02-22460. Agency Information Collection Activities; Proposed Collection

AGENCY:

Merit Systems Protection Board.

ACTION:

Notice.

SUMMARY:

The Merit Systems Protection Board (MSPB) intends to request approval of a revised information collection from the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3506 and 3507). The currently approved information collection is the MSPB Appeal Form, Optional Form 283 (OMB Control Number 3124-0009). That form has been revised to produce the MSPB Appeal Forms Package, MSPB Form 185. At this time, the MSPB is requesting public comments on the MSPB Appeal Forms Package, which is available for review on the MSPB Web site at http://www.mspb.gov on the “What's New” page.

DATES:

Comments must be received on or before November 4, 2002.

ADDRESSES:

Submit comments to the Office of the Clerk of the Board, Merit Systems Protection Board, 1615 M St., NW., Washington, DC 20419. Because of possible mail delays, respondents are encouraged to submit comments by e-mail to [e-mail] or by facsimile transmittal to [phone].

FOR FURTHER INFORMATION CONTACT:

Office of the Clerk of the Board, 1615 M Street, NW., Washington, DC 20419; telephone [phone]; facsimile [phone]; e-mail to [e-mail]. Persons without Internet access may request a paper copy of the MSPB Appeals Forms Package from the Office of the Clerk.

SUPPLEMENTARY INFORMATION:

The current version of the MSPB Appeal Form was approved by OMB, in accordance with the requirements of the Paperwork Reduction Act, in October 1994. Since that time, the MSPB has obtained extensions of OMB approval several times; the current approval expires on December 31, 2003. (Minor revisions updating the Instructions for the Appeal Form to reflect changes in the Board's regulations were made when the form was reprinted in November 2000.)

While a number of changes were made in the October 1994 revision to update and improve the Appeal Form, it has not undergone a major revision since 1989, when it was revised to reflect enactment of the Whistleblower Protection Act (WPA). The WPA authorized a new kind of appeal—the Individual Right of Action (IRA) appeal—which a whistleblower can file with the Board after first complaining to the Office of Special Counsel and exhausting the procedures of that office. The WPA also authorized the Board to grant requests for stays of agency actions allegedly based on whistleblowing. The enactment of the WPA necessitated revisions to the Board's regulations to require the submission of information the Board needs to adjudicate whistleblower appeals and stay requests. Following the issuance of those regulations, the Appeal Form was revised to include questions asking for the required information.

Since the WPA was enacted in 1989, both the Uniformed Services Employment and Reemployment Rights Act (USERRA), in 1994, and the Veterans Employment Opportunities Act (VEOA), in 1998, have extended the Board's jurisdiction to new appealable matters. The USERRA permits a person covered by that Act to raise a claim before either the Board or the Secretary of Labor that an agency has failed or refused to provide an employment or reemployment right or benefit to which the person is entitled under the Act. The VEOA permits a preference eligible to file a complaint with the Secretary of Labor alleging that an agency has violated a law or regulation relating to veterans' preference and to subsequently file an appeal with the Board if the Secretary does not resolve the matter within 60 days. The enactment of these laws necessitated revisions to the Board's regulations to require the submission of information the Board needs to adjudicate USERRA and VEOA appeals. While the USERRA and VEOA regulations were subsequently issued, the Appeal Form has not previously been revised to include questions asking for the required information. (In the revisions to the Instructions in November 2000, certain references to USERRA and VEOA were added.)

The revised MSPB Appeal Forms Package incorporates new questions to solicit the information required for USERRA and VEOA appeals. It also adds questions related to other changes in law and regulation. It now includes questions asking whether an appellant in a mixed case is requesting compensatory damages (authorized by the Civil Rights Act of 1991) and whether an appellant in a whistleblower case is requesting consequential damages (authorized by the 1994 MSPB reauthorization Act). Reflecting an amendment to the Board's regulations, it includes a question asking whether an appellant and agency agreed to submit their dispute to an alternative dispute resolution (ADR) process before the appeal was filed.

In addition to updating the Appeal Form to reflect these changes in law and regulation, the MSPB performed a thorough review of the form to determine whether other improvements could be made. As a result, the Appeal Forms Package now includes a specific form to ask for the information needed for retirement appeals and a form in which an appellant may raise a claim that an appealed action was the result of a prohibited personnel practice. The questions in the current form dealing with reduction-in-force (RIF) actions have been deleted because the details requested by those questions are provided in the agency file. In addition, certain modifications have been made to questions in the current form, such as providing a list of the most commonly appealed personnel actions, and there has been some combining and rearranging of questions. Finally, the Appeal Forms Package includes considerably more detailed instructions to help an appellant determine whether the Board has jurisdiction over the matter being appealed and what information must be provided.

As a result of these revisions, the Appeal Forms Package now includes questions asking for information required by all of the Board's regulations governing the content of an appeal: 5 CFR 1201.24 for appeals generally, 5 CFR 1201.153 for mixed case appeals, 5 CFR 1208.13 for USERRA appeals, 5 CFR 1208.23 for VEOA appeals, and 5 CFR 1209.6 for whistleblower appeals. It also includes questions asking for the information required for whistleblower stay requests by 5 CFR 1209.9. In addition, it includes questions that allow an appellant to raise affirmative defenses as provided by 5 CFR 1201.24(b), 1201.56(b) and (c), and 1201.151. In accordance with 5 CFR 1201.3(c), it retains questions from the current form to determine whether an appellant has raised the same matter under a negotiated grievance procedure provided by a collective bargaining agreement.

Given the comprehensive nature of the additions and revisions to the current Appeal Form, the MSPB determined that it should no longer be maintained as a lengthy single form. Instead, it has been converted to a package of forms from which an appellant (or appellant's representative) can select the forms needed for the appellant's particular appeal. Each appeal will consist of at least two forms, Form 185-1 plus one other form, and many appellants will find that only those two forms are needed to file a complete appeal.

Based on FY 2001 data, about 69 percent of appeals involve appealable personnel actions. Such appeals would be filed using Forms 185-1 and 185-2. Another 26 percent of appeals involve retirement decisions or actions, which would be filed using Forms 185-1 and 185-3. In these personnel action and retirement appeals, additional appropriate forms would be attached if the appellant raises a claim of harmful procedural error, discrimination, a prohibited personnel practice, etc. The remaining 5 percent of appeals are IRA, USERRA, and VEOA appeals, which would be filed using Form 185-1 with Form 185-5, 185-7, or 185-8, respectively. The MSPB hopes that the Appeal Forms Package will prove more useful to appellants and their representatives than the current form and that it will result in more appeals being filed on the MSPB-provided forms.

The General Services Administration (GSA) removed the MSPB Appeal Form from its Standard Form (SF) and Optional Form (OF) system several years ago because of insufficient demand. Therefore, the OF number assigned by GSA to the Appeal Form has not been retained for the Appeal Forms Package. Instead, the package has been assigned an MSPB form number, 185, and the individual forms in the package are numbered sequentially as 185-1, 185-2, etc.

In revising the current Appeal Form to create the Appeal Forms Package, the MSPB's intent was both to update and improve the form and to create a template on which an electronic appeal process could be based. The Board intends to contract for the development of a web-based application (e-Appeal) based on the Appeal Forms Package. As planned, e-Appeal will go beyond simply filling in forms on-line and transmitting them electronically to the MSPB. The process will be similar to that used in popular tax preparation software, where the user answers questions posed in an interview format and those answers are then assembled into an electronic form for transmission. This approach is especially well suited to MSPB appeals because of the need to collect different kinds of information for different types of appealable matters. Just as an appellant will need to complete and submit only the paper forms in the Appeal Forms Package that apply to his or her particular appeal, so an appellant using e-Appeal will be presented only with the questions that apply to his or her appeal.

In accordance with the requirements of the Paperwork Reduction Act of 1995, the MSPB is soliciting comments on the public reporting burden for this information collection. The reporting burden is estimated to vary from 20 minutes to one hour per response, with an average of 30 minutes, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Estimated Annual Reporting Burden

5 CFR section	Annual no. of respondents	Frequency per response	Total annual responses	Hours per response (average)	Total hours
1201, 1208, and 1209	6,300	1	6,300	.5	3,150

The estimate of 6,300 for “Annual Number of Respondents” is based on the number of appeals processed by the Board in FY 2001. It should be noted, however, that not all appellants choose to use the MSPB-provided form to file their appeals, so this number represents that maximum number of respondents, assuming that every appellant uses the forms in the Appeal Forms Package. The estimate for “Hours per Response (average)” recognizes that most appellants will need to complete only a few (minimum, two) of the forms in the package.

In addition, the MSPB invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of MSPB's functions, including whether the information will have practical utility; (2) the accuracy of MSPB's estimate of burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.

Dated: August 28, 2002.

Shannon McCarthy,

Deputy Clerk of the Board.