[Federal Register Volume 78, Number 70 (Thursday, April 11, 2013)]
[Rules and Regulations]
[Pages 21517-21518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-08503]
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MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1201
Practices and Procedures
AGENCY: Merit Systems Protection Board.
ACTION: Interim final rule.
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SUMMARY: The Merit Systems Protection Board (MSPB or Board) hereby
amends its rules of practice and procedure to allow federal agencies,
when issuing a decision notice to an employee on a matter that is
appealable to MSPB, to satisfy the obligation to provide a copy of the
MSPB appeal form (MSPB Form 185) to an employee by providing the
employee with access to a copy of the appeal form, i.e., in paper or
electronic form.
DATES: This interim final rule is effective on April 11, 2013. Submit
written comments concerning this interim final rule on or before May
13, 2013.
ADDRESSES: Submit your comments concerning this interim final rule by
one of the following methods and in accordance with the relevant
instructions:
Email: Comments submitted by email should be addressed to
[email protected] and can be contained in the body of the email or as an
attachment in any common electronic format, including word processing
applications, HTML or PDF. Commenters are asked to use a text format
and not an image format for attachments. The email should contain a
subject line indicating that the submission contains comments on MSPB's
interim final rule. The MSPB asks that parties use email to submit
comments if possible;
Fax: Comments submitted by fax should be sent to (202) 653-7130.
Faxes should be addressed to William D. Spencer and contain a subject
line indicating that the submission contains comments concerning MSPB's
interim final rule;
Mail or other commercial delivery: Mailed submissions should be
addressed to William D. Spencer, Clerk of the Board, Merit Systems
Protection Board, 1615 M Street NW., Washington, DC 20419;
Hand delivery or courier: Hand-delivered submissions should be
addressed to William D. Spencer, Clerk of the Board, Merit Systems
Protection Board, 1615 M Street NW., Washington, DC 20419, and
delivered to the 5th floor reception window at this street address.
Such deliveries are only accepted Monday through Friday, 9:00 a.m. to
4:30 p.m., excluding federal holidays.
Instructions: As noted above, MSPB requests that commenters use
email to submit comments, if possible. All comments received will be
included in the public docket without change and will be made available
online at the Board's Web site (http://www.mspb.gov), including any
personal information provided, unless the comment includes information
claimed to be Confidential Business Information or other information
whose disclosure is restricted by law. Those desiring to submit
anonymous comments must submit comments in a manner that does not
reveal the commenter's identity, include a statement that the comment
is being submitted anonymously, and include no personally-identifiable
information. The email address of a commenter who chooses to submit
comments using email will not be disclosed unless it appears in
comments attached to an email or in the body a comment.
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: This interim final rule amends 5 CFR
1201.21(c). Currently, this regulation requires that, when a federal
agency issues a decision notice to an employee on a matter that is
appealable to MSPB, the federal agency must provide the employee with
``[a] copy of the MSPB appeal form * * *'' The amendment set forth
herein will allow federal agencies to provide employees ``[a] copy, or
access to a copy, of the MSPB appeal form * * * '' This amendment will
make paragraph (c) similar to paragraph (b), which requires a federal
agency to provide the employee with ``[a] copy, or access to a copy, of
the Board's regulations'' under the same circumstances.
The initial impetus to amend this regulation arose when MSPB
realized that, under our current regulations, federal agencies that
furlough their employees as a result of the implementation of
government-wide ``sequestration'' on March 1, 2013, would be required
to distribute potentially hundreds of thousands of copies of the 9-page
MSPB appeal form to employees along with the furlough notifications.
The existing MSPB regulations were not drafted with such a situation in
mind. Moreover, widespread access by federal employees to the Internet,
electronic mail, and MSPB's electronic filing system, e-Appeal Online
(https://e-appeal.mspb.gov), ensure, in the vast majority of cases,
that the distribution of thousands of paper copies of the MSPB appeal
form by federal agencies is unnecessary.
This interim final rule is intended to avoid the costly duplication
of hundreds of thousands of paper copies of the MSPB appeal form and to
allow federal agencies to make better use of electronic means of making
documents available to employees.
The Board is further convinced that this minor amendment to its
regulations will not impose any hardship or disadvantage upon employees
who receive a decision notice regarding a matter that is appealable to
MSPB. A federal agency's obligation under 1201.21(b) and (c) to provide
access to MSPB's regulations and the MSPB appeal form must be effective
under the circumstances. For example, if a federal agency attempts to
satisfy to 1201.21(b) and (c) by providing an employee access to MSPB's
regulations and appeal form via the Internet or electronic mail and the
employee informs the agency that he or she lacks Internet access, the
agency would be required to take other steps to ensure that the
employee has actual access to these documents, including providing the
employee with a copy of these documents upon the employee's request.
Thus, the regulation, as amended, continues to ensure that all
employees subject to a final decision appealable to MSPB will have
effective access to the MSPB appeal form.
The rulemaking process must normally observe notice-and-comment
procedures outlined in the Administrative Procedure Act (APA). However,
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
good cause exception ``is to be narrowly construed and only reluctantly
countenanced.'' Mack Trucks, Inc. v. Environmental Protection Agency,
682 F.3d 87, 93 (D.C. Cir. 2012) (citations omitted).
[[Page 21518]]
Regarding the ``impracticable'' prong, the United States Court of
Appeals for the District of Columbia has held that agency action could
be sustained on this basis if it addresses an ``imminent hazard'' to
persons or property of the United States, Jifry v. FAA, 370 F.3d 1174,
1179 (D.C. Cir. 2004), or if the rule in question is of ``life-saving
importance.'' Council of the S. Mountains, Inc. v. Donovan, 653 F.2d
573, 581 (D.C. Cir. 1981). The Board does not believe that the
circumstances surrounding the publication of this interim final rule
render the use of APA notice and comment procedures impracticable.
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 (D.C. Cir. 2012)
(citation omitted). As is noted above, the amendment set forth herein
will not relieve federal agencies of the responsibility to ensure that
employees who receive notice of an action appealable to MSPB have
actual and effective access to the MSPB appeal form. Rather, the
amendment simply recognizes that a document such as the MSPB appeal
form can reliably be made available to employees via the Internet or
other means. Moreover, if a federal employee requests that he or she be
provided a copy of the document, the agency would be required to
provide it. The MSPB therefore finds that the amendment set forth
herein is sufficiently routine, insignificant in nature and
inconsequential to warrant a finding of good cause to exempt this
amendment from the normal APA notice-and-comment procedures.
The public interest prong of the good cause exception is met only
in the rare circumstance when ordinary procedures--generally presumed
to serve the public interest--would in fact harm that interest. Mack
Trucks, 682 F.3d at 95. This exception is therefore invoked when the
timing and disclosure requirements of the usual procedures would defeat
the purpose of the proposal. Id. Here, the reproduction costs this
amendment seeks to avert are significant. If, for example, 800,000
Department of Defense employees are issued furlough notices, we
estimate that the cost of giving each employee a paper copy of the MSPB
appeal form could be on the order of $720,000 (800,000 employees x 9-
page MSPB appeal form x $0.10 per page reproduction costs). Additional
costs would be imposed upon other federal agencies. Given that an
unprecedented and sizeable number of furlough notices could be issued
in the days and weeks to follow, MSPB finds that the purpose of this
amendment--saving significant needless expense in a time of severe
budgetary constraints--would be defeated if normal notice and comment
procedures were utilized. Therefore, the Board concluded that the
public interest is served by a determination to exempt this interim
final rule from the normal APA notice-and-comment procedures.
Finally, MSPB also elected to make the amendment set forth herein
effective immediately upon publication of this interim 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, MSPB further finds that good cause exists under 5
U.S.C. 553(d)(3) to waive the 30-day publication requirement and
implement this amendment immediately.
List of Subjects in 5 CFR Part 1201
Administrative practice and procedure.
Accordingly, for the reasons set forth in the preamble, the Board
amends 5 CFR part 1201 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.
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2. Revise paragraph (c) of Sec. 1201.21 to read as follows:
Sec. 1201.21 Notice of appeal rights.
* * * * *
(c) A copy, or access to a copy, of the MSPB appeal form available
at the Board's Web site (http://www.mspb.gov), and
* * * * *
William D. Spencer,
Clerk of the Board.
[FR Doc. 2013-08503 Filed 4-10-13; 8:45 am]
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