80 FR 66787 - Practices and Procedures

MERIT SYSTEMS PROTECTION BOARD

Federal Register Volume 80, Issue 210 (October 30, 2015)

The Merit Systems Protection Board (MSPB or the Board) hereby amends its rules of practice and procedure to clarify that parties have a right to discovery under the MSPB's existing discovery procedures in compliance proceedings.

[Federal Register Volume 80, Number 210 (Friday, October 30, 2015)]
[Rules and Regulations]
[Pages 66787-66788]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-27652]


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MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Interim final rule.

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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) hereby 
amends its rules of practice and procedure to clarify that parties have 
a right to discovery under the MSPB's existing discovery procedures in 
compliance proceedings.

DATES: This interim final rule is effective on October 30, 2015. Submit 
written comments concerning this interim final rule on or before 
December 29, 2015.

ADDRESSES: Submit your comments concerning this interim final rule by 
one of the following methods and in accordance with the relevant 
instructions:
    Email: [email protected]. Comments submitted by email can be contained 
in the body of the email or as an attachment in any common electronic 
format, including word processing applications, HTML and PDF. If 
possible, commenters are asked to use a text format and not an image 
format for attachments. An email should contain a subject line 
indicating that the submission contains comments concerning the MSPB's 
interim final rule. The MSPB asks that commenters use email to submit 
comments if possible. Submission of comments by email will assist the 
MSPB to process comments and speed publication of a final rule.
    Fax: (202) 653-7130. Comments submitted by fax should be addressed 
to William D. Spencer and contain a subject line indicating that the 
submission contains comments concerning the MSPB's interim final rule.
    Mail or other commercial delivery: Comments submitted by mail 
should be addressed to William D. Spencer, Clerk of the Board, Merit 
Systems Protection Board, 1615 M Street NW., Washington, DC 20419.
    Hand delivery or courier: Comments submitted by hand delivery or 
courier should be addressed to William D. Spencer, Clerk of the Board, 
Merit Systems Protection Board, 1615 M Street NW., Washington, DC 
20419, and delivered to the 5th floor reception window at this street 
address. Such deliveries are only accepted Monday through Friday, 9 
a.m. to 4:30 p.m., excluding Federal holidays.
    Instructions: As noted above, the MSPB requests that commenters use 
email to submit comments, if possible. All comments received will be 
made available online at the Board's Web site, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information or other information whose 
disclosure is restricted by law. Those desiring to submit anonymous 
comments must submit comments in a manner that does not reveal the 
commenter's identity, include a statement that the comment is being 
submitted anonymously, and include no personally-identifiable 
information. The email address of a commenter who chooses to submit 
comments using email will not be disclosed unless it appears in 
comments attached to an email or in the body of a comment.

FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street NW., Washington, 
DC, 20419; phone: (202) 653-7200; fax: (202) 653-7130; or email: 
[email protected].

SUPPLEMENTARY INFORMATION: This interim final rule is necessary because 
in Bernard v. Dep't of Agric., 788 F.3d 1365, 1367-70 (Fed. Cir. 2015), 
the United States Court of Appeals for the Federal Circuit held that 
the MSPB's regulations provide no clear guarantee that parties are 
authorized to undertake discovery in enforcement proceedings. This 
interim final rule amends the MSPB's regulations to address this 
holding and make clear that the parties have a right to discovery in 
such cases under the Board's existing discovery procedures.

Amendments Made by This Interim Final Rule

    A new provision, section 1201.183(a)(9), is inserted to make clear 
that discovery may be undertaken in enforcement matters. This new 
provision makes clear that the Board's regular discovery procedures 
apply in enforcement matters and sets a deadline by which initial 
discovery requests must be filed. As in other Board cases, this 
deadline may be changed by the judge.

Justification for Use of Interim Final Rule

    Ordinarily, the Administrative Procedure Act (APA) requires an 
agency to provide notice of proposed rulemaking and a period of public 
comment before the promulgation of a new regulation. 5 U.S.C. 553(b) 
and (c). However, section 553(b) of the APA specifically provides that 
the notice and comment requirements do not apply:
    (A) To interpretative rules, general statements of policy, or rules 
of agency organization, procedure, or practice; or
    (B) when the agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest. The APA also requires 
the publication of any substantive rule at least thirty days before its 
effective date, 5 U.S.C. 553(d), except where the rule is interpretive, 
where the rule grants an exception or relieves a restriction, or ``as

[[Page 66788]]

otherwise provided by the agency for good cause found and published 
with the rule.'' Id.
    The Board finds that use of an immediately effective interim final 
rule instead of notice and comment rulemaking is appropriate here 
because the amendments contained herein merely reflect the decision of 
the Federal Circuit in Bernard and are necessary to avert any further 
confusion regarding the Board's practice and procedures governing the 
right to discovery in compliance cases. Under these circumstances, 
notice and comment rulemaking is unnecessary and not required by any 
public interest.

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure.

    Accordingly, for the reasons set forth in the preamble, the Board 
amends 5 CFR part 1201 as follows:

PART 1201--PRACTICES AND PROCEDURES

0
1. The authority citation for 5 CFR 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.


0
2. Section 1201.183 is amended by adding paragraph (a)(9) to read as 
follows:


Sec.  1201.183  Procedures for processing petitions for enforcement.

    (a) * * *
    (9) Discovery may be undertaken in accordance with the Board's 
regular discovery procedures (Sec. Sec.  1201.71 through 1201.75 of 
this part), except that unless otherwise directed by the judge, initial 
discovery requests must be served no later than 15 days after the 
alleged noncomplying party files a response to the petition for 
enforcement as required under paragraph (a)(1) of this section.
* * * * *

William D. Spencer,
Clerk of the Board.
[FR Doc. 2015-27652 Filed 10-29-15; 8:45 am]
 BILLING CODE 7400-01-P