[Federal Register Volume 76, Number 198 (Thursday, October 13, 2011)]
[Rules and Regulations]
[Pages 63537-63538]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26315]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 76, No. 198 / Thursday, October 13, 2011 /
Rules and Regulations
[[Page 63537]]
MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1201
Mandatory Electronic Filing for Agencies and Attorneys at
Washington Regional Office and Denver Field Office
AGENCY: Merit Systems Protection Board.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule informs the public that the U.S. Merit Systems
Protection Board (MSPB or Board) is launching a pilot program under
which the Washington Regional Office (WRO) and Denver Field Office
(DEFO) will require all pleadings filed by agencies and attorneys who
represent appellants in MSPB proceedings to be electronically filed (e-
filed). This requirement will apply to all pleadings except those
containing classified information or Sensitive Security Information
(SSI) in all adjudicatory proceedings before the Board. Any agency or
appellant's attorney who believes e-filing would create an undue burden
may request an exemption from the administrative judge; however,
requests will generally be considered only for pleadings that include
scanned material, for example, not documents prepared and saved in a
word processing program, and will be granted only when supported by a
specific and detailed explanation, such as when the submission of a
voluminous amount of scanned documents would create a hardship for a
party.
DATES: This rule is effective January 11, 2012.
ADDRESSES: Send or deliver comments to the Office of Clerk of the
Board, U.S. Merit Systems Protection Board, 1615 M Street, NW.,
Washington, DC 20419; (202) 653-7200; fax: (202) 653-7130; or e-mail:
mspb@mspb.gov.
FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the
Board, U.S. Merit Systems Protection Board, 1615 M Street, NW.,
Washington, DC 20419; (202) 653-7200, fax: (202) 653-7130 or e-mail:
mspb@mspb.gov.
SUPPLEMENTARY INFORMATION:
1. History of MSPB's E-Filing Initiative
On February 26, 2008, MSPB issued final regulations at 5 CFR parts
1201, 1203, 1208, and 1209 governing e-filing. 73 FR 10127. Under those
regulations, virtually any type of pleading can be filed electronically
via MSPB's electronic filing application--e-Appeal Online. This
includes the initial original appeal in matters within the Board's
original and appellate jurisdiction, as well as all subsequent
pleadings by the parties in such appeals. In addition to the pleadings
on the merits of these appeals, e-Appeal Online can be used in
subsidiary or addendum proceedings, including petitions for
enforcement, motions for attorney fee awards, motions for compensatory
or consequential damages, designations of representation, and notices
of changes to contact information. 73 FR 10129; 5 CFR 1201.14(b). These
regulations require parties and representatives who elect to e-file to
follow the instructions for e-filing at MSPB's e-Appeal Online (https://e-appeal.mspb.gov). 5 CFR 1201.14(d).
2. Benefits of MSPB's E-Filing Initiative
E-Appeal Online is more than an application for sending and
receiving pleadings in electronic form; it comprises an electronic case
file of all relevant electronic documents relating to a particular
appeal. This includes an online Repository of all documents issued by
MSPB in a particular case, such as notices, orders, decisions, and
other documents issued by MSPB to the parties, as well as pleadings
filed via e-Appeal Online. Also available in the online Repository are
pleadings filed at the petition for review stage of adjudication, even
if filed in paper form, and some pleadings filed at the regional office
level. The Repository also includes an electronic ``docket sheet'' that
lists all documents issued by MSPB to the parties, as well as all
pleadings filed by the parties, including those pleadings that are not
available for viewing and downloading in electronic form. Access to
appeal documents at the Repository is limited to the parties and
representatives of the appeals in which they were filed.
Generally, pleadings added to the Repository are full-text
searchable, including printed materials that have been converted to
electronic format by scanning. This is accomplished using optical
character recognition software that converts image-only electronic
formats into an image-plus-text electronic format. Making case-related
documents full-text searchable makes it easier for both the parties to
MSPB proceedings and MSPB itself to search case files for pertinent
materials.
Although e-Appeal Online has been valuable to both MSPB and its
customers, some benefits can only be realized when the entire case file
is available in electronic form. If only one party is e-filing, only
part of the case file will generally be available to MSPB and to the
parties in an appeal in electronic form. In these circumstances, both
MSPB employees and the parties need access to the paper case file in
order to have access to the entire record. If the entire case file were
available in electronic form, neither MSPB employees nor the parties
and their representatives would need to have access to the paper case
file in order to do their jobs. If e-filing were mandatory for agencies
and attorneys who represent appellants, scanning the remaining paper
pleadings of pro se appellants who have not taken advantage of e-filing
will become manageable, and the Board and the parties would be able to
realize the benefits of fully electronic case files.
3. Mandatory E-Filing for WRO and DEFO
In the February 26, 2008 Federal Register notice, MSPB announced
that it was giving serious consideration to mandating e-filing for
agencies and attorneys who represent appellants in MSPB proceedings,
and MSPB welcomed comments on this issue. 73 FR 10127-28.
In response to the February 26, 2008, announcement in the Federal
Register about the possibility of mandatory e-filing for agencies and
attorneys, MSPB received only one comment. The commenter acknowledged
the advantages of such a rule, but identified two disadvantages: (1)
Agencies would
[[Page 63538]]
have to upgrade their equipment to accommodate the scanning of lengthy
documents, and (2) when pro se appellants do not elect to e-file,
agencies would have the additional burden of preparing and submitting
documents in two formats, i.e., electronic and paper. E-Mail of March
25, 2008. We have considered the comment.
As to the equipment required, we recognize that some federal agency
offices may not be well-equipped to produce and upload agency files as
electronic documents. However, in light of the ever-increasing
affordability of high-quality scanners and related software, we believe
the number of offices that would be adversely affected by such a rule
would be relatively small. We note also that e-filing is already
mandatory in many state and federal courts. Nevertheless, this Interim
Rule takes the commenter's concern into account and provides for
exemptions in appropriate circumstances.
As to the commenter's concerns about the extra work that would be
entailed when appellants do not e-file, we believe those concerns are
overstated. In that event, it is true that a paper copy of the agency
file would have to be printed and mailed. It is not the case, however,
that all of the extra work traditionally involved in assembling an
agency file would still need to be done. A party that e-files a
pleading that contains three or more attachments must describe and
bookmark the attachments so that each attachment is listed in a table
of contents and bookmarked in the electronic version. 5 CFR
1201.14(g)(3). In the assembled pleading, the table of contents will
list each attachment and the page number on which it starts. This
pleading can be printed and mailed as is; there would be no need for
the agency to place physical tabs on the attachments, or to manually
create a separate table of contents. Thus, even when the appellant is
not an e-filer, we do not see a significant increase in the time
required to assemble and serve the agency file. When all parties are e-
filing, we believe that there will be a net savings of time associated
with creating and serving the agency file electronically.
Although the MSPB announced that it was considering making e-filing
mandatory for all agencies and attorneys appearing before the MSPB,
this interim rule affects only parties appearing before the WRO and the
DEFO. Except for pleadings filed with WRO and DEFO, whether to
participate in Board proceedings as an e-filer will continue to be
voluntary. We note, however, that should the pilot program in WRO and
DEFO prove to be successful, the Board would consider proposing a final
agency-wide rule that would make e-filing mandatory for agencies and
attorneys who represent appellants.
To provide time for agencies to comply with this rule, we are
setting the effective date of this new rule 90 days in the future, on
January 11, 2012. This new rule will apply only to appeals filed on or
after January 11, 2012.
List of Subjects in 5 CFR Part 1201
Administrative practice and procedure, Electronic filing.
Accordingly, MSPB amends 5 CFR part 1201 as set forth below:
PART 1201--[AMENDED]
0
1. The authority citation for part 1201 continues to read as follows:
Authority: 5 U.S.C. 1204 and 7701.
0
2. In Sec. 1201.14, add paragraph (p) to read as follows:
Sec. 1201.14 Electronic filing procedures.
* * * * *
(p)(1) Except as provided in paragraphs (p)(2) and (3) of this
section, all pleadings (including the initial appeal) except those
containing classified information or Sensitive Security Information
filed with the Washington Regional Office (WRO) and the Denver Field
Office (DEFO) by agencies or attorneys must be e-filed. Agencies and
attorneys in proceedings in the WRO and the DEFO must register as e-
filers pursuant to paragraph (e) of this section.
(2) Agencies or attorneys who believe that e-filing would create an
undue burden on their operations may request an exemption from the
administrative judge for a specific appeal and/or pleading. Such a
request shall include a specific and detailed explanation why e-filing
would create an undue burden.
(3) Except in unusual circumstances, exemptions granted under this
section shall apply only to pleadings that include scanned material.
All other pleadings except those containing classified information or
Sensitive Security Information must be e-filed. The administrative
judge may periodically revisit the need for an exemption granted under
this subsection, and revoke the exemption as appropriate.
William D. Spencer,
Clerk of the Board.
[FR Doc. 2011-26315 Filed 10-12-11; 8:45 am]
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