[Federal Register Volume 67, Number 171 (Wednesday, September 4, 2002)]
[Notices]
[Pages 56600-56602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22460]


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MERIT SYSTEMS PROTECTION BOARD


Agency Information Collection Activities; Proposed Collection

AGENCY: Merit Systems Protection Board.

ACTION: Notice.

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SUMMARY: The Merit Systems Protection Board (MSPB) intends to request 
approval of a revised information collection from the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3506 and 3507). The currently approved information 
collection is the MSPB Appeal Form, Optional Form 283 (OMB Control 
Number 31240009). That form has been revised to produce the MSPB Appeal 
Forms Package, MSPB Form 185. At this time, the MSPB is requesting 
public comments on the MSPB Appeal Forms Package, which is available 
for review on the MSPB Web site at http://www.mspb.gov on the ``What's 
New'' page.

DATES: Comments must be received on or before November 4, 2002.

ADDRESSES: Submit comments to the Office of the Clerk of the Board, 
Merit Systems Protection Board, 1615 M St., NW., Washington, DC 20419. 
Because of possible mail delays, respondents are encouraged to submit 
comments by e-mail to [email protected] or by facsimile transmittal to 
(202) 6537130.

FOR FURTHER INFORMATION CONTACT: Office of the Clerk of the Board, 1615 
M Street, NW., Washington, DC 20419; telephone (202) 6537200; facsimile 
(202) 6537130; e-mail to [email protected]. Persons without Internet access 
may request a paper copy of the MSPB Appeals Forms Package from the 
Office of the Clerk.

SUPPLEMENTARY INFORMATION: The current version of the MSPB Appeal Form 
was approved by OMB, in accordance with the requirements of the 
Paperwork Reduction Act, in October 1994. Since that time, the MSPB has 
obtained extensions of OMB approval several times; the current approval 
expires on December 31, 2003. (Minor revisions updating the 
Instructions for the Appeal Form to reflect changes in the Board's 
regulations were made when the form was reprinted in November 2000.)
    While a number of changes were made in the October 1994 revision to 
update and improve the Appeal Form, it has not undergone a major 
revision since 1989, when it was revised to reflect enactment of the 
Whistleblower Protection Act (WPA). The WPA authorized a new kind of 
appeal--the Individual Right of Action (IRA) appeal--which a 
whistleblower can file with the Board after first complaining to the 
Office of Special Counsel and exhausting the procedures of that office. 
The WPA also authorized the Board to grant requests for stays of agency 
actions allegedly based on whistleblowing. The enactment of the WPA 
necessitated revisions to the Board's regulations to require the 
submission of information the Board needs to adjudicate whistleblower 
appeals and stay requests. Following the issuance of those regulations, 
the Appeal Form was revised to include questions asking for the 
required information.
    Since the WPA was enacted in 1989, both the Uniformed Services 
Employment and Reemployment Rights Act (USERRA), in 1994, and the 
Veterans Employment Opportunities Act (VEOA), in 1998, have extended 
the Board's jurisdiction to new appealable matters. The USERRA permits 
a person covered by that Act to raise a claim before either the Board 
or the Secretary of Labor that an agency has failed or refused to 
provide an employment or reemployment right or benefit to which the 
person is entitled under the Act. The VEOA permits a preference 
eligible to file a complaint with the Secretary of Labor alleging that 
an agency has violated a law or regulation relating to veterans' 
preference and to subsequently file an appeal with the Board if the 
Secretary does not resolve the matter within 60 days. The enactment of 
these laws necessitated revisions to the Board's regulations to require 
the submission of information the Board needs to adjudicate USERRA and 
VEOA appeals. While the USERRA and VEOA regulations were subsequently 
issued, the Appeal Form has not previously been revised to include 
questions asking for the required information. (In the revisions to the 
Instructions in November 2000, certain references to USERRA and VEOA 
were added.)
    The revised MSPB Appeal Forms Package incorporates new questions to 
solicit the information required for USERRA and VEOA appeals. It also 
adds questions related to other changes

[[Page 56601]]

in law and regulation. It now includes questions asking whether an 
appellant in a mixed case is requesting compensatory damages 
(authorized by the Civil Rights Act of 1991) and whether an appellant 
in a whistleblower case is requesting consequential damages (authorized 
by the 1994 MSPB reauthorization Act). Reflecting an amendment to the 
Board's regulations, it includes a question asking whether an appellant 
and agency agreed to submit their dispute to an alternative dispute 
resolution (ADR) process before the appeal was filed.
    In addition to updating the Appeal Form to reflect these changes in 
law and regulation, the MSPB performed a thorough review of the form to 
determine whether other improvements could be made. As a result, the 
Appeal Forms Package now includes a specific form to ask for the 
information needed for retirement appeals and a form in which an 
appellant may raise a claim that an appealed action was the result of a 
prohibited personnel practice. The questions in the current form 
dealing with reduction-in-force (RIF) actions have been deleted because 
the details requested by those questions are provided in the agency 
file. In addition, certain modifications have been made to questions in 
the current form, such as providing a list of the most commonly 
appealed personnel actions, and there has been some combining and 
rearranging of questions. Finally, the Appeal Forms Package includes 
considerably more detailed instructions to help an appellant determine 
whether the Board has jurisdiction over the matter being appealed and 
what information must be provided.
    As a result of these revisions, the Appeal Forms Package now 
includes questions asking for information required by all of the 
Board's regulations governing the content of an appeal: 5 CFR 1201.24 
for appeals generally, 5 CFR 1201.153 for mixed case appeals, 5 CFR 
1208.13 for USERRA appeals, 5 CFR 1208.23 for VEOA appeals, and 5 CFR 
1209.6 for whistleblower appeals. It also includes questions asking for 
the information required for whistleblower stay requests by 5 CFR 
1209.9. In addition, it includes questions that allow an appellant to 
raise affirmative defenses as provided by 5 CFR 1201.24(b), 1201.56(b) 
and (c), and 1201.151. In accordance with 5 CFR 1201.3(c), it retains 
questions from the current form to determine whether an appellant has 
raised the same matter under a negotiated grievance procedure provided 
by a collective bargaining agreement.
    Given the comprehensive nature of the additions and revisions to 
the current Appeal Form, the MSPB determined that it should no longer 
be maintained as a lengthy single form. Instead, it has been converted 
to a package of forms from which an appellant (or appellant's 
representative) can select the forms needed for the appellant's 
particular appeal. Each appeal will consist of at least two forms, Form 
1851 plus one other form, and many appellants will find that only those 
two forms are needed to file a complete appeal.
    Based on FY 2001 data, about 69 percent of appeals involve 
appealable personnel actions. Such appeals would be filed using Forms 
1851 and 1852. Another 26 percent of appeals involve retirement 
decisions or actions, which would be filed using Forms 1851 and 1853. 
In these personnel action and retirement appeals, additional 
appropriate forms would be attached if the appellant raises a claim of 
harmful procedural error, discrimination, a prohibited personnel 
practice, etc. The remaining 5 percent of appeals are IRA, USERRA, and 
VEOA appeals, which would be filed using Form 1851 with Form 1855, 
1857, or 1858, respectively. The MSPB hopes that the Appeal Forms 
Package will prove more useful to appellants and their representatives 
than the current form and that it will result in more appeals being 
filed on the MSPB-provided forms.
    The General Services Administration (GSA) removed the MSPB Appeal 
Form from its Standard Form (SF) and Optional Form (OF) system several 
years ago because of insufficient demand. Therefore, the OF number 
assigned by GSA to the Appeal Form has not been retained for the Appeal 
Forms Package. Instead, the package has been assigned an MSPB form 
number, 185, and the individual forms in the package are numbered 
sequentially as 1851, 1852, etc.
    In revising the current Appeal Form to create the Appeal Forms 
Package, the MSPB's intent was both to update and improve the form and 
to create a template on which an electronic appeal process could be 
based. The Board intends to contract for the development of a web-based 
application (e-Appeal) based on the Appeal Forms Package. As planned, 
e-Appeal will go beyond simply filling in forms on-line and 
transmitting them electronically to the MSPB. The process will be 
similar to that used in popular tax preparation software, where the 
user answers questions posed in an interview format and those answers 
are then assembled into an electronic form for transmission. This 
approach is especially well suited to MSPB appeals because of the need 
to collect different kinds of information for different types of 
appealable matters. Just as an appellant will need to complete and 
submit only the paper forms in the Appeal Forms Package that apply to 
his or her particular appeal, so an appellant using e-Appeal will be 
presented only with the questions that apply to his or her appeal.
    In accordance with the requirements of the Paperwork Reduction Act 
of 1995, the MSPB is soliciting comments on the public reporting burden 
for this information collection. The reporting burden is estimated to 
vary from 20 minutes to one hour per response, with an average of 30 
minutes, including time for reviewing instructions, searching existing 
data sources, gathering and maintaining the data needed, and completing 
and reviewing the collection of information.

                                                            Estimated Annual Reporting Burden
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                                                                                                                           Hours per
                           5 CFR section                              Annual no. of    Frequency per     Total annual       response       Total hours
                                                                       respondents        response        responses        (average)
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1201, 1208, and 1209...............................................           6,300                1            6,300               .5            3,150
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    The estimate of 6,300 for ``Annual Number of Respondents'' is based 
on the number of appeals processed by the Board in FY 2001. It should 
be noted, however, that not all appellants choose to use the MSPB-
provided form to file their appeals, so this number represents that 
maximum number of respondents, assuming that every appellant uses the 
forms in the Appeal Forms Package. The estimate for ``Hours per 
Response (average)'' recognizes that most

[[Page 56602]]

appellants will need to complete only a few (minimum, two) of the forms 
in the package.
    In addition, the MSPB invites comments on: (1) Whether the proposed 
collection of information is necessary for the proper performance of 
MSPB's functions, including whether the information will have practical 
utility; (2) the accuracy of MSPB's estimate of burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions used; (3) ways to enhance the quality, utility, and 
clarity of the information to be collected; and (4) ways to minimize 
the burden of the collection of information on respondents, including 
through the use of automated collection techniques, when appropriate, 
and other forms of information technology.

    Dated: August 28, 2002.
Shannon McCarthy,
Deputy Clerk of the Board.
[FR Doc. 02-22460 Filed 9302; 8:45 am]
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