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contains regulatory documents having general

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are keyed to and codified in the Code of

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Rules and Regulations Federal Register

23457 

Vol. 78, No. 76 

Friday, April 19, 2013 

MERIT SYSTEMS PROTECTION 

BOARD 

5 CFR Parts 1201 and 1208 

Practices and Procedures 

AGENCY: Merit Systems Protection 

Board. 

ACTION: Final rule. 

SUMMARY: The Merit Systems Protection 

Board (MSPB or Board) hereby amends 

its rules of practice and procedure in 

order to correct several minor errors 

inadvertently introduced into the 

Board’s regulations during a recent 

comprehensive revision of the Board’s 

adjudicatory regulations. 

DATES: Effective April 19, 2013. 

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: On June 7, 

2012, the Merit Systems Protection 

Board (MSPB or Board) proposed 

amendments to its regulations following 

a lengthy internal review of all MSPB 

adjudicatory regulations. 77 FR 33663. 

On October 12, 2012, the MSPB 

published a final rule that made 

numerous amendments to the Board’s 

regulations. 77 FR 62350. The MSPB has 

determined that it inadvertently 

included several minor drafting errors 

in the regulatory language of the final 

rule. These errors affect four paragraphs 

in the following regulations: 

§ 1201.74(a)—This final rule amends 

5 CFR 1201.74(a) to correct certain 

references to 1201.73 contained therein. 

The MSPB’s recent amendments to its 

adjudicatory regulations resulted, in 

part, in the transfer of provisions 

previously set forth at 1201.73(e)(1) and 

(f)(4) to 1201.73(c)(1) and (d)(3). The 

final rule therefore amends 1201.74(a) to 

insert corrected citations to 1201.73. 

§ 1201.112(a)(4)—The amendment to 

this subparagraph was intended to make 

clear that a judge’s authority to vacate 

an initial decision to accept a settlement 

agreement into the record extended to a 

situation where the settlement 

agreement was filed by the parties prior 

to the deadline for filing a petition for 

review but not received by the judge 

until after the date when the initial 

decision would become the Board’s 

final decision. However, the language 

employed in this amendment can be 

read as limiting a judge’s authority to 

vacate an initial decision in order to 

accept a settlement into the record to an 

instance where the settlement 

agreement was filed by the parties prior 

to the deadline for filing a petition for 

review and not received by the MSPB 

until after the initial decision became 

final. This was not the Board’s intent. 

This subparagraph has thus been 

amended to make clear that an 

administrative judge may vacate an 

initial decision in order to accept into 

the record a settlement agreement that is 

filed prior to the deadline for filing a 

petition for review, and that the judge 

has the authority to act even if the 

settlement agreement is not received 

until after the date when the initial 

decision becomes final under § 1201.113 

of this part. 

§ 1201.114(k)—The final sentence in 

this regulatory provision states that 

‘‘[o]nce the record closes, no additional 

evidence or argument will be accepted 

unless the party submitting it shows 

that the evidence was not readily 

available before the record closed.’’ To 

ensure the greatest possible clarity, the 

MSPB believes that this sentence should 

be modified to note the requirement that 

new evidence and argument must be 

material as defined in 1201.115(d). The 

MSPB also has amended the final 

sentence to make clear that it applies to 

evidence ‘‘or argument’’ that was not 

readily available before the record 

closed. 

§ 1208.22(c)—This regulatory 

provision is amended to correct a 

drafting error that inadvertently 

identified a 60-day deadline for filing a 

Veterans Employment Opportunities 

Act of 1998 (VEOA) appeal. The 

applicable filing deadline is 15 days. 5 

U.S.C. 3330a(d)(1)(B). 

The amendments contained in this 

final rule are intended to correct minor 

non-substantive drafting errors that 

were inadvertently introduced into 

MSPB’s regulations during the Board’s 

recent comprehensive revision of its 

adjudicatory regulations. The MSPB is 

foregoing the use of notice and comment 

rulemaking and is instead publishing 

these amendments in a final rule. 

The rulemaking process must involve 

the notice-and-comment procedures 

outlined in the Administrative 

Procedure Act (APA) unless the 

proposed rule falls into the category of 

an interpretative rule, general statement 

of policy, or rule of agency organization, 

procedure, or practice. 5 U.S.C. 

553(b)(3)(A). Three of the minor changes 

contained in this final rule address 

MSPB procedures and practices for the 

conduct of discovery, the filing of 

petitions for review, and the authority 

granted to a judge to reopen an initial 

decision. The remaining amendment 

merely corrects a typographical error in 

a regulation discussing the 

extraordinary circumstances under 

which the doctrine of equitable estoppel 

may apply to an untimely filed VEOA 

appeal. Accordingly, pursuant to 5 

U.S.C. 553(b)(3)(A), MSPB may proceed 

without following the APA’s notice and 

comment procedures. 

In addition, an exemption from notice 

and comment rulemaking requirements 

exists under 5 U.S.C. 553(b)(3)(B) where 

an ‘‘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 ‘‘unnecessary’’ prong of 

the agency’s good cause inquiry is 

‘‘confined to those situations in which 

the administrative rule is a routine 

determination, insignificant in nature 

and impact, and inconsequential to the 

industry and to the public.’’ Mack 

Trucks, Inc. v. Environmental Protection 

Agency, 682 F.3d 87, 94 (DC Cir. 2012) 

(citation omitted). Here, the 

amendments contained in the final rule 

are insignificant and amount to little 

more than routine technical corrections 

to a 25-page final rule that became 

effective on November 13, 2012. 

Accordingly, MSPB finds that its 

decision to exempt the regulatory 

changes set forth herein from notice and 

comment rulemaking requirements is 

supported by good cause in that the 

amendments contained herein are 

routine determinations, insignificant in 


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23458 Federal Register / Vol. 78, No. 76 / Friday, April 19, 2013 / Rules and Regulations 

nature and impact, and inconsequential 

to federal employees and the public. 

Finally, MSPB also elects to make the 

amendments set forth herein effective 

immediately upon publication of this 

final rule. Under 5 U.S.C. 553(d)(3), ‘‘the 

required publication or service of a 

substantive rule shall be made not less 

than 30 days before its effective date, 

except * * * as otherwise provided by 

the agency for good cause found and 

published with the rule.’’ For the 

reasons identified above, and in light of 

the importance of promptly removing 

and correcting any inconsistent, 

incorrect, and confusing material 

inadvertently introduced into MSPB’s 

adjudicatory regulations, the Board 

finds that good cause exists to waive the 

30-day publication requirement. 

List of Subjects in 5 CFR Parts 1201 and 

1208 

Administrative practice and 

procedure, Government employees. 

Accordingly, for the reasons set forth 

in the preamble, the Board amends 5 

CFR parts 1201 and 1208 as follows: 

PART 1201—PRACTICES AND 

PROCEDURES 

■ 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. 

■ 2. In § 1201.74, revise paragraph (a) to 

read as follows: 

§ 1201.74 Orders for discovery. 

(a) Motion for an order compelling 

discovery. Motions for orders 

compelling discovery and motions for 

the appearance of nonparties must be 

filed with the judge in accordance with 

§ 1201.73(c)(1) and (d)(3). An 

administrative judge may deny a motion 

to compel discovery if a party fails to 

comply with the requirements of 5 CFR 

1201.73(c)(1) and (d)(3). 

* * * * * 

■ 3. In § 1201.112, revise paragraph 

(a)(4) to read as follows: 

§ 1201.112 Jurisdiction of judge. 

(a) * * * 

(4) Vacate an initial decision to accept 

into the record a settlement agreement 

that is filed prior to the deadline for 

filing a petition for review, even if the 

settlement agreement is not received 

until after the date when the initial 

decision becomes final under § 1201.113 

of this part. 

* * * * * 

■ 4. In § 1201.114, revise paragraph (k) 

to read as follows: 

§ 1201.114 Petition and cross petition for 

review—content and procedure. 

* * * * * 

(k) Closing the record. The record 

closes on expiration of the period for 

filing the reply to the response to the 

petition for review or on expiration of 

the period for filing a response to the 

cross petition for review, whichever is 

later, or to the brief on intervention, if 

any, or on any other date the Board sets 

for this purpose. Once the record closes, 

no additional evidence or argument will 

be accepted unless it is new and 

material as defined in § 1201.115(d) and 

the party submitting it shows that the 

evidence or argument was not readily 

available before the record closed. 

* * * * * 

PART 1208—PRACTICES AND 

PROCEDURES FOR APPEALS UNDER 

THE UNIFORMED SERVICES 

EMPLOYMENT AND REEMPLOYMENT 

RIGHTS ACT AND THE VETERANS 

EMPLOYMENT OPPORTUNITIES ACT 

■ 5. The authority citation for 5 CFR 

part 1208 continues to read as follows: 

Authority: 5 U.S.C. 1204(h), 3330a, 3330b; 

38 U.S.C. 4331. 

■ 6. In § 1208.22, revise paragraph (c) to 

read as follows: 

§ 1208.22 Time of filing. 

* * * * * 

(c) Equitable tolling; extension of 

filing deadline. In extraordinary 

circumstances, the appellant’s 15-day 

deadline for filing an appeal with the 

MSPB is subject to the doctrine of 

equitable tolling, which permits the 

Board to extend the deadline where the 

appellant, despite having diligently 

pursued his or her rights, was unable to 

make a timely filing. Examples include 

cases involving deception or in which 

the appellant filed a defective pleading 

during the statutory period. 

William D. Spencer, 

Clerk of the Board. 

[FR Doc. 2013–09223 Filed 4–18–13; 8:45 am] 

BILLING CODE 7400–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2013–0306; Directorate 

Identifier 2013–NM–049–AD; Amendment 

39–17417; AD 2013–07–13] 

RIN 2120–AA64 

Airworthiness Directives; Dassault 

Aviation Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Final rule; request for 

comments. 

SUMMARY: We are adopting a new 

airworthiness directive (AD) for all 

Dassault Aviation Model FALCON 7X 

airplanes. This AD requires revising the 

aircraft flight manual (AFM); performing 

operational tests of the oxygen mask 

oxygen assembly; and replacing affected 

stowage boxes, which terminates the 

AFM revision and operational tests. 

This AD was prompted by failure of the 

flight crew oxygen supply due to a 

potentially defective flight crew mask 

oxygen assembly. We are issuing this 

AD to prevent failure to supply oxygen 

upon demand to the flight crew in flight 

in ‘‘100%’’ and ‘‘Emergency’’ modes, 

which, in an emergency, may result in 

incapacitation of the flight crew. 

DATES: This AD becomes effective May 

6, 2013. 

The Director of the Federal Register 

approved the incorporation by reference 

of a certain publication listed in the AD 

as of May 6, 2013. 

We must receive comments on this 

AD by June 3, 2013. 

ADDRESSES: You may send comments by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–140, 1200 New Jersey 

Avenue SE., Washington, DC 20590. 

• Hand Delivery: U.S. Department of 

Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–140, 1200 New Jersey 

Avenue SE., Washington, DC, between 9 

a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

Examining the AD Docket 

You may examine the AD docket on 

the Internet at http:// 

www.regulations.gov; or in person at the 


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