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###### Merit Systems Protection Board

          - 5 CFR Parts 1201 and 1210 

# AGENCY:

Merit Systems Protection Board. 

# ACTION:

Final rule. 

# SUMMARY:

The Merit Systems Protection Board (“MSPB”) has decided to remove its DHS-specific regulations that concern the processing and adjudication of appeals filed under the DHS Human Resources Management System to conform with Department of Homeland Security regulations. 

# DATES:

This rule is effective on March 4, 2009. 

# FOR FURTHER INFORMATION CONTACT:

                        William D. Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419; (202) 653-7200, fax: (202) 653-7130 or e-mail:                         *mspb@mspb.gov*.                     

# SUPPLEMENTARY INFORMATION:

On February 1, 2005, the Department of Homeland Security (DHS) and the Office of Personnel Management (OPM) jointly issued final regulations at 5 CFR Part 9701 establishing the DHS Human Resources Management System. 70 FR 5272. Thereafter, pursuant to 5 CFR 9701.102(b)(2), DHS phased in coverage to certain employees under Subpart F (Adverse Actions) and G (Appeals). 

On October 5, 2007, MSPB published an interim rule revising its regulations to clarify the procedures applicable to MSPB processing and adjudication of cases arising under Subparts F and G of the DHS Human Resources Management System. 72 FR 56883. Thereafter, on April 18, 2008, the MSPB published a final rule further revising its regulations applicable to the processing and adjudication of such cases. 73 FR 21019. 

Effective October 1, 2008, the DHS rescinded application of 5 CFR 9701, Subparts A-G, of the DHS Human Resources Management System. 73 FR 58435. DHS took this action pursuant to the Consolidated Security, Disaster Assistance and Continuing Appropriations Act, 2009, Public Law 110-329 (2008) (the “FY 09 DHS Appropriations Act”), which barred DHS from using funds appropriated in this act or any other appropriations act for the development, testing, deployment, or operation of any portion of the DHS personnel system. 

As a result of DHS's rescission of the application of Subparts F and G, the MSPB has decided to amend its regulations by removing all regulations that are specific to Subparts F and G of the DHS Human Resources Management System. The Board considered staying these regulations, but determined that removing the regulations is appropriate in order to ensure that DHS employees are not confused concerning which regulations apply. In addition, staying the DHS-specific regulations was problematic because DHS-specific rules are contained in numerous places within 5 CFR 1201, the Board's generally applicable practices and procedures. As a result, the Board is removing all DHS-specific rules from its regulations pending future developments with regard to the DHS Human Resources Management System. 

# List of Subjects in 5 CFR Parts 1201 and 1210

      - Administrative practice and procedure
      - Government employees

Accordingly, under the authority at 5 U.S.C. 1204(h), the Board amends 5 CFR Chapter II as follows: 

# PART 1201—[AMENDED] 

1. The authority citation for part 1201 continues to read as follows: 

Authority:5 U.S.C. 1204 and 7701, unless otherwise noted. 

2. Section 1201.3 is amended by removing paragraphs (a)(21) and (b)(3) and revising paragraphs (a)(19) and (a)(20) as follows: 

§ 1201.3 

* * * * *

(a) * * * 

(19) Employment practices administered by the Office of Personnel Management to examine and evaluate the qualifications of applicants for appointment in the competitive service (5 CFR 300.104); and 

(20) Reduction-in-force action affecting a career or career candidate appointee in the Foreign Service (22 U.S.C. 4011). 

* * * * *

3. Section 1201.11 is revised to read as follows: 

§ 1201.11 

The regulations in this subpart apply to Board appellate proceedings except as otherwise provided in § 1201.13. The regulations in this subpart apply also to appellate proceedings and stay requests covered by part 1209 unless other specific provisions are made in that part. These regulations also apply to original jurisdiction proceedings of the Board except as otherwise provided in subpart D. It is the Board's policy that these rules will be applied in a manner that expedites the processing of each case. It is the Board's policy that these rules will be applied in a manner that ensures the fair and efficient processing of each case. 

4. Section 1201.21 is revised to read as follows: 

§ 1201.21 

When an agency issues a decision notice to an employee on a matter that is appealable to the Board, the agency must provide the employee with the following: 

(a) Notice of the time limits for appealing to the Board, the requirements of § 1201.22(c), and the address of the appropriate Board office for filing the appeal; 

(b) A copy, or access to a copy, of the Board's regulations; 

                            (c) A copy of the MSPB appeal form available at the Board's Web site (                            *http://www.mspb.gov*), and                         

(d) Notice of any right the employee has to file a grievance, including: 

(1) Whether the election of any applicable grievance procedure will result in waiver of the employee's right to file an appeal with the Board; 

                            (2) Whether both an appeal to the Board and a grievance may be filed on the same matter and, if so, the circumstances under which proceeding with one will preclude proceeding with                                   ( print page 9344)                                the other, and specific notice that filing a grievance will not extend the time limit for filing an appeal with the Board; and                         

(3) Whether there is any right to request Board review of a final decision on a grievance in accordance with § 1201.154(d). 

5. Section 1201.22 is amended by revising paragraph (b)(2) to read as follows: 

§ 1201.22 

(b) * * * 

(2) The time limit prescribed by paragraph (b)(1) of this section for filing an appeal does not apply where a law or regulation establishes a different time limit or where there is no applicable time limit. No time limit applies to appeals under the Uniformed Services Employment and Reemployment Rights Act (Pub. L. 103-353), as amended; see part 1208 of this title. See part 1208 of this title for the statutory filing time limits applicable to appeals under the Veterans Employment Opportunities Act (Pub. L. 105-339). See part 1209 of this title for the statutory filing time limits applicable to whistleblower appeals and stay requests. 

* * * * *

# PART 1210—[REMOVED AND RESERVED] 

6. Part 1210 is removed and reserved. 

William D. Spencer, 

Clerk of the Board.

[FR Doc. E9-4290 Filed 3-3-09; 8:45 am] 

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