This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

57627

Vol. 69, No. 186

Monday, September 27, 2004

MERIT SYSTEMS PROTECTION 

BOARD 

5 CFR Parts 1201, 1203, 1208, and 1209

Interim Regulatory Changes for 

Implementation of Electronic Filing

AGENCY: Merit Systems Protection 

Board.

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Merit Systems Protection 

Board (MSPB or the Board) is amending 

the rules of practice and procedure that 

govern how participants in Board 

proceedings file and receive documents 

in electronic form. This change reflects 

an upgrade to e-Appeal, the MSPB’s 

Web-based application for electronic 

filing (e-filing). Previously, only new 

appeals could be filed via the Internet, 

with electronic filing thereafter 

restricted to using e-mail. E-filers can 

now use the e-Appeal site to file almost 

any type of pleading.

DATES: This rule is effective September 

27, 2004. Written comments should be 

submitted on or before November 29, 

2004.

ADDRESSES: Submit comments to the 

Office of the Clerk of the Board, Merit 

Systems Protection Board, 1615 M 

Street, NW., Washington, DC 20419. 

Comments may be submitted by regular 

mail to this address, by facsimile to 

(202) 653–7130, or by e-mail to 

mspb@mspb.gov.

FOR FURTHER INFORMATION CONTACT:

Timothy Korb, 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: When the 

MSPB instituted electronic filing on 

October 20, 2003 (68 FR 59859), its 

Web-based application was available 

only for the filing of new appeals. The 

only tool available to those who wanted 

to engage in e-filing thereafter was email. E-Appeal (https://eappeal.mspb.gov) has become quite 

popular over the past year, and 

presently accounts for about 10% of 

new appeals filed. By contrast, few have 

elected to engage in e-filing via e-mail. 

The Board has now upgraded e-Appeal 

so that it can accommodate virtually any 

type of pleading. Filing pleadings via eAppeal will have several advantages for 

e-filers compared to filing by e-mail: (1) 

They will have access to contextspecific Help text and links; (2) should 

they choose to do so, e-filers will have 

the option of submitting pleadings and 

attachments in the form of declarations 

made under penalty of perjury; (3) they 

can choose between entering their 

pleadings online and uploading them as 

electronic files; and (4) they will not be 

required to disclose their e-mail 

addresses to anyone except the MSPB. 

When all participants in an appeal are 

e-filers, the filing process should be 

quick and easy. The Board as well as the 

parties will receive documents on the 

same day they are sent, rather than 

having to wait for mail delivery. This 

should facilitate quicker processing, 

particularly when the proceeding is 

pending in headquarters, because letters 

addressed to Washington, D.C. are first 

sent to Ohio for irradiation. And e-filers 

will be relieved of the burden of serving 

electronic documents on other e-filers. 

Having all electronic filings go 

through the Board’s Web-based 

application will enable the Board to 

manage these electronic documents 

more effectively. Because e-Appeal is 

now integrated with the Board’s case 

management system and its document 

management system, making docket 

entries and placing pleadings into the 

appropriate electronic repository will be 

done automatically. Accordingly, the 

Board will no longer allow pleadings to 

be submitted via e-mail. 

Electronic filing at the Board includes 

the following features: 

• Documents can be submitted in any 

common electronic format, including 

word-processing and image formats 

(electronic files created by scanning 

paper documents). (1201.14(f)(2))

• E-filers will be able to submit 

‘‘hybrid’’ pleadings, in which part of a 

pleading is submitted in electronic 

form, and the rest is submitted in paper 

form. (1201.14(g)) 

• Regardless of whether it is 

uploaded or entered online, each 

pleading will be assembled into a single 

PDF document, which will include all 

electronic attachments, and which will 

be sequentially paginated. Pagination 

will enable everyone involved to make 

specific citations to the record. 

• Before submitting an electronic 

pleading, e-filers will be able to review 

and make changes to it. 

• If unable to complete a pleading 

while online, an e-filer will be able to 

save his or her work and complete it 

during a later session. 

• E-filers will be provided a 

confirmation of electronic filing, and 

will be able to print or download a copy 

of the assembled pleading as a PDF 

document. 

• Service of pleadings on other efilers will be automated. (1201.14(h)) 

• Documents issued by the Board will 

be served on e-filers as PDF documents, 

which will be sent to the e-filer’s e-mail 

address of record. (1201.14(k)) 

• When a party who is an individual 

is represented, the party and the 

representative can separately decide 

whether to register for e-filing. If only 

the representative registers for e-filing, 

the party will continue to receive 

documents by regular mail. 

(1201.14(e)(3)) 

• Although registration as an e-filer 

permits participants to file pleadings 

electronically, they may file any 

pleading, or portion of a pleading, by 

non-electronic means. (1201.14(e)(4)) 

• Registration as an e-filer can be 

withdrawn at any time, but while in 

effect the individual consents to accept 

electronic service of all documents 

issued by the Board and all pleadings 

submitted by other e-filers. 

(1201.14(e)(1), (e)(5)) 

Although numerous sections of the 

Board’s regulations required minor 

revision in light of the upgrade to eAppeal, the primary rules governing efiling can be found in § 1201.14 

(formerly 1201.5). 

Participation in electronic filing is 

entirely voluntary. As before, where 

only one party is registered as an e-filer, 

the Board will set deadlines so that 

parties filing and receiving documents 

by conventional means will have 

adequate time to prepare and file 

responses.

57628 Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 

List of Subjects 

5 CFR Part 1201

Administrative practice and 

procedure, Civil rights, Government 

employees. 

5 CFR Part 1203

Administrative practice and 

procedure, Civil rights, Government 

employees. 

5 CFR Part 1208

Administrative practice and 

procedure, Government employees, 

Veterans. 

5 CFR Part 1209

Administrative practice and 

procedure, Government employees, 

Whistleblowing.

■ Accordingly, the Board amends 5 CFR 

parts 1201, 1203, 1208, and 1209 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 1201.4 is amended by 

deleting paragraph (o), and by revising 

paragraphs (i), and (k) through (n) as 

follows:

§ 1201.4 General definitions.

* * * * *

(i) Service. The process of furnishing 

a copy of any pleading to Board 

officials, other parties, or both, by mail, 

by facsimile, by commercial or personal 

delivery, or by electronic filing (e-filing) 

in accordance with § 1201.14.

* * * * *

(k) Certificate of service. A document 

certifying that a party has served copies 

of pleadings on the other parties or, in 

the case of paper documents associated 

with electronic filings under paragraph 

(g) of § 1201.14, on the Board. 

(l) Date of filing. A document that is 

filed with a Board office by personal 

delivery is considered filed on the date 

on which the Board office receives it. 

The date of filing by facsimile is the 

date of the facsimile. The date of filing 

by mail is determined by the postmark 

date; if no legible postmark date appears 

on the mailing, the submission is 

presumed to have been mailed five days 

(excluding days on which the Board is 

closed for business) before its receipt. 

The date of filing by commercial 

delivery is the date the document was 

delivered to the commercial delivery 

service. The date of filing by e-filing is 

the date of electronic submission. 

(m) Electronic filing (e-filing). Filing 

and receiving documents in electronic 

form in proceedings within the Board’s 

appellate or original jurisdiction in 

accordance with § 1201.14. 

(n) E-filer. A party or representative 

who has registered to engage in e-filing 

under paragraph (e) of § 1201.14.

§ 1201.5 [Redesignated and revised]

■ 3. Section 1201.5 is redesignated as 

§ 1201.14, and revised to read as follows:

§ 1201.14 Electronic filing procedures. 

(a) General. This section prescribes 

the rules and procedures by which 

parties and representatives to 

proceedings within the Board’s 

appellate and original jurisdiction may 

file and receive documents in electronic 

form. 

(b) Matters subject to electronic filing.

Subject to the registration requirement 

of paragraph (e) of this section, parties 

and representatives may use electronic 

filing (e-filing) to do any of the 

following: 

(1) File any pleading, including a new 

appeal, in any matter within the Board’s 

appellate jurisdiction (§ 1201.3); 

(2) File any pleading, other than the 

original complaint or request, in any 

matter within the Board’s original 

jurisdiction (§ 1201.2); 

(3) File a petition for enforcement of 

a final Board decision (§ 1201.182); 

(4) File a motion for attorney fees as 

a prevailing party (§ 1201.203); 

(5) File a motion for compensatory or 

consequential damages (§ 1201.204); 

(6) Designate a representative, revoke 

such a designation, or change such a 

designation (§ 1201.31); or 

(7) Notify the Board of a change in 

contact information such as address 

(geographic or electronic mail) or 

telephone number. 

(c) Matters excluded from electronic 

filing. Electronic filing may not be used 

to: 

(1) File the original complaint or 

request in a matter within the Board’s 

original jurisdiction, which includes: a 

complaint filed by the Special Counsel 

seeking corrective or disciplinary action 

(§§ 1201.122, 1201.128); a request by the 

Special Counsel for the stay of certain 

personnel actions (§ 1201.134); a 

proposal to take action against an 

administrative law judge under 5 U.S.C. 

7521 (§ 1201.137); or a request for a 

hearing on a proposed removal of a 

career appointee from the Senior 

Executive Service for performance 

reasons (§ 1201.143); 

(2) File a request to hear a case as a 

class appeal or any opposition thereto 

(§ 1201.27);

(3) Serve a subpoena (§ 1201.83); or 

(4) File a pleading with the Special 

Panel (§ 1201.137). 

(d) Internet is sole venue for electronic 

filing. Following the instructions at the 

Board’s e-Appeal site (https://eappeal.mspb.gov) is the only method 

allowed for filing electronic pleadings 

with the Board. The Board will not 

accept pleadings filed by electronic 

mail. 

(e) Registration as an e-filer. (1) 

Except when filing a new appeal within 

the Board’s appellate jurisdiction 

(§ 1201.3), no party or representative 

may file an electronic pleading with the 

Board unless he or she has registered 

with the Board as an e-filer. Registration 

as an e-filer constitutes consent to 

accept electronic service of pleadings 

filed by other registered e-filers and 

documents issued by the Board. 

(2) The exclusive means for a party or 

representative to register as an e-filer 

during a Board proceeding is to follow 

the instructions at the Board’s e-Appeal 

site (https://e-appeal.mspb.gov). 

(3) When a party who is an individual 

is represented, the party and the 

representative can make separate 

determinations whether to register as an 

e-filer. For example, an appellant may 

file and receive pleadings and Board 

documents by non-electronic means, 

even though his or her representative 

has registered as an e-filer. Similarly, 

when a party has more than one 

representative, each representative has 

the choice of registering as an e-filer or 

filing and receiving pleadings and Board 

documents by non-electronic means. 

(4) A party or representative who has 

registered as an e-filer may file any 

pleading, or portion of a pleading as 

described in paragraph (g) of this 

section, by non-electronic means. 

(5) A party or representative may 

withdraw his or her registration as an efiler. Such withdrawal means that, 

effective upon the Board’s receipt of this 

withdrawal, pleadings and Board 

documents will no longer be served on 

that person in electronic form. A 

withdrawal of registration as an e-filer 

may be filed at the Board’s e-Appeal 

site, in which case service is governed 

by paragraph (h) of this section, or by 

non-electronic means, in which case 

service is governed by section 

1201.26(b) of this part. 

(f) Form of electronic pleadings—(1) 

Options for e-filing. An appellant or 

representative using e-Appeal to file a 

new appeal within the Board’s appellate 

jurisdiction (§ 1201.3) must complete 

the structured interview at the Board’s 

e-Appeal site (https://eappeal.mspb.gov). For all other 

pleadings, the e-filer has the option of 

uploading an electronic file or entering

Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 57629

the text of the pleading online. 

Regardless of the means of filing a 

particular pleading, the e-filer will be 

allowed to submit supporting 

documentation as attachments, in both 

electronic and paper form, as described 

in paragraphs (f)(2) and (f)(3) of this 

section. 

(2) Electronic formats allowed. The 

Board will accept numerous electronic 

formats, including word-processing and 

spreadsheet formats, Portable Document 

Format (PDF), and image files (files 

created by scanning). A list of formats 

allowed can be found at the Board’s eAppeal site. All electronic documents 

must be formatted so that they will print 

on standard 81⁄2 inch by 11 inch paper. 

(3) Limitation on number of electronic 

attachments. E-filers may upload up to 

three electronic files as supporting 

documentation, in addition to the 

document that constitutes the primary 

pleading. There is no limit on the 

number of non-electronic documents 

that may be submitted as attachments 

under paragraph (g) of this section. 

(g) Hybrid pleadings that include both 

electronic and paper documents. An efiler may file a hybrid pleading in which 

part of the pleading is submitted 

electronically, and part of the pleading 

consists of one or more paper 

documents filed by non-electronic 

means. If one or more parts of a hybrid 

pleading are untimely filed, the judge or 

the Clerk may reject the untimely part 

or parts while accepting timely filed 

parts of the same pleading. 

(h) Service of electronic pleadings.

The Board will serve electronic 

pleadings on other parties and 

representatives who have registered as 

e-filers. The Board’s e-Appeal 

application will notify the e-filer of all 

documents that must be served by nonelectronic means. The e-filer must 

certify that he or she will serve all such 

documents no later than the first 

business day after the electronic 

submission. 

(i) Documents requiring a signature.

An electronic document filed by a party 

who has registered as an e-filer pursuant 

to this section shall be deemed to be 

signed for purposes of any regulation in 

part 1201, 1203, 1208, or 1209 of this 

title that requires a signature. 

(j) Affidavits and Declarations made 

under penalty of perjury. Registered efilers may submit electronic pleadings 

in the form of declarations made under 

penalty of perjury under 28 U.S.C. 1746, 

as described in Appendix IV of this part. 

If the declarant is someone other than 

the e-filer, a physically signed affidavit 

or declaration should be uploaded as an 

image file, or submitted separately as a 

non-electronic document under 

paragraph (g) of this section. 

(k) Issuance of Board documents to efilers. The Board’s notices, orders, and 

decisions will be served on e-filers as 

PDF files attached to electronic mail 

messages, which will be sent to the 

electronic mail address supplied by the 

e-filer. 

(l) Date electronic documents are 

received. Pleadings and Board 

documents served electronically on 

registered e-filers are deemed received 

on the date of electronic submission or, 

if submitted on a weekend or federal 

holiday, on the first business day after 

the electronic submission. 

(m) Authority of a judge or the Clerk 

to regulate e-filing—(1) In the event that 

the Board or any party encounters 

repeated or unexplained difficulties 

filing, serving, or receiving electronic 

documents, the judge or the Clerk of the 

Board may order one or more parties to 

cease filing pleadings by e-filing, cease 

serving documents in electronic form, or 

take both these actions. In such 

instances, filing and service shall be 

undertaken in accordance with 

§ 1201.26. The authority to order the 

cessation of the use of electronic filing 

may be for a particular submission, for 

a particular time frame, or for the 

duration of the pendency of a case. 

(2) A judge or the Clerk of the Board 

may require that any document filed 

electronically be submitted in nonelectronic form and bear the written 

signature of the submitter. A party 

receiving such an order from a judge or 

the Clerk of the Board shall, within 5 

calendar days, serve on the judge or 

Clerk of the Board by regular mail, by 

facsimile, or by commercial or personal 

delivery a signed, non-electronic copy 

of the document.

■ 4. Section 1201.22 is amended by 

revising paragraphs (d) and (e), and by 

deleting paragraph (f) to read as follows:

§ 1201.22 Filing an appeal and responses 

to appeals.

* * * * *

(d) Method of filing an appeal. Filing 

of an appeal must be made with the 

appropriate Board office by commercial 

or personal delivery, by facsimile, by 

mail, or by electronic filing under 

§ 1201.14. 

(e) Filing a response. Filing of a 

response must be made with the 

appropriate Board office by commercial 

or personal delivery, by facsimile, by 

mail, or by electronic filing under 

§ 1201.14.

■ 5. Section 1201.24 is amended by 

revising paragraphs (a) introductory text, 

(a)(9), and (c) to read as follows:

§ 1201.24 Content of an appeal; right to 

hearing. 

(a) Content. Only an appellant, his or 

her designated representative, or a party 

properly substituted under § 1201.35 

may file an appeal. Appeals may be in 

any format, including letter form. An 

appeal may be filed in electronic form 

provided that the requirements of 

§ 1201.14 have been satisfied. All 

appeals must contain the following:

* * * * *

(9) The signature of the appellant or, 

if the appellant has a representative, of 

the representative. If the appeal is 

electronically filed, compliance with 

§ 1201.14 and the directions at the 

Board’s e-Appeal site (https://eappeal.mspb.gov) satisfy the signature 

requirement.

* * * * *

(c) Use of Board form or electronic 

filing. An appellant may comply with 

paragraph (a) of this section, and with 

§ 1201.31, by completing MSPB Form 

185, or by completing all requests for 

information marked as required at the eAppeal site (https://e-appeal.mspb.gov). 

MSPB Form 185 can be accessed at the 

Board’s Web site (http://

www.mspb.gov).

■ 6. Section 1201.26 is amended by 

revising paragraphs (a), (b)(2), and (c) to 

read as follows:

§ 1201.26 Number of pleadings, service, 

and response. 

(a) Number. The appellant must file 

two copies of both the appeal and all 

attachments with the appropriate Board 

office, unless the appellant files an 

appeal in electronic form under 

§ 1201.14.

* * * * *

(b)(2) Service by the parties. The 

parties must serve on each other one 

copy of each pleading, as defined by 

§ 1201.4(b), and all documents 

submitted with it, except for the appeal. 

They may do so by mail, by facsimile, 

by commercial or personal delivery, or 

by electronic filing in accordance with 

§ 1201.14. Documents and pleadings 

must be served upon each party and 

each representative. A certificate of 

service stating how and when service 

was made must accompany each 

pleading. The parties must notify the 

appropriate Board office and one 

another, in writing, of any changes in 

the names, or addresses on the service 

list. 

(c) Paper size. Pleadings and 

attachments must be filed on 81⁄2 by 11-

inch paper, except for good cause 

shown. This requirement enables the 

Board to comply with standards 

established for U.S. courts. All

57630 Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 

electronic documents must be formatted 

so that they will print on 81⁄2 by 11-inch 

paper.

■ 7. Section 1201.27 is amended by 

revising paragraph (d) to read as follows:

§ 1201.27 Class appeals.

* * * * *

(d) Electronic filing. A request to hear 

a case as a class appeal and any 

opposition thereto may not be filed in 

electronic form. Subsequent pleadings 

may be filed and served in electronic 

form, provided that the requirements of 

§ 1201.14 are satisfied.

■ 8. Section 1201.31 is amended by 

revising paragraph (a) to read as follows:

§ 1201.31 Representatives. 

(a) Procedure. A party to an appeal 

may be represented in any matter 

related to the appeal. Parties may 

designate a representative, revoke such 

a designation, and change such a 

designation in a signed submission, 

submitted as a pleading.

* * * * *

■ 9. Section 1201.114 is amended by 

revising paragraphs (c) and (h) to read as 

follows:

§ 1201.114 Filing petition and cross 

petition for review.

* * * * *

(c) Place for filing. A petition for 

review, cross petition for review, 

responses to those petitions, and all 

motions and pleadings associated with 

them must be filed with the Clerk of the 

Merit Systems Protection Board, 

Washington, DC 20419, by commercial 

or personal delivery, by facsimile, by 

mail, or by electronic filing in 

accordance with § 1201.14.

* * * * *

(h) Service. A party submitting a 

pleading must serve a copy of it on each 

party and on each representative, as 

required by paragraph (b)(2) of 

§ 1201.26.

■ 10. Section 1201.122 is amended by 

revising paragraphs (b) and (e) to read as 

follows:

§ 1201.122 Filing complaint; serving 

documents on parties.

* * * * *

(b) Initial filing and service. The 

Special Counsel must file two copies of 

the complaint, together with numbered 

and tabbed exhibits or attachments, if 

any, and a certificate of service listing 

each party or the party’s representative. 

The certificate of service must show the 

last known address, telephone number, 

and facsimile number of each party or 

representative. The Special Counsel 

must serve a copy of the complaint on 

each party or the party’s representative, 

as shown on the certificate of service. 

The initial filing in a complaint may not 

be submitted in electronic form.

* * * * *

(e) Electronic filing. All pleadings, 

other than the complaint, may be filed 

and served in electronic form at the 

Board’s e-Appeal site (https://eappeal.mspb.gov), provided the 

requirements of § 1201.14 are satisfied.

■ 11. Section 1201.128 is amended by 

revising paragraphs (b) and (e) to read as 

follows:

§ 1201.128 Filing complaint; serving 

documents on parties.

* * * * *

(b) Initial filing and service. The 

Special Counsel must file two copies of 

the complaint, together with numbered 

and tabbed exhibits or attachments, if 

any, and a certificate of service listing 

the respondent agency or the agency’s 

representative, and each person on 

whose behalf the corrective action is 

brought. The certificate of service must 

show the last known address, telephone 

number, and facsimile number of the 

agency or its representative, and each 

person on whose behalf the corrective 

action is brought. The Special Counsel 

must serve a copy of the complaint on 

the agency or its representative, and 

each person on whose behalf the 

corrective action is brought, as shown 

on the certificate of service. The initial 

filing in a complaint may not be 

submitted in electronic form.

* * * * *

(e) Electronic filing. All pleadings, 

other than the complaint, may be filed 

and served in electronic form at the 

Board’s e-Appeal site (https://eappeal.mspb.gov), provided the 

requirements of § 1201.14 are satisfied.

■ 12. Section 1201.134 is amended by 

revising paragraphs (d) and (g) to read as 

follows:

§ 1201.134 Deciding official; filing stay 

request; serving documents on parties.

* * * * *

(d) Initial filing and service. The 

Special Counsel must file two copies of 

the request, together with numbered and 

tabbed exhibits or attachments, if any, 

and a certificate of service listing the 

respondent agency or the agency’s 

representative. The certificate of service 

must show the last known address, 

telephone number, and facsimile 

number of the agency or its 

representative. The Special Counsel 

must serve a copy of the request on the 

agency or its representative, as shown 

on the certificate of service. The initial 

filing in a request for a stay may not be 

submitted in electronic form.

* * * * *

(g) Electronic filing. All pleadings, 

other than the complaint, may be filed 

and served in electronic form at the 

Board’s e-Appeal site (https://eappeal.mspb.gov), provided the 

requirements of § 1201.14 are satisfied.

■ 13. Section 1201.137 is amended by 

revising paragraphs (c) and (f) to read as 

follows:

§ 1201.137 Covered actions; filing 

complaint; serving documents on parties.

* * * * *

(c) Initial filing and service. The 

agency must file two copies of the 

complaint, together with numbered and 

tabbed exhibits or attachments, if any, 

and a certificate of service listing each 

party or the party’s representative. The 

certificate of service must show the last 

known address, telephone number, and 

facsimile number of each party or 

representative. The agency must serve a 

copy of the complaint on each party or 

the party’s representative, as shown on 

the certificate of service. The initial 

filing in a complaint may not be 

submitted in electronic form.

* * * * *

(f) Electronic filing. All pleadings, 

other than the complaint, may be filed 

and served in electronic form at the 

Board’s e-Appeal site (https://eappeal.mspb.gov), provided the 

requirements of § 1201.14 are satisfied.

■ 14. Section 1201.143 is amended by 

revising paragraphs (c) and (f) to read as 

follows:

§ 1201.143 Right to hearing; filing 

complaint; serving documents on parties.

* * * * *

(c) Initial filing and service. The 

appointee must file two copies of the 

request, together with numbered and 

tabbed exhibits or attachments, if any, 

and a certificate of service listing the 

agency proposing the appointee’s 

removal or the agency’s representative. 

The certificate of service must show the 

last known address, telephone number, 

and facsimile number of the agency or 

its representative. The appointee must 

serve a copy of the request on the 

agency or its representative, as shown 

on the certificate of service. The initial 

filing may not be submitted in 

electronic form.

* * * * *

(f) Electronic filing. All pleadings, 

other than the complaint, may be filed 

and served in electronic form at the 

Board’s e-Appeal site (https://eappeal.mspb.gov), provided the 

requirements of § 1201.14 are satisfied.

Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 57631

■ 15. Section 1201.153 is amended by 

revising paragraph (b) to read as follows:

§ 1201.153 Contents of appeal.

* * * * *

(b) Use of Board form or Internet filing 

option. An appellant may comply with 

paragraph (a) of this section by 

completing MSPB Form 185, or by 

completing all requests for information 

marked as required at the e-Appeal site 

(https://e-appeal.mspb.gov). MSPB 

Form 185 can be accessed at the Board’s 

Web site (http://www.mspb.gov).

■ 16. Section 1201.173 is amended by 

revising paragraph (k) to read as follows:

§ 1201.173 Practices and procedures of 

Special Panel.

* * * * *

(k) Electronic filing. Pleadings in 

matters before the Special Panel may 

not be filed or served in electronic form.

PART 1203—[AMENDED]

■ 17. The authority citation for part 1203 

continues to read as follows:

Authority: 5 U.S.C. 1204(a), 1204(f), and 

1204(h).

■ 18. Section 1203.13 is amended by 

revising paragraph (d) to read as follows:

§ 1203.13 Filing pleadings.

* * * * *

(d) Method and date of filing. An 

initial filing in a request for review of 

a regulation may be filed with the Office 

of the Clerk by mail, by commercial or 

personal delivery, or by facsimile. 

Pleadings, other than an initial request 

for a regulation review under this part, 

may be filed with the Office of the Clerk 

by mail, by commercial or personal 

delivery, by facsimile, or by e-filing in 

accordance with § 1201.14 of this 

chapter. If the document was submitted 

by certified mail, it is considered to 

have been filed on the mailing date. If 

it was submitted by regular mail, it is 

presumed to have been filed five days 

before the Office of the Clerk receives it, 

in the absence of evidence contradicting 

that presumption. If it was delivered 

personally, it is considered to have been 

filed on the date the Office of the Clerk 

receives it. If it was submitted by 

facsimile, the date of the facsimile is 

considered to be the filing date. If it was 

submitted by commercial delivery, the 

date of filing is the date it was delivered 

to the commercial delivery service. If it 

was submitted by e-filing, it is 

considered to have been filed on the 

date of electronic submission.

* * * * *

■ 19. Section 1203.14 is amended by 

revising paragraph (c) to read as follows:

§ 1203.14 Serving documents.

* * * * *

(c) Electronic filing. Other than the 

initial request for a regulation review, 

pleadings in a regulation review 

proceeding may be filed with the Board 

and served upon other parties by 

electronic filing, provided the 

requirements of § 1201.14 of this 

chapter are satisfied.

■ 20. Section 1203.22 is amended by 

revising paragraph (a) to read as follows:

§ 1203.22 Enforcement of order. 

(a) Any party may ask the Board to 

enforce a final order it has issued under 

this part. The request may be made by 

filing a petition for enforcement with 

the Office of the Clerk of the Board and 

by serving a copy of the petition on each 

party to the regulation review. The 

request may be filed in electronic form, 

provided the requirements of § 1201.14 

are satisfied. The petition must include 

specific reasons why the petitioning 

party believes that there has been a 

failure to comply with the Board’s 

order.

* * * * *

PART 1208—[AMENDED]

■ 21. The authority citation for part 1208 

continues to read as follows:

Authority: 5 U.S.C. 1204(h), 3330a, 3330b, 

38 U.S.C. 4331.

■ 22. Section 1208.13 is amended by 

revising paragraph (c) to read as follows:

§ 1208.13 Content of appeal; request for 

hearing.

* * * * *

(c) Electronic filing. An appeal may be 

filed electronically by using the Board’s 

e-Appeal site (https://eappeal.mspb.gov) in accordance with 

§ 1201.14 of this chapter.

■ 23. Section 1208.14 is revised to read 

as follows:

§ 1208.14 Representation by Special 

Counsel. 

The Special Counsel may represent an 

appellant in a USERRA appeal before 

the Board. A written statement (in any 

format) that the appellant submitted a 

written request to the Secretary of Labor 

that the appellant’s complaint under 38 

U.S.C. 4322(a) be referred to the Special 

Counsel for litigation before the Board, 

and that the Special Counsel has agreed 

to represent the appellant, will be 

accepted as the written designation of 

representative required by 5 CFR 

1201.31(a). The designation of 

representative may be filed by electronic 

filing, provided the requirements of 

§ 1201.14 of this chapter are satisfied.

■ 24. Section 1208.23 is amended by 

revising paragraph (c) to read as follows:

§ 1208.23 Content of appeal; request for 

hearing.

* * * * *

(c) Electronic filing. An appeal may be 

filed electronically by using the Board’s 

e-Appeal site (https://eappeal.mspb.gov) in accordance with 

§ 1201.14 of this chapter.

■ 25. Section 1208.24 is amended by 

revising paragraph (a) to read as follows:

§ 1208.24 Election to terminate MSPB 

proceeding. 

(a) Election to terminate. At any time 

beginning on the 121st day after an 

appellant files a VEOA appeal with the 

Board, if a judicially reviewable Board 

decision on the appeal has not been 

issued, the appellant may elect to 

terminate the Board proceeding as 

provided under 5 U.S.C. 3330b and file 

a civil action with an appropriate 

United States district court. Such 

election must be in writing, signed, filed 

with the Board office where the appeal 

is being processed, and served on the 

parties. The election is effective 

immediately on the date of receipt by 

the Board office where the appeal is 

being processed. The election may be 

filed by electronic filing, provided the 

requirements of § 1201.14 of this 

chapter are satisfied.

* * * * *

PART 1209—[AMENDED]

■ 26. The authority citation for part 1209 

continues to read as follows:

Authority: 5 U.S.C. 1204, 1221, 2302(b)(8), 

and 7701.

■ 27. Section 1209.6 is amended by 

revising paragraph (d) to read as follows:

§ 1209.6 Content of appeal; right to 

hearing.

* * * * *

(d) Electronic filing. An appeal may be 

filed electronically by using the Board’s 

e-Appeal site (https://eappeal.mspb.gov) in accordance with 

§ 1201.14 of this chapter.

■ 28. Section 1209.8 is amended by 

deleting paragraphs (e) and (f), and by 

revising paragraph (d) to read as follows:

§ 1209.8 Filing a request for a stay.

* * * * *

(d) Method of filing. A stay request 

must be filed with the appropriate 

Board regional or field office by mail, by 

facsimile, by commercial or personal 

delivery, or by electronic filing in 

accordance with § 1201.14 of this 

chapter.

* * * * *

57632 Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Rules and Regulations 

Dated: September 22, 2004. 

Bentley M. Roberts, Jr., 

Clerk of the Board.

[FR Doc. 04–21589 Filed 9–24–04; 8:45 am] 

BILLING CODE 7400–01–P

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. 04–038–2] 

Karnal Bunt; Regulated Areas

AGENCY: Animal and Plant Health 

Inspection Service, USDA.

ACTION: Affirmation of interim rule as 

final rule. 

SUMMARY: We are adopting as a final 

rule, without change, an interim rule 

that amended the regulations to make 

changes to the list of areas regulated 

because of Karnal bunt, a fungal disease 

of wheat. The interim rule removed 

certain areas in Arizona and Texas from 

the list of regulated areas based on our 

determination that the fields in those 

areas met our criteria for release from 

regulation. That action was necessary to 

relieve restrictions that were no longer 

warranted.

EFFECTIVE DATE: The interim rule 

became effective on May 12, 2004.

FOR FURTHER INFORMATION CONTACT: Dr. 

Matthew Royer, Senior Program 

Adviser, Pest Detection and 

Management Programs, PPQ, APHIS, 

4700 River Road Unit 26, Riverdale, MD 

20737–1236; (301) 734–7819.

SUPPLEMENTARY INFORMATION: 

Background 

In an interim rule effective May 12, 

2004, and published in the Federal 

Register on May 17, 2004 (69 FR 27821–

27823, Docket No. 04–038–1), we 

amended the regulations in ‘‘Subpart—

Karnal Bunt’’ (7 CFR 301.89–1 through 

301.89–16) by removing certain areas in 

Arizona and Texas from the list of 

quarantined areas in § 301.89–3(e). That 

action, which was based on our 

determination that the fields in these 

areas met our criteria for release from 

regulation, relieved restrictions on the 

interstate movement of regulated 

articles from those areas that were no 

longer warranted. 

Comments on the interim rule were 

required to be received on or before July 

16, 2004. We received one comment by 

that date, from a private citizen. The 

commenter stated that the interstate 

movement of all wheat from States 

containing regulated areas should be 

prohibited. Given that the regulations 

require wheat grown in regulated areas 

to be tested prior to movement and 

restrict the interstate movement of 

wheat found to be Karnal-bunt positive, 

we do not believe it is necessary to 

prohibit the interstate movement of all 

wheat from States containing regulated 

areas in order to prevent the spread of 

Karnal bunt. 

Therefore, for the reasons given in the 

interim rule and in this document, we 

are adopting the interim rule as a final 

rule without change. 

This action also affirms the 

information contained in the interim 

rule concerning Executive Order 12866 

and the Regulatory Flexibility Act, 

Executive Orders 12372 and 12988, and 

the Paperwork Reduction Act. 

Further, for this action, the Office of 

Management and Budget has waived its 

review under Executive Order 12866.

List of Subjects in 7 CFR Part 301 

Agricultural commodities, Plant 

diseases and pests, Quarantine, 

Reporting and recordkeeping 

requirements, Transportation.

PART 301—DOMESTIC QUARANTINE 

NOTICES

■ Accordingly, we are adopting as a final 

rule, without change, the interim rule 

that amended 7 CFR part 301 and that 

was published at 69 FR 27821–27823 on 

May 17, 2004.

Authority: 7 U.S.C. 7701–7772; 7 CFR 2.22, 

2.80, and 371.3.

Section 301.75–15 also issued under Sec. 

204, Title II, Pub. L. 106–113, 113 Stat. 

1501A–293; sections 301.75–15 and 301.75–

16 also issued under Sec. 203, Title II, Pub. 

L. 106–224, 114 Stat. 400 (7 U.S.C. 1421 

note).

Done in Washington, DC, this 20th day of 

September 2004. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service.

[FR Doc. 04–21575 Filed 9–24–04; 8:45 am] 

BILLING CODE 3410–34–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. 2003–NM–90–AD; Amendment 

39–13804; AD 2004–19–10] 

RIN 2120–AA64 

Airworthiness Directives; Boeing 

Model 737–100, –200, –200C, –300, 

–400, and –500 Series Airplanes

AGENCY: Federal Aviation 

Administration, DOT.

ACTION: Final rule.

SUMMARY: This amendment adopts a 

new airworthiness directive (AD), 

applicable to certain Boeing Model 737–

100, –200, –200C, –300, –400, and –500 

series airplanes, that requires repetitive 

inspections for corrosion and cracking 

of the pivot hinge pins of the horizontal 

stabilizer, certain follow-on inspections, 

and replacement of the hinge pins with 

new or serviceable pins if necessary. 

This action is necessary to prevent 

failure of the outer and inner hinge pins 

due to corrosion or cracking, which 

could allow the pins to migrate out of 

the joint and result in intermittent 

movement of the horizontal stabilizer 

structure and consequent loss of 

controllability of the airplane. This 

action is intended to address the 

identified unsafe condition.

DATES: Effective November 1, 2004. 

The incorporation by reference of a 

certain publication listed in the 

regulations is approved by the Director 

of the Federal Register as of November 

1, 2004.

ADDRESSES: The service information 

referenced in this AD may be obtained 

from Boeing Commercial Airplanes, 

P.O. Box 3707, Seattle, Washington 

98124–2207. This information may be 

examined at the Federal Aviation 

Administration (FAA), Transport 

Airplane Directorate, Rules Docket, 

1601 Lind Avenue, SW., Renton, 

Washington; or at the National Archives 

and Records Administration (NARA). 

For information on the availability of 

this material at NARA, call (202) 741–

6030, or go to: http://www.archives.gov/

federal_register/

code_of_federal_regulations/

ibr_locations.html.

FOR FURTHER INFORMATION CONTACT:

Nancy Marsh, Aerospace Engineer, 

Airframe Branch, ANM–120S, FAA, 

Seattle Aircraft Certification Office, 

1601 Lind Avenue, SW., Renton, 

Washington 98055–4056; telephone 

(425) 917–6440; fax (425) 917–6590.