80 FR 66787 - Practices and Procedures

MERIT SYSTEMS PROTECTION BOARD

Federal Register Volume 80, Issue 210 (October 30, 2015)

Page Range		66787-66788
FR Document		2015-27652

The Merit Systems Protection Board (MSPB or the Board) hereby amends its rules of practice and procedure to clarify that parties have a right to discovery under the MSPB's existing discovery procedures in compliance proceedings.

Federal Register, Volume 80 Issue 210 (Friday, October 30, 2015)

[Federal Register Volume 80, Number 210 (Friday, October 30, 2015)]
[Rules and Regulations]
[Pages 66787-66788]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-27652]


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MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: The Merit Systems Protection Board (MSPB or the Board) hereby 
amends its rules of practice and procedure to clarify that parties have 
a right to discovery under the MSPB's existing discovery procedures in 
compliance proceedings.

DATES: This interim final rule is effective on October 30, 2015. Submit 
written comments concerning this interim final rule on or before 
December 29, 2015.

ADDRESSES: Submit your comments concerning this interim final rule by 
one of the following methods and in accordance with the relevant 
instructions:
    Email: mspb@mspb.gov. Comments submitted by email can be contained 
in the body of the email or as an attachment in any common electronic 
format, including word processing applications, HTML and PDF. If 
possible, commenters are asked to use a text format and not an image 
format for attachments. An email should contain a subject line 
indicating that the submission contains comments concerning the MSPB's 
interim final rule. The MSPB asks that commenters use email to submit 
comments if possible. Submission of comments by email will assist the 
MSPB to process comments and speed publication of a final rule.
    Fax: (202) 653-7130. Comments submitted by fax should be addressed 
to William D. Spencer and contain a subject line indicating that the 
submission contains comments concerning the MSPB's interim final rule.
    Mail or other commercial delivery: Comments submitted by mail 
should be addressed to William D. Spencer, Clerk of the Board, Merit 
Systems Protection Board, 1615 M Street NW., Washington, DC 20419.
    Hand delivery or courier: Comments submitted by hand delivery or 
courier should be addressed to William D. Spencer, Clerk of the Board, 
Merit Systems Protection Board, 1615 M Street NW., Washington, DC 
20419, and delivered to the 5th floor reception window at this street 
address. Such deliveries are only accepted Monday through Friday, 9 
a.m. to 4:30 p.m., excluding Federal holidays.
    Instructions: As noted above, the MSPB requests that commenters use 
email to submit comments, if possible. All comments received will be 
made available online at the Board's Web site, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information or other information whose 
disclosure is restricted by law. Those desiring to submit anonymous 
comments must submit comments in a manner that does not reveal the 
commenter's identity, include a statement that the comment is being 
submitted anonymously, and include no personally-identifiable 
information. The email address of a commenter who chooses to submit 
comments using email will not be disclosed unless it appears in 
comments attached to an email or in the body of a comment.

FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street NW., Washington, 
DC, 20419; phone: (202) 653-7200; fax: (202) 653-7130; or email: 
mspb@mspb.gov.

SUPPLEMENTARY INFORMATION: This interim final rule is necessary because 
in Bernard v. Dep't of Agric., 788 F.3d 1365, 1367-70 (Fed. Cir. 2015), 
the United States Court of Appeals for the Federal Circuit held that 
the MSPB's regulations provide no clear guarantee that parties are 
authorized to undertake discovery in enforcement proceedings. This 
interim final rule amends the MSPB's regulations to address this 
holding and make clear that the parties have a right to discovery in 
such cases under the Board's existing discovery procedures.

Amendments Made by This Interim Final Rule

    A new provision, section 1201.183(a)(9), is inserted to make clear 
that discovery may be undertaken in enforcement matters. This new 
provision makes clear that the Board's regular discovery procedures 
apply in enforcement matters and sets a deadline by which initial 
discovery requests must be filed. As in other Board cases, this 
deadline may be changed by the judge.

Justification for Use of Interim Final Rule

    Ordinarily, the Administrative Procedure Act (APA) requires an 
agency to provide notice of proposed rulemaking and a period of public 
comment before the promulgation of a new regulation. 5 U.S.C. 553(b) 
and (c). However, section 553(b) of the APA specifically provides that 
the notice and comment requirements do not apply:
    (A) To interpretative rules, general statements of policy, or rules 
of agency organization, procedure, or practice; or
    (B) when the agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest. The APA also requires 
the publication of any substantive rule at least thirty days before its 
effective date, 5 U.S.C. 553(d), except where the rule is interpretive, 
where the rule grants an exception or relieves a restriction, or ``as

[[Page 66788]]

otherwise provided by the agency for good cause found and published 
with the rule.'' Id.
    The Board finds that use of an immediately effective interim final 
rule instead of notice and comment rulemaking is appropriate here 
because the amendments contained herein merely reflect the decision of 
the Federal Circuit in Bernard and are necessary to avert any further 
confusion regarding the Board's practice and procedures governing the 
right to discovery in compliance cases. Under these circumstances, 
notice and comment rulemaking is unnecessary and not required by any 
public interest.

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure.

    Accordingly, for the reasons set forth in the preamble, the Board 
amends 5 CFR part 1201 as follows:

PART 1201--PRACTICES AND PROCEDURES

0
1. The authority citation for 5 CFR part 1201 continues to read as 
follows:

    Authority:  5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, 
unless otherwise noted.


0
2. Section 1201.183 is amended by adding paragraph (a)(9) to read as 
follows:


Sec.  1201.183  Procedures for processing petitions for enforcement.

    (a) * * *
    (9) Discovery may be undertaken in accordance with the Board's 
regular discovery procedures (Sec. Sec.  1201.71 through 1201.75 of 
this part), except that unless otherwise directed by the judge, initial 
discovery requests must be served no later than 15 days after the 
alleged noncomplying party files a response to the petition for 
enforcement as required under paragraph (a)(1) of this section.
* * * * *

William D. Spencer,
Clerk of the Board.
[FR Doc. 2015-27652 Filed 10-29-15; 8:45 am]
 BILLING CODE 7400-01-P

Federal Register / Vol. 80, No. 210 / Friday, October 30, 2015 / Rules and Regulations 66787

coverage but will be subject to full DATES: This interim final rule is commenter who chooses to submit
underwriting. effective on October 30, 2015. Submit comments using email will not be
(2) If you are an active workforce written comments concerning this disclosed unless it appears in comments
member and you have entered into a interim final rule on or before December attached to an email or in the body of
domestic partnership, your domestic 29, 2015. a comment.
partner is eligible to submit an ADDRESSES: Submit your comments
FOR FURTHER INFORMATION CONTACT:
application for coverage under this concerning this interim final rule by one
section at any time from the of the following methods and in William D. Spencer, Clerk of the Board,
commencing date of your domestic accordance with the relevant Merit Systems Protection Board, 1615 M
partnership and will be subject to full instructions: Street NW., Washington, DC, 20419;
underwriting requirements. You are not Email: mspb@mspb.gov. Comments phone: (202) 653–7200; fax: (202) 653–
eligible for abbreviated underwriting submitted by email can be contained in 7130; or email: mspb@mspb.gov.
because of your domestic partnership. the body of the email or as an SUPPLEMENTARY INFORMATION: This
You, your domestic partner, or both you attachment in any common electronic interim final rule is necessary because
and your domestic partner may apply format, including word processing in Bernard v. Dep’t of Agric., 788 F.3d
for coverage at any time, but full applications, HTML and PDF. If 1365, 1367–70 (Fed. Cir. 2015), the
underwriting will be required for both possible, commenters are asked to use a United States Court of Appeals for the
of you. text format and not an image format for Federal Circuit held that the MSPB’s
(b) Domestic partnership. The new attachments. An email should contain a
regulations provide no clear guarantee
spouse or domestic partner of an subject line indicating that the
that parties are authorized to undertake
annuitant or retired member of the submission contains comments
discovery in enforcement proceedings.
uniformed services may apply for concerning the MSPB’s interim final
rule. The MSPB asks that commenters This interim final rule amends the
coverage with full underwriting at any MSPB’s regulations to address this
time following the marriage or use email to submit comments if
possible. Submission of comments by holding and make clear that the parties
commencing date of the domestic
email will assist the MSPB to process have a right to discovery in such cases
partnership.
(c) Other qualified relatives. Other comments and speed publication of a under the Board’s existing discovery
qualified relative(s) of a workforce final rule. procedures.
member may apply for coverage with Fax: (202) 653–7130. Comments Amendments Made by This Interim
full underwriting at any time following submitted by fax should be addressed to
Final Rule
the marriage or commencing date of the William D. Spencer and contain a
domestic partnership. subject line indicating that the A new provision, section
submission contains comments 1201.183(a)(9), is inserted to make clear
■ 6. In § 875.412, the introductory text
concerning the MSPB’s interim final that discovery may be undertaken in
is revised and paragraph (e) is added to
rule. enforcement matters. This new
read as follows: Mail or other commercial delivery: provision makes clear that the Board’s
§ 875.412 When will my coverage Comments submitted by mail should be regular discovery procedures apply in
terminate? addressed to William D. Spencer, Clerk
enforcement matters and sets a deadline
Except as provided in paragraph (e) of of the Board, Merit Systems Protection
by which initial discovery requests must
this section, your coverage will Board, 1615 M Street NW., Washington,
DC 20419. be filed. As in other Board cases, this
terminate on the earliest of the deadline may be changed by the judge.
Hand delivery or courier: Comments
following dates:
submitted by hand delivery or courier Justification for Use of Interim Final
* * * * * should be addressed to William D.
(e) Termination of a domestic Rule
Spencer, Clerk of the Board, Merit
partnership does not terminate Systems Protection Board, 1615 M Ordinarily, the Administrative
insurance coverage as long as the Carrier Street NW., Washington, DC 20419, and Procedure Act (APA) requires an agency
continues to receive the required delivered to the 5th floor reception to provide notice of proposed
premium when due. window at this street address. Such rulemaking and a period of public
[FR Doc. 2015–27381 Filed 10–29–15; 8:45 am] deliveries are only accepted Monday comment before the promulgation of a
BILLING CODE 6325–63–P through Friday, 9 a.m. to 4:30 p.m., new regulation. 5 U.S.C. 553(b) and (c).
excluding Federal holidays. However, section 553(b) of the APA
Instructions: As noted above, the specifically provides that the notice and
MERIT SYSTEMS PROTECTION MSPB requests that commenters use comment requirements do not apply:
BOARD email to submit comments, if possible.
All comments received will be made (A) To interpretative rules, general
5 CFR Part 1201 available online at the Board’s Web site, statements of policy, or rules of agency
including any personal information organization, procedure, or practice; or
Practices and Procedures provided, unless the comment includes (B) when the agency for good cause
AGENCY: Merit Systems Protection information claimed to be Confidential finds (and incorporates the finding and
Board. Business Information or other a brief statement of reasons therefor in
ACTION: Interim final rule. information whose disclosure is the rules issued) that notice and public
restricted by law. Those desiring to procedure thereon are impracticable,
SUMMARY: The Merit Systems Protection submit anonymous comments must unnecessary, or contrary to the public
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Board (MSPB or the Board) hereby submit comments in a manner that does interest. The APA also requires the
amends its rules of practice and not reveal the commenter’s identity, publication of any substantive rule at
procedure to clarify that parties have a include a statement that the comment is least thirty days before its effective date,
right to discovery under the MSPB’s being submitted anonymously, and 5 U.S.C. 553(d), except where the rule
existing discovery procedures in include no personally-identifiable is interpretive, where the rule grants an
compliance proceedings. information. The email address of a exception or relieves a restriction, or ‘‘as

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66788 Federal Register / Vol. 80, No. 210 / Friday, October 30, 2015 / Rules and Regulations

otherwise provided by the agency for DEPARTMENT OF TRANSPORTATION control during altitude hold AFCS mode
good cause found and published with by adjustment of the engine thrust
the rule.’’ Id. Federal Aviation Administration within a narrow authority band utilizing
The Board finds that use of an the existing engine synchronization
14 CFR Part 23 control. The CSC system does not back
immediately effective interim final rule
[Docket No. FAA–2015–3880; Special drive the throttles. The command
instead of notice and comment
Conditions No. 23–271–SC] authority is limited to values used for
rulemaking is appropriate here because
engine synchronization and can only be
the amendments contained herein engaged when the throttle is positioned
Special Conditions: Honda Aircraft
merely reflect the decision of the Company (Honda) Model HA–420, in a pre-determined range typically used
Federal Circuit in Bernard and are HondaJet; Cruise Speed Control for cruise power. This significantly
necessary to avert any further confusion System reduces the CSC authority such that
regarding the Board’s practice and failure modes of the system should be
procedures governing the right to AGENCY: Federal Aviation minor. The proposed CSC system
discovery in compliance cases. Under Administration (FAA), DOT. functions in a manner similar to an
these circumstances, notice and ACTION: Final special conditions. auto-throttle system, but has
comment rulemaking is unnecessary significantly less authority when
and not required by any public interest. SUMMARY: These special conditions are
compared to a traditional auto-throttle
issued for the Honda Aircraft Company
system.
List of Subjects in 5 CFR Part 1201 HA–420 airplane. This airplane will
have a novel or unusual design Type Certification Basis
Administrative practice and feature(s) associated with the use of a Under the provisions of 14 CFR 21.17,
procedure. cruise speed control system. The Honda Aircraft Company must show
Accordingly, for the reasons set forth applicable airworthiness regulations do that the HA–420 meets the applicable
in the preamble, the Board amends 5 not contain adequate or appropriate provisions of part 23, as amended by
CFR part 1201 as follows: safety standards for this design feature. amendments 23–1 through 23–62,
These special conditions contain the thereto.
PART 1201—PRACTICES AND additional safety standards that the If the Administrator finds that the
PROCEDURES Administrator considers necessary to applicable airworthiness regulations
establish a level of safety equivalent to (i.e., 14 CFR part 23) do not contain
■ 1. The authority citation for 5 CFR that established by the existing adequate or appropriate safety standards
part 1201 continues to read as follows: airworthiness standards. for the HA–420 because of a novel or
DATES: These special conditions are unusual design feature, special
Authority: 5 U.S.C. 1204, 1305, and 7701,
effective October 30, 2015 and are conditions are prescribed under the
and 38 U.S.C. 4331, unless otherwise noted.
applicable on October 26, 2015. provisions of § 21.16.
FOR FURTHER INFORMATION CONTACT: Jeff In addition to the applicable
■ 2. Section 1201.183 is amended by airworthiness regulations and special
adding paragraph (a)(9) to read as Pretz, Federal Aviation Administration,
Small Airplane Directorate, Aircraft conditions, the HA–420 must comply
follows: with the fuel vent and exhaust emission
Certification Service, 901 Locust, Room
§ 1201.183 Procedures for processing 301, Kansas City, MO 64106; telephone requirements of 14 CFR part 34 and the
petitions for enforcement. (816) 329–3239; facsimile (816) 329– noise certification requirements of 14
4090. CFR part 36. In addition, the FAA must
(a) * * * issue a finding of regulatory adequacy
SUPPLEMENTARY INFORMATION: pursuant to § 611 of Public Law 92–574,
(9) Discovery may be undertaken in
accordance with the Board’s regular Background the ‘‘Noise Control Act of 1972.’’
discovery procedures (§§ 1201.71 The FAA issues special conditions, as
On October 11, 2006, Honda Aircraft defined in 14 CFR 11.19, in accordance
through 1201.75 of this part), except Company applied for a type certificate
that unless otherwise directed by the with § 11.38, and they become part of
for their new Model HA–420. On the type-certification basis under
judge, initial discovery requests must be October 10, 2013, Honda Aircraft
served no later than 15 days after the § 21.17(a)(2). Special conditions are
Company requested an extension with initially applicable to the model for
alleged noncomplying party files a an effective application date of October which they are issued. Should the type
response to the petition for enforcement 1, 2013. This extension changed the certificate for that model be amended
as required under paragraph (a)(1) of type certification basis to amendment later to include any other model that
this section. 23–62. incorporates the same or similar novel
* * * * * The HA–420 is a four to five or unusual design feature, the special
passenger (depending on configuration), conditions would also apply to the other
William D. Spencer, two crew, lightweight business jet with model under § 21.101.
Clerk of the Board. a 43,000-foot service ceiling and a
[FR Doc. 2015–27652 Filed 10–29–15; 8:45 am] maximum takeoff weight of 9963 Novel or Unusual Design Features
BILLING CODE 7400–01–P pounds. The airplane is powered by two The HA–420 will incorporate the
GE-Honda Aero Engines (GHAE) HF– following novel or unusual design
120 turbofan engines. features: Cruise Speed Control system
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The HA–420 airplane will use a cruise
speed control system (CSC), which is Discussion
part of the automatic flight control As defined in the summary section,
system (AFCS), to reduce pilot workload this airplane makes use of a CSC system,
during cruise flight only. The intended which is a novel design for this type of
function is automatic airplane speed airplane. The applicable airworthiness

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Document Created: 2015-12-14 15:29:18
Document Modified: 2015-12-14 15:29:18

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Interim final rule.
Dates		This interim final rule is effective on October 30, 2015. Submit written comments concerning this interim final rule on or before December 29, 2015.
Contact		William D. Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M Street NW., Washington, DC, 20419; phone: (202) 653-7200; fax: (202) 653-7130; or email: [email protected]
FR Citation		80 FR 66787