[Federal Register Volume 89, Number 25 (Tuesday, February 6, 2024)]
[Proposed Rules]
[Pages 8083-8084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02528]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 89, No. 25 / Tuesday, February 6, 2024 / 
Proposed Rules  

[[Page 8083]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Appellate Jurisdiction Update

AGENCY: Merit Systems Protection Board.

ACTION: Proposed rule.

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

SUMMARY: This proposed rule updates the list of sources from which the 
Merit Systems Protection Board (MSPB) derives appellate jurisdiction.

DATES: Comments must be received on or before March 7, 2024.

ADDRESSES: Submit comments by using only one of the following methods:
    Email: [email protected]. Include ``Proposed Rule--Appellate 
Jurisdiction'' in the subject line of the email.
    Fax: (202) 653-7130.
    Mail or other commercial delivery: Jennifer Everling, Deputy Clerk 
of the Board, Merit Systems Protection Board, 1615 M Street NW, 
Washington, DC 20419.
    Instructions: All comments must reference ``Proposed Rule--
Appellate Jurisdiction.'' Regardless of the method used for submitting 
comments or material, all submissions will be posted, without change, 
to MSPB's website (www.mspb.gov) and will include any personal 
information you provide. Therefore, submitting this information makes 
it public.
    To ensure that your comments will be considered, you must submit 
them within the specified open comment period. Before finalizing this 
proposed rule, MSPB will consider all comments within the scope of the 
regulation received on or before the closing date for comments. MSPB 
may make changes to the final rule after considering the comments 
received.

FOR FURTHER INFORMATION CONTACT: Jennifer Everling, Deputy 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: 

I. Background

    The Civil Service Reform Act grants the MSPB jurisdiction to hear 
appeals of any action made appealable to the MSPB under law, rule, or 
regulation. 5 U.S.C. 7701(a). For the ease of the MSPB's stakeholders, 
the MSPB's regulation at 5 CFR 1201.3 contains a list of the types of 
appeals the MSPB has been granted to hear.
    On September 18, 2023, the Office of Personnel Management (OPM) 
proposed to create 5 CFR 302.603, which would give certain Federal 
employees moved into the excepted service, or moved between schedules 
in the excepted service, the ability to appeal any loss of appeal 
rights stemming from that move to the MSPB. The MSPB thus proposes to 
amend its list of appealable actions to reflect the new appeal right 
granted by the new 5 CFR 302.603.
    The MSPB notes that, should OPM modify the language of the proposed 
5 CFR 302.603 in its final rule, the MSPB would similarly amend its 
final version of 5 CFR 1201.3 if necessary to adjust for OPM's 
modification to ensure that MSPB's final rule is coextensive with the 
appeal right granted by OPM.

II. Scope of Comments Requested

    The MSPB asks commenters to provide their view on the regulatory 
amendment proposed by MSPB.

III. Summary of Changes

Section 1201.3 Appellate Jurisdiction

    The proposed amendment adds the new appeal right created in the 
proposed 5 CFR 302.603 to the currently existing list of appealable 
actions identified in Sec.  1201.3(a).

IV. Procedural Requirements

A. Regulatory Impact Analysis: Executive Order 12866

    The MSPB has examined the impact of this rulemaking as required by 
Executive Orders 12866, 13563, and 14094, which direct agencies to 
assess all costs and benefits of available regulatory alternatives and, 
if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public, health, and safety effects, distributive impacts, and equity). 
A regulatory impact analysis must be prepared for major rules with 
effects of $200 million or more in any one year. This rulemaking does 
not reach that threshold but has otherwise been designated as a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866, as supplemented by Executive Orders 13563 and 14094.

B. Regulatory Flexibility Act

    The MSPB certifies that this rulemaking will not have a significant 
economic impact on a substantial number of small entities because OPM's 
proposed rule will apply only to Federal agencies and employees, and 
the MSPB's proposed rule does not in itself effect any change, but only 
reflects OPM's addition to MSPB's jurisdiction.

C. Paperwork Reduction Act

    This document does not contain information collection requirements 
subject to the Paperwork Reduction Act of 1995, Public Law 104-13 (44 
U.S.C. Chapter 35).

D. Executive Order 13132, Federalism

    This regulation will not have substantial direct effect on the 
States, on the relationship between the National Government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132 (Aug. 10, 1999), it is determined that this proposed rule 
does not have sufficient federalism implications to warrant preparation 
of a Federalism Assessment.

E. Executive Order 12988, Civil Justice Reform

    This regulation meets the applicable standards set forth in section 
3(a) and (b)(2) of Executive Order 12988 (Feb. 7, 1996).

F. Unfunded Mandates Reform Act of 1995

    This rulemaking will not result in the expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector, of 
more than $100 million annually. Thus, no written assessment of 
unfunded mandates is required.

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Civil rights, Government 
employees.


[[Page 8084]]


    For the reasons set forth above, 5 CFR part 1201 is proposed to be 
amended as follows:

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 1201.3 is amended by adding paragraph (a)(12) to read as 
follows:


Sec.  1201.3  Appellate jurisdiction.

    (a) * * *
    (12) Service or schedule changes. Movement of an employee from the 
competitive service to the excepted service, or from one schedule in 
the excepted service to a different schedule in the excepted service, 
when such a move would strip the employee of any status or civil 
service protections they had already accrued.
* * * * *

Jennifer Everling,
Deputy Clerk of the Board.
[FR Doc. 2024-02528 Filed 2-2-24; 5:00 pm]
BILLING CODE 7400-01-P