[Federal Register Volume 78, Number 70 (Thursday, April 11, 2013)]
[Rules and Regulations]
[Pages 21517-21518]
From the Federal Register Online via the Government Printing 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 
mspb@mspb.gov 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: 
mspb@mspb.gov.

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.

0
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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