[Federal Register Volume 74, Number 41 (Wednesday, March 4, 2009)]
[Rules and Regulations]
[Pages 9343-9344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4290]



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 Rules and Regulations
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  Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Rules 
and Regulations  

[[Page 9343]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Parts 1201 and 1210


MSPB Practices and Procedures; Department of Homeland Security 
Human Resources Management System

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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

SUMMARY: The Merit Systems Protection Board (``MSPB'') has decided to 
remove its DHS-specific regulations that concern the processing and 
adjudication of appeals filed under the DHS Human Resources Management 
System to conform with Department of Homeland Security regulations.

DATES: This rule is effective on March 4, 2009.

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: On February 1, 2005, the Department of 
Homeland Security (DHS) and the Office of Personnel Management (OPM) 
jointly issued final regulations at 5 CFR Part 9701 establishing the 
DHS Human Resources Management System. 70 FR 5272. Thereafter, pursuant 
to 5 CFR 9701.102(b)(2), DHS phased in coverage to certain employees 
under Subpart F (Adverse Actions) and G (Appeals).
    On October 5, 2007, MSPB published an interim rule revising its 
regulations to clarify the procedures applicable to MSPB processing and 
adjudication of cases arising under Subparts F and G of the DHS Human 
Resources Management System. 72 FR 56883. Thereafter, on April 18, 
2008, the MSPB published a final rule further revising its regulations 
applicable to the processing and adjudication of such cases. 73 FR 
21019.
    Effective October 1, 2008, the DHS rescinded application of 5 CFR 
9701, Subparts A-G, of the DHS Human Resources Management System. 73 FR 
58435. DHS took this action pursuant to the Consolidated Security, 
Disaster Assistance and Continuing Appropriations Act, 2009, Public Law 
110-329 (2008) (the ``FY 09 DHS Appropriations Act''), which barred DHS 
from using funds appropriated in this act or any other appropriations 
act for the development, testing, deployment, or operation of any 
portion of the DHS personnel system.
    As a result of DHS's rescission of the application of Subparts F 
and G, the MSPB has decided to amend its regulations by removing all 
regulations that are specific to Subparts F and G of the DHS Human 
Resources Management System. The Board considered staying these 
regulations, but determined that removing the regulations is 
appropriate in order to ensure that DHS employees are not confused 
concerning which regulations apply. In addition, staying the DHS-
specific regulations was problematic because DHS-specific rules are 
contained in numerous places within 5 CFR 1201, the Board's generally 
applicable practices and procedures. As a result, the Board is removing 
all DHS-specific rules from its regulations pending future developments 
with regard to the DHS Human Resources Management System.

List of Subjects in 5 CFR Parts 1201 and 1210

    Administrative practice and procedure, Government employees.

0
Accordingly, under the authority at 5 U.S.C. 1204(h), the Board amends 
5 CFR Chapter II as follows:

PART 1201--[AMENDED]

0
1. The authority citation for part 1201 continues to read as follows:

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


0
2. Section 1201.3 is amended by removing paragraphs (a)(21) and (b)(3) 
and revising paragraphs (a)(19) and (a)(20) as follows:


Sec.  1201.3  Appellate jurisdiction.

* * * * *
    (a) * * *
    (19) Employment practices administered by the Office of Personnel 
Management to examine and evaluate the qualifications of applicants for 
appointment in the competitive service (5 CFR 300.104); and
    (20) Reduction-in-force action affecting a career or career 
candidate appointee in the Foreign Service (22 U.S.C. 4011).
* * * * *

0
3. Section 1201.11 is revised to read as follows:


Sec.  1201.11  Scope and policy.

    The regulations in this subpart apply to Board appellate 
proceedings except as otherwise provided in Sec.  1201.13. The 
regulations in this subpart apply also to appellate proceedings and 
stay requests covered by part 1209 unless other specific provisions are 
made in that part. These regulations also apply to original 
jurisdiction proceedings of the Board except as otherwise provided in 
subpart D. It is the Board's policy that these rules will be applied in 
a manner that expedites the processing of each case. 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.

0
4. Section 1201.21 is revised to read as follows:


Sec.  1201.21  Notice of appeal rights.

    When an agency issues a decision notice to an employee on a matter 
that is appealable to the Board, the agency must provide the employee 
with the following:
    (a) Notice of the time limits for appealing to the Board, the 
requirements of Sec.  1201.22(c), and the address of the appropriate 
Board office for filing the appeal;
    (b) A copy, or access to a copy, of the Board's regulations;
    (c) A copy of the MSPB appeal form available at the Board's Web 
site (http://www.mspb.gov), and
    (d) Notice of any right the employee has to file a grievance, 
including:
    (1) Whether the election of any applicable grievance procedure will 
result in waiver of the employee's right to file an appeal with the 
Board;
    (2) Whether both an appeal to the Board and a grievance may be 
filed on the same matter and, if so, the circumstances under which 
proceeding with one will preclude proceeding with

[[Page 9344]]

the other, and specific notice that filing a grievance will not extend 
the time limit for filing an appeal with the Board; and
    (3) Whether there is any right to request Board review of a final 
decision on a grievance in accordance with Sec.  1201.154(d).

0
5. Section 1201.22 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  1201.22  Filing an appeal and responses to appeals.

    (b) * * *
    (2) The time limit prescribed by paragraph (b)(1) of this section 
for filing an appeal does not apply where a law or regulation 
establishes a different time limit or where there is no applicable time 
limit. No time limit applies to appeals under the Uniformed Services 
Employment and Reemployment Rights Act (Pub. L. 103-353), as amended; 
see part 1208 of this title. See part 1208 of this title for the 
statutory filing time limits applicable to appeals under the Veterans 
Employment Opportunities Act (Pub. L. 105-339). See part 1209 of this 
title for the statutory filing time limits applicable to whistleblower 
appeals and stay requests.
* * * * *

PART 1210--[REMOVED AND RESERVED]

0
6. Part 1210 is removed and reserved.

William D. Spencer,
Clerk of the Board.
[FR Doc. E9-4290 Filed 3-3-09; 8:45 am]
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