[Federal Register Volume 78, Number 177 (Thursday, September 12, 2013)]
[Rules and Regulations]
[Pages 56135-56148]
[FR Doc No: 2013-22130]

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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 Federally-Assisted Airport Enforcement
Proceedings (Retrospective Regulatory Review)

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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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<PHONE_NUMBER>; email<EMAIL_ADDRESS>
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

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.
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    \1\ 61 FR 53998, October 16, 1996.
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    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\--
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    \2\ This list is one of general introductions. It is not
intended to explain each issue in detail.
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     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.
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    \3\ 77 FR 13027.
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    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\
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    \4\ 77 FR 29250.
    \5\ Id.
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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 (Sec. Sec.
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 Sec. Sec.  16.25 and 16.26. ACI-NA
encouraged the FAA to carefully scrutinize complaints and not docket
complaints in accordance with Sec.  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, Sec.
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

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 Sec.  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
Sec.  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 Sec.  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 Sec.  16.28 since both
Sec. Sec.  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\
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    \6\ Paskar, et al. v. City of New York and Port Authority of New
York and New Jersey, FAA Docket No. 16-11-04.
    \7\ Paskar and Friends of LaGuardia Airport v. FAA, No. 11-2720-
ag, 478 Fed.Appx. 707.
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    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
Sec.  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 Sec.  16.26(b). The FAA is including the provisions addressing
motions for summary judgment under Sec.  16.26(c). Sections 16.26(e)
and 16.26(f), as proposed in the NPRM, are renumbered as Sec. Sec.
16.26(b)(4) and (5) and 16.26(c)(4) and (5), respectively.
Additionally, the FAA has restructured Sec.  16.26(c) to streamline it.
The FAA also has added language in renumbered Sec.  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 Sec.  16.26(b), and motions for summary judgment are
addressed in Sec.  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 Sec.  16.26(a) by
substituting language similar to that used in Sec.  16.23(d). However,
the FAA notes that Sec.  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 Sec.  16.23(d) requires an answer to be filed within 20 days of
the FAA docketing a complaint.

B. Method of Filing (Sec. Sec.  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''
(Sec.  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 Sec.  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 Sec.  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
Sec.  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) (Sec. Sec.  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 Sec.  26.105 does not mandate informal dispute resolution before
filing a complaint under Part 16.
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    \8\ 49 CFR 26.105(c).
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D. Oral Argument Before the Associate Administrator and Availability of
a Hearing (Sec. Sec.  16.33 and 16.241)

    Three commenters expressed confusion over the role of oral
arguments and hearings in the Part 16

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\
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    \9\ 77 FR 13027, March 7, 2012.
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    The FAA notes that deadlines for service of pleadings in Sec. Sec.
16.19 and 16.23 are subject to parties' petitions for extension under
current Sec.  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
airport-related 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 airports-related cases within prescribed
time limits.'' \11\
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    \10\ 59 FR 29880, 29882, June 9, 1994.
    \11\ ID. at 29881.
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F. Burden of Proof Versus Burden of Persuasion (Sec.  16.23)

    The Port Authority noted that proposed Sec.  16.23(k) does not
distinguish the legal concept of burden of proof from that of burden of
persuasion. The commenter suggested that proposed Sec.  16.23(k) be
separated out into a new Sec.  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 Sec.  16.23.

G. Form of Complaints and Other Pleadings (Sec. Sec.  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 (Sec. Sec.  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 Sec.  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\
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    \12\ See 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).
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    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
re-started leading to significant inefficiencies and delay.
    Second, Sec.  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

Associate Administrator during the Director's Determination appeal
process, the FAA notes that new Sec.  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 (Sec. Sec.  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 Sec.  16.109, addressing orders terminating
grants, cease and desist orders, and compliance orders, is unclear in
relation to that of Sec.  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 Sec.  16.3.
    The FAA finds that neither the provisions in proposed Sec. Sec.
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 Sec. Sec.
16.31(c) and 16.109(c) allow both flexibility and finality in the
process.\13\
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    \13\ 77 FR 13032.
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    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 Sec.  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 (Sec.  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,
Sec.  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 (Sec.  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 (Sec. Sec.  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
Sec.  16.13(c) (Port Authority and ACI);
     Replacing reference to paragraph (a) in Sec.  16.33(c)
with a reference to paragraph (b) (ACI); and
     Replacing ``appeal'' with ``seek judicial review of'' in
Sec.  16.245(d) for clarity and consistency with Sec.  16.245(g) (Port
Authority).
    However, the FAA notes that the following suggested changes would
not improve clarity, and is not implementing these recommendations:
     Sec.  16.17(d)--The Port Authority noted that proposed
Sec.  16.17(d) contained confusing language and suggested changes;
     Sec. Sec.  16.19 (e) and 16.17--The Port Authority
suggested repeating Sec.  16.19(e) as Sec.  16.17(e) to improve
clarity;
     Sec.  16.26(d)--The Port Authority (and ACI-NA by
reference) suggested replacing the words ``A reply to'' with ``a brief
answering'';
     Sec.  16.109--The Port Authority suggested moving Sec.
16.109 (c)-(g) to Sec.  16.111 (a)-(e); and
     Sec.  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

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-for-profit organizations, and small
governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to
have a significant economic impact on a substantial number of small
entities, section 605(b) of the RFA provides that the head of the
agency may so certify and a regulatory flexibility analysis is not
required. The certification must include a statement providing the
factual basis for this determination, and the reasoning should be
clear.
    As noted above, the proposed changes to Part 16 are cost-relieving.
Accordingly, the 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.

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<PHONE_NUMBER>.

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

0
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.

0
2. Amend Sec.  16.1 by revising paragraphs (a) introductory text and
(a)(3) through (6) to read as follows:

Sec.  16.1  Applicability and description of part.

    (a) General. The provisions of this part govern all Federal
Aviation Administration (FAA) proceedings involving Federally-assisted
airports, except for complaints or requests for determination filed
with the Secretary under 14 CFR part 302, whether the proceedings are
instituted by order of the FAA or by filing a complaint with the FAA
under the following authorities:
* * * * *
    (3) The assurances and other Federal obligations contained in
grant-in-aid agreements issued under the Federal Airport Act of 1946,
49 U.S.C. 1101 et seq. (repealed 1970).
    (4) The assurances and other Federal obligations contained in
grant-in-aid agreements issued under the Airport and Airway Development
Act of 1970, as amended, 49 U.S.C. 1701 et seq.
    (5) The assurances and other Federal obligations contained in
grant-in-aid agreements issued under the Airport and Airway Improvement
Act of 1982 (AAIA), as amended 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.
* * * * *

0
3. Amend Sec.  16.3 as follows:
0
a. Remove the definitions of Director's determination, File, and Final
decision and order;
0
b. Revise the definitions of Agency employee, Associate Administrator,
Complaint, Director, Hearing officer, Mail, and Personal delivery; and
0
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:

Sec.  16.3  Definitions.

* * * * *
    Administrator means the Administrator of the FAA.
    Agency means the FAA.
* * * * *
    Agency employee means any employee of the FAA.
    Associate Administrator means the FAA Associate Administrator for
Airports or a designee. For the purposes of this part only, Associate
Administrator also means the Assistant Administrator for Civil Rights
or a designee for complaints that the FAA Associate Administrator for
Airports transfers to the Assistant Administrator for Civil Rights.
* * * * *
    Complaint means a written document meeting the requirements of this
part and filed under this part:
    (1) By a person directly and substantially affected by anything
allegedly done or omitted to be done by any person in contravention of
any provision of any Act, as defined in this section, as to matters
within the jurisdiction of the Administrator, or
    (2) By a person under 49 CFR 26.105(c) against a recipient of FAA
funds alleged to have violated a provision of 49 CFR parts 23 and/or
26.
    Decisional employee means the Administrator, Deputy Administrator,

Associate Administrator, Director, hearing officer, or other FAA
employee who is or who may reasonably be expected to be involved in the
decisional process of the proceeding.
    Director means the Director of the FAA Office of Airport Compliance
and Management Analysis, or a designee. For the purposes of this part
only, Director also means the Deputy Assistant Administrator for Civil
Rights for complaints that the Director of the FAA Office of Airport
Compliance and Management Analysis transfers to the Deputy Assistant
Administrator for Civil Rights or designee.
    Electronic filing means the process of sending electronic mail
(email) to the FAA Part 16 Docket Clerk, with scanned documents
attached, as a Portable Document Format (PDF) file.
    Ex parte communication means an oral or written communication not
on the public record with respect to which reasonable prior notice to
all parties is not given, but it shall not include requests for status
reports on any matter or proceeding covered by this part, or
communications between FAA employees who participate as parties to a
hearing pursuant to 16.203(b) of this part and other parties to a
hearing.
    Hearing officer means an attorney designated by the Deputy Chief
Counsel in a hearing order to serve as a hearing officer in a hearing
under this part. The following are not designated as hearing officers:
the Chief Counsel and Deputy Chief Counsel; the Regional or Center
Counsel and attorneys in the FAA region or center in which the
noncompliance has allegedly occurred or is occurring; the Assistant
Chief Counsel and attorneys in the Airports and Environmental Law
Division of the FAA Office of the Chief Counsel; and the Assistant
Chief Counsel and attorneys in the Litigation Division of the FAA
Office of Chief Counsel.
* * * * *
    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).

0
4. Amend Sec.  16.11 by revising the section heading and paragraphs (a)
and (b) introductory text, and adding paragraphs (c) and (d) to read as
follows:

Sec.  16.11  General processes.

    (a) Under the authority of 49 U.S.C. 40113 and 47121, the Director
may conduct investigations, issue orders, and take such other actions
as are necessary to fulfill the purposes of this part. This includes
the extension of any time period prescribed, where necessary or
appropriate for a fair and complete consideration of matters before the
agency, prior to issuance of the Director's Determination.
    (b) Notwithstanding any other provision of this part, upon finding
that circumstances require expedited handling of a particular case or
controversy, the Director may issue an order directing any of the
following prior to the issuance of the Director's Determination:
* * * * *
    (c) Other than those matters concerning a Corrective Action Plan,
the jurisdiction of the Director terminates upon the issuance of the
Director's Determination. All matters arising during the appeal period,
such as requests for extension of time to make an appeal, will be
addressed by the Associate Administrator.
    (d) The Director may transfer to the FAA Deputy Assistant
Administrator for Civil Rights or Office of Civil Rights designee the
authority to prepare and issue Director's Determinations pursuant to
Sec.  16.31 for complaints alleging violations of section 505(d) of the
Airport and Airway Improvement Act of 1982, and the requirements
concerning civil rights and/or Disadvantaged Business Enterprise (DBE)
issues contained in 49 U.S.C. 47107(e) and 49 U.S.C. 47113; 49 U.S.C.
47123; 49 U.S.C. 322, as amended; 49 CFR parts 23 and/or 26; and/or
grant assurance 30 and/or grant assurance 37.

0
5. Amend Sec.  16.13 by revising paragraphs (a), (b), (c), (d), and (f)
and adding paragraphs (h) and (i) to read as follows:

Sec.  16.13  Filing of documents.

* * * * *
    (a) Filing address. Documents filed under this Part shall be filed
with the Office of the Chief Counsel, Attention: FAA Part 16 Docket
Clerk, AGC-600, Federal Aviation Administration, 800 Independence
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

upon the respondent only if the respondent has previously agreed with
the complainant in writing to participate in electronic filing.
Documents may be filed under this Part electronically by sending an
email containing (an) attachment(s) of (a) PDF file(s) of the required
pleading to the FAA Docket Clerk, and the person designated in
paragraph (h)(3) of this section.
    (2) The subject line of the email must contain the names of the
complainant and respondent, and must contain the FAA docket number (if
assigned). The size of each email must be less than 10 MB. Email
attachments containing executable files (e.g., .exe and .vbs files)
will not be accepted.
    (3) The email address at which the parties may file the documents
described in this section is<EMAIL_ADDRESS>No
acknowledgement or receipt will be provided by the FAA to parties using
this method. A party filing electronically as described in this section
must provide to the FAA Part 16 Docket Clerk and the opposing party an
email address of the person designated by the party to receive
pleadings.
    (4) By filing a pleading or document electronically as described in
this section, a party waives the rights under this part for service by
the opposing party and the FAA by methods other than email. If a party
subsequently decides to ``opt-out'' of electronic filing, that party
must so notify the FAA Part 16 Docket Clerk and the other party in
writing, from which time the FAA and the parties will begin serving the
opting-out party in accordance with Sec. Sec.  16.13 and 16.15. This
subsection only exempts the parties from the filing and service
requirements in Sec.  16.13(a) (with the exception that ``Documents to
be filed with a hearing officer shall be filed at the address and in
the manner stated in the hearing order.''), the method of filing
requirements in Sec.  16.13(b), and the number of documents
requirements in Sec.  16.13(c).
    (i) Internet accessibility of documents filed in the Hearing
Docket. (1) Unless protected from public disclosure, all documents
filed in the Hearing Docket are accessible through the Federal Docket
Management System (FDMS): http://www.regulations.gov. To access a
particular case file, use the FDMS number assigned to the case.
    (2) Determinations issued by the Director and Associate
Administrator in Part 16 cases, indexes of decisions, contact
information for the FAA Hearing Docket, the rules of practice, and
other information are available on the FAA Office of Airports' Web site
at: http://part16.airports.faa.gov/index.cfm.

0
6. Amend Sec.  16.15 by revising paragraphs (a), (b), (d)(1) and
(d)(2), and adding paragraph (d)(3) to read as follows:

Sec.  16.15  Service of documents on the parties and the agency.

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

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

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

[signature], for [party]

    (b) Method of service. Except as otherwise agreed by the parties
and, if applicable, the hearing officer, the method of service is the
same as set forth in Sec.  16.13(b) for filing documents.
* * * * *
    (d) * * *
    (1) When acknowledgment of receipt is by a person who customarily
or in the ordinary course of business receives mail at the address of
the party or of the person designated under Sec.  16.13(f);
    (2) When a properly addressed envelope, sent to the most current
address submitted under Sec.  16.13(f), has been returned as
undeliverable, unclaimed, or refused; or
    (3) When the party serving the document electronically has a
confirmation statement demonstrating that the email was properly sent
to a party correctly addressed.
* * * * *

0
7. Amend Sec.  16.17 by revising paragraph (c) to read as follows:

Sec.  16.17  Computation of time.

* * * * *
    (c) Whenever a party has the right or is required to do some act
within a prescribed period after service of a document upon the party,
and the document is served on the party by first class mail or
certified mail, 5 days shall be added to the prescribed period.

0
8. Amend Sec.  16.19 by adding paragraphs (d) and (e) to read as
follows:

Sec.  16.19  Motions.

* * * * *
    (d) Deferred actions on motions. A ruling on a motion made before
the time set for the issuance of the Director's Determination may be
deferred to and included with the Director's Determination.
    (e) Extension by motion. A party shall file a written motion for an
extension of time not later than 3 business days before the document is
due unless good cause for the late filing is shown. A party filing a
motion for extension should attempt to obtain the concurrence of the
opposing party. A party filing a written motion for an extension of
time shall file the motion as required under Sec.  16.13, and serve a
copy of the motion on all parties and the docket clerk as required
under Sec.  16.15.

0
9. Revise Sec.  16.21 to read as follows:

Sec.  16.21  Pre-complaint resolution.

    (a) Except for those persons filing under 49 CFR 26.105(c), prior
to filing a complaint under this part, a person directly and
substantially affected by the alleged noncompliance shall initiate and
engage in good faith efforts to resolve the disputed matter informally
with those individuals or entities believed responsible for the
noncompliance. These efforts at informal resolution may include,
without limitation, at the parties' expense, mediation, arbitration, or
the use of a dispute resolution board, or other form of third party
assistance. The FAA Airports District Office, FAA Airports Field
Office, FAA Regional Airports Division responsible for administering
financial assistance to the sponsor, or the FAA Office of Civil Rights
will be available upon request to assist the parties with informal
resolution.
    (b) Except for complaints filed under 49 CFR 26.105(c), a complaint
will be dismissed under Sec.  16.27 unless the person or authorized
representative filing the complaint certifies that:
    (1) The complainant has made substantial and reasonable good faith
efforts to resolve the disputed matter informally prior to filing the
complaint; and
    (2) There is no reasonable prospect for practical and timely
resolution of the dispute.
    (c) The certification required under paragraph (b) of this section,
shall include a brief description of the party's efforts to obtain
informal resolution but

shall not include information on monetary or other settlement offers
made but not agreed upon in writing by all parties. Such efforts to
resolve informally should be relatively recent and be demonstrated by
pertinent documentation. There is no required form or process for
informal resolution, but in each case the requirements to resolve the
matter informally must meet the requirements of this paragraph.

0
10. Amend Sec.  16.23 by revising the section heading; revising
paragraphs (a), (b)(2), (b)(4), (c), (d), and (j); and adding
paragraphs (k) and (l) to read as follows:

Sec.  16.23  Pleadings.

    (a) A person directly and substantially affected by any alleged
noncompliance or a person qualified under 49 CFR 26.105(c) may file a
complaint under this part. A person doing business with an airport and
paying fees or rentals to the airport shall be considered directly and
substantially affected by alleged revenue diversion as defined in 49
U.S.C. 47107(b).
    (b) * * *
    (2) Include all documents then available in the exercise of
reasonable diligence, to be offered in support of the complaint, and to
be served upon all persons named in the complaint as persons
responsible for the alleged action(s) or omission(s) upon which the
complaint is based;
* * * * *
    (4) Except for complaints filed under 49 CFR 26.105(c), describe
how the complainant was directly and substantially affected by the
things done or omitted to be done by the respondents.
    (c) Unless the complaint is dismissed pursuant to Sec.  16.25 or
Sec.  16.27, the FAA notifies the complainant and respondent in writing
within 20 days after the date the FAA receives the complaint that the
complaint has been docketed.
    (d) The respondent shall file an answer within 20 days of the date
of service of the FAA notification or, if a motion is filed under Sec.
16.26, within 20 days of the date of service of an FAA order denying
all or part of that motion.
* * * * *
    (j) Amendments or supplements to the pleadings described in this
section will not be allowed without showing good cause through a motion
and supporting documents.
    (k) Burden of proof. Except as used in subpart F of this part,
    (1) The burden of proof is on the complainant to show noncompliance
with an Act or any regulation, order, agreement or document of
conveyance issued under the authority of an Act.
    (2) Except as otherwise provided by statute or rule, the proponent
of a motion, request, or order has the burden of proof.
    (3) A party who has asserted an affirmative defense has the burden
of proving the affirmative defense.
    (l) Except for good cause shown through motion and supporting
documents, discovery is not permitted except as provided in Sec. Sec.
16.213 and 16.215.

0
11. Revise Sec.  16.25 to read as follows:

Sec.  16.25  Dismissals.

    (a) Within 20 days after the receipt of the complaint, unless a
motion has been filed under Sec.  16.26, the Director will dismiss a
complaint, or any claim made in a complaint, with prejudice if:
    (1) It appears on its face to be outside the jurisdiction of the
Administrator under the Acts listed in Sec.  16.1;
    (2) On its face it does not state a claim that warrants an
investigation or further action by the FAA; or
    (3) The complainant lacks standing to file a complaint under
Sec. Sec.  16.3 and 16.23.
    (b) A dismissal under this section will include the reasons for the
dismissal.
0
12. Add Sec.  16.26 to read as follows:

Sec.  16.26  Motions to dismiss and motions for summary judgment.

    (a) In lieu of an answer, the respondent may file a motion to
dismiss the complaint or a motion for summary judgment on the
complaint. The respondent may move for dismissal of the entire
complaint or move for dismissal of particular issues from adjudication.
The motion must be filed within 20 days after the date 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 Sec.  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
Sec. Sec.  16.3 and 16.23.
    (2) A motion to dismiss may seek dismissal of the entire complaint
or the dismissal of specified claims in the complaint. A motion to
dismiss shall be accompanied by a supporting memorandum of points and
authorities.
    (3) A complainant may file an answer to the motion to dismiss
within 10 days of the date the motion is served on the complainant, or
within any other period set by the Director. The answer shall be
accompanied by a concise statement of reasons for opposing dismissal,
and may be accompanied by affidavits and other documentary evidence in
support of that contention.
    (4) Within 30 days of the date an answer to a motion to dismiss is
due under this section, the Director may issue an order disposing of
the motion. If the Director denies the motion to dismiss in whole or in
part, or grants the motion in part, then within 20 days of when the
order is served on the respondent, the respondent shall file an answer
to the complaint.
    (5) If the Director does not act on the motion to dismiss within 30
days of the date an answer to a motion is due under this section, the
respondent shall file an answer to the complaint within the next 20
days.
    (c) Motions for summary judgment. (1) A motion for summary judgment
may be based upon the ground that there is no genuine issue of material
fact for adjudication and that the complaint, when viewed in the light
most favorable to the complainant, should be summarily adjudicated in
favor of the respondent as a matter of law. A motion for summary
judgment may seek dismissal of the entire complaint or dismissal of
specified claims or issues in the complaint.
    (2) The motion for summary judgment shall be accompanied by a
concise statement of the material facts as to which the respondent
contends there is no genuine issue of material fact. The motion may
include affidavits and documentary evidence in support of the
contention that there is no genuine issue of material fact in dispute.
    (3) A complainant may file an answer to the motion for summary
judgment within 10 days of the date the motion is served on the
complainant, or within any other period set by the Director. The answer
shall be accompanied by a concise statement of the material facts as to
which the complainant contends there is a genuine issue, and may be
accompanied by affidavits and other documentary evidence in support of
that contention.
    (4) Within 30 days of the date an answer to a motion for summary
judgment is due under this section, the Director may issue an order
disposing of the motion. If the Director denies the motion in whole or
in part, or grants the motion in part, then within 20 days of when the
order is served on the respondent, the respondent shall file an answer
to the complaint.
    (5) If the Director does not act on the motion for summary judgment
within

30 days of the date an answer to a motion is due under this section,
the respondent shall file an answer to the complaint within the next 20
days.

0
13. Revise Sec.  16.27 to read as follows:

Sec.  16.27  Incomplete complaints.

    (a) If a complaint is not dismissed pursuant to Sec.  16.25, but is
deficient as to one or more of the requirements set forth in Sec.
16.21 or Sec.  16.23(b), the Director will dismiss the complaint within
20 days after receiving it. Dismissal will be without prejudice to the
refiling of the complaint after amendment to correct the 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.
0
14. In Sec.  16.29, revise the first sentence of paragraph (b)(2) to
read as follows:

Sec.  16.29  Investigations.

* * * * *
    (b) * * *
    (2) Obtaining additional oral and documentary evidence by use of
the agency's authority to compel production of such evidence under 49
U.S.C. 40113 and 46104, and 49 U.S.C. 47122. * * *
* * * * *

0
15. Revise Sec.  16.31 to read as follows:

Sec.  16.31  Director's Determinations after investigations.

    (a) After consideration of the pleadings and other information
obtained by the FAA after investigation, the Director will render an
initial determination and serve it upon each party within 120 days of
the date the last pleading specified in Sec.  16.23 was due.
    (b)(1) The Director's Determination shall include findings of fact
and conclusions of law, accompanied by explanations and based upon all
material issues of fact, credibility of the evidence, law and
discretion presented on the record, together with a statement of the
reasons therefor.
    (2) The Director shall issue a determination or rule in a party's
favor only if the determination or ruling is in accordance with law and
supported by a preponderance of the reliable, probative, and
substantial evidence contained in the record.
    (c) A party adversely affected by the Director's Determination may
appeal the initial determination as provided in Sec.  16.33. However,
if the Director's Determination that is appealed contains a Corrective
Action Plan, the Director has the discretion to suspend the Corrective
Action Plan until the appeal is resolved.
    (d) If the Director's Determination finds the respondent in
noncompliance and proposes the issuance of a compliance order, the
initial determination will include notice of opportunity for a hearing
under subpart F of this part if a hearing is required by statute or
otherwise provided by the FAA. A hearing may be required by statute if
the FAA determination would terminate eligibility for grants under 49
U.S.C. 47114(c) or (e), or terminate payments on a grant agreement
under 49 U.S.C. subchapter 471. The respondent may elect or waive a
hearing, as provided in subpart E of this part.
    (e) The Director will not consider requests for rehearing,
reargument, reconsideration, or modification of a Director's
Determination without a finding of good cause.

0
16. Revise Sec.  16.33 to read as follows:

Sec.  16.33  Final decisions without hearing.

    (a) The Associate Administrator may transfer to the FAA Assistant
Administrator for Civil Rights the responsibility to prepare and issue
Final Agency Decisions pursuant to this section for appeals with issues
concerning civil rights.
    (b) The Associate Administrator will issue a final decision on
appeal from the Director's Determination, without a hearing, where--
    (1) The complaint is dismissed after investigation;
    (2) A hearing is not required by statute and is not otherwise made
available by the FAA; or
    (3) The FAA provides opportunity for a hearing to the respondent
and the respondent waives the opportunity for a hearing as provided in
subpart E of this part.
    (c) In the cases described in paragraph (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 Sec.  16.13 and serve in accordance with Sec.  16.15 a
simultaneous Notice of Appeal and Brief.
    (d) A reply to an appeal brief may be filed within 20 days after
the date of service of the appeal.
    (e) On appeal, the Associate Administrator will consider the issues
addressed in any order on a motion to dismiss or motion for summary
judgment and any issues accepted in the Director's Determination using
the following analysis:
    (1) Are the findings of fact each supported by a preponderance of
reliable, probative, and substantial evidence contained in the record?
    (2) Are conclusions made in accordance with law, precedent and
policy?
    (3) Are the questions on appeal substantial?
    (4) Have any prejudicial errors occurred?
    (f) Any new issues or evidence presented in an appeal or reply will
not be considered unless accompanied by a petition and good cause found
as to why the new issue or evidence was not presented to the Director.
Such a petition must:
    (1) Set forth the new matter;
    (2) Contain affidavits of prospective witnesses, authenticated
documents, or both, or an explanation of why such substantiation is
unavailable; and
    (3) Contain a statement explaining why such new issue or evidence
could not have been discovered in the exercise of due diligence prior
to the date on which the evidentiary record closed.
    (g) The Associate Administrator will issue a final decision and
order within 60 days after the due date of the reply.
    (h) If no appeal is filed within the time period specified in
paragraph (c) of this section, the Director's Determination becomes the
final decision and order of the FAA without further action. A
Director's Determination that becomes final, because there is no
administrative appeal, is not judicially reviewable.
    (i) No requests for rehearing, reargument, reconsideration, or
modification of a final order will be considered without a finding of
good cause.

0
17. Add Sec.  16.34 to subpart C to read as follows:

Sec.  16.34  Consent orders.

    (a) The parties may agree at any time before the issuance of a
final agency decision to dispose of the case by 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 Sec.  16.11(a), such efforts may not
serve as the basis for extensions of the times set forth in this part.
    (b) A proposal for a consent order, specified in paragraph (a) of
this section, shall include:
    (1) A proposed consent order;
    (2) An admission of all jurisdictional facts; and
    (3) An express waiver of the right to further procedural steps and
of all rights of judicial review.
    (c) If the parties agree to dispose of a case by issuance of a
consent order

before the FAA issues a Director's Determination, the proposal for a
consent order is submitted jointly by the parties to the Director,
together with a request to adopt the consent order and dismiss the
case. The Director may issue the consent order as an order of the FAA
and terminate the proceeding.

Sec.  16.105  [Amended]

0
18. Amend Sec.  16.105 by removing ``determination'' and adding
``Determination'' in its place.

0
19. Revise Sec.  16.109 to read as follows:

Sec.  16.109  Orders terminating eligibility for grants, cease and
desist orders, and other compliance orders.

    (a) The agency will provide the opportunity for a hearing if, in
the Director's determination, the agency issues or proposes to issue an
order terminating eligibility for grants pursuant to 49 U.S.C.
47106(d), an order suspending the payment of grant funds pursuant to 49
U.S.C. 47111(d); an order withholding approval of any new application
to impose a passenger facility charge pursuant to 49 U.S.C. 47111(e); a
cease and desist order; an order directing the refund of fees
unlawfully collected; or any other compliance order issued by the
Administrator to carry out the provisions of the Acts, and required to
be issued after notice and opportunity for a hearing. In cases in which
a hearing is not required by statute, the FAA may provide opportunity
for a hearing at its discretion.
    (b) In a case in which the agency provides the opportunity for a
hearing, the Director's Determination issued under Sec.  16.31 will
include a statement of the availability of a hearing under subpart F of
this part.
    (1) Within 20 days after service of a Director's Determination
under Sec.  16.31 that provides an opportunity for a hearing a person
subject to the proposed compliance order may--
    (i) Request a hearing under subpart F of this part;
    (ii) Waive hearing and appeal the Director's Determination in
writing, as provided in Sec.  16.33;
    (iii) File, jointly with a complainant, a motion to withdraw the
complaint and to dismiss the proposed compliance action; or
    (iv) Submit, jointly with the agency, a proposed consent order
under Sec.  16.34(c).
    (2) If the respondent fails to file an appeal in writing within the
time periods provided in paragraph (c) of this section, the Director's
Determination becomes final.
    (c) The Director may either direct the respondent to submit a
Corrective Action Plan or initiate proceedings to revoke and/or deny
the respondent's application for Airport Improvement Program
discretionary grants under 49 U.S.C. 47115 and general aviation airport
grants under 49 U.S.C. 47114(d) when a Director's Determination finds a
respondent in noncompliance and does not provide for a hearing.
    (d) In the event that the respondent fails to submit, in accordance
with a Director's Determination, a Corrective Action Plan acceptable to
the FAA within the time provided, unless extended by the FAA for good
cause, and/or if the respondent fails to complete the Corrective Action
Plan as specified therein, the Director may initiate action to revoke
and/or deny applications for Airport Improvement Program discretionary
grants under 49 U.S.C. 47115 and general aviation airport grants under
49 U.S.C. 47114(d).
    (e) For those violations that cannot be remedied through corrective
action, the Director may initiate action to revoke and/or deny the
respondent's applications for Airport Improvement Program discretionary
grants under 49 U.S.C. 47115 and general aviation airport grants under
49 U.S.C. 47114(d).
    (f) When the Director concludes that the respondent has fully
complied with the Corrective Action Plan and/or when the Director
determines that the respondent has corrected the areas of
noncompliance, the Director will terminate the proceeding.
    (g) A complainant's standing terminates upon the issuance of a
Director's Determination that finds a respondent in noncompliance on
all identified issues. The complainant may not appeal the Director's
Determination if the Director finds noncompliance on all identified
issues.

0
20. Amend Sec.  16.201 by revising paragraph (b) to read as follows:

Sec.  16.201  Notice and order of hearing.

* * * * *
    (b) Where there are no genuine issues of material fact requiring
oral examination of witnesses, the hearing order may contain a
direction to the hearing officer to conduct a hearing by submission of
briefs and oral argument without the presentation of testimony or other
evidence.
0
21. Amend Sec.  16.203 by revising paragraphs (a)(1), (b)(1), and
(b)(2) to read as follows:

Sec.  16.203  Appearances, parties, and rights of parties.

    (a) * * *
    (1) Any party may be accompanied, represented, or advised by an
attorney licensed by a State, the District of Columbia, or a territory
of the United States to practice law or appear before the courts of
that State or territory, or by another person authorized by the hearing
officer to be the party's representative.
* * * * *
    (b) * * *
    (1) The parties to the hearing are the complainant(s) and
respondent(s) named in the hearing order, and the agency. The style of
any pleadings filed under this Subpart shall name the respondent as the
Appellant, and the Federal Aviation Administration as the Agency.
    (2) Unless otherwise specified in the hearing order, the agency
attorney will serve as prosecutor for the agency from the date of
issuance of the Director's Determination providing an opportunity for
hearing.
0
22. Revise Sec.  16.207 to read as follows:

Sec.  16.207  Intervention and other participation.

    (a) Intervention and participation by other persons are permitted
only at the hearing stage of the complaint process and with the written
approval of the hearing officer.
    (b) A person may submit a written motion for leave to intervene as
a party. Except for good cause shown, a motion for leave to intervene
shall be submitted not later than 10 days after the notice of hearing
and hearing order.
    (c) If the hearing officer finds that intervention will not unduly
broaden the issues or delay the proceedings and, if the person has an
interest that will benefit the proceedings, the hearing officer may
grant a motion for leave to intervene. The hearing officer may
determine the extent to which an intervenor may participate in the
proceedings.
    (d) Other persons may petition the hearing officer for leave to
participate in the hearing. Participation is limited to the filing of a
posthearing brief and reply to the hearing officer and the Associate
Administrator. Such a brief shall be filed and served on all parties in
the same manner as the parties' posthearing briefs are filed.
    (e) Participation under this section is at the discretion of the
hearing officer, and no decision permitting participation shall be
deemed to constitute an expression that the participant has such a
substantial interest in the proceeding as would entitle it to judicial
review of such decision.

0
23. In Sec.  16.211, revise the last sentence in paragraph (c) to read
as follows:

Sec.  16.211  Prehearing conference.

* * * * *
    (c) * * * In addition, the hearing officer establishes the
schedule, which shall provide for the issuance of an initial decision
not later than 110 days after issuance of the Director's Determination
order unless otherwise provided in the hearing order.

0
24. Amend Sec.  16.215 by adding paragraph (e) to read as follows:

Sec.  16.215  Depositions.

* * * * *
    (e) Depositions of agency employees. (1) Depositions of Agency
Employees will not be allowed except under the provisions of 49 CFR
part 9.
    (2) Such depositions will be allowed only with the specific written
permission of the Chief Counsel or his or her designee.

0
25. Revise Sec.  16.227 to read as follows:

Sec.  16.227  Standard of proof.

    The hearing officer shall issue an initial decision or rule in a
party's favor only if the decision or ruling is in accordance with law
and supported by a preponderance of the reliable, probative, and
substantial evidence contained in the record.

0
26. Amend Sec.  16.229 by adding introductory text to read as follows:

Sec.  16.229  Burden of proof.

    As used in this subpart, the burden of proof is as follows:
* * * * *

0
27. Revise Sec.  16.233 to read as follows:

Sec.  16.233  Record.

    (a) Exclusive record. The transcript of all testimony in the
hearing, all exhibits received into evidence, all motions, applications
requests and rulings, all documents included in the hearing record and
the Director's Determination shall constitute the exclusive record for
decision in the proceedings and the basis for the issuance of any
orders.
    (b) Examination and copy of record. A copy of the record will be
filed by the FAA Part 16 Docket Clerk in the Federal Docket Management
System (FDMS). Any person desiring to review the record may then do so
at http://www.regulations.gov.

0
28. Amend Sec.  16.235 by revising paragraph (b) to read as follows:

Sec.  16.235  Argument before the hearing officer.

* * * * *
    (b) Posthearing briefs. The hearing officer may request or permit
the parties to submit posthearing briefs. The hearing officer may
provide for the filing of simultaneous reply briefs as well, if such
filing will not unduly delay the issuance of the hearing officer's
initial decision. Posthearing briefs shall include proposed findings of
fact and conclusions of law; exceptions to rulings of the hearing
officer; references to the record in support of the findings of fact;
and supporting arguments for the proposed findings, proposed
conclusions, and exceptions.

Sec. Sec.  16.241 and 16.243  [Transferred to Subpart F]

0
29. Sections 16.241 and 16.243 are transferred from subpart G to
subpart F.

Subpart G--[Removed and Reserved]

0
30. Remove and reserve subpart G.

0
31. Amend Sec.  16.241 by revising paragraphs (a) and (c) and removing
paragraph (f).
    The revisions read as follows:

Sec.  16.241  Initial decisions, order, and appeals.

    (a) The hearing officer shall issue an initial decision based on
the record developed during the proceeding and shall send the initial
decision to the parties not later than 110 days after the Director's
Determination unless otherwise provided in the hearing order.
* * * * *
    (c) If an appeal is filed, the Associate Administrator reviews the
entire record and issues a final agency decision and order within 60
days of the due date of the reply. If no appeal is filed, the Associate
Administrator may take review of the case on his or her own motion. If
the Associate Administrator finds that the respondent is not in
compliance with any Act or any regulation, agreement, or document of
conveyance issued or made under such Act, the final agency order
includes, in accordance with Sec.  16.245(d), a statement of corrective
action, if appropriate, and identifies sanctions for continued
noncompliance.
* * * * *

0
32. Add Sec.  16.245 to subpart F to read as follows:

Sec.  16.245  Associate Administrator review after a hearing.

    (a) The Associate Administrator may transfer to the FAA Assistant
Administrator for Civil Rights the authority to prepare and issue Final
Agency Decisions pursuant to Sec.  16.241 for appeals from a hearing
concerning civil rights issues.
    (b) After a hearing is held, and, after considering the issues as
set forth in Sec.  16.245(e), if the Associate Administrator determines
that the hearing officer's initial decision or order should be changed,
the Associate Administrator may:
    (1) Make any necessary findings and issue an order in lieu of the
hearing officer's initial decision or order, or
    (2) Remand the proceeding for any such purpose as the Associate
Administrator may deem necessary.
    (c) If the Associate Administrator takes review of the hearing
officer's initial decision on the Associate Administrator's own motion,
the Associate Administrator will issue a notice of review within 20
days of the actual date the initial decision is issued.
    (1) The notice sets forth the specific findings of fact and
conclusions of law in the initial decision that are subject to review
by the Associate Administrator.
    (2) Parties may file one brief on review to the Associate
Administrator or rely on their posthearing brief to the hearing
officer. A brief on review shall be filed not later than 10 days after
service of the notice of review. Filing and service of a brief on
review shall be by personal delivery.
    (3) The Associate Administrator issues a final agency decision and
order within 30 days of the due date of the brief. If the Associate
Administrator finds that the respondent is not in compliance with any
Act or any regulation, agreement or document of conveyance issued under
such Act, the final agency order includes a statement of corrective
action, if appropriate.
    (d) When the final agency decision finds a respondent in
noncompliance, and where a respondent fails to properly seek judicial
review of the final agency decision as set forth in subpart G of this
part, the Associate Administrator will issue an order remanding the
case to the Director for the following action:
    (1) In the event that the respondent fails to submit, in accordance
with the final agency decision, a Corrective Action Plan acceptable to
the FAA within the time provided, unless extended by the FAA for good
cause, and/or if the respondent fails to complete the Corrective Action
Plan as specified therein, the Director may initiate action to revoke
and/or deny applications for Airport Improvement Program grants issued
under 49 U.S.C. 47114(c)-(e) and 47115. When the Director concludes
that the respondent has fully complied with the Corrective Action Plan,
the Director will issue an Order terminating the proceeding.
    (2) For those violations that cannot be remedied through corrective
action, the

Director may initiate action to revoke and/or deny the respondent's
applications for Airport Improvement Program grants issued under 49
U.S.C. 47114(c)-(e) and 47115.
    (e) On appeal from a hearing officer's initial decision, the
Associate Administrator will consider the following questions:
    (1) Are the findings of fact each supported by a preponderance of
reliable, probative and substantial evidence?
    (2) Are conclusions made in accordance with law, precedent and
policy?
    (3) Are the questions on appeal substantial?
    (4) Have any prejudicial errors occurred?
    (f) Any new issues or evidence presented in an appeal or reply will
not be allowed unless accompanied by a certified petition and good
cause found as to why the new matter was not presented to the Director.
Such a petition must:
    (1) Set forth the new issues or evidence;
    (2) Contain affidavits of prospective witnesses, authenticated
documents, or both, or an explanation of why such substantiation is
unavailable; and
    (3) Contain a statement explaining why such new matter could not
have been discovered in the exercise of due diligence prior to the date
on which the evidentiary record closed.
    (g) A Final Agency Decision may be appealed in accordance with
subpart G of this part.

Subparts H and I [Redesignated as Subparts G and H]

0
33. Redesignate subpart H, consisting of Sec.  16.247, and subpart I,
consisting of Sec. Sec.  16.301, 16.303, 16.305, and 16.307, as
subparts G and H, respectively.

0
34. In Sec.  16.247, revise paragraphs (a), (b)(2), and (b)(4) to read
as follows:

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

    (a) A person may seek judicial review, in a United States Court of
Appeals, of a final decision and order of the Associate Administrator,
and of an order of dismissal with prejudice issued by the Director, as
provided in 49 U.S.C. 46110 or 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 Sec. Sec.  16.33(c) and 16.241(b).

Sec.  16.301  [Removed]

0
35. Remove Sec.  16.301 from newly redesignated subpart H.

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

0
36. In newly redesignated subpart H, redesignate Sec. Sec.  16.303,
16.305, and 16.307 as Sec. Sec.  16.301, 16.303, and 16.305,
respectively.

    Issued 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