/Vol. 77, No. 198/Friday, October 12, 2012/Rules and Regulations
MERIT SYSTEMS PROTECTIONBOARD5 CFR Parts 1200, 1201, 1203, 1208,and 1209Practices and Procedures
Merit Systems ProtectionBoard.
The Merit Systems ProtectionBoard (MSPB or the Board), followingan internal review of MSPB regulations,publication of a proposed rule, andconsideration of comments received inresponse to the proposed rule, herebyamends its rules of practice andprocedure in order to improve andupdate the MSPB’s adjudicatoryprocesses.
Effective November 13, 2012.
FOR FURTHER INFORMATION CONTACT
William D. Spencer, Clerk of the Board,Merit Systems Protection Board, 1615 MStreet NW., Washington, DC 20419;(202) 653–7200, fax: (202) 653–7130 oremail:
On June 7,2012, the Merit Systems ProtectionBoard (MSPB or Board) proposednumerous amendments to itsregulations. 77 FR 33663. In response topublication of this proposed rule, theMSPB received 105 pages of commentsfrom 25 commenters. The commentsreceived by the MSPB are available forreview by the public at
Comments and Summary of Changes tothe Proposed Rule
Set forth below is a short summary of the changes proposed by the MSPB, adiscussion of the comments addressingthe proposed rule, and a summary of thechanges the MSPB is making to theproposed rule. Readers desiring a moredetailed summary of the amendmentsproposed by the MSPB should consultthe proposed rule at 77 FR 33663.This Final Rule will become effective30 days after publication in the
. The MSPB is aware thatchanges to its adjudicatory proceduresmay pose special problems in cases thatare pending on the date this Final Ruletakes effect. In any such case, judgeshave authority under 1201.12 to waivea regulation for good cause, exceptwhere a statute requires application of the regulation.
Section 1200.4Petition for Rulemaking
The MSPB proposed adding this newregulation to set forth procedures forfiling petitions for rulemaking under 5U.S.C. 553(e). Numerous commentersobjected to this proposed regulation onthe grounds that the MSPB shouldalways employ notice and commentrulemaking due to its unique mission asan adjudicative body and the regulationcould be read as authorizing the MSPBto publish a direct final rule notauthorized under the AdministrativeProcedure Act (APA). However, theAPA does not require notice andcomment in all instances of agencyrulemaking. 5 U.S.C. 553(b). While theMSPB does have a unique mission,publication of a direct final rule remainsan important tool to quickly implementminor technical amendments. However,in an effort to address the concernsraised by these commenters, the MSPBhas added a requirement to theregulation that final rules will be issued‘‘consistent with the AdministrativeProcedure Act.’’A commenter suggested that theMSPB, either by regulation or practice,should post petitions for rulemakingand responses thereto on the MSPB’sWeb site. The MSPB agrees that thisproposal has merit and will undertakein the future to post such informationon its Web site. A commenter suggestedthat the regulation include adviceconcerning a petitioner’s right tojudicial review. The MSPB has chosennot to amend the regulation asrequested. Finally, a commentersuggested that the MSPB include aprocedure for seeking reconsideration of a denial of a petition for rulemaking.The regulation presently gives eachpetitioner a full opportunity to presenthis or her petition to the Board. Nofurther procedures for reconsiderationwill be included in the final rule.
Section 1201.3Appellate Jurisdiction
The amendments proposed by theMSPB explained that this regulation isnot a source of MSPB jurisdiction andthat jurisdiction depends on the natureof the employment or position held bythe employee as well as the nature of the action taken. The proposedregulation also revised the listing of appealable actions within the MSPB’sappellate jurisdiction.A commenter suggested severaleditorial changes to paragraph (a) and,in response, the MSPB has amendedthis regulation. A commenter pointedout that the MSPB has jurisdiction over‘‘suitability actions,’’ not ‘‘suitabilitydeterminations.’’ The MSPB hasamended the proposed regulation toaddress this comment.A commenter recommended that theregulation should be amended toinclude more specific informationconcerning what constitutes a suitabilitydetermination and how a suitabilitydetermination is made. In response, theMSPB has included changes toparagraph (a)(9).A commenter suggested that thestatement in paragraph (a)(3) of theproposed rule that appeals of probationary terminations ‘‘are notgenerally available to employees in theexcepted service’’ is insufficient for prose appellants. The commenter furthersuggested that the regulation should berevised to clearly identify when anexcepted service employee has the rightto appeal such an action by listing anyexceptions to the general rule. Inresponse, the MSPB notes that one suchexception to the general rule exists forVeterans Readjustment Actappointments. While appointmentsunder this authority are exceptedservice appointments, because they arepositions that would otherwise be in thecompetitive service, many competitiveservice rules apply to them, includingthose at 5 CFR part 315, subpart H.
Department of the Army,
103M.S.P.R. 266, ¶ 11 (2006); 5 CFR307.103–.104. The MSPB therefore believes the use of the term ‘‘generally’’is justified. In addition, given thepossibility that the MSPB mightoverlook an exception that ought to beincluded in such a list or that the listcould become outdated at some futurepoint, the MSPB is satisfied that the useof the term ‘‘generally’’ is appropriate.Finally, MSPB administrative judges arerequired to identify jurisdictionalelements to the parties after an appealis filed and, therefore, there is no needto amend this regulation as requested.The MSPB has also made severalminor changes in the proposed rule.First, in paragraph (a)(10), we changedthe citation to authority for this grant of jurisdiction. There is no longer anySubpart E to 5 CFR Part 752. The correctsources of jurisdiction are 5 U.S.C.7543(d) and 5 CFR 752.605. Second, inparagraph (a)(11), we pluralized ‘‘right’’in the first grant of jurisdiction and broke out the particular grants of jurisdiction into separate paragraphs(a)(11)(i) through (a)(11)(vii).
Section 1201.4General Definitions
The MSPB proposed revisingsubsection (a) to eliminate the phrase‘‘attorney-examiner’’ and revisingsubsection (j) due to a concern that theterm ‘‘date of service’’ was unclear.In response to a concern expressed bya commenter that the term ‘‘grievance’’should be defined, the MSPB has addeda new paragraph (o) defining a‘‘grievance’’ as ‘‘[a] complaint by anemployee or labor organization under anegotiated grievance procedure covered
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