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Federal Aviation Administration, DOT 

§ 16.33 

the record, together with a statement 
of the reasons therefor. 

(2) The Director shall issue a deter-

mination or rule in a party’s favor only 
if the determination or ruling is in ac-
cordance with law and supported by a 
preponderance of the reliable, pro-
bative, and substantial evidence con-
tained in the record. 

(c) A party adversely affected by the 

Director’s Determination may appeal 
the initial determination as provided 
in § 16.33. However, if the Director’s De-
termination that is appealed contains a 
Corrective Action Plan, the Director 
has the discretion to suspend the Cor-
rective Action Plan until the appeal is 
resolved. 

(d) If the Director’s Determination 

finds the respondent in noncompliance 
and proposes the issuance of a compli-
ance 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 oth-
erwise provided by the FAA. A hearing 
may be required by statute if the FAA 
determination would terminate eligi-
bility 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 re-

quests for rehearing, reargument, re-
consideration, or modification of a Di-
rector’s Determination without a find-
ing of good cause. 

[Amdt. 16–1, 78 FR 56145, Sept. 12, 2013] 

§ 16.33

Final decisions without hear-

ing. 

(a) The Associate Administrator may 

transfer to the FAA Assistant Adminis-
trator for Civil Rights the responsi-
bility to prepare and issue Final Agen-
cy 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 stat-

ute and is not otherwise made avail-
able by the FAA; or 

(3) The FAA provides opportunity for 

a hearing to the respondent and the re-
spondent waives the opportunity for a 
hearing as provided in subpart E of this 
part. 

(c) In the cases described in para-

graph (b) of this section, within 30 days 
after the date of service of the initial 
determination, a party adversely af-
fected by the Director’s Determination 
may file in accordance with § 16.13 and 
serve in accordance with § 16.15 a simul-
taneous 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 Adminis-

trator will consider the issues ad-
dressed in any order on a motion to 
dismiss or motion for summary judg-
ment and any issues accepted in the 
Director’s Determination using the fol-
lowing analysis: 

(1) Are the findings of fact each sup-

ported by a preponderance of reliable, 
probative, and substantial evidence 
contained in the record? 

(2) Are conclusions made in accord-

ance with law, precedent and policy? 

(3) Are the questions on appeal sub-

stantial? 

(4) Have any prejudicial errors oc-

curred? 

(f) Any new issues or evidence pre-

sented in an appeal or reply will not be 
considered unless accompanied by a pe-
tition and good cause found as to why 
the new issue or evidence was not pre-
sented 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 exer-
cise 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 Deter-
mination becomes the final decision 
and order of the FAA without further 
action. A Director’s Determination 

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