[Federal Register Volume 73, Number 76 (Friday, April 18, 2008)]
[Rules and Regulations]
[Pages 21019-21023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8092]



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 Rules and Regulations
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  Federal Register / Vol. 73, No. 76 / Friday, April 18, 2008 / Rules 
and Regulations  

[[Page 21019]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Parts 1201, 1210, and 1215


Final Regulatory Changes Regarding Department of Homeland 
Security Personnel System

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: As the Merit Systems Protection Board (MSPB or ``the Board'') 
explained in its notice of Interim Regulatory Changes Regarding 
Department of Homeland Security Personnel System, Federal Register, 72 
FR 56883, October 5, 2007, it is revising its regulations to clarify 
the procedures applicable to MSPB processing and adjudication of cases 
arising under the Department of Homeland Security's new human resources 
management system established pursuant to the Homeland Security Act of 
2002. As is discussed below, these revisions to the Board's regulations 
are necessary to reconcile the Board's regulations and procedures with 
final regulations published by the Department of Homeland Security 
(DHS) and the Office of Personnel Management (OPM) on February 1, 2005.

DATES: This rule is effective on April 18, 2008.

FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, 
DC 20419; (202) 653-7200; fax: (202) 653-7130; or e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: (Regarding Issuance of the Interim 
Regulatory Changes): On November 25, 2002, the President signed into 
law H.R. 5005, the Homeland Security Act of 2002 (Pub. L. 107-296), 
which established DHS and authorized the DHS Secretary and OPM Director 
to jointly establish a new human resources management system within 
DHS. Pursuant to this grant of authority, on February 20, 2004, DHS and 
OPM published proposed regulations (69 FR 8030) for this new human 
resources system. Thereafter, on February 1, 2005, DHS and OPM 
published final regulations (70 FR 5272) implementing the new DHS 
personnel system.
    Afterwards, the National Treasury Employees Union, American 
Federation of Government Employees, National Federation of Federal 
Employees, National Association of Agriculture Employees, and Metal 
Trades Department of the AFL-CIO, which collectively represent 
approximately 50,000 DHS bargaining unit employees, challenged portions 
of the regulations governing labor-management relations, adverse 
actions, and the appeals process. One of the provisions of the DHS 
regulations that was challenged is 5 CFR 9701.706(k)(6), which changes 
the standard by which the Board may mitigate penalties imposed by DHS. 
Pursuant to that provision, an arbitrator, adjudicating official or the 
Board may not modify such a penalty unless it is so disproportionate to 
the basis for the action as to be wholly without justification. The 
U.S. District Court for the District of Columbia enjoined the 
mitigation provision. NTEU v. Chertoff, 385 F.Supp.2d 1, 32-33 
(D.D.C.), modification denied by, 394 F.Supp.2d 137 (D.D.C. 2005). A 
panel of the U.S. Court of Appeals for the D.C. Circuit reversed on 
this issue, holding that the question of the mitigation standard's 
legality was not ripe for judicial review. NTEU v. Chertoff, 452 F.3d 
839, 855 (D.C. Cir. 2006). Therefore, the MSPB's regulations include 
that mitigation standard.
    Subparts F and G of the final DHS/OPM regulations concern adverse 
actions and appeals and will have a significant effect on the way the 
MSPB processes and adjudicates appeals of adverse actions by DHS 
employees. In addition to limiting the types of cases that may be 
appealed to the Board, the final DHS/OPM regulations make many changes 
in how the Board will process and adjudicate appeals by DHS employees, 
including:
    Shortened filing deadlines;
    Streamlined and limited discovery procedures;
    New settlement procedures;
    Limitations on the right to a hearing;
    Summary judgment and limitation of issues;
    Time limits within which the Board must issue decisions;
    Procedures for Board review of a decision of the DHS Mandatory 
Removal Panel (MRP); and,
    Changes in certain standards of review.
    In order to accommodate these substantive and procedural changes 
with the least possible confusion and delay, the Board determined to 
publish interim amendments to its regulations. Specifically, these 
changes involve amendments to 5 CFR parts 1201 and the promulgation of 
new regulations applicable only to procedures for appeals, petitions 
for review, and requests for review of MRP decisions brought by DHS 
employees. These new DHS-specific regulations were published in a 
revised 5 CFR part 1210. The regulations previously found in 5 CFR part 
1210 were moved, redesignated as 5 CFR part 1215, and are otherwise not 
changed.
    A brief summary of the changes contained in the interim amendments 
and the final amendments contained herein is as follows:
    1201.3(a)(19) and (20) are amended and 1201.3(a)(21) is added to 
reflect the Board's jurisdiction over certain actions taken by DHS (an 
unrelated housekeeping change is also made to 1201.3(a)(20));
    1201.3(b)(3) is amended to reflect the Board's jurisdiction over 
certain actions taken by DHS and to make clear that 5 CFR parts 1201, 
1208 and 1209 apply to proceedings brought under 5 CFR part 1210, 
except as otherwise provided therein;
    1201.11 is amended to state that the regulations of subpart B of 5 
CFR part 1201 apply to appellate proceedings covered by part 1210 
unless other specific provisions are made in that part;
    1201.14(i) is amended to indicate that the Board's rules applicable 
to electronic signatures by e-filers apply to any regulation in part 
1210 that requires a signature;
    1201.21 is renumbered and amended to delete an outdated reference 
to Appendix 1. A new section (1201.21(b)) addresses notice of appeal 
rights when DHS issues a decision notice to an employee on a matter 
that is appealable to the Board.

[[Page 21020]]

    1201.22(b)(2) is amended to indicate that additional time limits 
applicable to certain appeals by DHS employees are contained in part 
1210.
    The debt management regulations formerly in part 1210 are moved and 
redesignated as part 1215. As is discussed in greater detail below, new 
regulations regarding appeals by DHS employees are added in part 1210. 
Parts 1211, 1212, 1213, and 1214 are reserved for future agency-
specific regulations.
    The new regulations in part 1210 apply to Board proceedings in 
appeals of certain DHS adverse actions that are covered under subparts 
F and G of 5 CFR part 9701. Part 1210 consists of four subparts.
    Subpart A of part 1210 discusses the scope of part 1210 and the 
Board's policy with regard to application of part 1210 in a fair and 
efficient manner (1210.1); addresses MSPB jurisdiction (1210.2); sets 
forth the applicability of 5 CFR parts 1201, 1208, and 1209 to appeals 
by DHS employees (1210.3); defines certain words and terms used within 
part 1210 (1210.4); describes when and how the Board and/or an 
adjudicating official may revoke, amend or waive the regulations in 
part 1210 (1210.5); and adds a savings provision indicating that part 
1210 does not apply to adverse actions proposed prior to the date of an 
affected employee's coverage under 5 CFR part 9701, subpart G (1210.6).
    Subpart B of part 1210 sets forth procedures for appeals of actions 
taken under 5 CFR Part 9701, Subpart F, including agency 
responsibilities regarding notice of appeal rights (1210.10); 
procedures for filing an appeal (1210.11); representation by, and 
disqualification of, representatives (1210.12); burden and degree of 
proof and affirmative defenses (1210.13); required disclosure and the 
scope of discovery (1210.14); discovery procedures (1210.15); 
intervention by the Director of OPM (1210.16); procedures applicable to 
settlement (1210.17); case suspension procedures (1210.18); the right 
to a hearing (1210.19); summary judgment (1210.20); and requirements 
pertaining to the adjudicating official's initial decision, including 
completion deadlines and interim relief (1210.21).
    Subpart C of part 1210 addresses procedures applicable to petitions 
for review of initial decisions and petitions for reconsideration, 
including requirements such as who may file and the use of electronic 
filing (1210.30(a)); time limits applicable to petitions for review, 
cross petitions for review and responses (1210.30(b)); the proper place 
for filing petitions for review, cross petitions for review, and 
responses (1210.30(c)); time limits within which the Board must render 
its decision (1210.30(d)); the ramifications of the Board's failure to 
meet such time limits (1210.30(e)); and requirements applicable to an 
OPM request for reconsideration (1210.31).
    Subpart D of part 1210 addresses MSPB review of decisions of the 
Mandatory Removal Panel (MRP), including jurisdiction and procedures 
and time limits applicable to a request for review (1210.40); the 
standard of review and time limits applicable to a decision by the 
Board (1210.41); intervention by the Director of OPM (1210.42); 
finality of Board decisions and judicial review (1210.43); and requests 
for reconsideration (1210.44).

Availability of Documents

    You can get an electronic copy of the entire set of amendments to 5 
CFR part 1201 and the entirety of 5 CFR part 1210 using the Internet by 
visiting the Merit System Protection Board's Web page at http://www.mspb.gov. In addition, paper copies may be obtained by writing or 
calling the individual in the FOR FURTHER INFORMATION CONTACT section. 
Make sure to identify this final rule as the final regulatory changes 
regarding the Department of Homeland Security Personnel System.
    Summary and Analysis of the Comments Received on the Interim 
Regulatory Changes: The Board's Federal Register notice of interim 
regulatory changes provided for a comment period of 30 days after date 
of publication, which ended on Monday, November 5, 2007. The Board 
received five comments, three from individuals, and the others from the 
National Treasury Employees Union and the American Federation of 
Government Employees. As explained below, upon consideration of these 
comments, the Board is making several amendments to its interim 
regulatory changes. The comments are summarized and discussed below.
    Comment 1: An employee from the Transportation Security 
Administration stated a preference for the MSPB's appeals process under 
5 CFR Part 1201 to the TSA's Disciplinary Review Board process. The 
commenter made the following statements:

    ``I know that I would want to have the option of thirty days to 
appeal an adverse action versus the 20 days proposed. I beg of you 
to keep in place the current appeal rights for all employees in the 
Federal system.''

    MSPB's Response to Comment 1: Pursuant to the DHS's regulations, at 
5 CFR 9701.702, DHS's appellate procedures supersede those of the MSPB 
to the extent that there may be inconsistencies between the procedures. 
The Board had the options of following the DHS regulations or issuing 
its own conforming regulations. It chose the latter option. In order 
for the Board's regulations to be conforming, they must provide for an 
appeal period of 20 days instead of 30 days.
    Comment 2: An employee from the Transportation Security 
Administration raised concerns about the difficulties in receiving pay 
raises.
    MSPB's Response to Comment 2: This comment did not address any of 
the interim regulatory changes in 5 CFR Part 1201 or 1210.
    Comment 3: A DHS employee expressed opposition to the 
implementation of the DHS personnel management system as a whole.
    MSPB's Response to Comment 3: This comment did not address any of 
the interim regulatory changes in 5 CFR Part 1201 or 1210.
    Comment 4: The National Treasury Employees Union (NTEU) commented 
on 11 provisions in the interim regulatory changes. Most of NTEU's 
suggestions, if adopted, would result in MSPB regulations that would 
not be consistent, as required by 5 CFR 9701.702, with Subpart G of 
Part 9701. However, as explained below, the Board has determined that 
several of NTEU's suggested revisions would add clarity to the Board's 
regulations and that those suggestions should be adopted.
    MSPB's Response to Comment 4: The Board's responses to NTEU's 11 
suggestions are as follows:
    Suggestion 1: The Board's regulations should not incorporate DHS's 
initial service period:
    MSPB's Response to Suggestion 1: DHS's regulations, at 5 CFR 
9701.603, define ``initial service period'' as the one- or two-year 
period employees must serve after selection for a designated DHS 
position in the competitive service for the purpose of providing an 
employee the opportunity to demonstrate competencies in a specific 
occupation. 5 CFR 9701.604(d)(1) provides that the Board would have no 
jurisdiction over an appeal brought by a nonpreference eligible 
employee serving an initial service period. MSPB's regulation, at 5 CFR 
1210.2(a), states that the Board lacks jurisdiction over those classes 
of employees excluded under 5 CFR 9701.604(d). However, MSPB's 
regulations clarify that, as determined by DHS, prior Federal civilian 
service counts toward completion of the initial service period.
    To be consistent with DHS's regulations, MSPB's regulations must

[[Page 21021]]

recognize that a nonpreference eligible employee does not acquire 
appeal rights until after the initial service period has been 
fulfilled.
    Suggestion 2: MSPB should revise 5 CFR 1210.10 to require DHS to 
include in its decision notices to employees information about the 
availability of an appeal to the Board of an adverse arbitration 
decision.
    MSPB's Response to Suggestion 2: The Board agrees and will revise 5 
CFR 1210.10 accordingly. NTEU correctly noted that other agencies are 
required, under 5 CFR 1201.21(d)(3), to inform employees in the 
decision notices as to whether they have the opportunity to request 
Board review of an arbitration decision. NTEU further noted that Board 
appeal of an arbitration decision ``is clearly available in mixed cases 
pursuant to 5 CFR 9701.709.'' It is the Board's understanding that DHS 
takes the position that certain provisions of 5 CFR Part 1201, Subpart 
E, including 5 CFR 1201.154(d), will apply to the Board's processing of 
mixed case appeals brought under 5 CFR Part 9701. Board review of 
arbitration decisions is available in mixed cases pursuant to 
subsection 1201.154(d).
    Suggestion 3: If the Board is going to incorporate the 20-day 
deadline in DHS's regulations for filing an appeal, the Board should 
exercise its discretion liberally to permit consideration of the merits 
of untimely filed appeals upon a showing of good cause. In addition, 
DHS should have only 10 days, not 15 days, to respond to appeals.
    MSPB's Response to Suggestion 3: Because DHS's regulations do not 
provide for any exception from the 20-day deadline for filing an 
appeal, see 5 CFR 9701.706(k)(1) (``All appeals'' ``will be filed no 
later than 20 days after the effective date of the action being 
appealed, or no later than 20 days after the date of service of the 
Department's decision, whichever is later.''), MSPB's conforming 
regulations cannot so provide either. As for the suggestion that DHS be 
given 10 days, instead of 15 days to respond to appeals, the Board 
declines to adopt it. Because a response entails the filing of a 
narrative response as well as submission of a record, the Board 
believes that the 15-day time frame is more reasonable.
    Suggestion 4: MSPB's regulations should authorize administrative 
judges to act on case suspension requests submitted unilaterally.
    MSPB's Response to Suggestion 4: Because DHS's regulations require 
that case suspension requests be made jointly, MSPB's conforming 
regulations cannot provide for authorization of unilaterally submitted 
case suspension requests.
    Suggestion 5: The MSPB regulations governing discovery should be 
modified to give DHS employees an additional 30 days following receipt 
of DHS's initial disclosures to make their initial disclosures. They 
also should be modified to require that the Board's acknowledgment 
orders advise parties of their initial disclosure obligations.
    MSPB's Response to Suggestion 5: An amendment to MSPB's regulations 
which would require DHS to submit initial disclosures within 10 days of 
the date of the Board's acknowledgment order and would allow appellants 
to wait until 40 days after the date of the acknowledgment order to 
file their initial disclosures would make it extremely difficult for 
the parties to complete discovery, for a hearing to be held and for an 
initial decision to be made within the 90-day deadline imposed by DHS's 
regulations. As for the suggested amendment to MSPB's acknowledgment 
orders, it is inconsistent with current practice for Board regulations 
to set requirements for acknowledgment orders. Moreover, such an 
amendment would be unnecessary because acknowledgment orders issued in 
appeals subject to these regulations will contain notice of initial 
disclosure requirements.
    Suggestion 6: MSPB's regulations, at 5 CFR 1210.17(b), should be 
amended to permit either party to invoke the service of a settlement 
judge.
    MSPB's Response to Suggestion 6: In order to reconcile its 
regulations with DHS's regulations, at 5 CFR 9701.706(i)(1) and (2), 
the Board must require that the request for the services of a 
settlement judge be made by the parties jointly.
    Suggestion 7: The MSPB's regulations should not require 
administrative judges to resolve appeals through summary judgment when 
they conclude that no material facts are in dispute, and appellants 
should have 30 days, instead of 15 days, to file an opposition.
    MSPB's Response to Suggestion 7: In order to reconcile its 
regulations with DHS's regulations, at 5 CFR 9701.706(k)(5), MSPB's 
regulations must require an administrative judge to render summary 
judgment on the law without a hearing when there are no material facts 
in dispute. The Board declines the suggestion to give appellants 30 
days to oppose a summary judgment motion in all instances because the 
90-day deadline for issuance of an initial decision may not permit 
judges to give appellants this much time to file an opposition. 
Moreover, 15 days is the same amount of time that a complainant with a 
discrimination complaint has to oppose a summary judgment motion. See 
29 CFR 1609.109(g)(2). In addition, it should be noted that the Board's 
regulations, at 5 CFR1210.20(c), do not provide for a rigid deadline 
but, instead, state that an opposition to a summary judgment motion 
``shall be filed within 15 days of service of the motion, or at the 
time specified by the adjudicating official.'' Therefore, where time 
permits, an administrative judge could give an appellant a longer 
period than 15 days to file an opposition. The regulations also would 
permit the judge to provide for a response period shorter than 15 days. 
Finally, under neither DHS's nor MSPB's regulations are appellants 
precluded from seeking summary judgment.
    Suggestion 8: The MSPB's regulations, at 5 CFR 1210.19(b), should 
be amended to require that the administrative judge conduct an in-
person hearing whenever material facts are in dispute.
    MSPB's Response to Suggestion 8: The suggestion, stated otherwise, 
is that whenever the administrative judge holds a hearing on an appeal, 
it must always be an in-person hearing. However, the Board, in a recent 
decision, recognized that, for hearings held pursuant to 5 CFR Part 
1201, there is no statutory mandate for an unlimited entitlement to an 
in-person hearing. Koehler v. Dept. of the Air Force, 99 M.S.P.R. 82, ] 
6 (2005). Over the years, especially under circumstances where there 
were issues as to the inconvenience and expense of travel, the Board 
has given appellants the option of having their hearings conducted 
telephonically. Id. As technology has developed, the Board has offered 
the option of videoconference hearings so that an appellant at a remote 
location could avail himself of a hearing without undertaking the 
expense and inconvenience of having to travel to a designated hearing 
site. Id. at ] 8, citing Siman v. Dept. of the Air Force, 80 M.S.P.R. 
306, ] 6 (1998).
    Like the rest of the Federal Government, the Board is facing 
serious challenges to work harder and faster, and to decide cases more 
efficiently. Id. at ] 11. Therefore, the Board cannot ignore the 
advances in videoconferencing technology, which provide a less costly 
alternative to affording every appellant an in-person hearing. Under 
the MSPB's interim regulatory changes, one of the factors that judges 
must consider in deciding whether to hold a hearing in whole or in part 
by videoconference or telephone is undue prejudice to the appellant. 
The

[[Page 21022]]

Board believes that its regulations strike the right balance between 
giving appellants the right to appear before an administrative judge 
and conserving the resources of the parties and the Board.
    Suggestion 9: To the extent that the time-of-filing rules in the 
MSPB's regulations, at 5 CFR 1210.21(a), apply to all filings with the 
Board, they should be set forth as a separate regulation in Subpart A 
of the MSPB's regulations.
    MSPB's Response to Suggestion 9: The time-of-filing rules in 5 CFR 
1210.21(a) are intended to apply only to the requirement that initial 
decisions be issued within 90 days after the date on which the appeal 
is filed; they do not determine whether an appeal was timely filed with 
the Board. The Board is amending its interim regulatory changes to make 
this intent clearer.
    Suggestion 10: The MSPB should refrain from adopting the standard 
for mitigating penalties in the DHS regulations.
    MSPB's Response to Suggestion 10: In order to reconcile its 
regulations with DHS's regulations, at 5 CFR 9701.706(k)(6), the MSPB 
must adopt DHS's standard for the mitigation of penalties.
    Suggestion 11: The MSPB should revoke its regulations on 
``mandatory removal offenses,'' or, in the alternative, clarify its 
regulations to reflect that a de novo standard of review applies to the 
review of decisions of the Mandatory Removal Panel that involve issues 
of discrimination.
    MSPB's Response to Suggestion 11: The MSPB lacks authority to 
revoke the appeals process for mandatory removal offenses established 
by DHS. Nor can it issue regulations that expand its jurisdiction over 
appeals of DHS actions taken for mandatory removal offenses beyond the 
jurisdiction that the DHS regulations provide. However, the Board will 
adopt the suggestion that 5 CFR 1210.41(a) be clarified to reflect that 
a de novo standard of review applies to allegations of discrimination 
contained in mixed case appeals of MRP decisions.
    Comment 5: The American Federation of Government Employees (AFGE) 
objects largely to provisions that must be in the MSPB regulations in 
order for them to be reconciled with the DHS regulations. The first 
section of the AFGE comments contains an objection to our issuance of 
the regulations as interim regulations. The MSPB addressed this concern 
in a letter to AFGE and will summarize this letter below. The second 
section of the AFGE comments objects to the regulations because they 
purportedly bypass the collective bargaining rights of DHS employees. 
The third and fourth sections of the AFGE comments suggest changes to 
specific provisions in 5 CFR Parts 1201 and 1210, respectively. Each 
section of AFGE's comment letter is addressed below.
    Part 1. The MSPB should rescind the interim rule issued on October 
5, 2007, because it violates the notice and comment requirements of the 
Administrative Procedure Act.
    MSPB's Response: As reflected in this notice, the MSPB has taken 
all comments it received into serious consideration and, as a result, 
will make several modifications to its interim regulatory changes. It 
is important to note that the Administrative Procedure Act, at 5 U.S.C. 
553(b)(A), provides that its notice and comment requirements do not 
apply to ``interpretative rules, general statements of policy, or rules 
of agency organization, procedure, or practice.'' This MSPB interim 
rule falls within this exception. The U.S. Court of Appeals for the 
D.C. Circuit clarified this exception in JEM Broadcasting Co., Inc. v. 
F.C.C, 22 F.3d 320, 326-27 (D.C. Cir. 1994): ``Our oft-cited 
formulation holds that the `critical feature' of the procedural 
exception `is that it covers agency actions that do not themselves 
alter the rights or interests of parties, although it may alter the 
manner in which the parties present themselves or their viewpoints to 
the agency.' '' (citations omitted). This interim rule is intended 
merely to conform MSPB practices and procedures to the changes 
implemented by DHS in a final rule after notice and comment. Therefore, 
MSPB has not violated any of the requirements of the APA.
    Part 2: MSPB should rescind the interim rule because it bypasses 
the collective bargaining rights of DHS employee unions and their 
bargaining unit members.
    MSPB's Response: The Board has been informed that the DHS 
regulations governing the appeals process will not apply to DHS 
employees who are covered by a collective bargaining agreement until 
negotiations between DHS management officials and representatives of 
the appropriate labor organizations have been concluded.
    Part 3: AFGE's suggestions regarding the interim regulatory changes 
to 5 CFR. Part 1201: AFGE suggests two modifications. The first 
suggested modification is to 5 CFR 1201.3(b)(3), which pertains to the 
Board's jurisdiction over appeals of certain actions taken by DHS. The 
suggestion is that language be added regarding possible conflicts 
between Part 1210 and Part 9701 as modified by a collective bargaining 
agreement. The second suggested modification is that the policy 
statement in 5 CFR 1201.11 be modified to reflect the concept of 
fairness as well as expedience.
    MSPB's Response: The Board declines to adopt the first suggestion. 
At this time, there are no collective bargaining agreements that modify 
the time limits and procedures in Part 9701. Should that change, the 
Board will consider revising its regulations at that time. The Board 
has adopted the second suggestion and modifies 5 CFR 1201.11 
accordingly.
    Part 4: AFGE's suggestions regarding the interim regulatory changes 
to 5 CFR Part 1210: AFGE suggests modifications to seven provisions of 
5 CFR Part 1210. As explained below, the Board is adopting the 
suggestion pertaining to the discovery obligations.
    Suggestion 1: Modify the savings provision in 5 CFR 1210.6 to note 
that it will be subject to modified time limits and procedures set by 5 
CFR Part 9701 or applicable collective bargaining agreements.
    MSPB's Response to Suggestion 1: According to AFGE, this proposed 
modification ``simply acknowledges the possibility that bargaining 
could result in changed provisions of Part 9701 being applicable to 
members of bargaining units.'' The Board declines to adopt the 
suggestion. At this time, there are no collective bargaining agreements 
that modify the time limits and procedures in Part 9701. Should that 
change, the Board will consider revising its regulations at that time.
    Suggestion 2: Modify 5 CFR 1210.14 to allow for appellants' 
provision of documents and information that become known to him or her 
after the close of the initial disclosure period.
    MSPB's Response to Suggestion 2: The purpose of this suggestion 
seems to be to allow appellants to disclose or identify documents as 
they become aware of their existence. The Board finds that an effective 
way to make this modification applicable to both parties is to add to 5 
CFR 1210.14(a) the requirement that both parties update their initial 
disclosures as relevant documents and information are discovered or 
become available. The Board is modifying 5 CFR 1210.14(a) accordingly.
    Suggestion 3: The discovery procedures, specifically, 5 CFR 
1210.15(b)(2), should be modified to allow for discovery beyond the 
limitations set out in 5 CFR 1210.15(b)(1) ``for good cause, and as 
fairness may require'' instead of under a ``necessity and good cause'' 
standard.
    MSPB's Response to Suggestion 3: In order to reconcile its 
regulations with DHS's regulations, at 5 CFR

[[Page 21023]]

9701.706(k)(3)(iii), the Board must consider requests for additional 
discovery under the ``necessity and good cause'' standard.
    Suggestion 4: The language regarding the right to a hearing set out 
in 5 CFR 1210.19(b) should be modified to make it clear that, absent 
summary judgment, a hearing must be held.
    MSPB's Response to Suggestion 4: Read together, subparts (a) and 
(b) of 5 CFR 1210.19 make it clear that, absent summary judgment, there 
is a right to a hearing but that the form of hearing to be held is 
within the administrative judge's discretion.
    Suggestion 5: The summary judgment provision, at 5 CFR 1210.20, 
should be stricken in its entirety or, in the alternative, subsection 
(d), which provides that an administrative judge may initiate summary 
judgment sua sponte if he or she determines that material facts may not 
be in dispute, should be stricken.
    MSPB's Response to Suggestion 5: In order to reconcile its 
regulations with DHS's regulations, at 5 CFR 9701.706(k)(5), MSPB's 
regulations must require an administrative judge to render summary 
judgment on the law without a hearing when there are no material facts 
in dispute. That is the case whether summary judgment is initiated by a 
party or by the judge.
    Suggestion 6: The mitigation of penalty standard in 5 CFR 
1210.21(b) should be stricken in its entirety.
    MSPB's Response to Suggestion 6: In order to reconcile its 
regulations with DHS's regulations, at 5 CFR 9701.706(k)(6), MSPB's 
regulations must contain DHS's standard for mitigation of penalties.
    Suggestion 7: All references to mandatory removal offenses should 
be stricken from 5 CFR Part 1210.
    MSPB's Response to Suggestion 7: The Board lacks authority to 
revoke the appeals process for mandatory removal offenses established 
by DHS. However, as explained above, the Board is adopting the 
suggestion of NTEU that 5 CFR 1210.41(a) be clarified to reflect that a 
de novo standard of review applies to allegations of discrimination 
contained in mixed case appeals of MRP decisions.

List of Subjects in 5 CFR Parts 1201, 1210, and 1215

    Administrative practice and procedure, Civil rights, Government 
employees.

0
For reasons set forth in the preamble, the interim rule published 
October 5, 2007 (72 FR 56883) is adopted as final with the following 
changes:

PART 1201--PRACTICES AND PROCEDURES

0
1. The authority citation for 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.


0
2. Section 1201.11 is amended by adding a new sentence at the end of 
the section to read as follows:


Sec.  1201.11  Scope and policy.

    * * * It is the Board's policy that these rules will be applied in 
a manner that ensures the fair and efficient processing of each case.

PART 1210--DEPARTMENT OF HOMELAND SECURITY HUMAN RESOURCES 
MANAGEMENT SYSTEM

0
3. The authority citation for part 1210 continues to read as follows:

    Authority: 5 U.S.C. 1204 and 7701.


0
4. Section 1210.10(a)(4) is revised to read as follows:


Sec.  1210.10  Notice of appeal rights.

    (a) * * *
    (4) Notice of any right the employee has to file a grievance, 
including notice that the election of any applicable grievance 
procedure may result in a waiver of the employee's right to file an 
appeal with the Board and as to whether there is any right to request 
Board review of a final decision on a grievance in accordance with 
Sec.  1201.154(d); and
* * * * *

0
5. Section 1210.14 is amended by revising paragraphs (a)(1)(ii) and 
(a)(2)(ii) to read as follows:


Sec.  1210.14  Initial disclosures; scope of discovery.

    (a) * * *
    (1) * * *
    (ii) The name, work address and work telephone number, if known, of 
each individual likely to have discoverable information that the 
Department may use in support of its claims or defenses, identifying 
the subjects of such information.
    (2) * * *
    (ii) The name, address and telephone number, if known, of each 
individual likely to have discoverable information that the appellant 
may use in support of his or her claims or defenses, identifying the 
subjects of the information. Each party must make its initial 
disclosure based on the information then reasonably available to the 
party. Each party has an ongoing obligation to supplement and update 
its initial disclosure as relevant documents and information are 
discovered or become available. A party is not excused from making its 
disclosures because it has not fully completed the investigation of its 
case, because it challenges the sufficiency of the other party's 
disclosures or because the other party has not made its disclosures.

0
6. Section 1210.21 is amended by adding a new sentence to the end of 
paragraph (a) to read as follows:


Sec.  1210.21  Initial decision by the adjudicating official.

    (a) General. * * * For purposes of this subsection only, a document 
that is filed with a Board office by personal delivery is considered 
filed on the date on which the Board office receives it.
* * * * *

0
7. Section 1210.41is amended by adding a sentence to paragraph (a)(3) 
to read as follows:


Sec.  1210.41  Decision of the Board.

    (a) * * *
    (3) * * * The Board will apply a de novo standard of review to 
allegations of discrimination contained in mandatory removal appeal 
actions.
* * * * *

    Dated: April 10, 2008.
William D. Spencer,
Clerk of the Board.
[FR Doc. E8-8092 Filed 4-17-08; 8:45 am]
BILLING CODE 7400-01-P