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

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new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

43631

Vol. 62, No. 158

Friday, August 15, 1997

MERIT SYSTEMS PROTECTION

BOARD

5 CFR Part 1201

Practices and Procedures

AGENCY: Merit Systems Protection

Board.

ACTION: Final rule.

SUMMARY: The Board is amending its

rules of practice and procedure to

rescind its rule requiring dismissal of an

agency’s petition for review of an

administrative judge’s initial decision

where the agency inadvertently exceeds

the requirements of the judge’s interim

relief order. The Board will no longer

dismiss the agency’s petition in such a

circumstance where its action was taken

in good faith. The Board announced the

rescission of this rule in Silvana H.

Moscato v. Department of Education,

issued November 12, 1996, and

suspended the application of the rule

effective from that date.

EFFECTIVE DATE: August 15, 1997.

FOR FURTHER INFORMATION CONTACT:

Robert E. Taylor, Clerk of the Board,

202–653–7200.

SUPPLEMENTARY INFORMATION: Under 5

U.S.C. 7701(b)(2), an appellant who

prevails in an appeal to the Board is

entitled to the relief provided in the

administrative judge’s initial decision

pending the outcome of any petition for

review by the Board. This interim relief

is to be provided effective from the date

of the initial decision. Interim relief is

not provided if the judge determines

that it is not appropriate or if the initial

decision requires the appellant’s return

to or presence at the workplace and the

agency determines that such return or

presence would be unduly disruptive.

This interim relief provision was added

to Title 5 of the United States Code by

the Whistleblower Protection Act of

1989 (Pub. L. 101–12).

Some Federal agencies attempting to

comply with an initial decision

providing interim relief have cancelled

the personnel action that the appellant

appealed and have furnished evidence

of that cancellation when filing a

petition for review. From the time the

interim relief provision took effect in

July 1989 until November 1996, the

Board consistently held that, where an

agency exceeds the order for interim

relief by cancelling the appealed action

and thus providing final relief, the

matter is effectively removed from

controversy, and the agency’s petition

for review is rendered moot. See, e.g.,

Edney v. Department of the Treasury, 56

M.S.P.R. 248, 249–50 (1993). On June

16, 1994, the Board amended its rules of

practice and procedure at 5 CFR

1201.115(b)(1) to incorporate this

holding in its procedural regulations. 59

FR 30863.

In November 1996, the Board

considered this issue further in its

adjudication of Silvana H. Moscato v.

Department of Education, 72 M.S.P.R.

266 (1996). In its decision in that case,

the Board cited a number of appellate

court decisions that declined to dismiss

a case as moot even where one of the

parties apparently provided relief or

complied with a judgment, if the party

did not intend to forego further legal

proceedings. Id. at 6–8. In announcing

its decision that it will no longer

automatically dismiss an agency’s

petition for review as moot where the

agency has inadvertently and in good

faith exceeded an interim relief order,

the Board stated: ‘‘We find that the

Board and prudent policy are ill-served

by such an automatic dismissal, where

the agency attempted to comply with an

order of interim relief, mistakenly

exceeded the Board’s requirements, did

not abandon its intent to go forward,

and then took steps to correct its

mistake in a timely manner.’’ Id. at 6.

In its decision in Moscato, the Board

announced that it was suspending the

application of the last sentence of 5 CFR

1201.115(b)(1), which required

automatic dismissal of an agency’s

petition for review where it exceeded

the requirements of an interim relief

order. Id. at 9. The Board further stated

that it would apply the new rule

announced in its decision, i.e., that it

would no longer dismiss an agency’s

petition as moot under these

circumstances, in all cases relating to

the regulation at 5 CFR 1201.115(b)(1)

and that it would amend its regulations

to reflect the new rule. Id. The notice

the Board publishes today makes that

amendment.

The Board is publishing this rule as

a final rule pursuant to 5 U.S.C. 1204(h).

List of Subjects in 5 CFR Part 1201

Administrative practice and

procedure, Civil rights, Government

employees.

Accordingly, the Board amends 5 CFR

part 1201 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, and 38

U.S.C. 4331, unless otherwise noted.

§ 1201.115 [Amended]

2. Section 1201.115 is amended at

paragraph (b)(1) by removing the last

sentence.

Dated: August 11, 1997.

Robert E. Taylor,

Clerk of the Board.

[FR Doc. 97–21647 Filed 8–14–97; 8:45 am]

BILLING CODE 7400–01–P

DEPARTMENT OF AGRICULTURE

Food Safety and Inspection Service

9 CFR Part 318

[Docket No. 95–038DF]

RIN 0583–AB97

Use of Glycerine as a Humectant in

Shelf Stable Meat Snacks

AGENCY: Food Safety and Inspection

Service, USDA.

ACTION: Direct final rule.

SUMMARY: The Food Safety and

Inspection Service (FSIS) will permit

the use of glycerine as a humectant in

shelf stable meat snacks at a level not to

exceed 2 percent of the formulation

weight of the product. This action is

being taken in response to a petition

from the American Association of Meat

Processors requesting use of glycerine to

promote moisture retention and

distribution and improved texture of

shelf stable meat snacks.

DATES: This rule will be effective on

October 14, 1997 unless adverse or