[Federal Register Volume 78, Number 64 (Wednesday, April 3, 2013)]
[Notices]
[Pages 20142-20144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07692]


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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: In compliance with the Paperwork Reduction Act of 1995 (PRA) 
(44 U.S.C. 3506 and 3507), the Merit Systems Protection Board (MSPB or 
Board) announces that an Information Collection Request (ICR) was 
forwarded to the Office of Management and Budget (OMB) for review and 
approval. The ICR is for MSPB's revised Appeal Form (MSPB Form 185). We 
request public comments on the revised form, which is available for 
review (along with the comments previously received) on MSPB's Web site 
at http://www.mspb.gov/appeals/revisedappealform.htm.

DATES: Written comments must be received on or before May 3, 2013.

ADDRESSES: Interested persons are invited to submit written comments on 
the proposed information collection to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street 
NW.,

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Washington, DC 20503, Attention: Desk Officer for the Merit Systems 
Protection Board, or send them via electronic mail to [email protected].

FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street NW., Washington, 
DC 20419; telephone 202-653-7200; fax 202-653-7130; email 
[email protected]. Persons without Internet access may request a paper copy 
of MSPB Form 185 from the Office of the Clerk of the Board.

Revised MSPB Appeal Form 185

    On December 3, 2012, MSPB published a 60-day notice in the Federal 
Register (77 FR 71640) of our intent to submit this proposed 
information collection to OMB for review and approval. The MSPB 
received a number of comments regarding its proposed revisions to MSPB 
Form 185 from Federal agencies, employees, attorney associations, and 
individual representatives. The revisions to the form include 
streamlining and reorganizing the introductory instructions; updating 
appellant/agency information; clarifying hearing request information; 
providing information regarding affirmative defenses and particular 
classes of appeals (Individual Right of Action (IRA), Uniformed 
Services Employment and Reemployment Rights Act of 1994 (USERRA), and 
Veterans Employment Opportunities Act of 1998 (VEOA)) in a new Appendix 
A; consolidating certain sections and eliminating others as 
superfluous; and providing full contact information for each of the 
Board's regional and field offices in a new Appendix B.
    The following sentence has been added to the section, ``Time Limits 
for Filing an Appeal,'' on page 1: ``The 30-day time limit may also be 
extended if you have previously filed a formal equal employment 
opportunity (EEO) complaint regarding the same matter, as described in 
Appendix A.''
    Instructions about which parts of the form must be completed for 
particular classes of appeals were added, and references to requested 
documents in boxes 16 and 18 were bolded for added visibility. In 
addition, language in box 16 has been changed to read, as follows: 
``Explain briefly why you think the agency was wrong in taking this 
action, including whether you believe the agency engaged in harmful 
procedural error, committed a prohibited personnel practice, or engaged 
in one of the other claims listed in Appendix A. Attach the agency's 
proposal letter, decision letter, and SF-50, if available. Attach 
additional sheets if necessary (bearing in mind that there will be 
later opportunities to supplement your filings).''
    Language in box 26, requesting information regarding a designated 
representative, has been changed to read as follows: ``Has an 
individual or organization agreed to represent you in this proceeding 
before the Board? (You may designate a representative at any time. 
However, it is unlikely that the appeals process will be delayed for 
reasons related to obtaining or maintaining representation. Moreover, 
you must promptly notify the Board in writing of any change in 
representation.)''
    Appendix A: The second sentence under the heading, ``Prohibited 
Personnel Practices,'' has been changed to read as follows: ``Among the 
prohibited personnel practices most likely to be relevant as an 
affirmative defense in an MSPB proceeding are: Unlawful discrimination 
under subsection (b)(1); retaliation for protected whistleblowing under 
subsection (b)(8); and retaliation for other protected activity under 
subsection (b)(9).''
    In order to include additional bases of prohibited discrimination 
and their corresponding statutory foundation, the heading, ``Unlawful 
Discrimination,'' has been changed to read as follows: ``A claim that 
the agency action was the result of prohibited discrimination based on 
race, color, religion, sex, national origin, disability, age, marital 
status, political affiliation, genetic information, and retaliation for 
prior EEO activity. See 5 U.S.C 2302(b)(1) and 7702; 5 CFR Part 1201, 
Subpart E; 29 CFR Part 1630 and Appendix to Part 1630; 42 U.S.C. 2000ff 
et seq.; 29 CFR 1614.302-.308. If you filed a formal discrimination 
complaint, give the date on which you did so, state whether and when 
the agency issued a final decision on your discrimination complaint, 
and provide copies of both.''
    In order to include new provisions introduced by passage of the 
Whistleblower Protection Enhancement Act (WPEA), the title and content 
of the headings, ``Retaliation for whistleblowing activity under 5 
U.S.C. Sec.  2302(b)(8),'' and ``Retaliation for other protected 
activity under 5 U.S.C. Sec.  2302(b)(9),'' have been changed to read 
as follows:
    ``Retaliation for whistleblowing activity under 5 U.S.C. 2302(b)(8) 
and (b)(9)(A)(i), (B), (C), or (D): A claim that the agency action was 
taken in retaliation for the disclosure of information the individual 
reasonably believes demonstrates a violation of law, rule, or 
regulation, gross mismanagement, gross waste of funds, abuse of 
authority, or substantial and specific danger to public health or 
safety, or in retaliation for exercise of the right to appeal, 
complain, or grieve an alleged violation of Subsection (b)(8); for 
testifying or otherwise lawfully assisting another's right to appeal, 
complain, or grieve such an alleged violation; for cooperating with or 
disclosing information to the Inspector General or Special Counsel in 
accordance with applicable provisions of law; or for refusing to obey 
an order that would require a violation of law. See 5 CFR 1209.4(b).
    ``Retaliation for other protected activity under 5 U.S.C. 
2302(b)(9)(A)(ii): A claim that the agency action was taken in 
retaliation for the exercise of a right, other than with regard to 
remedying an alleged violation of 5 U.S.C. 2302(b)(8), such as the 
filing of an appeal, complaint, or grievance.''
    The first paragraph under the hearing, ``IRA, USERRA, and VEOA 
Appeals,'' has been changed to read as follows:
    ``The law provides for three types of appeals in certain situations 
that might not otherwise be appealable to the MSPB (See 5 CFR 1201.3(a) 
for a list of otherwise appealable actions): Individual Right of Action 
(IRA) appeals under the Whistleblower Protection Act (WPA) and 
Whistleblower Protection Enhancement Act (WPEA) pursuant to 5 U.S.C. 
1221; appeals under the Uniformed Services Employment and Reemployment 
Rights Act (USERRA) pursuant to 38 U.S.C. 4324; and appeals under the 
Veterans Employment Opportunities Act (VEOA) pursuant to 5 U.S.C. 
3330a. Note: As previously set forth, allegations of retaliation for 
whistleblowing, as well as allegations under USERRA and VEOA, may be 
brought as additional claims in cases that are otherwise appealable to 
the Board.''
    Also reflecting changes arising from passage of the WPEA, the title 
and content of the heading, ``IRA Appeals under the Whistleblower 
Protection Act,'' has been changed to read as follows:
    ``IRA Appeals under the WPA and WPEA. Subsection (b)(8) of 5 U.S.C. 
Sec.  2302 makes it a prohibited personnel practice to threaten, 
propose, take, or not take a personnel action listed in 5 U.S.C. 
2302(a)(2) because of an individual's disclosure of information that he 
or she reasonably believes shows a violation of law, rule, or 
regulation, gross mismanagement, gross waste of funds, abuse of 
authority, or substantial and specific danger to public health or 
safety. Subsections (b)(9)(A)(i), (B), (C), and (D) make it a 
prohibited personnel

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practice to threaten, propose, take, or not take a personnel action 
because an appellant exercised the right to appeal, complain, or grieve 
an alleged violation of Subsection (b)(8); testified or otherwise 
lawfully assisted another's right to appeal, complain, or grieve such 
an alleged violation; cooperated with or disclosed information to the 
Inspector General or Special Counsel in accordance with applicable 
provisions of law; or refused to obey an order that would require a 
violation of law. See 5 CFR 1209.4. If the personnel action allegedly 
taken in reprisal for making a protected disclosure or engaging in 
protected activity is not otherwise appealable to the Board, you must 
first file a whistleblower complaint with the Office of Special Counsel 
(OSC) and exhaust the procedures of that office, see 5 U.S.C. 
1214(a)(3), before you may file an IRA appeal with the Board under 5 
U.S.C. Sec.  1221.''
    Finally, instructions regarding the impact of filing a formal EEO 
complaint on the Board's timeliness requirements are included under the 
heading, ``Time Limits for filing IRA, USERRA, and VEOA Appeals, and 
following the filing of a Formal EEO Complaint,'' as follows: ``Formal 
EEO Complaints. If you have previously filed a formal Equal Employment 
Opportunity (EEO) complaint regarding the same matter, you must file 
your Board appeal within 30 days after receiving the agency's 
resolution or final decision as to that complaint, or you may file at 
any time after 120 days have elapsed from the filing of the complaint 
in the absence of such an agency resolution or decision. See 5 
CFR1201.154(b).''

Estimated Reporting Burden

    In accordance with the requirements of the PRA, MSPB is soliciting 
comments on the public reporting burden for this information 
collection. The public reporting burden for this collection of 
information is estimated to vary from 20 minutes to 4 hours, with an 
average of 60 minutes per response, including time for reviewing the 
form and instructions, searching existing data sources, gathering the 
data necessary, and completing and reviewing the collection of 
information.
    Specifically, 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 the 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.

                                                               Estimated Reporting Burden
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                                                                                                                           Hours per
                            5 CFR parts                               Annual  number   Frequency per     Total annual       response       Total hours
                                                                     of  respondents      response        responses        (average)
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1201, 1208 and 1209................................................           7,150                1            7,150              1.0            7,150
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William D. Spencer,
Clerk of the Board.
[FR Doc. 2013-07692 Filed 4-2-13; 8:45 am]
BILLING CODE 7400-01-P