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| Subpart F | Formal Fact-Finding Investigation Under an Order of Investigation | 13.101 – 13.131 | ||||||||||||||||||||||||||||||||||||||||||||||||
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18 U.S.C. 6002; 28 U.S.C. 2461 note; 49 U.S.C. 106(g), 5121-5124, 40113-40114, 44103-44106, 44701-44704, 44709-44710, 44713, 44725, 44742, 44802 (note), 46101-46111, 46301, 46302 (for a violation of 49 U.S.C. 46504), 46304-46316, 46318-46320, 46501-46502, 46504, 46507, 47106, 47107, 47111, 47122, 47306, 47531-47532; 49 CFR 1.83.
Docket No. 18884, 44 FR 63723, Nov. 5, 1979, unless otherwise noted.
Docket No. FAA-2018-1051; Amdt. No. 13-40, 86 FR 54536, Oct. 1, 2021, unless otherwise noted.
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Docket No. FAA-2018-1051; Amdt. No. 13-40, 86 FR 54536, Oct. 1, 2021, unless otherwise noted.
(a) This subpart applies to fact-finding investigations in which an investigation has been ordered under § 13.3(c) or § 13.5(f)(2).
(b) This subpart does not limit the authority of any person to issue subpoenas, administer oaths, examine witnesses, and receive evidence in any informal investigation as otherwise provided by law.
The order of investigation—
(a) Defines the scope of the investigation by describing the information sought in terms of its subject matter or its relevancy to specified FAA functions;
(b) Sets forth the form of the investigation which may be either by individual deposition or investigative proceeding or both; and
(c) Names the official who is authorized to conduct the investigation and serve as the presiding officer.
Any person under investigation and any person required to testify and produce documentary or physical evidence during the investigation will be advised of the purpose of the investigation, and of the place where the investigative proceeding or deposition will be convened. This may be accomplished by a notice of investigation or by a subpoena. A copy of the order of investigation may be sent to such persons when appropriate.
(a) The presiding officer may designate additional persons as parties to the investigation, if in the discretion of the presiding officer, it will aid in the conduct of the investigation.
(b) The presiding officer may designate any person as a party to the investigation if—
(1) The person petitions the presiding officer to participate as a party;
(2) The disposition of the investigation may as a practical matter impair the ability to protect the person's interest unless allowed to participate as a party; and
(3) The person's interest is not adequately represented by existing parties.
The presiding officer will conduct the investigation at a location convenient to the parties involved and as expeditious and efficient as handling of the investigation permits.
(a) At the discretion of the presiding officer, or at the request of a party to the investigation, the presiding officer may issue a subpoena directing any person to appear at a designated time and place to testify or to produce documentary or physical evidence relating to any matter under investigation.
(b) Subpoenas must be served by personal service on the person or an agent designated in writing for the purpose, or by registered or certified mail addressed to the person or agent. Whenever service is made by registered or certified mail, the date of mailing will be considered the time when service is made.
(c) Subpoenas extend in jurisdiction throughout the United States and any territory or possession thereof.
(a) If a person disobeys a subpoena, the Administrator or a party to the investigation may petition a court of the United States to enforce the subpoena in accordance with applicable statutes.
(b) If a party to the investigation fails to comply with the provisions of this subpart or an order issued by the presiding officer, the Administrator may bring a civil action to enforce the requirements of this subpart or any order issued under this subpart in a court of the United States in accordance with applicable statutes.
(a) All investigative proceedings and depositions must be public unless the presiding officer determines that the public interest requires otherwise.
(b) The presiding officer may order information contained in any report or document filed or in any testimony given pursuant to this subpart withheld from public disclosure when, in the judgment of the presiding officer, disclosure would adversely affect the interests of any person and is not required in the public interest or is not otherwise required by statute to be made available to the public. Any person may make written objection to the public disclosure of information, stating the grounds for such objection.
(a) The presiding officer may question witnesses.
(b) Any witness may be accompanied by counsel.
(c) Any party may be accompanied by counsel and either the party or counsel may—
(1) Question witnesses, provided the questions are relevant and material to the matters under investigation and would not unduly impede the progress of the investigation; and
(2) Make objections on the record and argue the basis for such objections.
(d) Copies of all notices or written communications sent to a party or witness must, upon request, be sent to that person's attorney of record.
(a) Whenever a person refuses, on the basis of a privilege against self-incrimination, to testify or provide other information during the course of any investigation conducted under this subpart, the presiding officer may, with the approval of the United States Attorney General, or the delegate of the Attorney General, issue an order requiring the person to give testimony or provide other information. However, no testimony or other information so compelled (or any information directly or indirectly derived from such testimony or other information) may be used against the person in any criminal case, except in a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
(b) The presiding officer may issue an order under this section if—
(1) The testimony or other information from the witness may be necessary to the public interest; and
(2) The witness has refused or is likely to refuse to testify or provide other information on the basis of a privilege against self-incrimination.
(c) Immunity provided by this section will not become effective until the person has refused to testify or provide other information on the basis of a privilege against self-incrimination, and an order under this section has been issued. An order, however, may be issued prospectively to become effective in the event of a claim of the privilege.
All witnesses appearing, other than employees of the Federal Aviation Administration, are entitled to the same fees and allowances as provided for under 28 U.S.C. 1821.
(a) During an investigation conducted under this subpart, a party may submit to the presiding officer—
(1) A list of witnesses to be called, specifying the subject matter of the expected testimony of each witness; and
(2) A list of exhibits to be considered for inclusion in the record.
(b) If the presiding officer determines that the testimony of a witness or the receipt of an exhibit in accordance with paragraph (a) of this section will be relevant, competent, and material to the investigation, the presiding officer may subpoena the witness or use the exhibit during the investigation.
Depositions for investigative purposes may be taken at the discretion of the presiding officer with reasonable notice to the party under investigation. Depositions must be taken before the presiding officer or other person authorized to administer oaths and designated by the presiding officer. The testimony must be reduced to writing by the person taking the deposition, or under the direction of that person, and where possible must then be subscribed by the deponent. Any person may be compelled to appear and testify and to produce physical and documentary evidence.
The presiding officer must issue a written report based on the record developed during the formal investigation, including a summary of principal conclusions. A summary of principal conclusions must be prepared by the official who issued the order of investigation in every case that results in no action, or no action as to a particular party to the investigation. All such reports must be furnished to the parties to the investigation and made available to the public on request.
A decision on whether to initiate subsequent action must be made on the basis of the record developed during the formal investigation and any other information in the possession of the Administrator.
Any question concerning the scope or conduct of a formal investigation not covered in this subpart may be ruled on by the presiding officer on his or her own initiative, or on the motion of a party or a person testifying or producing evidence.