. 

The FAA’s intent has been to make 

the Part 16 process both expedited and 

complete since it originally proposed 

the rule in 1994. The 1994 NPRM stated 

that a Director’s Determination should 

be issued within six months of the 

FAA’s receipt of a complaint, reflecting 

intent ‘‘to expedite substantially the 

handling and disposition of airportrelated complaints’’ (in comparison to 

the 49 CFR part 13 process used prior 

to 1996).10 Part 16 was also designed to 

ensure a final and complete resolution 

of disputes because the Part 13 process 

did ‘‘not provide a structure that 

regularly facilitates the final 

administrative disposition of airportsrelated cases within prescribed time 

limits.’’ 11

F. Burden of Proof Versus Burden of 

Persuasion (§ 16.23) 

The Port Authority noted that 

proposed § 16.23(k) does not distinguish 

the legal concept of burden of proof 

from that of burden of persuasion. The 

commenter suggested that proposed 

§ 16.23(k) be separated out into a new 

§ 16.24. 

The FAA notes, in response, that the 

Parties entering the Part 16 process have 

varying levels of legal expertise and 

familiarity with the rule. While those 

with legal training likely understand the 

difference between burden of proof and 

burden of persuasion, others may not. 

Rather than adhering to the legal 

definitions of these terms, the FAA has 

chosen the term ‘‘burden of proof’’ to 

cover both concepts to make Part 16 

more accessible to all participants. The 

FAA finds that since burden of proof 

applies to all pleadings, the provision 

addressing it is best left as proposed in 

§ 16.23. 

G. Form of Complaints and Other 

Pleadings (§§ 16.23 and 16.3) 

ACI–NA sought consistent application 

of the requirement that a complainant 

show ‘‘how the complainant was 

‘directly and substantially affected’’’ by 

the respondent’s actions, especially 

regarding ripeness. It also recommended 

more rigorous formatting requirements 

for complaints. The Port Authority 

suggested that all pleadings be 

submitted according to the standards 

established in Federal Rule of Civil 

Procedure 10. 

The FAA must balance reliance on the 

Federal Rules of Civil Procedure with its 

obligation to provide a fair, just, and 

complete process to all parties. Many 

complainants and some respondents file 

without the benefit of general or 

specialized legal counsel. The FAA 

believes that adherence to strict 

formatting requirements for a Part 16 

complaint would place an unnecessary 

burden on those parties. 

Part 16 was designed with the Federal 

Rules of Civil Procedure in mind, but it 

was not intended to replicate the 

Federal Rules of Civil Procedure. Part 16 

was designed for administrative 

adjudication that relies on flexibility. 

H. Content of Pleadings (§§ 16.23 and 

16.3) 

Two commenters made suggestions 

regarding the content of pleadings 

received by the FAA during the Part 16 

process. ACI–NA recommended that the 

FAA define ‘‘affirmative defense’’ in 

§ 16.3 for clarity and restrict acceptance 

of supplemental pleadings to expedite 

the process. A private citizen suggested 

that the rules specify that a complainant 

may raise whatever issues and submit 

whatever documents it felt proper to 

respond to any matter raised in an 

answer, and that the FAA permit both 

parties to raise new issues at any time 

to ensure a full and fair Part 16 process. 

The FAA notes that the term 

‘‘affirmative defense,’’ while a legal term 

of art, is self-explanatory. The FAA 

finds it unnecessary to define this term 

in the Part 16 regulation. Various federal 

court decisions have relied upon the 

definition of ‘‘affirmative defense’’ in 

Black’s Law Dictionary.12

The FAA has two concerns regarding 

the suggestion that complainants be able 

to bring new information to the Director 

prior to the issuance of the Director’s 

Determination (i.e., during the 

investigatory phase). First, it would be 

difficult, if not impossible, to finalize 

the investigation and draft the decision 

document where new information was 

able to be routinely submitted to the 

docket. In a sense, the docket would 

never close in some cases, and 

investigations might have to be restarted leading to significant 

inefficiencies and delay. 

Second, § 16.19 currently allows 

parties to submit motions at any time, 

and for the opposing party to respond. 

So, there is a mechanism in place now 

that would permit new information to 

be submitted if the complainant 

believed that it was necessary for the 

FAA to consider this information. This 

provision allows flexibility in 

supplementing the record with relevant 

information while allowing the Director 

to exercise discretion to expedite the 

process. 

Concerning the suggestion that 

complainants should be able to bring 

new information to the attention of the 


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Federal Register / Vol. 78, No. 177 / Thursday, September 12, 2013 / Rules and Regulations 56139 

13 77 FR 13032. 

Associate Administrator during the 

Director’s Determination appeal process, 

the FAA notes that new § 16.33(f) 

expressly provides that new issues or 

evidence may be brought before the 

Associate Administrator if certain 

requirements are met. If a complainant 

were not able to meet these 

requirements, he or she would be free to 

file a new complaint to address the new 

information. 

Concerning the suggestion that the 

FAA should state specifically that a 

complainant may raise any issue and 

submit any document necessary or 

desirable to respond to any denial or 

affirmative defense raised in the 

Answer, the FAA does believe that such 

clarification is necessary in the rule. 

I. Processes Involving the Director 

(§§ 16.31 and 16.109) 

Three commenters were concerned 

with clarity of language and improper 

extension of the Director’s authority. 

ACI–NA commented that the language 

in proposed § 16.109, addressing orders 

terminating grants, cease and desist 

orders, and compliance orders, is 

unclear in relation to that of § 16.31, 

addressing Director’s Determinations 

after investigations. AAAE suggested 

that the proposed changes in the 

Director’s authority exceed legal limits 

and fail to clearly describe what orders 

the Director could issue. The Port 

Authority proposed that a definition of 

‘‘Corrective Action Plan’’ be added to 

§ 16.3. 

The FAA finds that neither the 

provisions in proposed §§ 16.31(c) nor 

16.109(c) exceed the scope of the FAA’s 

authority. Under 49 U.S.C. 47107(a–e), 

the FAA is required to seek specific 

commitments from sponsors before 

giving those sponsors grants. Other 

provisions, such as 49 U.S.C. 47111, 

give the FAA authority to withhold 

grants from sponsors when those 

conditions are not met. By requiring 

corrective action, the FAA helps the 

sponsor take steps necessary to retain 

grant eligibility. Orders to this effect are 

within the scope of the Director’s 

authority. As stated in the NPRM, 

proposed §§ 16.31(c) and 16.109(c) 

allow both flexibility and finality in the 

process.13

The FAA also finds it beneficial to 

both the agency and respondents to 

leave ‘‘Corrective Action Plan’’ 

undefined. These plans for bringing an 

airport sponsor into compliance with its 

federal obligations are dependent on the 

specific facts of each Part 16 proceeding. 

Defining this term could limit the FAA’s 

flexibility in ensuring sponsor 

compliance and a fair outcome for the 

parties. 

The FAA has added language to 

§ 16.34(a) and (c) to clarify the Director’s 

authority to determine whether or not to 

issue a consent order where parties 

propose to dispose of a case through the 

issuance of that order. 

J. Deposition of FAA Employees 

(§ 16.215(e)) 

AAAE objected to the breadth of the 

provision allowing parties to depose 

agency employees only with written 

permission of the Chief Counsel. It 

suggested adding an exception to this 

rule. 

The FAA finds an exception is 

unnecessary. As proposed in the NPRM, 

§ 16.215(e) is consistent with the 

provisions of 49 CFR part 9, Testimony 

of Employees of the Department and 

Production of Records in Legal 

Proceedings. 

K. Third Party Participation in Part 16 

Hearings (§ 16.207) 

The Port Authority believes that 

participation in Part 16 proceedings 

should be limited to third parties whose 

interests are sufficient to give them 

standing equal to that of a complainant 

or respondent. 

The FAA believes that new provisions 

on third party participation are 

sufficiently restrictive to prevent the 

involvement of uninterested third 

parties. The current rule does not limit 

third party participation to the hearing 

stage, nor does it require a written 

motion to intervene. Changes proposed 

in the NPRM further restrict third party 

participation. The FAA is changing 

these provisions while maintaining the 

discretion of the hearing officer to admit 

parties necessary to ensure a fair, just, 

and complete process. 

L. Miscellaneous Issues (§§ 16.13, 16.17, 

16.19, 16.26, 16.33, 16.109, 16.111, and 

16.245) 

Several commenters noted 

typographical errors, omissions, and 

inconsistencies throughout the 

proposed regulatory text. 

The FAA is addressing the following 

typographical errors, omissions, and 

inconsistencies identified by 

commenters: 

• Removing ‘‘A facsimile neither 

constitutes an executed original nor one 

of the three copies required directly 

above’’ from § 16.13(c) (Port Authority 

and ACI); 

• Replacing reference to paragraph (a) 

in § 16.33(c) with a reference to 

paragraph (b) (ACI); and 

• Replacing ‘‘appeal’’ with ‘‘seek 

judicial review of’’ in § 16.245(d) for 

clarity and consistency with § 16.245(g) 

(Port Authority). 

However, the FAA notes that the 

following suggested changes would not 

improve clarity, and is not 

implementing these recommendations: 

• § 16.17(d)—The Port Authority 

noted that proposed § 16.17(d) 

contained confusing language and 

suggested changes; 

• §§ 16.19 (e) and 16.17—The Port 

Authority suggested repeating § 16.19(e) 

as § 16.17(e) to improve clarity; 

• § 16.26(d)—The Port Authority (and 

ACI–NA by reference) suggested 

replacing the words ‘‘A reply to’’ with 

‘‘a brief answering’’; 

• § 16.109—The Port Authority 

suggested moving § 16.109 (c)–(g) to 

§ 16.111 (a)–(e); and 

• § 16.245(e)—The Port Authority 

suggested adding new language. 

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). 

A. Regulatory Evaluation 

DOT Order 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 to 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 


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this final 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 final rule clarifies and 

improves the efficiency of the current 

part 16 regulations for adjudicating 

complaints on matters within the 

agency’s authority. These changes will 

be cost-beneficial because they decrease 

time spent and volume of paper 

documents required to process part 16 

complaints. The new electronic filing 

process available to the government, 

complainants, and respondents will 

produce resource savings. Additionally, 

allowing a respondent to file a motion 

to dismiss, or a motion for summary 

judgment, will also produce resource 

savings. 

The expected outcome will be a 

minimal impact with positive net 

benefits, and therefore a full regulatory 

evaluation was not prepared. The FAA 

requested comments regarding this 

determination in the NPRM. Because no 

comments were received on this 

determination, the FAA believes the 

expected outcome is correct. The FAA 

has therefore determined that this final 

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. 

Additionally, this action fulfills the 

principles of Executive Order 13563, 

specifically those relating to 

retrospective analyses of existing rules. 

This rule is being issued as a result of 

the reviews of existing regulations that 

the FAA periodically conducts. The 

FAA is streamlining its regulations to 

reflect changes in applicable law and 

regulations, and to apply lessons 

learned since the original rule was 

published in 1996. 

B. Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 1980 

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

principle of regulatory issuance that 

agencies shall endeavor, consistent with 

the objectives of the rule and of 

applicable statutes, to fit regulatory and 

informational requirements to the scale 

of the businesses, organizations, and 

governmental jurisdictions subject to 

regulation. To achieve this principle, 

agencies are required to solicit and 

consider flexible regulatory proposals 

and to explain the rationale for their 

actions to assure that such proposals are 

given serious consideration.’’ The RFA 

covers a wide-range of small entities, 

including small businesses, not-forprofit organizations, and small 

governmental jurisdictions. 

Agencies must perform a review to 

determine whether a rule will have a 

significant economic impact on a 

substantial number of small entities. If 

the agency determines that it will, the 

agency must prepare a regulatory 

flexibility analysis as described in the 

RFA. 

However, if an agency determines that 

a rule is not expected to have a 

significant economic impact on a 

substantial number of small entities, 

section 605(b) of the RFA provides that 

the head of the agency may so certify 

and a regulatory flexibility analysis is 

not required. The certification must 

include a statement providing the 

factual basis for this determination, and 

the reasoning should be clear. 

As noted above, the proposed changes 

to Part 16 are cost-relieving. 

Accordingly, the final rule will not have 

a significant economic impact on a 

substantial number of small entities. 

The FAA certified in the NPRM that the 

proposed rule would not have a 

significant economic impact on a 

substantial number of small entities. 

The FAA requested comments regarding 

this determination in the NPRM. 

Specifically, the FAA requested 

comments on whether the proposed rule 

would create any specific compliance 

costs unique to small entities and 

requested any respondents to provide 

detailed economic analysis to support 

any cost claims. The FAA received no 

response to its request for comments. 

Therefore, as the FAA Administrator, 

I certify that this final rule will not have 

a significant economic impact on a 

substantial number of small entities. 

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 assessed the 

potential effect of this proposed rule in 

the NPRM and determined that it would 

have only a domestic impact and 

therefore create no obstacles to the 

foreign commerce of the United States. 

The FAA received no comments on this 

determination. Therefore, the FAA 

determines that this final rule will 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. 

The NPRM found that the proposed rule 

did not contain such a mandate; and, 

therefore, the requirements of Title II of 

the Act did not apply. The FAA 

received no comments on this finding. 

Therefore, the FAA finds that this final 

rule does not contain such a mandate; 

and, 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 is no 

new requirement for information 

collection associated with this final 

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 regulations. 

G. Environmental Analysis 

FAA Order 1050.1E 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. 


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The FAA has determined this 

rulemaking action qualifies for the 

categorical exclusion identified in 

paragraph 312d of the Order and 

involves no extraordinary 

circumstances. 

V. Executive Order Determinations 

A. Executive Order 13132, Federalism 

The FAA has analyzed this final rule 

under the principles and criteria of 

Executive Order 13132, Federalism. The 

agency determined that this action will 

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, 

does not have Federalism implications. 

B. Executive Order 13211, Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use 

The FAA analyzed this final 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 is not a 

‘‘significant energy action’’ under the 

executive order and it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

VI. How To Obtain Additional 

Information 

A. Rulemaking Documents 

An electronic copy of a rulemaking 

document may be obtained by using the 

Internet— 

1. Search the Federal eRulemaking 

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

2. Visit the FAA’s Regulations and 

Policies Web page at http://

www.faa.gov/regulations_policies/ or 

3. Access the Government Printing 

Office’s Web page at http://

www.gpo.gov/fdsys/. 

Copies may also be obtained by 

sending a request (identified by notice, 

amendment, or docket number of this 

rulemaking) to the Federal Aviation 

Administration, Office of Rulemaking, 

ARM–1, 800 Independence Avenue 

SW., Washington, DC 20591, or by 

calling (202) 267–9680. 

B. Comments Submitted to the Docket 

Comments received may be viewed by 

going to http://www.regulations.gov and 

following the online instructions to 

search the docket number for this 

action. Anyone is able to search the 

electronic form of all comments 

received into any of the FAA’s dockets 

by the name of the individual 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

C. Small Business Regulatory 

Enforcement Fairness Act 

The Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 requires FAA to comply with 

small entity requests for information or 

advice about compliance with statutes 

and regulations within its jurisdiction. 

A small entity with questions regarding 

this document, may contact its local 

FAA official, or the person listed under 

the FOR FURTHER INFORMATION CONTACT

heading at the beginning of the 

preamble. To find out more about 

SBREFA on the Internet, visit http://

www.faa.gov/regulations_policies/

rulemaking/sbre_act/. 

List of Subjects in 14 CFR Part 16 

Administrative practice and 

procedure, Airports, Investigations. 

The Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends chapter I of title 14, Code of 

Federal Regulations as follows: 

PART 16—RULES OF PRACTICE FOR 

FEDERALLY-ASSISTED AIRPORT 

ENFORCEMENT PROCEEDINGS 

■ 1. The authority citation for part 16 is 

revised to read as follows: 

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

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

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

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

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

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

■ 2. Amend § 16.1 by revising 

paragraphs (a) introductory text and 

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

§ 16.1 Applicability and description of part. 

(a) General. The provisions of this 

part govern all Federal Aviation 

Administration (FAA) proceedings 

involving Federally-assisted airports, 

except for complaints or requests for 

determination filed with the Secretary 

under 14 CFR part 302, whether the 

proceedings are instituted by order of 

the FAA or by filing a complaint with 

the FAA under the following 

authorities: 

* * * * * 

(3) The assurances and other Federal 

obligations contained in grant-in-aid 

agreements issued under the Federal 

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

seq. (repealed 1970). 

(4) The assurances and other Federal 

obligations contained in grant-in-aid 

agreements issued under the Airport 

and Airway Development Act of 1970, 

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

(5) The assurances and other Federal 

obligations contained in grant-in-aid 

agreements issued under the Airport 

and Airway Improvement Act of 1982 

(AAIA), as amended and recodified, 49 

U.S.C. 47101 et seq., specifically section 

511(a), 49 U.S.C. 47107, and 49 U.S.C. 

47133. 

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

Airway Improvement Act of 1982, and 

the requirements concerning civil rights 

and/or Disadvantaged Business 

Enterprise (DBE) issues contained in 49 

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

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

amended; 49 CFR parts 23 and/or 26; 

and/or grant assurance 30 and/or grant 

assurance 37. 

* * * * * 

■ 3. Amend § 16.3 as follows: 

■ a. Remove the definitions of Director’s 

determination, File, and Final decision 

and order; 

■ b. Revise the definitions of Agency 

employee, Associate Administrator, 

Complaint, Director, Hearing officer, 

Mail, and Personal delivery; and 

■ c. Add definitions for Administrator, 

Agency, Decisional employee, Electronic 

filing, Ex parte communication, and 

Writing or written in alphabetical order. 

The revisions and additions read as 

follows: 

§ 16.3 Definitions. 

* * * * * 

Administrator means the 

Administrator of the FAA. 

Agency means the FAA. 

* * * * * 

Agency employee means any 

employee of the FAA. 

Associate Administrator means the 

FAA Associate Administrator for 

Airports or a designee. For the purposes 

of this part only, Associate 

Administrator also means the Assistant 

Administrator for Civil Rights or a 

designee for complaints that the FAA 

Associate Administrator for Airports 

transfers to the Assistant Administrator 

for Civil Rights. 

* * * * * 

Complaint means a written document 

meeting the requirements of this part 

and filed under this part: 

(1) By a person directly and 

substantially affected by anything 

allegedly done or omitted to be done by 

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, 


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Associate Administrator, Director, 

hearing officer, or other FAA employee 

who is or who may reasonably be 

expected to be involved in the 

decisional process of the proceeding. 

Director means the Director of the 

FAA Office of Airport Compliance and 

Management Analysis, or a designee. 

For the purposes of this part only, 

Director also means the Deputy 

Assistant Administrator for Civil Rights 

for complaints that the Director of the 

FAA Office of Airport Compliance and 

Management Analysis transfers to the 

Deputy Assistant Administrator for Civil 

Rights or designee. 

Electronic filing means the process of 

sending electronic mail (email) to the 

FAA Part 16 Docket Clerk, with scanned 

documents attached, as a Portable 

Document Format (PDF) file. 

Ex parte communication means an 

oral or written communication not on 

the public record with respect to which 

reasonable prior notice to all parties is 

not given, but it shall not include 

requests for status reports on any matter 

or proceeding covered by this part, or 

communications between FAA 

employees who participate as parties to 

a hearing pursuant to 16.203(b) of this 

part and other parties to a hearing. 

Hearing officer means an attorney 

designated by the Deputy Chief Counsel 

in a hearing order to serve as a hearing 

officer in a hearing under this part. The 

following are not designated as hearing 

officers: the Chief Counsel and Deputy 

Chief Counsel; the Regional or Center 

Counsel and attorneys in the FAA 

region or center in which the 

noncompliance has allegedly occurred 

or is occurring; the Assistant Chief 

Counsel and attorneys in the Airports 

and Environmental Law Division of the 

FAA Office of the Chief Counsel; and 

the Assistant Chief Counsel and 

attorneys in the Litigation Division of 

the FAA Office of Chief Counsel. 

* * * * * 

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

certified mail; and U.S. express mail. 

Unless otherwise noted, mail also 

means electronic mail containing PDF 

copies of pleadings or documents 

required herein. 

* * * * * 

Personal delivery means same-day 

hand delivery or overnight express 

delivery service. 

* * * * * 

Writing or written includes paper 

documents that are filed and/or served 

by mail, personal delivery, facsimile, or 

email (as attached PDF files). 

■ 4. Amend § 16.11 by revising the 

section heading and paragraphs (a) and 

(b) introductory text, and adding 

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

§ 16.11 General processes. 

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

40113 and 47121, the Director may 

conduct investigations, issue orders, 

and take such other actions as are 

necessary to fulfill the purposes of this 

part. This includes the extension of any 

time period prescribed, where necessary 

or appropriate for a fair and complete 

consideration of matters before the 

agency, prior to issuance of the 

Director’s Determination. 

(b) Notwithstanding any other 

provision of this part, upon finding that 

circumstances require expedited 

handling of a particular case or 

controversy, the Director may issue an 

order directing any of the following 

prior to the issuance of the Director’s 

Determination: 

* * * * * 

(c) Other than those matters 

concerning a Corrective Action Plan, the 

jurisdiction of the Director terminates 

upon the issuance of the Director’s 

Determination. All matters arising 

during the appeal period, such as 

requests for extension of time to make 

an appeal, will be addressed by the 

Associate Administrator. 

(d) The Director may transfer to the 

FAA Deputy Assistant Administrator for 

Civil Rights or Office of Civil Rights 

designee the authority to prepare and 

issue Director’s Determinations 

pursuant to § 16.31 for complaints 

alleging violations of section 505(d) of 

the Airport and Airway Improvement 

Act of 1982, and the requirements 

concerning civil rights and/or 

Disadvantaged Business Enterprise 

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

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

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

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

assurance 30 and/or grant assurance 37. 

■ 5. Amend § 16.13 by revising 

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

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

follows: 

§ 16.13 Filing of documents. 

* * * * * 

(a) Filing address. Documents filed 

under this Part shall be filed with the 

Office of the Chief Counsel, Attention: 

FAA Part 16 Docket Clerk, AGC–600, 

Federal Aviation Administration, 800 

Independence Avenue SW., 

Washington, DC 20591. Documents to 

be filed with a hearing officer shall be 

filed at the address and in the manner 

stated in the hearing order. 

(b) Date and method of filing. Filing 

of any document shall be by personal 

delivery or mail as defined in this part, 

by facsimile (when confirmed by filing 

on the same date by one of the foregoing 

methods), or electronically as set forth 

in paragraph (h) of this section. Unless 

the date is shown to be inaccurate, 

documents filed with the FAA shall be 

deemed to be filed on the date of 

personal delivery, on the mailing date 

shown on the certificate of service, on 

the date shown on the postmark if there 

is no certificate of service, on the send 

date shown on the facsimile (provided 

filing has been confirmed through one 

of the foregoing methods), or on the 

mailing date shown by other evidence if 

there is no certificate of service and no 

postmark. Unless the date is shown to 

be inaccurate, documents filed 

electronically shall be deemed to be 

filed on the date shown on the 

certificate of service or, if none, the date 

of electronic transmission to the last 

party required to be served. 

(c) Number of copies. With the 

exception of electronic filing or unless 

otherwise specified, an executed 

original and three copies of each 

document shall be filed with the FAA 

Part 16 Docket Clerk. One of the three 

copies shall not be stapled, bound or 

hole-punched. Copies need not be 

signed, but the name of the person 

signing the original shall be shown. If a 

hearing order has been issued in the 

case, one of the three copies shall be 

filed with the hearing officer unless 

otherwise prescribed by the hearing 

officer. 

(d) Form. Documents filed under this 

part shall: 

(1) Be typewritten or legibly printed; 

(2) Include, in the case of docketed 

proceedings, the docket number of the 

proceeding on the front page; and 

(3) Be marked to identify personal, 

privileged or proprietary information. 

Decisions for the publication and 

release of these documents will be made 

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

CFR part 7. 

* * * * * 

(f) Designation of person to receive 

service. The initial document filed by 

any person shall state on the first page 

the name, physical address, telephone 

number, facsimile number, if any, and 

email address, if filing electronically, of 

the person(s) to be served with 

documents in the proceeding. If any of 

these items change during the 

proceeding, the person shall promptly 

file notice of the change with the FAA 

Part 16 Docket Clerk and the hearing 

officer and shall serve the notice on all 

parties. 

* * * * * 

(h) Electronic filing. (1) The initial 

complaint may be served electronically 


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Federal Register / Vol. 78, No. 177 / Thursday, September 12, 2013 / Rules and Regulations 56143 

upon the respondent only if the 

respondent has previously agreed with 

the complainant in writing to 

participate in electronic filing. 

Documents may be filed under this Part 

electronically by sending an email 

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

file(s) of the required pleading to the 

FAA Docket Clerk, and the person 

designated in paragraph (h)(3) of this 

section. 

(2) The subject line of the email must 

contain the names of the complainant 

and respondent, and must contain the 

FAA docket number (if assigned). The 

size of each email must be less than 10 

MB. Email attachments containing 

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

will not be accepted. 

(3) The email address at which the 

parties may file the documents 

described in this section is 9-AWAAGC-Part-16@faa.gov. No 

acknowledgement or receipt will be 

provided by the FAA to parties using 

this method. A party filing 

electronically as described in this 

section must provide to the FAA Part 16 

Docket Clerk and the opposing party an 

email address of the person designated 

by the party to receive pleadings. 

(4) By filing a pleading or document 

electronically as described in this 

section, a party waives the rights under 

this part for service by the opposing 

party and the FAA by methods other 

than email. If a party subsequently 

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

that party must so notify the FAA Part 

16 Docket Clerk and the other party in 

writing, from which time the FAA and 

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

and 16.15. This subsection only 

exempts the parties from the filing and 

service requirements in § 16.13(a) (with 

the exception that ‘‘Documents to be 

filed with a hearing officer shall be filed 

at the address and in the manner stated 

in the hearing order.’’), the method of 

filing requirements in § 16.13(b), and 

the number of documents requirements 

in § 16.13(c). 

(i) Internet accessibility of documents 

filed in the Hearing Docket. (1) Unless 

protected from public disclosure, all 

documents filed in the Hearing Docket 

are accessible through the Federal 

Docket Management System (FDMS): 

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

particular case file, use the FDMS 

number assigned to the case. 

(2) Determinations issued by the 

Director and Associate Administrator in 

Part 16 cases, indexes of decisions, 

contact information for the FAA Hearing 

Docket, the rules of practice, and other 

information are available on the FAA 

Office of Airports’ Web site at: http://

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

■ 6. Amend § 16.15 by revising 

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

adding paragraph (d)(3) to read as 

follows: 

§ 16.15 Service of documents on the 

parties and the agency. 

* * * * * 

(a) Whom must be served. Copies of 

all documents filed with the FAA Part 

16 Docket Clerk shall be served by the 

persons filing them on all parties to the 

proceeding. A certificate of service shall 

accompany all documents when they 

are tendered for filing and shall certify 

concurrent service on the FAA and all 

parties. Certificates of service shall be in 

substantially the following form: 

I hereby certify that I have this day 

served the foregoing [name of 

document] on the following persons at 

the following addresses, facsimile 

numbers (if also served by facsimile), or 

email address (if served electronically in 

accordance with § 16.13(h)), by [specify 

method of service]: 

[list persons, addresses, facsimile 

numbers, email addresses (as 

applicable)] 

Dated this lday of l, 20l. 

[signature], for [party] 

(b) Method of service. Except as 

otherwise agreed by the parties and, if 

applicable, the hearing officer, the 

method of service is the same as set 

forth in § 16.13(b) for filing documents. 

* * * * * 

(d) * * * 

(1) When acknowledgment of receipt 

is by a person who customarily or in the 

ordinary course of business receives 

mail at the address of the party or of the 

person designated under § 16.13(f); 

(2) When a properly addressed 

envelope, sent to the most current 

address submitted under § 16.13(f), has 

been returned as undeliverable, 

unclaimed, or refused; or 

(3) When the party serving the 

document electronically has a 

confirmation statement demonstrating 

that the email was properly sent to a 

party correctly addressed. 

* * * * * 

■ 7. Amend § 16.17 by revising 

paragraph (c) to read as follows: 

§ 16.17 Computation of time. 

* * * * * 

(c) Whenever a party has the right or 

is required to do some act within a 

prescribed period after service of a 

document upon the party, and the 

document is served on the party by first 

class mail or certified mail, 5 days shall 

be added to the prescribed period. 

■ 8. Amend § 16.19 by adding 

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

§ 16.19 Motions. 

* * * * * 

(d) Deferred actions on motions. A 

ruling on a motion made before the time 

set for the issuance of the Director’s 

Determination may be deferred to and 

included with the Director’s 

Determination. 

(e) Extension by motion. A party shall 

file a written motion for an extension of 

time not later than 3 business days 

before the document is due unless good 

cause for the late filing is shown. A 

party filing a motion for extension 

should attempt to obtain the 

concurrence of the opposing party. A 

party filing a written motion for an 

extension of time shall file the motion 

as required under § 16.13, and serve a 

copy of the motion on all parties and the 

docket clerk as required under § 16.15. 

■ 9. Revise § 16.21 to read as follows: 

§ 16.21 Pre-complaint resolution. 

(a) Except for those persons filing 

under 49 CFR 26.105(c), prior to filing 

a complaint under this part, a person 

directly and substantially affected by 

the alleged noncompliance shall initiate 

and engage in good faith efforts to 

resolve the disputed matter informally 

with those individuals or entities 

believed responsible for the 

noncompliance. These efforts at 

informal resolution may include, 

without limitation, at the parties’ 

expense, mediation, arbitration, or the 

use of a dispute resolution board, or 

other form of third party assistance. The 

FAA Airports District Office, FAA 

Airports Field Office, FAA Regional 

Airports Division responsible for 

administering financial assistance to the 

sponsor, or the FAA Office of Civil 

Rights will be available upon request to 

assist the parties with informal 

resolution. 

(b) Except for complaints filed under 

49 CFR 26.105(c), a complaint will be 

dismissed under § 16.27 unless the 

person or authorized representative 

filing the complaint certifies that: 

(1) The complainant has made 

substantial and reasonable good faith 

efforts to resolve the disputed matter 

informally prior to filing the complaint; 

and 

(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 


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shall not include information on 

monetary or other settlement offers 

made but not agreed upon in writing by 

all parties. Such efforts to resolve 

informally should be relatively recent 

and be demonstrated by pertinent 

documentation. There is no required 

form or process for informal resolution, 

but in each case the requirements to 

resolve the matter informally must meet 

the requirements of this paragraph. 

■ 10. Amend § 16.23 by revising the 

section heading; revising paragraphs (a), 

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

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

§ 16.23 Pleadings. 

(a) A person directly and substantially 

affected by any alleged noncompliance 

or a person qualified under 49 CFR 

26.105(c) may file a complaint under 

this part. A person doing business with 

an airport and paying fees or rentals to 

the airport shall be considered directly 

and substantially affected by alleged 

revenue diversion as defined in 49 

U.S.C. 47107(b). 

(b) * * * 

(2) Include all documents then 

available in the exercise of reasonable 

diligence, to be offered in support of the 

complaint, and to be served upon all 

persons named in the complaint as 

persons responsible for the alleged 

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

complaint is based; 

* * * * * 

(4) Except for complaints filed under 

49 CFR 26.105(c), describe how the 

complainant was directly and 

substantially affected by the things done 

or omitted to be done by the 

respondents. 

(c) Unless the complaint is dismissed 

pursuant to § 16.25 or § 16.27, the FAA 

notifies the complainant and respondent 

in writing within 20 days after the date 

the FAA receives the complaint that the 

complaint has been docketed. 

(d) The respondent shall file an 

answer within 20 days of the date of 

service of the FAA notification or, if a 

motion is filed under § 16.26, within 20 

days of the date of service of an FAA 

order denying all or part of that motion. 

* * * * * 

(j) Amendments or supplements to the 

pleadings described in this section will 

not be allowed without showing good 

cause through a motion and supporting 

documents. 

(k) Burden of proof. Except as used in 

subpart F of this part, 

(1) The burden of proof is on the 

complainant to show noncompliance 

with an Act or any regulation, order, 

agreement or document of conveyance 

issued under the authority of an Act. 

(2) Except as otherwise provided by 

statute or rule, the proponent of a 

motion, request, or order has the burden 

of proof. 

(3) A party who has asserted an 

affirmative defense has the burden of 

proving the affirmative defense. 

(l) Except for good cause shown 

through motion and supporting 

documents, discovery is not permitted 

except as provided in §§ 16.213 and 

16.215. 

■ 11. Revise § 16.25 to read as follows: 

§ 16.25 Dismissals. 

(a) Within 20 days after the receipt of 

the complaint, unless a motion has been 

filed under § 16.26, the Director will 

dismiss a complaint, or any claim made 

in a complaint, with prejudice if: 

(1) It appears on its face to be outside 

the jurisdiction of the Administrator 

under the Acts listed in § 16.1; 

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

that warrants an investigation or further 

action by the FAA; or 

(3) The complainant lacks standing to 

file a complaint under §§ 16.3 and 

16.23. 

(b) A dismissal under this section will 

include the reasons for the dismissal. 

■ 12. Add § 16.26 to read as follows: 

§ 16.26 Motions to dismiss and motions 

for summary judgment. 

(a) In lieu of an answer, the 

respondent may file a motion to dismiss 

the complaint or a motion for summary 

judgment on the complaint. The 

respondent may move for dismissal of 

the entire complaint or move for 

dismissal of particular issues from 

adjudication. The motion must be filed 

within 20 days after the date of service 

of the FAA notification of docketing. 

(b) Motions to dismiss. (1) A motion 

to dismiss shall be accompanied by a 

concise statement of the reasons for 

seeking dismissal. The respondent must 

show that the complaint should be 

dismissed, with prejudice, if: 

(i) It appears on its face to be outside 

the jurisdiction of the Administrator 

under the Acts listed in § 16.1; 

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

that warrants an investigation or further 

action by the FAA; or 

(iii) The complainant lacks standing 

to file a complaint under §§ 16.3 and 

16.23. 

(2) A motion to dismiss may seek 

dismissal of the entire complaint or the 

dismissal of specified claims in the 

complaint. A motion to dismiss shall be 

accompanied by a supporting 

memorandum of points and authorities. 

(3) A complainant may file an answer 

to the motion to dismiss within 10 days 

of the date the motion is served on the 

complainant, or within any other period 

set by the Director. The answer shall be 

accompanied by a concise statement of 

reasons for opposing dismissal, and may 

be accompanied by affidavits and other 

documentary evidence in support of 

that contention. 

(4) Within 30 days of the date an 

answer to a motion to dismiss is due 

under this section, the Director may 

issue an order disposing of the motion. 

If the Director denies the motion to 

dismiss in whole or in part, or grants the 

motion in part, then within 20 days of 

when the order is served on the 

respondent, the respondent shall file an 

answer to the complaint. 

(5) If the Director does not act on the 

motion to dismiss within 30 days of the 

date an answer to a motion is due under 

this section, the respondent shall file an 

answer to the complaint within the next 

20 days. 

(c) Motions for summary judgment. (1) 

A motion for summary judgment may be 

based upon the ground that there is no 

genuine issue of material fact for 

adjudication and that the complaint, 

when viewed in the light most favorable 

to the complainant, should be 

summarily adjudicated in favor of the 

respondent as a matter of law. A motion 

for summary judgment may seek 

dismissal of the entire complaint or 

dismissal of specified claims or issues 

in the complaint. 

(2) The motion for summary judgment 

shall be accompanied by a concise 

statement of the material facts as to 

which the respondent contends there is 

no genuine issue of material fact. The 

motion may include affidavits and 

documentary evidence in support of the 

contention that there is no genuine issue 

of material fact in dispute. 

(3) A complainant may file an answer 

to the motion for summary judgment 

within 10 days of the date the motion 

is served on the complainant, or within 

any other period set by the Director. The 

answer shall be accompanied by a 

concise statement of the material facts 

as to which the complainant contends 

there is a genuine issue, and may be 

accompanied by affidavits and other 

documentary evidence in support of 

that contention. 

(4) Within 30 days of the date an 

answer to a motion for summary 

judgment is due under this section, the 

Director may issue an order disposing of 

the motion. If the Director denies the 

motion in whole or in part, or grants the 

motion in part, then within 20 days of 

when the order is served on the 

respondent, the respondent shall file an 

answer to the complaint. 

(5) If the Director does not act on the 

motion for summary judgment within 


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30 days of the date an answer to a 

motion is due under this section, the 

respondent shall file an answer to the 

complaint within the next 20 days. 

■ 13. Revise § 16.27 to read as follows: 

§ 16.27 Incomplete complaints. 

(a) If a complaint is not dismissed 

pursuant to § 16.25, but is deficient as 

to one or more of the requirements set 

forth in § 16.21 or § 16.23(b), the 

Director will dismiss the complaint 

within 20 days after receiving it. 

Dismissal will be without prejudice to 

the refiling of the complaint after 

amendment to correct the deficiencies. 

The Director’s dismissal will include 

the reasons for the dismissal. 

(b) Dismissals under this section are 

not initial determinations, and appeals 

from decisions under this section will 

not be permitted. 

■ 14. In § 16.29, revise the first sentence 

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

§ 16.29 Investigations. 

* * * * * 

(b) * * * 

(2) Obtaining additional oral and 

documentary evidence by use of the 

agency’s authority to compel production 

of such evidence under 49 U.S.C. 40113 

and 46104, and 49 U.S.C. 47122. * * * 

* * * * * 

■ 15. Revise § 16.31 to read as follows: 

§ 16.31 Director’s Determinations after 

investigations. 

(a) After consideration of the 

pleadings and other information 

obtained by the FAA after investigation, 

the Director will render an initial 

determination and serve it upon each 

party within 120 days of the date the 

last pleading specified in § 16.23 was 

due. 

(b)(1) The Director’s Determination 

shall include findings of fact and 

conclusions of law, accompanied by 

explanations and based upon all 

material issues of fact, credibility of the 

evidence, law and discretion presented 

on the record, together with a statement 

of the reasons therefor. 

(2) The Director shall issue a 

determination or rule in a party’s favor 

only if the determination or ruling is in 

accordance with law and supported by 

a preponderance of the reliable, 

probative, and substantial evidence 

contained in the record. 

(c) A party adversely affected by the 

Director’s Determination may appeal the 

initial determination as provided in 

§ 16.33. However, if the Director’s 

Determination that is appealed contains 

a Corrective Action Plan, the Director 

has the discretion to suspend the 

Corrective Action Plan until the appeal 

is resolved. 

(d) If the Director’s Determination 

finds the respondent in noncompliance 

and proposes the issuance of a 

compliance order, the initial 

determination will include notice of 

opportunity for a hearing under subpart 

F of this part if a hearing is required by 

statute or otherwise provided by the 

FAA. A hearing may be required by 

statute if the FAA determination would 

terminate eligibility for grants under 49 

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

payments on a grant agreement under 49 

U.S.C. subchapter 471. The respondent 

may elect or waive a hearing, as 

provided in subpart E of this part. 

(e) The Director will not consider 

requests for rehearing, reargument, 

reconsideration, or modification of a 

Director’s Determination without a 

finding of good cause. 

■ 16. Revise § 16.33 to read as follows: 

§ 16.33 Final decisions without hearing. 

(a) The Associate Administrator may 

transfer to the FAA Assistant 

Administrator for Civil Rights the 

responsibility to prepare and issue Final 

Agency Decisions pursuant to this 

section for appeals with issues 

concerning civil rights. 

(b) The Associate Administrator will 

issue a final decision on appeal from the 

Director’s Determination, without a 

hearing, where— 

(1) The complaint is dismissed after 

investigation; 

(2) A hearing is not required by 

statute and is not otherwise made 

available by the FAA; or 

(3) The FAA provides opportunity for 

a hearing to the respondent and the 

respondent waives the opportunity for a 

hearing as provided in subpart E of this 

part. 

(c) In the cases described in paragraph 

(b) of this section, within 30 days after 

the date of service of the initial 

determination, a party adversely 

affected by the Director’s Determination 

may file in accordance with § 16.13 and 

serve in accordance with § 16.15 a 

simultaneous Notice of Appeal and 

Brief. 

(d) A reply to an appeal brief may be 

filed within 20 days after the date of 

service of the appeal. 

(e) On appeal, the Associate 

Administrator will consider the issues 

addressed in any order on a motion to 

dismiss or motion for summary 

judgment and any issues accepted in the 

Director’s Determination using the 

following analysis: 

(1) Are the findings of fact each 

supported by a preponderance of 

reliable, probative, and substantial 

evidence contained in the record? 

(2) Are conclusions made in 

accordance with law, precedent and 

policy? 

(3) Are the questions on appeal 

substantial? 

(4) Have any prejudicial errors 

occurred? 

(f) Any new issues or evidence 

presented in an appeal or reply will not 

be considered unless accompanied by a 

petition and good cause found as to why 

the new issue or evidence was not 

presented to the Director. Such a 

petition must: 

(1) Set forth the new matter; 

(2) Contain affidavits of prospective 

witnesses, authenticated documents, or 

both, or an explanation of why such 

substantiation is unavailable; and 

(3) Contain a statement explaining 

why such new issue or evidence could 

not have been discovered in the exercise 

of due diligence prior to the date on 

which the evidentiary record closed. 

(g) The Associate Administrator will 

issue a final decision and order within 

60 days after the due date of the reply. 

(h) If no appeal is filed within the 

time period specified in paragraph (c) of 

this section, the Director’s 

Determination becomes the final 

decision and order of the FAA without 

further action. A Director’s 

Determination that becomes final, 

because there is no administrative 

appeal, is not judicially reviewable. 

(i) No requests for rehearing, 

reargument, reconsideration, or 

modification of a final order will be 

considered without a finding of good 

cause. 

■ 17. Add § 16.34 to subpart C to read 

as follows: 

§ 16.34 Consent orders. 

(a) The parties may agree at any time 

before the issuance of a final agency 

decision to dispose of the case by 

proposing a consent order. Good faith 

efforts to resolve a complaint through 

issuance of a consent order may 

continue throughout the administrative 

process. However, except as provided in 

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

the basis for extensions of the times set 

forth in this part. 

(b) A proposal for a consent order, 

specified in paragraph (a) of this 

section, shall include: 

(1) A proposed consent order; 

(2) An admission of all jurisdictional 

facts; and 

(3) An express waiver of the right to 

further procedural steps and of all rights 

of judicial review. 

(c) If the parties agree to dispose of a 

case by issuance of a consent order 


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before the FAA issues a Director’s 

Determination, the proposal for a 

consent order is submitted jointly by the 

parties to the Director, together with a 

request to adopt the consent order and 

dismiss the case. The Director may issue 

the consent order as an order of the FAA 

and terminate the proceeding. 

§ 16.105 [Amended] 

■ 18. Amend § 16.105 by removing 

‘‘determination’’ and adding 

‘‘Determination’’ in its place. 

■ 19. Revise § 16.109 to read as follows: 

§ 16.109 Orders terminating eligibility for 

grants, cease and desist orders, and other 

compliance orders. 

(a) The agency will provide the 

opportunity for a hearing if, in the 

Director’s determination, the agency 

issues or proposes to issue an order 

terminating eligibility for grants 

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

suspending the payment of grant funds 

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

withholding approval of any new 

application to impose a passenger 

facility charge pursuant to 49 U.S.C. 

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

order directing the refund of fees 

unlawfully collected; or any other 

compliance order issued by the 

Administrator to carry out the 

provisions of the Acts, and required to 

be issued after notice and opportunity 

for a hearing. In cases in which a 

hearing is not required by statute, the 

FAA may provide opportunity for a 

hearing at its discretion. 

(b) In a case in which the agency 

provides the opportunity for a hearing, 

the Director’s Determination issued 

under § 16.31 will include a statement 

of the availability of a hearing under 

subpart F of this part. 

(1) Within 20 days after service of a 

Director’s Determination under § 16.31 

that provides an opportunity for a 

hearing a person subject to the proposed 

compliance order may— 

(i) Request a hearing under subpart F 

of this part; 

(ii) Waive hearing and appeal the 

Director’s Determination in writing, as 

provided in § 16.33; 

(iii) File, jointly with a complainant, 

a motion to withdraw the complaint and 

to dismiss the proposed compliance 

action; or 

(iv) Submit, jointly with the agency, a 

proposed consent order under 

§ 16.34(c). 

(2) If the respondent fails to file an 

appeal in writing within the time 

periods provided in paragraph (c) of this 

section, the Director’s Determination 

becomes final. 

(c) The Director may either direct the 

respondent to submit a Corrective 

Action Plan or initiate proceedings to 

revoke and/or deny the respondent’s 

application for Airport Improvement 

Program discretionary grants under 49 

U.S.C. 47115 and general aviation 

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

when a Director’s Determination finds a 

respondent in noncompliance and does 

not provide for a hearing. 

(d) In the event that the respondent 

fails to submit, in accordance with a 

Director’s Determination, a Corrective 

Action Plan acceptable to the FAA 

within the time provided, unless 

extended by the FAA for good cause, 

and/or if the respondent fails to 

complete the Corrective Action Plan as 

specified therein, the Director may 

initiate action to revoke and/or deny 

applications for Airport Improvement 

Program discretionary grants under 49 

U.S.C. 47115 and general aviation 

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

(e) For those violations that cannot be 

remedied through corrective action, the 

Director may initiate action to revoke 

and/or deny the respondent’s 

applications for Airport Improvement 

Program discretionary grants under 49 

U.S.C. 47115 and general aviation 

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

(f) When the Director concludes that 

the respondent has fully complied with 

the Corrective Action Plan and/or when 

the Director determines that the 

respondent has corrected the areas of 

noncompliance, the Director will 

terminate the proceeding. 

(g) A complainant’s standing 

terminates upon the issuance of a 

Director’s Determination that finds a 

respondent in noncompliance on all 

identified issues. The complainant may 

not appeal the Director’s Determination 

if the Director finds noncompliance on 

all identified issues. 

■ 20. Amend § 16.201 by revising 

paragraph (b) to read as follows: 

§ 16.201 Notice and order of hearing. 

* * * * * 

(b) Where there are no genuine issues 

of material fact requiring oral 

examination of witnesses, the hearing 

order may contain a direction to the 

hearing officer to conduct a hearing by 

submission of briefs and oral argument 

without the presentation of testimony or 

other evidence. 

■ 21. Amend § 16.203 by revising 

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

read as follows: 

§ 16.203 Appearances, parties, and rights 

of parties. 

(a) * * * 

(1) Any party may be accompanied, 

represented, or advised by an attorney 

licensed by a State, the District of 

Columbia, or a territory of the United 

States to practice law or appear before 

the courts of that State or territory, or by 

another person authorized by the 

hearing officer to be the party’s 

representative. 

* * * * * 

(b) * * * 

(1) The parties to the hearing are the 

complainant(s) and respondent(s) 

named in the hearing order, and the 

agency. The style of any pleadings filed 

under this Subpart shall name the 

respondent as the Appellant, and the 

Federal Aviation Administration as the 

Agency. 

(2) Unless otherwise specified in the 

hearing order, the agency attorney will 

serve as prosecutor for the agency from 

the date of issuance of the Director’s 

Determination providing an opportunity 

for hearing. 

■ 22. Revise § 16.207 to read as follows: 

§ 16.207 Intervention and other 

participation. 

(a) Intervention and participation by 

other persons are permitted only at the 

hearing stage of the complaint process 

and with the written approval of the 

hearing officer. 

(b) A person may submit a written 

motion for leave to intervene as a party. 

Except for good cause shown, a motion 

for leave to intervene shall be submitted 

not later than 10 days after the notice of 

hearing and hearing order. 

(c) If the hearing officer finds that 

intervention will not unduly broaden 

the issues or delay the proceedings and, 

if the person has an interest that will 

benefit the proceedings, the hearing 

officer may grant a motion for leave to 

intervene. The hearing officer may 

determine the extent to which an 

intervenor may participate in the 

proceedings. 

(d) Other persons may petition the 

hearing officer for leave to participate in 

the hearing. Participation is limited to 

the filing of a posthearing brief and 

reply to the hearing officer and the 

Associate Administrator. Such a brief 

shall be filed and served on all parties 

in the same manner as the parties’ 

posthearing briefs are filed. 

(e) Participation under this section is 

at the discretion of the hearing officer, 

and no decision permitting participation 

shall be deemed to constitute an 

expression that the participant has such 

a substantial interest in the proceeding 

as would entitle it to judicial review of 

such decision. 


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■ 23. In § 16.211, revise the last 

sentence in paragraph (c) to read as 

follows: 

§ 16.211 Prehearing conference. 

* * * * * 

(c) * * * In addition, the hearing 

officer establishes the schedule, which 

shall provide for the issuance of an 

initial decision not later than 110 days 

after issuance of the Director’s 

Determination order unless otherwise 

provided in the hearing order. 

■ 24. Amend § 16.215 by adding 

paragraph (e) to read as follows: 

§ 16.215 Depositions. 

* * * * * 

(e) Depositions of agency employees. 

(1) Depositions of Agency Employees 

will not be allowed except under the 

provisions of 49 CFR part 9. 

(2) Such depositions will be allowed 

only with the specific written 

permission of the Chief Counsel or his 

or her designee. 

■ 25. Revise § 16.227 to read as follows: 

§ 16.227 Standard of proof. 

The hearing officer shall issue an 

initial decision or rule in a party’s favor 

only if the decision or ruling is in 

accordance with law and supported by 

a preponderance of the reliable, 

probative, and substantial evidence 

contained in the record. 

■ 26. Amend § 16.229 by adding 

introductory text to read as follows: 

§ 16.229 Burden of proof. 

As used in this subpart, the burden of 

proof is as follows: 

* * * * * 

■ 27. Revise § 16.233 to read as follows: 

§ 16.233 Record. 

(a) Exclusive record. The transcript of 

all testimony in the hearing, all exhibits 

received into evidence, all motions, 

applications requests and rulings, all 

documents included in the hearing 

record and the Director’s Determination 

shall constitute the exclusive record for 

decision in the proceedings and the 

basis for the issuance of any orders. 

(b) Examination and copy of record. 

A copy of the record will be filed by the 

FAA Part 16 Docket Clerk in the Federal 

Docket Management System (FDMS). 

Any person desiring to review the 

record may then do so at http://

www.regulations.gov. 

■ 28. Amend § 16.235 by revising 

paragraph (b) to read as follows: 

§ 16.235 Argument before the hearing 

officer. 

* * * * * 

(b) Posthearing briefs. The hearing 

officer may request or permit the parties 

to submit posthearing briefs. The 

hearing officer may provide for the 

filing of simultaneous reply briefs as 

well, if such filing will not unduly delay 

the issuance of the hearing officer’s 

initial decision. Posthearing briefs shall 

include proposed findings of fact and 

conclusions of law; exceptions to 

rulings of the hearing officer; references 

to the record in support of the findings 

of fact; and supporting arguments for 

the proposed findings, proposed 

conclusions, and exceptions. 

§§ 16.241 and 16.243 [Transferred to 

Subpart F] 

■ 29. Sections 16.241 and 16.243 are 

transferred from subpart G to subpart F. 

Subpart G—[Removed and Reserved] 

■ 30. Remove and reserve subpart G. 

■ 31. Amend § 16.241 by revising 

paragraphs (a) and (c) and removing 

paragraph (f). 

The revisions read as follows: 

§ 16.241 Initial decisions, order, and 

appeals. 

(a) The hearing officer shall issue an 

initial decision based on the record 

developed during the proceeding and 

shall send the initial decision to the 

parties not later than 110 days after the 

Director’s Determination unless 

otherwise provided in the hearing order. 

* * * * * 

(c) If an appeal is filed, the Associate 

Administrator reviews the entire record 

and issues a final agency decision and 

order within 60 days of the due date of 

the reply. If no appeal is filed, the 

Associate Administrator may take 

review of the case on his or her own 

motion. If the Associate Administrator 

finds that the respondent is not in 

compliance with any Act or any 

regulation, agreement, or document of 

conveyance issued or made under such 

Act, the final agency order includes, in 

accordance with § 16.245(d), a statement 

of corrective action, if appropriate, and 

identifies sanctions for continued 

noncompliance. 

* * * * * 

■ 32. Add § 16.245 to subpart F to read 

as follows: 

§ 16.245 Associate Administrator review 

after a hearing. 

(a) The Associate Administrator may 

transfer to the FAA Assistant 

Administrator for Civil Rights the 

authority to prepare and issue Final 

Agency Decisions pursuant to § 16.241 

for appeals from a hearing concerning 

civil rights issues. 

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

considering the issues as set forth in 

§ 16.245(e), if the Associate 

Administrator determines that the 

hearing officer’s initial decision or order 

should be changed, the Associate 

Administrator may: 

(1) Make any necessary findings and 

issue an order in lieu of the hearing 

officer’s initial decision or order, or 

(2) Remand the proceeding for any 

such purpose as the Associate 

Administrator may deem necessary. 

(c) If the Associate Administrator 

takes review of the hearing officer’s 

initial decision on the Associate 

Administrator’s own motion, the 

Associate Administrator will issue a 

notice of review within 20 days of the 

actual date the initial decision is issued. 

(1) The notice sets forth the specific 

findings of fact and conclusions of law 

in the initial decision that are subject to 

review by the Associate Administrator. 

(2) Parties may file one brief on 

review to the Associate Administrator or 

rely on their posthearing brief to the 

hearing officer. A brief on review shall 

be filed not later than 10 days after 

service of the notice of review. Filing 

and service of a brief on review shall be 

by personal delivery. 

(3) The Associate Administrator 

issues a final agency decision and order 

within 30 days of the due date of the 

brief. If the Associate Administrator 

finds that the respondent is not in 

compliance with any Act or any 

regulation, agreement or document of 

conveyance issued under such Act, the 

final agency order includes a statement 

of corrective action, if appropriate. 

(d) When the final agency decision 

finds a respondent in noncompliance, 

and where a respondent fails to properly 

seek judicial review of the final agency 

decision as set forth in subpart G of this 

part, the Associate Administrator will 

issue an order remanding the case to the 

Director for the following action: 

(1) In the event that the respondent 

fails to submit, in accordance with the 

final agency decision, a Corrective 

Action Plan acceptable to the FAA 

within the time provided, unless 

extended by the FAA for good cause, 

and/or if the respondent fails to 

complete the Corrective Action Plan as 

specified therein, the Director may 

initiate action to revoke and/or deny 

applications for Airport Improvement 

Program grants issued under 49 U.S.C. 

47114(c)–(e) and 47115. When the 

Director concludes that the respondent 

has fully complied with the Corrective 

Action Plan, the Director will issue an 

Order terminating the proceeding. 

(2) For those violations that cannot be 

remedied through corrective action, the 


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56148 Federal Register / Vol. 78, No. 177 / Thursday, September 12, 2013 / Rules and Regulations 

Director may initiate action to revoke 

and/or deny the respondent’s 

applications for Airport Improvement 

Program grants issued under 49 U.S.C. 

47114(c)–(e) and 47115. 

(e) On appeal from a hearing officer’s 

initial decision, the Associate 

Administrator will consider the 

following questions: 

(1) Are the findings of fact each 

supported by a preponderance of 

reliable, probative and substantial 

evidence? 

(2) Are conclusions made in 

accordance with law, precedent and 

policy? 

(3) Are the questions on appeal 

substantial? 

(4) Have any prejudicial errors 

occurred? 

(f) Any new issues or evidence 

presented in an appeal or reply will not 

be allowed unless accompanied by a 

certified petition and good cause found 

as to why the new matter was not 

presented to the Director. Such a 

petition must: 

(1) Set forth the new issues or 

evidence; 

(2) Contain affidavits of prospective 

witnesses, authenticated documents, or 

both, or an explanation of why such 

substantiation is unavailable; and 

(3) Contain a statement explaining 

why such new matter could not have 

been discovered in the exercise of due 

diligence prior to the date on which the 

evidentiary record closed. 

(g) A Final Agency Decision may be 

appealed in accordance with subpart G 

of this part. 

Subparts H and I [Redesignated as 

Subparts G and H] 

■ 33. Redesignate subpart H, consisting 

of § 16.247, and subpart I, consisting of 

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

subparts G and H, respectively. 

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

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

§ 16.247 Judicial review of a final decision 

and order. 

(a) A person may seek judicial review, 

in a United States Court of Appeals, of 

a final decision and order of the 

Associate Administrator, and of an 

order of dismissal with prejudice issued 

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

46110 or 49 U.S.C. 47106(d) and 

47111(d). A party seeking judicial 

review shall file a petition for review 

with the Court not later than 60 days 

after the order has been served on the 

party or within 60 days after the entry 

of an order under 49 U.S.C. 46110. 

(b) * * * 

(2) A Director’s Determination; 

* * * * * 

(4) A Director’s Determination or an 

initial decision of a hearing officer 

becomes the final decision of the 

Associate Administrator because it was 

not appealed within the applicable time 

periods provided under §§ 16.33(c) and 

16.241(b). 

§ 16.301 [Removed] 

■ 35. Remove § 16.301 from newly 

redesignated subpart H. 

§§ 16.303, 16.305, and 16.307 

[Redesignated as §§ 16.301, 16.303, and 

16.305] 

■ 36. In newly redesignated subpart H, 

redesignate §§ 16.303, 16.305, and 

16.307 as §§ 16.301, 16.303, and 16.305, 

respectively. 

Issued under authority provided by 49 

U.S.C. 106(f), 46101, 46104, and 47122 in 

Washington, DC, on August 23, 2013. 

Michael P. Huerta, 

Administrator. 

[FR Doc. 2013–22130 Filed 9–11–13; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2013–0400; Directorate 

Identifier 2009–SW–48–AD; Amendment 39– 

17579; AD 2013–18–06] 

RIN 2120–AA64 

Airworthiness Directives; Bell 

Helicopter Textron Canada Limited 

(Bell) Helicopters 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: We are adopting a new 

airworthiness directive (AD) for Bell 

Model 206A, 206B, 206L, 206L–1, 

206L–3, 206L–4, 222, 222B, 222U, 230, 

407, 427, and 430 helicopters. This AD 

requires inspecting each bearing to 

determine if it has been properly staked 

and replacing the bearing or assembly if 

it has not been properly staked. This AD 

was prompted by bearings not being 

properly staked and migrating out of 

their proper position, which may limit 

the functionality of the affected part. 

The actions of this AD are intended to 

prevent failure of a bearing and the 

assembly in which it is installed and 

subsequent loss of control of the 

helicopter. 

DATES: This AD is effective October 17, 

2013. 

ADDRESSES: For service information 

identified in this AD, contact Bell 

Helicopter Textron Canada Limited, 

12,800 Rue de l’Avenir, Mirabel, Quebec 

J7J1R4, telephone (450) 437–2862 or 

(800) 363–8023, fax (450) 433–0272, or 

at http://www.bellcustomer.com/files/. 

You may review the referenced service 

information at the FAA, Office of the 

Regional Counsel, Southwest Region, 

2601 Meacham Blvd., Room 663, Fort 

Worth, Texas 76137. 

Examining the AD Docket 

You may examine the AD docket on 

the Internet at http://

www.regulations.gov or in person at the 

Docket Operations Office between 9 

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

Friday, except Federal holidays. The AD 

docket contains this AD, the foreign 

authority’s AD, the economic 

evaluation, any comments received, and 

other information. The street address for 

the Docket Operations Office (phone: 

800–647–5527) is U.S. Department of 

Transportation, Docket Operations 

Office, M–30, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue SE., Washington, DC 20590. 

FOR FURTHER INFORMATION CONTACT: 

Sharon Miles, Aviation Safety Engineer, 

Regulations and Policy Group, 

Rotorcraft Directorate, FAA, 2601 

Meacham Blvd., Fort Worth, Texas 

76137; telephone (817) 222–5110; email 

sharon.y.miles@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Discussion 

On May 13, 2013, at 78 FR 27869, the 

Federal Register published our notice of 

proposed rulemaking (NPRM), which 

proposed to amend 14 CFR part 39 to 

include an AD that would apply to Bell 

Model 206A, 206B, 206L, 206L–1, 

206L–3, 206L–4, 222, 222B, 222U, 230, 

407, 427, and 430 helicopters. The 

NPRM proposed using a 10X or higher 

power magnifying glass or a boroscope 

to inspect each bearing in each affected 

part to determine if each bearing had 

been properly staked. For a part that 

could not be accessed to determine if 

the bearing is properly staked, the 

NPRM proposed removing the part from 

the helicopter to inspect it. The NPRM 

proposed replacing the bearing or 

assembly if it was not properly staked. 

The proposed requirements were 

intended to prevent failure of a bearing 

and the assembly in which it is installed 

and subsequent loss of control of the 

helicopter. 

The NPRM was prompted by AD No. 

CF–2009–32, dated July 24, 2009, issued 

by Transport Canada Civil Aviation 

(TCCA), which is the aviation authority 

for Canada, to correct an unsafe 

condition for the specified Bell model 


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