[Federal Register Volume 59, Number 242 (Monday, December 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30889]


[[Page Unknown]]

[Federal Register: December 19, 1994]


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MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1201

 

Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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SUMMARY: The Board is amending its rules to update and clarify various 
provisions and to ensure that the rules in this part, as a whole, are 
effective, consistent, sensible, and understandable, in accordance with 
Executive Order 12866 of September 30, 1993. By making this amendment, 
the Board is providing current and consistent information to its 
customers regarding its adjudicatory practices and procedures.

EFFECTIVE DATE: December 19, 1994.

FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board, 
202-653-7200.

SUPPLEMENTARY INFORMATION: The Merit Systems Protection Board is 
amending its rules at 5 CFR part 1201 to add a new appealable action 
and to correct the citations for two others in Sec. 1201.3(a); to 
delete Sec. 1201.3(d); to clarify the place of filing requirements in 
Secs. 1201.4(d), 1201.22(a), and 1201.182 following the realignment of 
the Board's regional and field offices; to correct a cross-reference in 
Sec. 1201.37(a); to conform the method of filing requirements for 
original jurisdiction cases in Sec. 1201.122(c) to those for appellate 
jurisdiction cases; to replace the July 1991 edition of the MSPB Appeal 
Form in Appendix I with the revised October 1994 edition; to add 
information regarding the TDD (Telecommunications Device for the Deaf) 
capability of facsimile numbers in the regional and field offices, add 
the suite number of the Atlanta Regional Office, and change the address 
and facsimile number of the Denver Field Office in Appendix II; and to 
add and delete approved hearing locations in Appendix III.
    (a) Section 1201.3(a)(6) is amended by adding 5 CFR part 844 to the 
citation so that the citation refers to the part of the regulations of 
the Office of Personnel Management governing disability retirement 
determinations under the Federal Employees' Retirement System, as well 
as to 5 CFR parts 831 and 842.
    (b) Section 1201.3(a)(7) is amended by correcting the citation to 
read ``5 CFR 731.103(d) and 731.508.'' The corrected citation refers to 
the regulations of the Office of Personnel Management providing for 
appeals to the Board of suitability determinations made by an agency 
acting under authority delegated by OPM (5 CFR 731.103(d)) and such 
determinations made by OPM (5 CFR 731.508).
    (c) Section 1201.3(a) is amended by adding a new subparagraph (21) 
to include as an action appealable to the Board a reduction-in-force 
action affecting a career or career candidate appointee in the Foreign 
Service. Public Law 103-326, effective April 30, 1994, amended the 
Foreign Service Act of 1980 (22 U.S.C. 4001 et seq.) by, inter alia, 
providing authority to the Secretary of State to conduct reductions in 
force affecting career or career candidate appointees in the Foreign 
Service and by granting those appointees the right to appeal such 
reduction-in-force actions to the Board.
    (d) Section 1201.3 is amended by deleting paragraph (d). This 
paragraph was added to the Board's rules in this part to implement 5 
U.S.C. 1221(j), as added by the Whistleblower Protection Act of 1989 
(Pub. L. 101-12). Subsequently, the Board ruled in McCann v. Navy, 57 
M.S.P.R. 288 (1993) that 5 U.S.C. 1221(j) and the Board's regulation at 
5 CFR 1201.3(d) should be construed to apply only to individual right 
of action appeals and other actions established by 5 U.S.C. chapter 12. 
Because the provisions of part 1201 are applicable to appeals that 
arise from actions other than those established by 5 U.S.C. chapter 12, 
the Board has determined that the continued inclusion of Sec. 1201.3(d) 
in this part is likely to prove confusing to parties and that it 
should, therefore, be deleted.
    (e) Section 1201.4(d) is amended to clarify the definition of 
``appropriate'' office for purposes of filings with the Board. On March 
30, 1994 (59 FR 14739), the Board published a revision to its rules in 
appendix II and appendix III of this part to reflect the realignment of 
its regional office structure into six regional and five field offices. 
In the SUPPLEMENTARY INFORMATION explaining that revision, the Board 
stated in part: ``Appeals and related matters will continue to be filed 
with either the regional or field office having geographic 
jurisdiction.'' The Board is now amending Sec. 1201.4(d) to 
specifically include field offices, as well as regional offices, in the 
definition.
    (f) Section 1201.22(a) is amended to clarify that appeals and 
responses to appeals are to be filed with the appropriate Board 
regional or field office. See explanation in paragraph (e) above.
    (g) Section 1201.37(a) is amended by deleting the reference to 
``Sec. 1201.116'' and replacing it with ``Sec. 1201.117.'' On June 16, 
1994 (59 FR 30863), the Board published an amendment to its rules in 
this part that revised Sec. 1201.115, redesignated Secs. 1201.116 
through 1201.119 as Secs. 1201.117 through 1201.120, respectively, and 
added a new Sec. 1201.116. Because the former Sec. 1201.116 was 
redesignated as Sec. 1201.117, the Board is now making a conforming 
amendment to the cross-reference to that section in Sec. 1201.37(a).
    (h) Section 1201.122(c) is amended by adding ``commercial overnight 
delivery'' as a method of filing and service. On July 7, 1993 (58 FR 
36345), the Board amended its rules in subparts B and C of this part to 
permit filing and service of appeals and petitions for review by 
commercial overnight delivery. The Board is now amending 
Sec. 1201.122(c) to conform the method of filing and service 
requirements for Special Counsel complaints and proposed agency actions 
against administrative law judges in subpart D of this part to those 
for appeals and petitions for review.
    (i) Section 1201.163(c)(1) is amended to clarify that mixed case 
appeals governed by Reorganization Plan No. 1 of 1978 are to be filed 
with the appropriate Board regional or field office. See explanation in 
paragraph (e) above.
    (j) Section 1201.182(a) and Sec. 1201.182(c) are amended to clarify 
that petitions for enforcement of orders issued under the Board's 
appellate jurisdiction are to be filed with the appropriate Board 
regional or field office. See explanation in paragraph (e) above.
    (k) Appendix I is amended by substituting the revised October 1994 
edition of the MSPB Appeal Form, Optional Form 283 (Rev. 10/94), for 
the July 1991 edition. The form has been revised as follows:
    (1) On page 1, ``WHERE TO FILE AN APPEAL'' has been revised to 
state that the appeal is to be filed with the Board's regional or field 
office having geographic jurisdiction.
    (2) On page 1, ``WHEN TO FILE AN APPEAL'' has been revised to 
reflect the 10-day extension of the time limit for filing appeals made 
by the Board's amendment to its rules in this part on June 17, 1994 (59 
FR 31109).
    (3) On page 1, both ``WHEN TO FILE AN APPEAL'' and ``HOW TO FILE AN 
APPEAL'' have been revised to include ``commercial overnight delivery'' 
as a method of filing an appeal, in accordance with the Board's 
amendment to its rules in this part on July 7, 1993 (58 FR 36345).
    (4) On page 1, the final sentence under ``Public Reporting Burden'' 
has been revised to replace ``Office of Management Analysis'' with 
``Office of Planning and Resource Management Services'' to reflect the 
reorganization of the Board's headquarters offices and, at the request 
of the Office of Management and Budget, to delete the requirement that 
comments and suggestions be sent to OMB's Paperwork Reduction Project.
    (5) On page 2, a sentence has been added in block 7 to put the 
appellant on notice that designating a representative in the appeal 
specifically includes authority for the representative to settle the 
appeal on the appellant's behalf.
    (6) On page 2, block 7 has been revised to clarify what documents 
should be attached to the appeal and to advise the appellant that 
filing should not be delayed if the relevant SF-50 or its equivalent is 
not available.
    (7) On page 2, a check-off box for ``Foreign Service'' has been 
added in block 20 because career and career candidate appointees in the 
Foreign Service now have the right to appeal reduction-in-force actions 
to the Board. See explanation in paragraph (c) above.
    (8) On page 3, in block 32.a, the phrase ``handicapping condition'' 
has been replaced with ``disability'' to reflect the new preferred 
terminology under The Americans with Disabilities Act.
    (9) On page 4, in block 38, the phrase ``full 30-day notice'' has 
been replaced with ``the required number of days notice'' to reflect 
changes in statute and Office of Personnel Management regulations that 
now require at least 60 days advance notice for most reduction-in-force 
actions, with provision for a longer notice period--at least 120 days--
for some Department of Defense actions, and shorter notice--less than 
60 days but at least 30 days--under certain circumstances.
    (10) On page 6, in block 41.a, the material after ``Yes'' has been 
revised to clarify that the attachment requested is a copy of the 
appellant's request to the Office of Special Counsel for corrective 
action.
    (11) Throughout the form, additional text has been highlighted for 
emphasis.
    The Office of Management and Budget has renewed its approval of the 
MSPB Appeal Form through July 31, 1997. The form is no longer stocked 
by the General Services Administration, but may be obtained from the 
Board's Financial and Administrative Management Division; see notice 
published September 15, 1994 (59 FR 47363), corrected October 18, 1994 
(59 FR 52558).
    (l) Appendix II is amended by adding information regarding the TDD 
(Telecommunications Device for the Deaf) capability of facsimile 
numbers in the regional and field offices, by substituting the suite 
number for ``10th Floor'' in the address of the Atlanta Regional 
Office, and by changing the address and facsimile number of the Denver 
Field Office to reflect the relocation of that office effective 
December 1, 1994.
    (m) Appendix III is amended by adding two approved hearing 
locations and deleting one under the Atlanta Regional Office, by adding 
two under the Denver Field Office, by adding one under the New York 
Field Office, and by adding one under the San Francisco Regional 
Office.
    The Board is publishing this rule as a final rule pursuant to 5 
U.S.C. 1204(h).

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Civil rights, Government 
employees.

    Accordingly, the Board amends 5 CFR part 1201 as follows:

PART 1201--[AMENDED]

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

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


Sec. 1201.3  [Amended]

    2. Section 1201.3 is amended at paragraph (a)(6) by removing the 
phrase ``5 CFR parts 831 and 842'' in the citation and by adding in its 
place the phrase ``5 CFR parts 831, 842, and 844.''
    3. Section 1201.3 is amended at paragraph (a)(7) by removing the 
citation ``(5 CFR 731.401)'' and by adding in its place the citation 
``(5 CFR 731.103(d) and 731.508).''
    4. Section 1201.3 is amended by adding a new paragraph (a)(21) as 
follows:


Sec. 1201.3  Appellate jurisdiction.

    (a) * * *
    (21) Reduction-in-force action affecting a career or career 
candidate appointee in the Foreign Service (Pub. L. 103-236, sec. 
181(a)(2), to be codified at 22 U.S.C. 4011).
* * * * *
    5. Section 1201.3 is amended by removing paragraph (d).


Sec. 1201.4  [Amended]

    6. Section 1201.4 is amended at paragraph (d) by adding the phrase 
``or field'' after ``regional'' in the title and the first, second, and 
fourth sentences, and by adding the phrase ``and field'' after 
``regional'' in the third sentence.


Sec. 1201.22  [Amended]

    7. Section 1201.22 is amended at paragraph (a) by adding the phrase 
``or field'' after ``regional'' in the first sentence.


Sec. 1201.37  [Amended]

    8. Section 1201.37 is amended at paragraph (a)(3) by removing 
``Sec. 1201.116'' at the end of the second sentence and by adding in 
its place ``Sec. 1201.117.''


Sec. 1201.122  [Amended]

    9. Section 1201.122 is amended at paragraph (c) by adding the 
phrase ``by commercial overnight delivery,'' after ``by facsimile,'' in 
the second sentence.


Sec. 1201.163  [Amended]

    10. Section 1201.163 is amended at paragraph (c)(1) by deleting the 
phrase ``Regional Office'' in the second sentence and by adding in its 
place the phrase ``regional or field office.''


Sec. 1201.182  [Amended]

    11. Section 1201.182 is amended by adding the phrase ``or field'' 
after ``regional'' in the second sentence of paragraph (a) and in the 
fourth sentence of paragraph (c).

Appendix I  [Amended]

    12. Appendix I to part 1201 is amended by removing the July 1991 
edition of the MSPB Appeal Form, Optional Form 283 (Rev. 7-91), and by 
adding in its place the October 1994 edition of the MSPB Appeal Form, 
Optional Form 283 (Rev. 10-94), as follows:

Appendix I to Part 1201--Merit Systems Protection Board Appeal Form

BILLING CODE 7400-01-P

TR19DE94.001


TR19DE94.002


TR19DE94.003


TR19DE94.004


TR19DE94.005


TR19DE94.006


BILLING CODE 7400-01-C

Appendix II  [Amended]

    13. Appendix II to part 1201 is amended by adding the following new 
sentence after the first sentence of the first paragraph: ``The 
facsimile numbers listed below are TDD-capable; however, calls will be 
answered by voice before being connected to the TDD.''
    14. Appendix II to part 1201 is amended at paragraph 1. by removing 
``10th Floor'' and by adding in its place ``Suite 1050.''
    15. Appendix II to part 1201 is amended at paragraph 5. by removing 
the phrase ``730 Simms Street, suite 301, P.O. Box 25025, Denver, 
Colorado 80225-0025, Facsimile No.: (303) 231-5205'' and by adding in 
its place ``12567 W. Cedar Drive, Suite 100, Lakewood, Colorado 80228, 
Facsimile No.: (303) 969-5109.''
    16. Appendix II to part 1201 is amended by adding ``V/TDD'' before 
``Facsimile No.'' in each of the paragraphs 1. through 11.

Appendix III  [Amended]

    17. Appendix III to part 1201 is amended under the heading 
``Atlanta Regional Office'' by removing ``Jacksonville, North 
Carolina'' and by adding in its place ``Charlotte, North Carolina'' and 
by adding ``Wilmington, North Carolina'' after ``Raleigh, North 
Carolina.''
    18. Appendix III to part 1201 is amended under the heading ``Denver 
Field Office'' by adding ``Grand Junction, Colorado'' after ``Denver, 
Colorado'' and by adding ``Fargo, North Dakota'' after ``Bismarck, 
North Dakota.''
    19. Appendix III to part 1201 is amended under the heading ``New 
York Field Office'' by adding ``San Juan, Puerto Rico'' after ``Newark, 
New Jersey.''
    20. Appendix III to part 1201 is amended under the heading ``San 
Francisco Regional Office'' by adding ``Santa Barbara, California'' 
after ``San Diego, California.''

    Dated: December 12, 1994.
 Robert E. Taylor,
Clerk of the Board.
[FR Doc. 94-30889 Filed 12-16-94; 8:45 am]
BILLING CODE 7400-01-P