2024-02528. 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: [e-mail]. Include “Proposed Rule—Appellate Jurisdiction” in the subject line of the email.

Fax: [phone].

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: [phone]; fax: [phone]; or email: [e-mail].

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 § 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

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

PART 1201—PRACTICES AND PROCEDURES

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.

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

§ 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.