This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

82277 

Vol. 88, No. 225 

Friday, November 24, 2023 

GOVERNMENT ACCOUNTABILITY 

OFFICE 

4 CFR Part 28 

Personnel Appeals Board; Procedural 

Rules 

AGENCY: Government Accountability 

Office Personnel Appeals Board. 

ACTION: Proposed rule. 

SUMMARY: The Government 

Accountability Office Personnel 

Appeals Board (PAB or Board) proposes 

to give the PAB General Counsel 

authority to process certain retaliation 

claims that have not first undergone 

GAO’s Equal Employment Opportunity 

(EEO) process, and to hold certain 

nondiscrimination claims in abeyance if 

they are related to a claim pending in 

GAO’s EEO process. These proposed 

changes are in response to an internal 

query that brought up the need to clarify 

perceived ambiguities in the existing 

regulations. The PAB also proposes to 

update the definition of prohibited 

discrimination to be consistent with 

changes in nondiscrimination laws. In 

addition, the PAB proposes to replace 

gendered pronouns with gender-neutral 

ones to reflect current usage practices. 

The General Accounting Office 

Personnel Act of 1980 provides 

authority to make these changes. 

DATES: Comments must be received on 

or before January 23, 2024. 

ADDRESSES: Comments may be 

submitted by any of the following 

methods: 

Mail: Patricia Reardon-King, Clerk of 

the Board, Personnel Appeals Board, 

U.S. Government Accountability Office, 

Room 1566, 441 G Street NW, 

Washington, DC 20548. 

Email: pab@gao.gov. 

FOR FURTHER INFORMATION CONTACT: 

Stuart Melnick, Executive Director, 202– 

512–3836 or Kevin Wilson, Solicitor, 

202–512–7517, pab@gao.gov. 

SUPPLEMENTARY INFORMATION: GAO is 

not subject to the Administrative 

Procedure Act and accordingly the 

Personnel Appeals Board is not required 

by law to seek comments before issuing 

a final rule. However, the Board has 

decided to invite interested persons to 

participate in this rulemaking by 

submitting written comments regarding 

the proposed revisions. Application of 

the Administrative Procedure Act to the 

GAO Personnel Appeals Board is not to 

be inferred from this invitation for 

comments. 

The Board is authorized by Congress, 

pursuant to 31 U.S.C. 751–755, to hear 

and decide cases brought by GAO 

employees concerning various 

personnel matters including adverse or 

performance-based actions, claims of 

discrimination, alleged prohibited 

personnel practices, and labormanagement relations. The Board also 

exercises authority over GAO’s EEO 

process at the agency. The Board’s 

procedural regulations applicable to 

GAO appear at 4 CFR parts 27 and 28. 

The Board is proposing to revise two 

sections of these regulations to ensure 

consistency with current law and to 

address a process ambiguity in the 

current language. The Board is also 

proposing to replace gendered pronouns 

with gender-neutral pronouns. 

The Board proposes to amend section 

28.95 by specifically referencing the 

Equal Pay Act of 1963 (29 U.S.C. 

206(d)), the Genetic Information 

Nondiscrimination Act of 2008 (42 

U.S.C. 2000ff–1), and the Pregnancy 

Workers Fairness Act (42 U.S.C. 

2000gg–1) in its definition of prohibited 

EEO discrimination. The addition of the 

reference to the Equal Pay Act of 1963 

is to clarify that the prohibition on 

discrimination in wages on the basis of 

sex derives from Equal Pay Act of 1963’s 

amendment of the Fair Labor Standards 

Act of 1938 (29 U.S.C. 206(d)). 

The additions of the references to the 

Genetic Information Nondiscrimination 

Act of 2008 and the Pregnancy Workers 

Fairness Act in paragraph (e) and new 

paragraph (f) of 4 CFR 28.95 reflect 

types of discrimination that became 

prohibited on the effective dates of the 

respective statutes but had not yet been 

codified into the Board’s regulations. 

Similarly, the revision of the 

definition of prohibited discrimination 

in new paragraph (h) of 4 CFR 28.95 

includes a list of activities that may not 

form the basis for employment actions. 

Discrimination in retaliation for 

protected EEO activity became 

prohibited on the effective dates of the 

respective EEO statutes. This proposed 

revision codifies existing prohibitions 

and does not create a new cause of 

action. 

These proposed regulations also 

resolve ambiguity over when retaliation 

claims related to discrimination on one 

of the EEO-protected bases, including 

claims of retaliation under prohibited 

personnel practices laws like 5 U.S.C. 

2302(b)(9), must go through GAO’s EEO 

process pursuant to GAO Order 2713.2 

before a charge containing these claims 

can be filed with the Board’s Office of 

General Counsel and a petition 

containing them can be filed with the 

Board. Retaliation claims related to 

discrimination on one of the EEOprotected bases involving a removal, a 

suspension of more than 14 days, or a 

furlough of not more than 30 days 

would continue to have the option, 

pursuant to 4 CFR 28.98(c), of filing a 

discrimination complaint with GAO 

pursuant to GAO Order 2713.2 or 

bypassing the EEO process and filing a 

charge directly with the Board’s Office 

of General Counsel. These proposed 

revisions would clarify that other 

retaliation claims related to 

discrimination on one of the EEOprotected bases may also bypass GAO’s 

EEO process if they are not related to 

the filing or assisting with a 

discrimination complaint filed pursuant 

to GAO Order 2713.2. The Board’s 

General Counsel would be empowered 

to make a determination of whether 

retaliation claims related to 

discrimination on one of the EEOprotected bases are related to filing or 

assisting with a discrimination 

complaint filed pursuant to GAO Order 

2713.2. If the claims are related to the 

filing or assisting with a discrimination 

complaint filed pursuant to GAO Order 

2713.2, the General Counsel would 

inform the individual that they need to 

file their complaint with GAO pursuant 

to GAO Order 2713.2 before the Board’s 

Office of General Counsel is permitted 

to process their charge on these 

allegations. If the General Counsel 

determines the claims are not related to 

filing or assisting with a discrimination 

complaint pursuant to GAO Order 

2713.2, the Board’s Office of General 

Counsel would inform the individual 

that the charge containing these claims 

can be processed by the Board’s Office 

of General Counsel without delay. The 


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82278 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Proposed Rules 

purpose of giving this unreviewable 

discretion to the Board’s General 

Counsel is to give certainty to 

individuals that their claims may be 

processed immediately by the Board’s 

Office of General Counsel without fear 

of having the claims subsequently 

dismissed for failure to exhaust the 

administrative remedies contained in 

GAO Order 2713.2. 

Finally, the proposed regulations 

would allow the Board’s Office of 

General Counsel to hold in abeyance 

nondiscrimination allegations while 

related discrimination allegations are 

being pursued through GAO’s EEO 

process. Once the discrimination 

complaint resolution process concludes, 

or the individual opts out of it, both 

types of claims could then be 

investigated together. The Board’s 

General Counsel is to utilize this 

provision when the claims are so related 

that the Board’s General Counsel 

determines it would be most 

appropriate to conduct a single 

investigation into them. The Board’s 

General Counsel would have discretion 

to revisit this decision at any time and 

no longer hold a claim in abeyance. For 

purposes of 4 CFR 28.12(g), the length 

of time a claim is held in abeyance 

would count toward the 180-day period 

after which a charging party may opt out 

of the Board’s Office of General 

Counsel’s investigation and file a 

petition with the Board. The Board will 

consider all comments received on or 

before the closing date for comments. 

The Board may change the proposed 

revisions based on the comments 

received. 

List of Subjects in 4 CFR Part 28 

Administrative practice and 

procedure, Claims, Equal employment 

opportunity, Government employees. 

For the reasons stated in the 

preamble, the Government 

Accountability Office proposes to 

amend title 4, chapter I, subchapter B, 

part 28 of the Code of Federal 

Regulations as follows: 

PART 28—GOVERNMENT 

ACCOUNTABILITY OFFICE 

PERSONNEL APPEALS BOARD; 

PROCEDURES APPLICABLE TO 

CLAIMS CONCERNING EMPLOYMENT 

PRACTICES AT THE GOVERNMENT 

ACCOUNTABILITY OFFICE 

■ 1. The authority citation for part 28 

continues to read as follows: 

Authority: 31 U.S.C. 753. 

PART 28 [Amended] 

■ 2. Amend part 28 by removing the 

word or phrase indicated in the left 

column of the table from wherever it 

appears in the part and adding the word 

or phrase indicated in the right column 

in its place: 

Remove Add 

‘‘him or her’’ .............. ‘‘them’’. 

‘‘him- or herself’’ ........ ‘‘themselves’’. 

‘‘himself or herself ..... ‘‘themselves’’. 

‘‘his or her’’ ................ ‘‘their’’. 

‘‘his/her’’ .................... ‘‘their’’. 

‘‘he or she has’’ ......... ‘‘they have’’. 

‘‘he or she is’’ ............ ‘‘they are’’. 

§ 28.80 [Amended] 

■ 3. Amend § 28.80 by removing the 

words ‘‘he or she determines’’ in the 

second sentence and adding in their 

place the words ‘‘they determine’’. 

■ 4. Amend § 28.95 by: 

■ a. Revising paragraph (c); 

■ b. In paragraph (d) removing the word 

‘‘or’’ at the end of the paragraph; and 

■ c. Redesignate paragraph (e) as 

paragraph (g); and adding a new 

paragraph (e) and paragraphs (f) and (h). 

The revision and additions read as 

follows: 

§ 28.95 Purpose and scope. 

* * * * * 

(c) Section 6(d) of the Fair Labor 

Standard Act of 1938 as amended by the 

Equal Pay Act of 1963 (29 U.S.C. 

206(d)), prohibiting discrimination in 

wages on the basis of sex; 

* * * * * 

(e) Section 202 of the Genetic 

Information Nondiscrimination Act of 

2008 (42 U.S.C. 2000ff–1), prohibiting 

discrimination on the basis of genetic 

information; 

(f) Section 103 of the Pregnant 

Workers Fairness Act (42 U.S.C. 

2000gg–1), prohibiting discrimination 

on the basis of pregnancy, childbirth or 

related medical conditions; or 

* * * * * 

(h) Prohibited discrimination also 

includes any employment action taken 

against an employee or applicant for 

employment for opposing any unlawful 

employment practice, or for 

participating in any manner in an 

investigation, hearing, or in any stage of 

an administrative or judicial 

proceeding, under any of the statutes or 

laws identified in paragraphs (a) 

through (g) of this section. 

■ 5. Amend § 28.98 by: 

■ a. Revising paragraphs (a), (b) 

introductory text, (b)(1) and (2); 

■ b. Revising the paragraph (c) heading; 

■ c. Adding the words ‘‘Office of’’ 

between the words ‘‘Board’s’’ and 

‘‘General’’ in paragraph (c)(1); 

■ d. Revising the second, third, and 

fourth sentences of paragraph (c)(2) and 

revising paragraph (d); 

■ e. Redesignating paragraph (e) as 

paragraph (f) and adding a new 

paragraph (e); and 

■ f. Adding a heading to newly 

redesignated paragraph (f) and adding 

paragraph (f)(3). 

The revisions and additions read as 

follows: 

§ 28.98 Individual charges in EEO cases. 

(a) General rule for filing EEO claims. 

Except as provided in paragraphs (c) 

and (e) of this section, an employee or 

applicant alleging prohibited 

discrimination (as defined in § 28.95) 

must first file a complaint with GAO in 

accordance with GAO Order 2713.2 and 

may not file directly with the Board’s 

Office of General Counsel. 

(b) Time limits to file EEO claims with 

PAB/OGC. After GAO processes a 

complaint in accordance with GAO 

Order 2713.2, an employee or applicant 

for employment may file an individual 

EEO charge with the Board’s General 

Counsel as follows: 

(1) Within 30 days from the receipt by 

the charging party of a GAO decision 

rejecting the complaint in whole or part; 

or 

(2) Whenever a period of more than 

120 days has elapsed since the 

complaint was filed, and a final GAO 

decision has not been issued; or 

* * * * * 

(c) Special rules for adverse and 

performance-based actions. * * * 

(2) * * * If the employee elects to file 

a complaint of discrimination with 

GAO, they may still seek Board review 

of the matter by filing a charge with the 

Board’s Office of General Counsel at the 

times authorized in paragraph (b) of this 

section. Where a discrimination 

complaint filed with GAO relates to one 

or more non-EEO issues that are within 

the Board’s jurisdiction in addition to 

an EEO-related allegation, the 

subsequent charge filed with the Board’s 

Office of General Counsel under 

paragraph (b) of this section shall be 

considered a timely appeal of the nonEEO issue(s). An employee will be 

deemed to have elected the EEO 

complaint process if they file a timely 

written complaint of discrimination 

with GAO before filing a charge with the 

Board’s Office of General Counsel. 

* * * 

(d) Special rules for RIF-based 

actions. An individual alleging 

discrimination issues in connection 

with a RIF-based separation may follow 


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Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Proposed Rules 82279 

the procedures outlined above in 

paragraph (c) of this section for adverse 

and performance-based actions, or may 

choose instead a third option. In 

accordance with the provisions of 

§ 28.13, such an individual may 

challenge that action by filing directly 

with the PAB, thus bypassing both the 

Office of Opportunity and Inclusiveness 

and the Board’s Office of General 

Counsel. 

(e) Special rules in certain retaliation 

actions. (1) Except as outlined in 

paragraph (c) of this section, whenever 

a charging party raises a claim of 

retaliation that could be raised under 

§ 28.95(h), including the prohibited 

personnel practices listed in 5 U.S.C. 

2302(b)(9), and that claim has not 

already been filed pursuant to GAO 

Order 2713.2, the Board’s General 

Counsel has authority to, and shall 

determine whether the claim relates to 

retaliation for filing or assisting with a 

discrimination complaint filed pursuant 

to GAO Order 2713.2. The General 

Counsel’s determination shall not be 

reviewable. 

(i) If the General Counsel determines 

the claim as described in this paragraph 

(e)(1) relates to retaliation for filing or 

assisting with a discrimination 

complaint filed pursuant to GAO Order 

2713.2, the Board’s Office of General 

Counsel shall instruct the charging party 

to file the claim as a complaint of 

discrimination pursuant to GAO Order 

2713.2. 

(ii) If the General Counsel determines 

the claim as described in this paragraph 

(e)(1) does not relate to retaliation for 

filing or assisting with a discrimination 

complaint pursuant to GAO Order 

2713.2, the Board’s Office of General 

Counsel shall investigate the claim in 

accordance with § 28.12. 

(2) A charging party who files a claim 

that could be raised under § 28.95(g) 

may bring the retaliation claim both as 

a complaint of discrimination under 

§ 28.95 and as a prohibited personnel 

practice under 5 U.S.C. 2302(b)(9). 

(f) Claims related to EEO matters 

pending with EEO. * * * 

(3) Where the Board’s General 

Counsel concludes that one or more 

claims is sufficiently related to a 

discrimination complaint filed by the 

same claimant pursuant to GAO Order 

2713.2 and that it would be appropriate 

to investigate all claims together, the 

Board’s Office of General Counsel may 

hold the related claim(s) in abeyance 

until the Board’s General Counsel 

receives a charge pursuant to paragraph 

(b) of this section with respect to the 

formal discrimination complaint or 

makes a determination that the 

investigation should resume. 

Julia Akins Clark, 

Chair, Personnel Appeals Board, U.S. 

Government Accountability Office. 

[FR Doc. 2023–25647 Filed 11–22–23; 8:45 am] 

BILLING CODE 1610–02–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2023–2227; Project 

Identifier AD–2022–00113–T] 

RIN 2120–AA64 

Airworthiness Directives; The Boeing 

Company Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The FAA proposes to adopt a 

new airworthiness directive (AD) for 

certain The Boeing Company Model 

787–8, 787–9, and 787–10 airplanes. 

This proposed AD was prompted by 

incidents related to throttle 

malfunctions during a balked landing 

with the auto-throttle (A/T) engaged, 

potential erroneous readings from the 

low range radio altimeter (LRRA), and 

possible deficiencies in low airspeed 

protections and crew alerting systems. 

This proposed AD would require 

updating the thrust management (TM) 

and displays and crew alerting (DCA) 

operational program software (OPS). 

The FAA is proposing this AD to 

address the unsafe conditions on these 

products. 

DATES: The FAA must receive comments 

on this proposed AD by January 8, 2024. 

ADDRESSES: You may send comments, 

using the procedures found in 14 CFR 

11.43 and 11.45, by any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

regulations.gov. Follow the instructions 

for submitting comments. 

• Fax: 202–493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590. 

• Hand Delivery: Deliver to Mail 

address above between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

AD Docket: You may examine the AD 

docket at regulations.gov under Docket 

No. FAA–2023–2227; or in person at 

Docket Operations between 9 a.m. and 

5 p.m., Monday through Friday, except 

Federal holidays. The AD docket 

contains this NPRM, any comments 

received, and other information. The 

street address for Docket Operations is 

listed above. 

Material Incorporated by Reference: 

• For service information identified 

in this NPRM, contact Boeing 

Commercial Airplanes, Attention: 

Contractual & Data Services (C&DS), 

2600 Westminster Blvd., MC 110–SK57, 

Seal Beach, CA 90740–5600; telephone 

562–797–1717; website 

myboeingfleet.com. 

• You may view this service 

information at the FAA, Airworthiness 

Products Section, Operational Safety 

Branch, 2200 South 216th St., Des 

Moines, WA. For information on the 

availability of this material at the FAA, 

call 206–231–3195. It is also available at 

regulations.gov by searching for and 

locating Docket No. FAA–2023–2227. 

FOR FURTHER INFORMATION CONTACT: 

Doug Tsuji, Aviation Safety Engineer, 

FAA, 2200 South 216th St., Des Moines, 

WA 98198; telephone: 206–231–3548; 

email: Douglas.Tsuji@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

The FAA invites you to send any 

written relevant data, views, or 

arguments about this proposal. Send 

your comments to an address listed 

under ADDRESSES. Include ‘‘Docket No. 

FAA–2023–2227; Project Identifier AD– 

2022–00113–T’’ at the beginning of your 

comments. The most helpful comments 

reference a specific portion of the 

proposal, explain the reason for any 

recommended change, and include 

supporting data. The FAA will consider 

all comments received by the closing 

date and may amend this proposal 

because of those comments. 

Except for Confidential Business 

Information (CBI) as described in the 

following paragraph, and other 

information as described in 14 CFR 

11.35, the FAA will post all comments 

received, without change, to 

regulations.gov, including any personal 

information you provide. The agency 

will also post a report summarizing each 

substantive verbal contact received 

about this NPRM. 

Confidential Business Information 

CBI is commercial or financial 

information that is both customarily and 

actually treated as private by its owner. 

Under the Freedom of Information Act 

(FOIA) (5 U.S.C. 552), CBI is exempt 

from public disclosure. If your 

comments responsive to this NPRM 


ddrumheller on DSK120RN23PROD with PROPOSALS1