5 CFR Parts 1200, 1201, 1203, 1208, & 1209 PROPOSED RULE COMMENTS 

Point of Contact: Carmen Livoti, DHS Office of Human Capital Policy and Programs, carmen.livoti@hq.dhs.go

PAGE Paragraph PROVISION COMMENT RECOMMENDAT

33672 1200.4 Petition for Rule Making The regulation should provide for a 

guaranteed public comment period prior to issuance of a final rule resulting from a petition under this section. 

Replace the lang(b) with the follo“There will be a prior to issuance from a petition f1200.4(a).” 

33672 1201.3(a)(

9) 

Appellate Jurisdiction—Negative Suitability Determination 

Suggest revising to accurately reflect 5 CFR 731.501(a). Clarify that MSPB has jurisdiction to review only suitability actions. 

Delete 1201.3(a“Suitability Actiotaken against an appointee. (5 CSuitability actioncancellation of ecancellation of rand debarment. 

33673 1201.14(c)

(4) 

Matters Excluded from E-filing (SSI) 

There is a need to ensure clarity of E-filing exclusions. Otherwise, there may be disputes between the parties regarding whether an agency violated this e-filing rule. In addition, it would be appropriate to note hearings containing SSI will be closed to the public. See recommended edit to section 1201.52 Public hearings 

Delete 1201.14(“File a pleading information whi“Sensitive Securthe Agency.” 

§ 1201.52 Public second sentence “However, the juhearing or any pwhen SSI or clasbe discussed, anwould be in the appellant, a witnother person affproceeding.” 

33673 1201.14(c)

(5) 

Matters Excluded from E-filing (Classified) 

See above comment regarding clarification of E-filing exclusion and apply same rationale to the Classified designation. 

Delete 1201.14(“File a pleading information whi
5 CFR Parts 1200, 1201, 1203, 1208, & 1209 PROPOSED RULE COMMENTS 

Point of Contact: Carmen Livoti, DHS Office of Human Capital Policy and Programs, carmen.livoti@hq.dhs.go

PAGE Paragraph PROVISION COMMENT RECOMMENDAT

“Classified” by t

33673 1201.24 Content of an Appeal Limiting what an Appellant must produce 

will have the effect of decreasing the speed with which agencies will be able to assess the case and provide appropriate responses to MSPB. 

Maintain establiappellant to prodocumentation. 

33674 1201.29(c) Dismissal Without Prejudice Concern regarding language indicating that 

a judge must “liberally construe” the good cause standard for failing to timely re-file an appeal. The appellant should be required to meet his burden to show good cause why he could not meet the re-filing deadline. 

Delete last sentereplace with “Wappeal must be and is refiled latwaiver for the laestablishes good filing. 

33674 1201.33(a) Federal Witnesses There is concern about which agency, the 

party or non-party federal agency is required to pay for the non-party federal employee witness’ pay and benefits. In addition, there is concern about cost impact to non-party agencies. 

Add following se1201.33(a): “As employing agenwitnesses is resppay and benefits The judge will pea non-party Fedprovide telephoat the hearing urequest.” 

33675 1201.51 Scheduling of Hearing While we appreciate MSPB being cost 

conscious, the goal should be an overall reduction in the cost to the Government, and taxpayers, as a whole. 

Recommend the paragraph 1201follows: Delete substitute the foRulings on those on a showing thwill result in lowgovernment as a 

33675 1201.53(b) Record of Proceedings 

(Transcripts) 

We don’t see anything in Chapter 77 of Title 5 which gives the MSPB the authority 

Maintain previotranscripts. 
5 CFR Parts 1200, 1201, 1203, 1208, & 1209 PROPOSED RULE COMMENTS 

Point of Contact: Carmen Livoti, DHS Office of Human Capital Policy and Programs, carmen.livoti@hq.dhs.go

PAGE Paragraph PROVISION COMMENT RECOMMENDAT

to order an Agency to pay for transcription. The burden is on the MSPB to record the hearings.  It has been our past experience that court reporters for arbitrations do not permit the parties to share one purchased copy of the transcript. CBP recommends that the regulations explicitly state that the Board will arrange for a court reporter who does not charge an additional fee when the purchaser is ordered to provide a copy of the transcript to other parties. 

Alternatively, if trecommendatioinstitutes the reto pay for transcprovided: Insert before las1201.53(b): “The a court reporter an additional fee purchased transis directed by thtranscript and pthe judge and ap

33675 1201.56 Burden and Degrees of Proof Although the fact that a judge may dismiss 

a case can be inferred, recommend stating so for purposes of clarity. 

Insert the folloJudge may dismmeeting the nostandard.”

33676 1201.73 Discovery Procedures There should be limits, subject to judicial 

discretion for expansion. 

Recommend addiscovery and iconsistent with mandated by FAdditionally, winterrogatoriesencompass bot

33677 1201.114(g

) 

Petition and Cross Petition for Review—Late Filings 

It is in the interest of government efficiency for the MSPB to issue a decision regarding whether an untimely petition for review will be considered before the Agency is 

required to submit its response to the substance of the untimely petition for review. 

Delete second p1201.114(g)(2) a“Within 10 days file a response tmotion to excusparty will be reqto the substance review or a cros
5 CFR Parts 1200, 1201, 1203, 1208, & 1209 PROPOSED RULE COMMENTS 

Point of Contact: Carmen Livoti, DHS Office of Human Capital Policy and Programs, carmen.livoti@hq.dhs.go

PAGE Paragraph PROVISION COMMENT RECOMMENDAT

within 25 days odecision grantinfiling.”