FAA 14 CFR PART 14-2011 Rules implementing the equal access to justice act of 1980《执行1980年司法公正平享法案的章程》.pdf

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1、79 Federal Aviation Administration, DOT Pt. 14 61 FR 67445, Dec. 20, 1996, as amended by Amdt. 1328, 62 FR 4134, Jan. 29, 1997; 67 FR 6366, Feb. 11, 2002; Amdt. 1333, 71 FR 28522, May 16, 2006; 71 FR 47077, Aug. 16, 2006; 71 FR 52407, Sept. 6, 2006; 75 FR 72938, Nov. 29, 2010 Subpart IFlight Operati

2、onal Quality Assurance Programs Flight Operational Quality Assur-ance Program: Prohibition against use of data for enforcement pur-poses. (a) Applicability. This section applies to any operator of an aircraft who op-erates such aircraft under an approved Flight Operational Quality Assurance (FOQA) p

3、rogram. (b) Definitions. For the purpose of this section, the terms (1) Flight Operational Quality Assur-ance (FOQA) program means an FAA- approved program for the routine col-lection and analysis of digital flight data gathered during aircraft oper-ations, including data currently col-lected pursua

4、nt to existing regulatory provisions, when such data is included in an approved FOQA program. (2) FOQA data means any digital flight data that has been collected from an individual aircraft pursuant to an FAA-approved FOQA program, re-gardless of the electronic format of that data. (3) Aggregate FOQ

5、A data means the summary statistical indices that are associated with FOQA event cat-egories, based on an analysis of FOQA data from multiple aircraft operations. (c) Requirements. In order for para-graph (e) of this section to apply, the operator must submit, maintain, and adhere to a FOQA Implemen

6、tation and Operation Plan that is approved by the Administrator and which contains the following elements: (1) A description of the operators plan for collecting and analyzing flight recorded data from line operations on a routine basis, including identification of the data to be collected; (2) Proc

7、edures for taking corrective action that analysis of the data indi-cates is necessary in the interest of safety; (3) Procedures for providing the FAA with aggregate FOQA data; (4) Procedures for informing the FAA as to any corrective action being un-dertaken pursuant to paragraph (c)(2) of this sect

8、ion. (d) Submission of aggregate data. The operator will provide the FAA with ag-gregate FOQA data in a form and man-ner acceptable to the Administrator. (e) Enforcement. Except for criminal or deliberate acts, the Administrator will not use an operators FOQA data or aggregate FOQA data in an enforc

9、e-ment action against that operator or its employees when such FOQA data or aggregate FOQA data is obtained from a FOQA program that is approved by the Administrator. (f) Disclosure. FOQA data and aggre-gate FOQA data, if submitted in ac-cordance with an order designating the information as protecte

10、d under part 193 of this chapter, will be afforded the nondisclosure protections of part 193 of this chapter. (g) Withdrawal of program approval. The Administrator may withdraw ap-proval of a previously approved FOQA program for failure to comply with the requirements of this chapter. Grounds for wi

11、thdrawal of approval may in-clude, but are not limited to (1) Failure to implement corrective action that analysis of available FOQA data indicates is necessary in the inter-est of safety; or (2) Failure to correct a continuing pattern of violations following notice by the agency; or also (3) Willfu

12、l misconduct or willful vio-lation of the FAA regulations in this chapter. Doc. No. FAA20007554, 66 FR 55048, Oct. 31, 2001; Amdt. 1330, 67 FR 31401, May 9, 2002 PART 14RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 1980 Subpart AGeneral Provisions Sec. 14.01 Purpose of these rules. 14.02 Pro

13、ceedings covered. 14.03 Eligibility of applicants. 14.04 Standards for awards. 14.05 Allowance fees and expenses. VerDate Mar2010 14:10 Mar 01, 2011 Jkt 223043 PO 00000 Frm 00089 Fmt 8010 Sfmt 8010 Y:SGML223043.XXX 223043wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction

14、or networking permitted without license from IHS-,-,-80 14 CFR Ch. I (1111 Edition) 14.01 Subpart BInformation Required From Applicants 14.10 Contents of application. 14.11 Net worth exhibit. 14.12 Documentation of fees and expenses. Subpart CProcedures for Considering Applications 14.20 When an app

15、lication may be filed. 14.21 Filing and service of documents. 14.22 Answer to application. 14.23 Reply. 14.24 Comments by other parties. 14.25 Settlement. 14.26 Further proceedings. 14.27 Decision. 14.28 Review by FAA decisionmaker. 14.29 Judicial review. 14.30 Payment of award. AUTHORITY: 5 U.S.C.

16、504; 49 U.S.C. 106(f), 40113, 46104 and 47122. SOURCE: Docket No. 25958, 54 FR 46199, Nov. 1, 1989, unless otherwise noted. Subpart AGeneral Provisions 14.01 Purpose of these rules. The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides for the award of attorney fees and other ex-penses t

17、o eligible individuals and enti-ties who are parties to certain adminis-trative proceedings (adversary adju-dications) before the Federal Aviation Administration (FAA). An eligible party may receive an award when it prevails over the FAA, unless the agen-cys position in the proceeding was sub-stanti

18、ally justified or special cir-cumstances make an award unjust. The rules in this part describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the proce-dures and standards that the FAA De-cisionmaker will use to make them. As used

19、 hereinafter, the term agency ap-plies to the FAA. 14.02 Proceedings covered. (a) The Act applies to certain adver-sary adjudications conducted by the FAA under 49 CFR part 17 and the Ac-quisition Management System (AMS). These are adjudications under 5 U.S.C. 554, in which the position of the FAA i

20、s represented by an attorney or other representative who enters an appear-ance and participates in the pro-ceeding. This subpart applies to pro-ceedings under 49 U.S.C. 46301, 46302, and 46303 and to the Default Adjudica-tive Process under part 17 of this chap-ter and the AMS. (b) If a proceeding in

21、cludes both mat-ters covered by the Act and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues. (c) Fees and other expenses may not be awarded to a party for any portion of the adversary adjudication in which such party has unrea

22、sonably pro-tracted the proceedings. 54 FR 46199, Nov. 1, 1989, as amended by Amdt. 1403, 64 FR 32935, June 18, 1999 14.03 Eligibility of applicants. (a) To be eligible for an award of at-torney fees and other expenses under the Act, the applicant must be a party to the adversary adjudication for wh

23、ich it seeks an award. The term party is defined in 5 U.S.C. 504(b)(1)(B) and 5 U.S.C. 551(3). The applicant must show that it meets all conditions or eligi-bility set out in this subpart. (b) The types of eligible applicants are as follows: (1) An individual with a net worth of not more than $2 mil

24、lion at the time the adversary adjudication was initi-ated; (2) The sole owner of an unincor-porated business who has a net worth of not more than $7 million, including both personal and business interests, and not more than 500 employees at the time the adversary adjudication was initiated; (3) A c

25、haritable or other tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3) with not more than 500 employees at the time the adver-sary adjudication was initiated; and (4) A cooperative association as de-fined in section 15(a) of the Agricul-tural Mark

26、eting Act (12 U.S.C. 1141j(a) with not more than 500 employees at the time the adversary adjudication was initiated; and (5) Any other partnership, corpora-tion, association, or public or private organization with a net worth of not more than $7 million and not more than 500 employees at the time th

27、e ad-versary adjudication was initiated. VerDate Mar2010 14:10 Mar 01, 2011 Jkt 223043 PO 00000 Frm 00090 Fmt 8010 Sfmt 8010 Y:SGML223043.XXX 223043wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-81 Federal Aviation

28、Administration, DOT 14.05 (c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated. (d) An applicant who owns an unin-corporated business will be considered an individual rather than a sole owner of an u

29、nincorporated business if the issues on which the applicant pre-vails are related primarily to personal interests rather than to business inter-est. (e) The employees of an applicant in-clude all persons who regularly per-form services for remuneration for the applicant, under the applicants direc-t

30、ion and control. Part-time employees shall be included on a proportional basis. (f) The net worth and number of em-ployees of the applicant and all of its affiliates shall be aggregated to deter-mine eligibility. Any individual, cor-poration, or other entity that directly or indirectly controls or o

31、wns a major-ity of the voting shares or other inter-est of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an af-filiate for purposes of this part, unless the ALJ or

32、 adjudicative officer deter-mines that such treatment would be unjust and contrary to the purposes of the Act in light of the actual relation-ship between the affiliated entities. In addition, the ALJ or adjudicative offi-cer may determine that financial rela-tionships of the applicant, other than t

33、hose described in this paragraph, con-stitute special circumstances that would make an award unjust. (g) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible if not itself eligible for an award. 54 FR 46199, Nov. 1, 1989

34、, as amended by Amdt. 1403, 64 FR 32935, June 18, 1999 14.04 Standards for awards. (a) A prevailing applicant may re-ceive an award for attorney fees and other expenses incurred in connection with a proceeding, or in a significant and discrete substantive portion of the proceeding, unless the positi

35、on of the agency over which the applicant has prevailed was substantially justified. Whether or not the position of the FAA was substantially justified shall be de-termined on the basis of the record (in-cluding the record with respect to the action or failure to act by the agency upon which the civ

36、il action is based) which was made in the civil action for which fees and other expenses are sought. The burden of proof that an award should not be made to an eligi-ble prevailing applicant is on the agen-cy counsel, who may avoid an award by showing that the agencys position was reasonable in law

37、and fact. (b) An award will be reduced or de-nied if the applicant has unduly or un-reasonably protracted the proceeding or if special circumstances make the award sought unjust. 14.05 Allowance fees and expenses. (a) Awards will be based on rates cus-tomarily charged by persons engaged in the busin

38、ess of acting as attorneys, agents, and expert witnesses, even if the services were made available with-out charge or at a reduced rate to the applicant. (b) No award for the fee of an attor-ney or agent under this part may ex-ceed $125 per hour, or such rate as pre-scribed by 5 U.S.C. 504. No award

39、 to compensate an expert witness may ex-ceed the highest rate at which the agency pays expert witnesses. However, an award may also include the reason-able expenses of the attorney, agent, or witness as a separate item, if the attor-ney, agent, or witness ordinarily charges clients separately for su

40、ch ex-penses. (c) In determining the reasonableness of the fee sought for an attorney, agent, or expert witness, the ALJ or adjudicative officer shall consider the following: (1) If the attorney, agent, or witness is in private practice, his or her cus-tomary fee for similar services, or if an emplo

41、yee of the applicant, the fully al-located cost of the services; (2) The prevailing rate for similar services in the community in which the attorney, agent, or witness ordinarily performs services; (3) The time actually spent in the representation of the applicant; VerDate Mar2010 14:10 Mar 01, 2011

42、 Jkt 223043 PO 00000 Frm 00091 Fmt 8010 Sfmt 8010 Y:SGML223043.XXX 223043wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-82 14 CFR Ch. I (1111 Edition) 14.10 (4) The time reasonably spent in light of the difficulty o

43、r complexity of the issues in the proceeding; and (5) Such other factors as may bear on the value of the services provided. (d) The reasonable cost of any study, analysis, engineering report, test, project, or similar matter prepared on behalf of a party may be awarded, to the extent that the charge

44、 for the serv-ice does not exceed the prevailing rate for similar services, and the study or other matter was necessary for prepa-ration of the applicants case. (e) Fees may be awarded only for work performed after the issuance of a complaint, or in the Default Adjudica-tive Process for a protest or

45、 contract dispute under part 17 of this chapter and the AMS. Amdt. 1318, 53 FR 34655, Sept. 7, 1988, as amended by Amdt. 141, 55 FR 15131, Apr. 20, 1990; Amdt. 1403, 64 FR 32935, June 18, 1999 Subpart BInformation Required From Applicants 14.10 Contents of application. (a) An application for an awar

46、d of fees and expenses under the Act shall identify the applicant and the pro-ceeding for which an award is sought. The application shall show that the ap-plicant has prevailed and identify the position of the agency in the pro-ceeding that the applicant alleges was not substantially justified. Unle

47、ss the applicant is an individual, the applica-tion shall also state the number of em-ployees of the applicant and describe briefly the type and purpose of its or-ganization or business. (b) The application shall also include a statement that the applicants net worth does not exceed $2 million (if a

48、n individual) or $7 million (for all other applicants, including their affiliates) at the time the adversary adjudication was initiated. However, an applicant may omit this statement if: (1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described

49、 in section 501(c)(3) of the Internal Rev-enue Code (26 U.S.C. 501(c)(3), or in the case of a tax-exempt organization not required to obtain a ruling from the In-ternal Revenue Service on its exempt status, a statement that describes the basis for the applicants belief that it qualifies under such section; or (2) It states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12