[Federal Register Volume 78, Number 76 (Friday, April 19, 2013)]
[Rules and Regulations]
[Pages 23457-23458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09223]



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 Rules and Regulations
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  Federal Register / Vol. 78, No. 76 / Friday, April 19, 2013 / Rules 
and Regulations  

[[Page 23457]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Parts 1201 and 1208


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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

SUMMARY: The Merit Systems Protection Board (MSPB or Board) hereby 
amends its rules of practice and procedure in order to correct several 
minor errors inadvertently introduced into the Board's regulations 
during a recent comprehensive revision of the Board's adjudicatory 
regulations.

DATES: Effective April 19, 2013.

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

SUPPLEMENTARY INFORMATION: On June 7, 2012, the Merit Systems 
Protection Board (MSPB or Board) proposed amendments to its regulations 
following a lengthy internal review of all MSPB adjudicatory 
regulations. 77 FR 33663. On October 12, 2012, the MSPB published a 
final rule that made numerous amendments to the Board's regulations. 77 
FR 62350. The MSPB has determined that it inadvertently included 
several minor drafting errors in the regulatory language of the final 
rule. These errors affect four paragraphs in the following regulations:
    Sec.  1201.74(a)--This final rule amends 5 CFR 1201.74(a) to 
correct certain references to 1201.73 contained therein. The MSPB's 
recent amendments to its adjudicatory regulations resulted, in part, in 
the transfer of provisions previously set forth at 1201.73(e)(1) and 
(f)(4) to 1201.73(c)(1) and (d)(3). The final rule therefore amends 
1201.74(a) to insert corrected citations to 1201.73.
    Sec.  1201.112(a)(4)--The amendment to this subparagraph was 
intended to make clear that a judge's authority to vacate an initial 
decision to accept a settlement agreement into the record extended to a 
situation where the settlement agreement was filed by the parties prior 
to the deadline for filing a petition for review but not received by 
the judge until after the date when the initial decision would become 
the Board's final decision. However, the language employed in this 
amendment can be read as limiting a judge's authority to vacate an 
initial decision in order to accept a settlement into the record to an 
instance where the settlement agreement was filed by the parties prior 
to the deadline for filing a petition for review and not received by 
the MSPB until after the initial decision became final. This was not 
the Board's intent. This subparagraph has thus been amended to make 
clear that an administrative judge may vacate an initial decision in 
order to accept into the record a settlement agreement that is filed 
prior to the deadline for filing a petition for review, and that the 
judge has the authority to act even if the settlement agreement is not 
received until after the date when the initial decision becomes final 
under Sec.  1201.113 of this part.
    Sec.  1201.114(k)--The final sentence in this regulatory provision 
states that ``[o]nce the record closes, no additional evidence or 
argument will be accepted unless the party submitting it shows that the 
evidence was not readily available before the record closed.'' To 
ensure the greatest possible clarity, the MSPB believes that this 
sentence should be modified to note the requirement that new evidence 
and argument must be material as defined in 1201.115(d). The MSPB also 
has amended the final sentence to make clear that it applies to 
evidence ``or argument'' that was not readily available before the 
record closed.
    Sec.  1208.22(c)--This regulatory provision is amended to correct a 
drafting error that inadvertently identified a 60-day deadline for 
filing a Veterans Employment Opportunities Act of 1998 (VEOA) appeal. 
The applicable filing deadline is 15 days. 5 U.S.C. 3330a(d)(1)(B).
    The amendments contained in this final rule are intended to correct 
minor non-substantive drafting errors that were inadvertently 
introduced into MSPB's regulations during the Board's recent 
comprehensive revision of its adjudicatory regulations. The MSPB is 
foregoing the use of notice and comment rulemaking and is instead 
publishing these amendments in a final rule.
    The rulemaking process must involve the notice-and-comment 
procedures outlined in the Administrative Procedure Act (APA) unless 
the proposed rule falls into the category of an interpretative rule, 
general statement of policy, or rule of agency organization, procedure, 
or practice. 5 U.S.C. 553(b)(3)(A). Three of the minor changes 
contained in this final rule address MSPB procedures and practices for 
the conduct of discovery, the filing of petitions for review, and the 
authority granted to a judge to reopen an initial decision. The 
remaining amendment merely corrects a typographical error in a 
regulation discussing the extraordinary circumstances under which the 
doctrine of equitable estoppel may apply to an untimely filed VEOA 
appeal. Accordingly, pursuant to 5 U.S.C. 553(b)(3)(A), MSPB may 
proceed without following the APA's notice and comment procedures.
    In addition, an exemption from notice and comment rulemaking 
requirements exists under 5 U.S.C. 553(b)(3)(B) where an ``agency for 
good cause finds (and incorporates the finding and a brief statement of 
reasons therefor in the rules issued) that notice and public procedure 
thereon are impracticable, unnecessary, or contrary to the public 
interest.'' The ``unnecessary'' prong of the agency's good cause 
inquiry is ``confined to those situations in which the administrative 
rule is a routine determination, insignificant in nature and impact, 
and inconsequential to the industry and to the public.'' Mack Trucks, 
Inc. v. Environmental Protection Agency, 682 F.3d 87, 94 (DC Cir. 2012) 
(citation omitted). Here, the amendments contained in the final rule 
are insignificant and amount to little more than routine technical 
corrections to a 25-page final rule that became effective on November 
13, 2012. Accordingly, MSPB finds that its decision to exempt the 
regulatory changes set forth herein from notice and comment rulemaking 
requirements is supported by good cause in that the amendments 
contained herein are routine determinations, insignificant in

[[Page 23458]]

nature and impact, and inconsequential to federal employees and the 
public.
    Finally, MSPB also elects to make the amendments set forth herein 
effective immediately upon publication of this final rule. Under 5 
U.S.C. 553(d)(3), ``the required publication or service of a 
substantive rule shall be made not less than 30 days before its 
effective date, except * * * as otherwise provided by the agency for 
good cause found and published with the rule.'' For the reasons 
identified above, and in light of the importance of promptly removing 
and correcting any inconsistent, incorrect, and confusing material 
inadvertently introduced into MSPB's adjudicatory regulations, the 
Board finds that good cause exists to waive the 30-day publication 
requirement.

List of Subjects in 5 CFR Parts 1201 and 1208

    Administrative practice and procedure, Government employees.

    Accordingly, for the reasons set forth in the preamble, the Board 
amends 5 CFR parts 1201 and 1208 as follows:

PART 1201--PRACTICES AND PROCEDURES

0
1. The authority citation for 5 CFR 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. In Sec.  1201.74, revise paragraph (a) to read as follows:


Sec.  1201.74  Orders for discovery.

    (a) Motion for an order compelling discovery. Motions for orders 
compelling discovery and motions for the appearance of nonparties must 
be filed with the judge in accordance with Sec.  1201.73(c)(1) and 
(d)(3). An administrative judge may deny a motion to compel discovery 
if a party fails to comply with the requirements of 5 CFR 1201.73(c)(1) 
and (d)(3).
* * * * *

0
3. In Sec.  1201.112, revise paragraph (a)(4) to read as follows:


Sec.  1201.112  Jurisdiction of judge.

    (a) * * *
    (4) Vacate an initial decision to accept into the record a 
settlement agreement that is filed prior to the deadline for filing a 
petition for review, even if the settlement agreement is not received 
until after the date when the initial decision becomes final under 
Sec.  1201.113 of this part.
* * * * *

0
4. In Sec.  1201.114, revise paragraph (k) to read as follows:


Sec.  1201.114  Petition and cross petition for review--content and 
procedure.

* * * * *
    (k) Closing the record. The record closes on expiration of the 
period for filing the reply to the response to the petition for review 
or on expiration of the period for filing a response to the cross 
petition for review, whichever is later, or to the brief on 
intervention, if any, or on any other date the Board sets for this 
purpose. Once the record closes, no additional evidence or argument 
will be accepted unless it is new and material as defined in Sec.  
1201.115(d) and the party submitting it shows that the evidence or 
argument was not readily available before the record closed.
* * * * *

PART 1208--PRACTICES AND PROCEDURES FOR APPEALS UNDER THE UNIFORMED 
SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND THE VETERANS 
EMPLOYMENT OPPORTUNITIES ACT

0
5. The authority citation for 5 CFR part 1208 continues to read as 
follows:

    Authority:  5 U.S.C. 1204(h), 3330a, 3330b; 38 U.S.C. 4331.


0
6. In Sec.  1208.22, revise paragraph (c) to read as follows:


Sec.  1208.22  Time of filing.

* * * * *
    (c) Equitable tolling; extension of filing deadline. In 
extraordinary circumstances, the appellant's 15-day deadline for filing 
an appeal with the MSPB is subject to the doctrine of equitable 
tolling, which permits the Board to extend the deadline where the 
appellant, despite having diligently pursued his or her rights, was 
unable to make a timely filing. Examples include cases involving 
deception or in which the appellant filed a defective pleading during 
the statutory period.

William D. Spencer,
Clerk of the Board.
[FR Doc. 2013-09223 Filed 4-18-13; 8:45 am]
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