This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

67076 

Vol. 78, No. 217 

Friday, November 8, 2013 

MERIT SYSTEMS PROTECTION 

BOARD 

5 CFR Part 1201 

Practices and Procedures 

AGENCY: Merit Systems Protection 

Board. 

ACTION: Solicitation of Public 

Comments. 

SUMMARY: The Merit Systems Protection 

Board (MSPB or the Board) invites 

public input concerning options the 

MSPB is considering to revise its 

regulations governing how jurisdiction 

is established over Board appeals. 

DATES: Written comments are invited on 

or before December 9, 2013. 

ADDRESSES: Submit your comments 

concerning this document 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 to the 

MSPB’s Federal Register Notice 

regarding jurisdiction. The MSPB asks 

that parties use email to submit 

comments if possible. Submission of 

comments by email will assist MSPB to 

process comments and speed future 

actions, including publication of a 

proposed rule. 

Fax: (202) 653–7130. Faxes should be 

addressed to William D. Spencer and 

contain a subject line indicating that the 

submission contains comments 

concerning the MSPB’s Federal Register 

Notice regarding jurisdiction. 

Mail or other commercial delivery: 

William D. Spencer, Clerk of the Board, 

Merit Systems Protection Board, 1615 M 

Street NW., Washington, DC 20419. 

Hand delivery or courier: Comments 

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, 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:

Background 

On June 7, 2012, the Board published 

a proposed rule that included a 

proposed amendment to 5 CFR 1201.56. 

77 FR 33663. Now, as then, 5 CFR 

1201.56 provides without qualification 

that the Board’s jurisdiction must be 

proved by preponderant evidence. In 

the proposed rule, the Board noted that 

5 CFR 1201.56 is in conflict with a 

significant body of Board case law 

holding that certain jurisdictional 

elements may be established by making 

non-frivolous allegations. The Board 

therefore proposed to amend this 

regulation to allow the use of nonfrivolous allegations to establish certain 

jurisdictional elements. 

The MSPB received numerous 

thoughtful comments concerning the 

proposed amendments to this regulation 

and, because many of the comments 

addressed matters that went well 

beyond the scope of the original 

proposed rule, the Board decided to 

withdraw the proposed rule and 

reconsider the existing regulation in 

light of the comments and internal 

discussions spurred by the comments. 

Ongoing Review 

Shortly after the withdrawal of the 

proposed amendments to 5 CFR 

1201.56, the Board directed an internal 

MSPB working group (regulations 

working group) to thoroughly review 5 

CFR 1201.56 and any related issues 

concerning the MSPB’s jurisdiction. The 

regulations working group developed 

several options for the Board to 

consider, and the Board has determined 

that it would be appropriate to seek 

public comment on the various options 

prior to taking action. 

Options Developed by the MSPB 

Regulations Working Group 

The exact text, summaries, and 

analyses of the options developed by the 

MSPB regulations working group are 

available for review at the MSPB’s Web 

site (www.mspb.gov/regulatoryreview/

index.htm). Included below is a short 

summary of each of the 4 options 

developed by the working group. In 

general, Options A and B are intended 

to make MSPB regulations consistent 

with existing Board and Federal Circuit 

case law. Options C and D would in 

some instances conflict with and 

supersede Board and Federal Circuit 

case law. 

Option A 

This option would amend section 

1201.56(b) to state that: (1) The 

appellant bears the burden of proof, 

generally by a preponderance of the 

evidence, on issues of jurisdiction, and 

(2) an administrative judge will inform 

the parties of the proof required in each 

case. This option would also amend 

section 1201.56(b) to state that an 

appellant generally bears the burden of 

proof by a preponderance of the 

evidence on issues of jurisdiction, 

timeliness, and all affirmative defenses, 

and make clear that the administrative 

judge will inform the parties of the 

proof required as to each defense. 

Finally, this option would amend 5 CFR 

1201.4 by transferring definitions of 

‘‘substantial evidence,’’ ‘‘preponderance 

of the evidence,’’ and ‘‘harmful error’’ 

from 1201.56 and adding a definition of 

‘‘non-frivolous allegation.’’ 


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Federal Register / Vol. 78, No. 217 / Friday, November 8, 2013 / Proposed Rules 67077 

Option B 

This option amends section 1201.56 

to address the burdens and degrees of 

proof applicable in cases other than: (1) 

An individual right of action (IRA) 

appeal under the Whistleblower 

Protection Act, (2) an appeal under the 

Veterans Employment Opportunities 

Act (VEOA), and (3) an appeal under the 

Uniformed Services Employment and 

Reemployment Rights Act (USERRA), in 

which the appellant alleges 

discrimination or retaliation in violation 

of 38 U.S.C. § 4311. This option would 

also add a new regulation, 1201.57, that 

would address how an appellant can 

establish jurisdiction in the three types 

of appeals not covered by revised 

section 1201.56. Finally, this option 

would amend 5 CFR 1201.4 by 

transferring definitions of ‘‘substantial 

evidence,’’ ‘‘preponderance of the 

evidence,’’ and ‘‘harmful error’’ from 

1201.56 and adding a definition for 

‘‘non-frivolous allegation.’’ 

Option C 

This option attempts to clarify how 

jurisdiction should be established in 

Board proceedings by amending the 

Board’s regulations to state that all 

Board appeals include ‘‘who’’ and 

‘‘what’’ jurisdictional elements that 

must be established by preponderant 

evidence, and identify the 8 appeal 

types that require allegations as to 

specific merits issues in order to 

establish jurisdiction. This option 

would also include regulatory language 

stating that the MSPB is not required to 

hold an evidentiary hearing on matters 

on which the appellant bears the burden 

of proof when there is no genuine issue 

of material fact to be resolved. 

Option D 

This option is the same as Option C, 

except that it does not include the 

proposed regulatory language 

authorizing an appeal to be decided 

without an evidentiary hearing when 

there is no genuine issue of material fact 

to be resolved. Option D would 

continue the Board’s current practice of 

affording appellants the opportunity for 

a hearing, if requested, in all cases 

within its jurisdiction. 

Comments Requested 

The Board seeks public input before 

taking action to amend 5 CFR 1201.56 

or otherwise alter its regulations 

governing how a party can establish 

jurisdiction over an appeal. Comments 

are invited concerning the 4 options 

developed by the regulations working 

group and/or any alternative approaches 

to improving the MSPB’s regulations 

governing the establishment of MSPB 

jurisdiction over an appeal. 

The Board intends to consider all 

public comments prior to taking further 

action. However, the Board does not 

plan to respond to the comments it 

receives, either directly or in a 

subsequent Federal Register notice. 

William D. Spencer, 

Clerk of the Board. 

[FR Doc. 2013–26783 Filed 11–7–13; 8:45 am] 

BILLING CODE 7401–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 25 

[Docket No. FAA–2013–0903; Notice No. 25– 

13–26–SC] 

Special Conditions: Airbus, Model 

A350–900 Series Airplane; Side Stick 

Controllers 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed special 

conditions. 

SUMMARY: This action proposes special 

conditions for the Airbus Model A350– 

900 series airplanes. These airplanes 

will have a novel or unusual design 

feature(s) associated with side stick 

controllers for pitch and roll control 

instead of conventional wheels and 

columns. The applicable airworthiness 

regulations do not contain adequate or 

appropriate safety standards for this 

design feature. These proposed special 

conditions contain the additional safety 

standards that the Administrator 

considers necessary to establish a level 

of safety equivalent to that established 

by the existing airworthiness standards. 

DATES: Send your comments on or 

before December 23, 2013. 

ADDRESSES: Send comments identified 

by docket number FAA–2013–0903 

using any of the following methods: 

• Federal eRegulations Portal: Go to 

http://www.regulations.gov/ and follow 

the online instructions for sending your 

comments electronically. 

• Mail: Send comments to Docket 

Operations, M–30, U.S. Department of 

Transportation (DOT), 1200 New Jersey 

Avenue SE., Room W12–140, West 

Building Ground Floor, Washington, DC 

20590–0001. 

• Hand Delivery or Courier: Take 

comments to Docket Operations in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue SE., Washington, DC, between 9 

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

Friday, except federal holidays. 

• Fax: Fax comments to Docket 

Operations at 202–493–2251. 

Privacy: The FAA will post all 

comments it receives, without change, 

to http://www.regulations.gov/, 

including any personal information the 

commenter provides. Using the search 

function of the docket Web site, anyone 

can find and read the electronic form of 

all comments received into any FAA 

docket, including the name of the 

individual sending the comment (or 

signing the comment for an association, 

business, labor union, etc.). DOT’s 

complete Privacy Act Statement can be 

found in the Federal Register published 

on April 11, 2000 (65 FR 19477–19478), 

as well as at http:// 

DocketsInfo.dot.gov/. 

Docket: Background documents or 

comments received may be read at 

http://www.regulations.gov/ at any time. 

Follow the online instructions for 

accessing the docket or go to the Docket 

Operations in Room W12–140 of the 

West Building Ground Floor at 1200 

New Jersey Avenue SE., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Loran Haworth, FAA, Airplane and 

Flight Interface Branch, ANM–111, 

Transport Airplane Directorate, Aircraft 

Certification Service, 1601 Lind Avenue 

SW., Renton, Washington 98057–3356; 

telephone (425) 227–1133; facsimile 

(425) 227–1320. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

We invite interested people to take 

part in this rulemaking by sending 

written comments, data, or views. The 

most helpful comments reference a 

specific portion of the special 

conditions, explain the reason for any 

recommended change, and include 

supporting data. 

We will consider all comments we 

receive on or before the closing date for 

comments. We may change these 

proposed special conditions based on 

the comments we receive. 

Background 

On August 25, 2008, Airbus applied 

for a type certificate for their new Model 

A350–900 series airplane. Later, Airbus 

requested and the FAA approved an 

extension to the application for FAA 

type certification to June 28, 2009. The 

Model A350–900 series has a 

conventional layout with twin wingmounted Rolls-Royce Trent XWB 

engines. It features a twin aisle 9-abreast 

economy class layout, and 


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