PART 406—INVESTIGATIONS, ENFORCEMENT, AND ADMINISTRATIVE REVIEW Authority: 51 U.S.C. 50901-50923. Source: Docket No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, unless otherwise noted. Subpart A—Investigations and Enforcement § 406.1 Hearings in license, permit, and payload actions. (a) Pursuant to 51 U.S.C. 50912, the following are entitled to a determination on the record after an opportunity for a hearing in accordance with 5 U.S.C. 554. (1) An applicant for a license and a proposed transferee of a license regarding any decision to issue or transfer a license with conditions or to deny the issuance or transfer of such license; (2) An owner or operator of a payload regarding any decision to prevent the launch or reentry of the payload; (3) A licensee regarding any decision to suspend, modify, or revoke a license or to terminate, prohibit, or suspend any licensed activity; (4) An applicant for a permit regarding an FAA decision to issue a permit with conditions or to deny the issuance of the permit; and (5) A permittee regarding any decision to suspend, modify, or revoke a permit or to terminate, prohibit, or suspend any permitted activity. (b) An administrative law judge will be designated to preside over any hearing held under this part. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended by Amdt. 406-4, 72 FR 17017, Apr. 6, 2007; Amdt. 406-7, 77 FR 20532, Apr. 5, 2012] § 406.3 Submissions; oral presentation in license, permit, and payload actions. (a) The FAA will make decisions about license, permit, and payload actions under this subpart based on written submissions unless the administrative law judge requires an oral presentation. (b) Submissions must include a detailed exposition of the evidence or arguments supporting the petition. Where an applicant must demonstrate an equivalent level of safety or fidelity, the applicant must make a clear and convincing demonstration. (c) Petitions shall be filed as soon as practicable, but in no event more than 30 days after issuance of decision or finding under § 406.1. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended by Amdt. 406-3, 71 FR 50530, Aug. 25, 2006; Amdt. 406-4, 72 FR 17017, Apr. 6, 2007] § 406.5 Administrative law judge's recommended decision in license, permit, and payload actions. (a) The Associate Administrator, who shall make the final decision on the matter at issue, shall review the recommended decision of the administrative law judge. The Associate Administrator shall make such final decision within thirty days of issuance of the recommended decision. (b) The authority and responsibility to review and decide rests solely with the Associate Administrator and may not be delegated. § 406.7 [Reserved] § 406.9 Civil penalties. (a) Civil penalty liability. (b) Delegations. (c) Notice of proposed civil penalty. (1) Pay the amount of the proposed civil penalty or an agreed upon amount, in which case the agency attorney will issue either an order imposing civil penalty or a compromise order in that amount. (2) Submit to the agency attorney one of the following: (i) Written information, including documents and witnesses statements, demonstrating that a violation did not occur or that a penalty, or the amount of the proposed penalty, is not warranted by the circumstances. (ii) A written request to reduce the proposed civil penalty, the amount of reduction, and the reasons and any document supporting a reduction of the proposed civil penalty, including records indicating a financial inability to pay or records showing that payment of the proposed civil penalty would prevent the person from continuing in business. (iii) A written request for an informal conference to discuss the matter with the agency attorney and to submit relevant information. (3) Request that a final notice of proposed civil penalty be issued so that the respondent may request a hearing in accordance with paragraph (g) of this section. (d) Final notice of proposed civil penalty. (1) The agency attorney issues a final notice if one of the following occurs: (i) The respondent fails to respond to the notice of proposed civil penalty not later than 30 days after the date the respondent received the notice of proposed civil penalty. (ii) The parties have not agreed to a resolution of the action after participating in informal procedures under paragraph (c)(2) of this section. (iii) The respondent requests the issuance of a final notice in accordance with paragraph (c)(3) of this section. (2) Not later than 15 days after the date the respondent received the final notice of proposed civil penalty, the respondent shall do one of the following: (i) Submit the amount of the proposed civil penalty or an agreed-upon amount, in which case the agency attorney issues either an order imposing civil penalty or a compromise order in that amount. (ii) Request a hearing in accordance with paragraph (g) of this section. (e) Order imposing civil penalty. (1) The agency attorney either issues an order imposing civil penalty, or another document becomes an order imposing civil penalty, as described below. (i) The agency attorney issues an order imposing civil penalty if, in response to a notice of proposed civil penalty or a final notice of proposed civil penalty, the respondent pays or agrees to pay a civil penalty in the amount proposed or an agreed upon amount (other than an agreement for a compromise order under paragraph (f) of this section). (ii) Unless the respondent requests a hearing not later than 15 days after the date the respondent received a final notice of proposed civil penalty, the final notice of proposed civil penalty becomes an order imposing civil penalty. (iii) Unless an appeal is filed with the FAA decisionmaker in accordance with § 406.175, if the administrative law judge finds that a violation occurred and determines that a civil penalty, in an amount found appropriate by the administrative law judge, is warranted, an initial decision of an administrative law judge under subpart B of this part becomes an order imposing civil penalty. (iv) Unless a complaint is filed with a United States district court in accordance with § 406.176, if the FAA decisionmaker finds that a violation occurred and determines that a civil penalty, in an amount found appropriate by the FAA decisionmaker, is warranted, a final decision and order of the FAA decisionmaker under subpart B of this part becomes an order imposing civil penalty. If a person seeks judicial review not later than 60 days after the final decision and order has been served on the respondent, the final decision and order is stayed. (2) [Reserved] (f) Compromise order. (1) The respondent agrees to pay a civil penalty. (2) The FAA makes no finding of a violation. (3) The compromise order may not be used as evidence of a prior violation in any subsequent civil penalty action, license, or permit action. (g) Request for hearing. (1) The respondent must file a written request for hearing with the Federal Docket Management System (U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590) and must serve a copy of the request on the agency attorney. Sections 406.113 and 406.115 state how filing and service must be done. (2) The request for hearing must be dated and signed. (h) Method of payment. (i) Collection of civil penalties. (j) Exhaustion of administrative remedies. (1) An order imposing civil penalty issued by an agency attorney under paragraph (e)(1)(i) of this section. (2) A final notice of proposed civil penalty that becomes an order imposing civil penalty under paragraph (e)(1)(ii) of this section. (3) An initial decision of an administrative law judge that was not appealed to the FAA decisionmaker. (4) A compromise order under paragraph (f) of this section. (k) Compromise. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended by Amdt. 406-4, 72 FR 17017, Apr. 6, 2007; 72 FR 68475, Dec. 5, 2007; 75 FR 30693, June 2, 2010; Amdt. 406-7, 77 FR 20532, Apr. 5, 2012; 79 FR 61992, Oct. 16, 2014; Amdt. 406-10, 81 FR 43469, July 5, 2016; Doc. No. FAA-2016-7004, Amdt. 406-11, 82 FR 17101, Apr. 10, 2017; 83 FR 60743, Nov. 27, 2018; 84 FR 37070, July 31, 2019; 86 FR 1755, Jan. 11, 2021; 86 FR 23251, May 3, 2021; 87 FR 15865, Mar. 21, 2022; 88 FR 1124, Jan. 6, 2023; 88 FR 89559, Dec. 28, 2023; 89 FR 106292, Dec. 30, 2024] §§ 406.10-406.100 [Reserved] Subpart B—Rules of Practice in FAA Space Transportation Adjudications § 406.101 Applicability. (a) Adjudications to which these rules apply. (1) A civil penalty action in which the respondent has requested a hearing under § 406.9. (2) [Reserved] (b) [Reserved] § 406.103 Definitions that apply in part 406. For the purpose of this part: Administrative law judge Attorney Complainant FAA decisionmaker Mail Party Personal delivery Properly addressed Respondent § 406.105 Separation of functions for prosecuting civil penalties and advising the FAA decisionmaker. (a) Agency attorney. (1) The following officials have the authority to act as the agency attorney under this part: The Deputy Chief Counsel; the Assistant Chief Counsel for Enforcement; the Assistant Chief Counsel for Regulations; the Assistant Chief Counsel for Europe, Africa, and Middle East Area Office; each Regional Counsel; and each Center Counsel. This authority may be delegated further. (2) An agency attorney may not include: (i) The Chief Counsel or the Assistant Chief Counsel for Litigation; (ii) Any attorney on the staff of the Assistant Chief Counsel for Litigation who advises the FAA decisionmaker regarding an initial decision or any appeal to the FAA decisionmaker; or (iii) Any attorney who is supervised in a civil penalty action by a person who provides such advice to the FAA decisionmaker in that action or a factually-related action. (b) Advisors to the FAA decisionmaker. (2) An agency employee engaged in the performance of investigative or prosecutorial functions must not, in that case or a factually-related case, participate or give advice in a decision by the administrative law judge or by the FAA decisionmaker on appeal, except as counsel or a witness in the public proceedings. § 406.107 Appearances of parties, and attorneys and representatives. (a) Any party may appear and be heard in person. (b) Any party may be accompanied, represented, or advised by an attorney or representative designated by the party. (1) An attorney or representative who represents a party must file a notice of appearance in the action with the Docket Management System and must serve a copy of the notice of appearance on each other party before participating in any proceeding governed by this subpart. (2) The attorney or representative must include his or her name, address, and telephone number in the notice of appearance. (3) That attorney or representative in any proceeding governed by this subpart may examine the party. (4) Service of a document on the party's attorney or representative is considered to be service on the party. (c) An agency attorney represents the complainant. § 406.109 Administrative law judges—powers and limitations. (a) Powers of an administrative law judge. (1) Give notice of, and hold, prehearing conferences and hearings; (2) Administer oaths and affirmations; (3) Issue subpoenas authorized by law and requested by the parties; (4) Rule on offers of proof; (5) Receive relevant and material evidence; (6) Regulate the course of the hearing in accordance with the rules of this subpart; (7) Hold conferences to settle or to simplify the issues by consent of the parties; (8) Dispose of procedural motions and requests; and (9) Make findings of fact and conclusions of law, and issue an initial decision. (b) Duties to maintain the record. (2) The administrative law judge must file with the FDMS a copy of each ruling and order issued by the administrative law judge, except those portions that contain confidential information. (3) The administrative law judge must file with the FDMS, or instruct the court reporter to file with the FDMS, a copy of each transcript and exhibit, except those portions that contain confidential information. (4) The administrative law judge must maintain any confidential information filed in accordance with § 406.117 and deliver it to the Assistant Chief Counsel for Litigation when the administrative law judge no longer needs it. (c) Limitations on the power of the administrative law judge. (d) Disqualification. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68475, Dec. 5, 2007] § 406.111 Signing documents. (a) Signature required. (b) Effect of signing a document. (1) Consistent with these rules; (2) Warranted by existing law or that a good faith argument exists for extension, modification, or reversal of existing law; and (3) Not unreasonable or unduly burdensome or expensive, not made to harass any person, not made to cause unnecessary delay, not made to cause needless increase in the cost of the proceedings, or for any other improper purpose. (c) Sanctions. (1) Strike the pleading signed in violation of this section; (2) Strike the request for discovery or the discovery response signed in violation of this section and preclude further discovery by the party; (3) Deny the motion or request signed in violation of this section; (4) Exclude the document signed in violation of this section from the record; (5) Dismiss the interlocutory appeal and preclude further appeal on that issue by the party who filed the appeal until an initial decision has been entered on the record; or (6) Dismiss the appeal of the administrative law judge's initial decision to the FAA decisionmaker. § 406.113 Filing documents with the Docket Management System (DMS) and sending documents to the administrative law judge and Assistant Chief Counsel for Litigation. (a) The Federal Docket Management System (FDMS). (2) A party is not required to file written interrogatories and responses, requests for production of documents or tangible items and responses, and requests for admission and responses with the Federal Docket Management System or submit them to administrative law judge, except as provided in 406.143. (b) Method of filing. (c) Date of filing. (d) Form. (1) Each document must be legible. It may be handwritten, typewritten, or printed from a computer. (2) Each document must have a caption on its first page, clearly visible, with the following information: (i) “FAA Space Adjudication.” (ii) Case name, such as “In the matter of X Corporation.” (iii) FAA Case Number and FDMS docket number, if assigned. (iv) Name of the document being filed, including the party filing the document, such as “Respondent's Motion to Dismiss.” (v) “Confidential information filed with administrative law judge” or “Confidential information filed with Assistant Chief Counsel for Litigation” if the party is filing confidential information under 406.117. (3) The document must be capable of being scanned and be easy to read both in paper form and as scanned into the electronic docket. A document that meets the following specifications is capable of being scanned using automatic feeders and is easy to read both in paper form and as scanned into the electronic docket. Documents that do not meet these specifications may not be legible. (i) On white paper. (ii) On paper not larger than 8 1/2 (iii) In black ink. (iv) Text double-spaced. Footnotes and long quotes may be single spaced. (v) At least 12 point type. (vi) Margins at least 1 inch on each side. (vii) The original not bound or hole-punched, only held together with removable metal clips or the like. The copy that is filed or sent to the administrative law judge or Assistant Chief Counsel for Litigation, and the copy served on another party, need not meet this specification. (viii) The original has no tabs. The copy that is filed or sent to the administrative law judge or Assistant Chief Counsel for Litigation, and the copy served on another party, need not meet this specification. (e) Sending documents to the administrative law judge or Assistant Chief Counsel for Litigation. (f) Viewing and copying the record. (1) During regular business hours at the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. (2) Through the Internet at http://www.regulations.gov. (3) By requesting it from the FDMS and paying reasonable costs. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68476, Dec. 5, 2007] § 406.115 Serving documents on other parties. (a) Service required. (b) Method of service. (c) Certificate of service. (d) Date of service. (e) Additional time after service by mail. (f) Service by the administrative law judge. (g) Service made. (h) Presumption of service. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68476, Dec. 5, 2007] § 406.117 Confidential information. (a) Filing confidential information. (1) Place the information in a separate sealed envelope and clearly mark the envelope “CONFIDENTIAL.” At least the first page of the document in the envelope also must be marked “CONFIDENTIAL.” (2) Attach to this envelope a cover document marked “Confidential information filed with administrative law judge” or “Confidential information filed with Assistant Chief Counsel for Litigation.” The cover document must include, at the least, a short statement of what is being filed, such as “Respondent's motion for confidentiality order.” (3) Unless such a motion has already been granted, enclose a motion for confidentiality order in accordance with paragraph (c) of this section. The motion must be in the sealed envelope if it contains confidential information; otherwise the motion must be outside of the sealed envelope. (b) Marked information not made public. (c) Motion for confidentiality order. (1) The party must state the specific grounds for withholding the information from the public. (2) If the party claims that the information is protected under 51 U.S.C. 50916, and if both the complainant and the respondent agree that the information is protected under that section, the administrative law judge must grant the motion. If one party does not agree that the information is protected under 51 U.S.C. 50916 the administrative law judge must decide. Either party may file an interlocutory appeal of right under § 406.173(c). (3) If the party claims that the information should be protected on grounds other than those provided by 51 U.S.C. 50916 the administrative law judge must grant the motion if, based on the motion and any response to the motion, the administrative law judge determines that disclosure would be detrimental to safety, disclosure would not be in the public interest, or that the information is not otherwise required to be made available to the public. (4) If the administrative law judge determines that the information is not necessary to decide the case or would not otherwise lead to the discovery of relevant material, the administrative law judge must preclude any inquiry into the matter by any party. (5) If the administrative law judge determines that the requested material may be disclosed during discovery, the administrative law judge may order that the material may be discovered and disclosed under limited conditions or may be used only under certain terms and conditions. (6) If the administrative law judge determines that the requested material is necessary to decide the case, or would otherwise lead to the discovery of relevant material, and that a confidentiality order is warranted, the administrative law judge must— (i) Provide an opportunity for review of the document by the attorneys of record off the record. (ii) Provide procedures for excluding the information from the record, or order that portion of the record that includes confidential information be closed. (iii) Order that the parties must not disclose the information in any manner and the parties must not use the information in any other proceeding. (7) If an administrative law judge orders a record closed, in whole or in part: (i) The closed record is not available to the public. (ii) The closed record is available to the parties' attorneys of record. (iii) The administrative law judge may determine whether the closed record is available to the parties, the parties' representatives, or other persons such as witnesses for a party. (iv) No party, attorney of record, representative of record, or person who receives information from such persons, may disclose information that has been protected under this section except to a person authorized by this section or the administrative law judge to receive it. (v) If a person other than one authorized by this section desires to view or copy a closed record, the person must file a motion to open the record. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended by Amdt. 406-7, 77 FR 20532, Apr. 5, 2012] § 406.119 Computation of time. (a) This section applies to any period of time prescribed or allowed by this subpart, by notice or order of the administrative law judge or the FAA decisionmaker, or by any applicable statute. (b) The date of an act, event, or default, after which a designated time period begins to run, is not included in a computation of time under this subpart. (c) The last day of a time period is included in a computation of time unless it is a Saturday, Sunday, or a legal holiday. If the last day of the time period is a Saturday, Sunday, or legal holiday, the time period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday. § 406.121 Extension of time. Before an appeal is filed with the FAA decisionmaker, the parties may seek an extension of time as follows: (a) Extension of time by agreement of the parties. (b) Motion for extension of time. (c) Failure to rule. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68476, Dec. 5, 2007] § 406.123 Waivers. Waivers of any rights provided by statute or regulation must be in writing or by stipulation made at a hearing and entered into the record. The parties must set forth the precise terms of the waiver and any conditions. § 406.127 Complaint and answer in civil penalty adjudications. (a) Complaint Filing. (2) Service. (3) Contents of complaint. (i) The facts alleged. (ii) Any requirement of the Act, a regulation issued under the Act, or any term or condition of a license or permit issued or transferred under the Act allegedly violated by the respondent. (iii) The proposed civil penalty. (b) Answer Time for filing. (2) Form. (3) Filing and service. (4) Contents of answer Specific denial of allegations required. (ii) Affirmative defenses. (iii) Request for relief. (iv) Hearing location. (5) Failure to file answer. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended by Amdt. 406-4, 72 FR 17017, Apr. 6, 2007; 72 FR 68476, Dec. 5, 2007] § 406.133 Amendment of pleadings. (a) Time. (1) Not later than 15 days before the scheduled date of a hearing, a party may amend a complaint or an answer without the consent of the administrative law judge. (2) Less than 15 days before the scheduled date of a hearing, the administrative law judge may allow amendment of a complaint or an answer only for good cause shown in a motion to amend. (b) Responses. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007] § 406.135 Withdrawal of complaint or request for hearing. At any time before or during a hearing, the complainant may withdraw a complaint or a party may withdraw a request for a hearing without the consent of the administrative law judge. If the complainant withdraws the complaint or a party withdraws the request for a hearing and the answer, the administrative law judge must dismiss the proceedings under this subpart with prejudice. § 406.137 Intervention. (a) A person may file with the Federal Docket Management System and serve on each other party a motion for leave to intervene as party in an adjudication. Except for good cause shown, a motion for leave to intervene must be filed not later than 10 days before the hearing. (b) The administrative law judge may grant a motion for leave to intervene if the administrative law judge finds that— (1) Intervention will not unduly broaden the issues or delay the proceedings, and (2) The intervener will be bound by any order or decision entered in the action or the intervener has a property, financial, or other legitimate interest that may not be addressed adequately by the parties. (c) The administrative law judge may determine the extent to which an intervener may participate in the proceedings. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007] § 406.139 Joint procedural or discovery schedule. (a) General. (b) Form and content of schedule. (1) The joint schedule may include, but need not be limited to, times for requests for discovery, any objections to discovery requests, responses to discovery requests, submission of prehearing motions, responses to prehearing motions, exchange of exhibits to be introduced at the hearing, and lists of witnesses that may be called at the hearing. (2) Each party must sign the original joint schedule. (c) Time. (d) Order establishing joint schedule. (e) Disputes. (f) Sanctions for failure to comply with joint schedule. (1) Strike that portion of a party's pleadings; (2) Preclude prehearing or discovery motions by that party; (3) Preclude admission of that portion of a party's evidence at the hearing; or (4) Preclude that portion of the testimony of that party's witnesses at the hearing. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007] § 406.141 Motions. (a) General. (b) Contents. (c) Form and time. (d) Answers to motions. (e) Rulings on motions. (1) Discovery motions. (2) Prehearing motions. (3) Motions made during the hearing. (f) Specific motions Complainant's motion to dismiss a request for a hearing as prematurely filed. (2) Respondent's motions instead of an answer. (i) Respondent's motion to dismiss complaint for failure to state a claim for which a civil penalty may be imposed. (ii) Respondent's motion to dismiss allegations or complaint for staleness. (iii) Respondent's motion for more definite statement. (3) Other motions to dismiss. (4) Complainant's motion for more definite statement. (5) Other motions for more definite statement. (6) Motion to strike. (7) Motion for decision. (8) Motion for disqualification. (i) Motion and supporting affidavit. (ii) Answer. (iii) Decision on motion for disqualification. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007] § 406.143 Discovery. (a) Initiation of discovery. (b) Methods of discovery. (c) Service on the agency. (d) Time for response to discovery request. (e) Scope of discovery. (f) Limiting discovery. (1) The information requested is cumulative or repetitious; (2) The information requested can be obtained from another less burdensome and more convenient source; (3) The party requesting the information has had ample opportunity to obtain the information through other discovery methods permitted under this section; or (4) The method or scope of discovery requested by the party is unduly burdensome or expensive. (g) Confidentiality order. (h) Protective order. (1) Deny the discovery request; (2) Order that discovery be conducted only on specified terms and conditions, including a designation of the time or place for discovery or a determination of the method of discovery; or (3) Limit the scope of discovery or preclude any inquiry into certain matters during discovery. (i) Duty to supplement or amend response. (1) A party must supplement or amend any response to a question requesting the identity and location of any person having knowledge of discoverable matters. (2) A party must supplement or amend any response to a question requesting the identity of each person who will be called to testify at the hearing as an expert witness and the subject matter and substance of that witness' testimony. (3) A party must supplement or amend any response that was incorrect when made or any response that was correct when made but is no longer correct, accurate, or complete. (j) Depositions. (1) Form. (2) Administration of oaths. (3) Notice of deposition. (4) Use of depositions. (k) Interrogatories. (2) A party must file a motion for leave to serve more than 30 interrogatories on a party before serving additional interrogatories on a party. The administrative law judge must grant the motion only if the party shows good cause for the party's failure to inquire about the information previously and that the information cannot reasonably be obtained using less burdensome discovery methods or be obtained from other sources. (3) A party must answer each interrogatory separately and completely in writing. (4) A party, or the party's attorney or representative of record, must sign the party's responses to interrogatories. (5) If a party objects to an interrogatory, the party must state the objection and the reasons for the objection. (6) An opposing party may offer into evidence any part or all of a party's responses to interrogatories at a hearing under this subpart to the extent that the response is relevant, material, and not repetitious. (l) Requests for admission. (1) Time. (2) Response. (3) Effect of admission. (m) Motion to compel discovery. (n) Failure to comply with a discovery order or order to compel. (1) Strike that portion of a party's pleadings; (2) Preclude prehearing or discovery motions by that party; (3) Preclude admission of that portion of a party's evidence at the hearing; or (4) Preclude that portion of the testimony of that party's witnesses at the hearing. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007] § 406.147 Notice of hearing. (a) Notice. (b) Date, time, and location of the hearing. (c) Earlier hearing. (d) Space hearing consolidated with aviation hearing under 14 CFR part 13 subpart G. § 406.149 Evidence. (a) General. (b) Admissibility. (c) Hearsay evidence. § 406.151 Standard of proof. The administrative law judge must issue an initial decision or must rule in a party's favor only if the decision or ruling is supported by, and in accordance with, the reliable, probative, and substantial evidence contained in the record. In order to prevail, the party with the burden of proof must prove the party's case or defense by a preponderance of reliable, probative, and substantial evidence. § 406.153 Burden of proof. (a) Except in the case of an affirmative defense, in a civil penalty adjudication the burden of proof is on the complainant. (b) Except as otherwise provided by statute or rule, the proponent of a motion, request, or order has the burden of proof. (c) A party who has asserted an affirmative defense has the burden of proving the affirmative defense. § 406.155 Offer of proof. A party whose evidence has been excluded by a ruling of the administrative law judge may offer the evidence for the record on appeal. § 406.157 Expert or opinion witnesses. An employee of the FAA may not be called as an expert or opinion witness for any party other than the agency, in any proceeding governed by this part. An employee of a respondent may not be called as an expert or opinion witness for the complainant in any proceeding governed by this part to which the respondent is a party. § 406.159 Subpoenas. (a) Request for subpoena. (b) Motion to quash or modify the subpoena. (c) Enforcement of subpoena. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended by Amdt. 406-7, 77 FR 20533, Apr. 5, 2012] § 406.161 Witness fees. (a) General. (b) Amount. § 406.163 Record. (a) Exclusive record. (b) A person may keep the original document, data, or other evidence, with the consent of the administrative law judge, by substituting a legible copy for the record. § 406.165 Argument before the administrative law judge. (a) Argument during the hearing. (b) Final oral argument. (c) Post-hearing briefs. § 406.167 Initial decision. (a) Contents. (b) Oral decision. (c) Written decision. § 406.173 Interlocutory appeals. (a) General. (b) Interlocutory appeal for cause. (c) Interlocutory appeals of right. (1) A ruling or order by the administrative law judge barring a party, or a party's attorney or representative, from the proceedings. (2) A ruling or order by the administrative law judge allegedly in violation of the limitations on the administrative law judge under § 406.109(c). (3) Failure of the administrative law judge to grant a motion for a confidentiality order based on 51 U.S.C. 50916, under § 406.117(c)(2). (4) Failure of the administrative law judge to dismiss the proceedings in accordance with § 406.135. (d) Procedure. (e) Rejection of interlocutory appeal. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007; Amdt. 406-7, 77 FR 20533, Apr. 5, 2012] § 406.175 Appeal from initial decision. (a) Notice of appeal. (b) Issues on appeal. (1) Whether each finding of fact is supported by a preponderance of reliable, probative, and substantial evidence; (2) Whether each conclusion of law is made in accordance with applicable law, precedent, and public policy; and (3) Whether the administrative law judge committed any prejudicial errors during the hearing that support the appeal. (c) Perfecting an appeal. (1) Extension of time by agreement of the parties. (2) Motion for extension. (d) Appeal briefs. (1) A party must set forth, in detail, the party's specific objections to the initial decision or rulings in the appeal brief. A party also must set forth, in detail, the basis for the appeal, the reasons supporting the appeal, and the relief requested in the appeal. If the party relies on evidence contained in the record for the appeal, the party must specifically refer to the pertinent evidence contained in the record in the appeal brief. (2) The FAA decisionmaker may dismiss an appeal, on the FAA decisionmaker's own initiative or upon motion of any other party, where a party has filed a notice of appeal but fails to perfect the appeal by timely filing an appeal brief. (e) Reply brief. (1) Extension of time by agreement of the parties. (2) Motion for extension. (f) Other briefs. (g) Number of copies. (h) Oral argument. (i) Waiver of objections on appeal. (j) FAA decisionmaker's decision on appeal. (1) The FAA decisionmaker may raise any issue, on the FAA decisionmaker's own initiative, that is required for proper disposition of the proceedings. The FAA decisionmaker will give the parties a reasonable opportunity to submit arguments on the new issues before making a decision on appeal. If an issue raised by the FAA decisionmaker requires the consideration of additional testimony or evidence, the FAA decisionmaker will remand the case to the administrative law judge for further proceedings and an initial decision related to that issue. If an issue raised by the FAA decisionmaker is solely an issue of law or the issue was addressed at the hearing but was not raised by a party in the briefs on appeal, a remand of the case to the administrative law judge for further proceedings is not required but may be provided in the discretion of the FAA decisionmaker. (2) The FAA decisionmaker will issue the final decision and order of the Administrator on appeal in writing and will serve a copy of the decision and order on each party. (3) A final decision and order of the FAA decisionmaker is precedent in any other civil penalty action under this part. Any issue, finding or conclusion, order, ruling, or initial decision of an administrative law judge that has not been appealed to the FAA decisionmaker is not precedent in any other civil penalty action. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007] § 406.177 Petition to reconsider or modify a final decision and order of the FAA decisionmaker on appeal. (a) General. (b) Contents. (1) If the petition is based, in whole or in part, on allegations regarding the consequences of the FAA decisionmaker's decision, the party must describe these allegations and must describe, and support, the basis for the allegations. (2) If the petition is based, in whole or in part, on new material not previously raised in the proceedings, the party must set forth the new material and include affidavits of prospective witnesses and authenticated documents that would be introduced in support of the new material. The party must explain, in detail, why the new material was not discovered through due diligence prior to the hearing. (c) Repetitious and frivolous petition. (d) Reply to petition. (e) Effect of filing petition. (f) FAA decisionmaker's decision on petition. [Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended at 72 FR 68477, Dec. 5, 2007] § 406.179 Judicial review of a final decision and order. (a) A person may seek judicial review of a final decision and order of the FAA decisionmaker as provided in 5 U.S.C. chapter 7 and 28 U.S.C. 1331. A party seeking judicial review must file with a United States district court. (b) In accordance with § 406.9(e)(iv), if a person seeks judicial review not later than 60 days after the final decision and order has been served on the respondent, the final decision and order is stayed. (c) In accordance with § 406.9(i), if a respondent does not pay a civil penalty and does not file an appeal with the United States district court within 60 days after service of the final decision and order, the FAA may refer the order to the United States Department of Treasury or Department of Justice to collect the civil penalty.