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

48935

Vol. 62, No. 181

Thursday, September 18, 1997

MERIT SYSTEMS PROTECTION

BOARD

5 CFR Part 1201

Practices and Procedures

AGENCY: Merit Systems Protection

Board.

ACTION: Final rule.

SUMMARY: The Merit Systems Protection

Board (the Board) is amending its rules

of practice and procedure to prescribe

how a Federal employee witness in a

Board proceeding may obtain a Board

order that the employing agency grant

him or her official time for participation

in the proceeding. The Board is also

amending its rules for enforcement

proceedings to clarify that those rules

apply to proceedings for enforcement of

orders issued in the course of the

Board’s adjudicatory proceedings, such

as an order that an agency provide

official time to a Federal employee or a

protective order to protect a witness

from harassment, as well as to final

Board decisions.

EFFECTIVE DATE: September 18, 1997.

FOR FURTHER INFORMATION CONTACT:

Robert E. Taylor, Clerk of the Board,

(202) 653–7200.

SUPPLEMENTARY INFORMATION: The

Board’s current rules of practice and

procedure, at 5 CFR 1201.33, provide

that a Federal employee who appears as

a witness in a Board proceeding, or

furnishes a sworn statement in

connection with such a proceeding,

‘‘will be in official duty status (i.e.,

entitled to pay and benefits including

travel and per diem, where

appropriate).’’ The current rules,

however, provide no explicit guidance

as to how a Federal employee is to

proceed if his or her employing agency

refuses to provide the official time

required by section 1201.33.

The Board’s case law has affirmed its

authority to provide official time to nonparties, but the Board has not addressed

the procedures for non-parties to claim

official time. In re Maisto, 28 M.S.P.R.

436 (1985); In re Douglas, 32 M.S.P.R.

389 (1987); and Sapp v. U.S. Postal

Service, 73 M.S.P.R. 189 (1997).

The Board has the authority to order

any Federal employee or agency to

comply with any order or decision

issued by the Board and to enforce

compliance with any such order. 5

U.S.C. §1204(a)(2). The Board also has

the authority to prescribe such

regulations as may be necessary for the

performance of its functions. 5 U.S.C.

§1204(h).

The Board, therefore, is amending

section 1201.33 to prescribe a specific

procedure for a nonparty Federal

employee who is participating as a

witness in a Board proceeding to obtain

from the judge an order that the

employing agency comply with the

official time requirements of that

section. The procedure requires that the

nonparty Federal employee submit the

request to the judge in writing. The

judge is then required to act on the

request promptly and, where warranted,

to order the employing agency to

comply with the Board’s official time

regulation.

Section 1201.33 is amended further to

state specifically that a judge’s order

that an agency provide official time as

required by that section may be

enforced as provided under subpart F of

part 1201, i.e., in the same manner as

other Board decisions and orders.

The Board also is amending its

enforcement regulations at section

1201.182 to clarify that the regulations

in subpart F apply to enforcement

proceedings for all Board orders issued

in connection with its adjudicatory

proceedings, as well as to enforcement

proceedings for final Board decisions.

Both paragraph (a), covering decisions

and orders issued under the Board’s

appellate jurisdiction, and paragraph

(b), covering decisions and orders

issued under the Board’s original

jurisdiction, are amended to provide

that they apply to both Board orders and

final decisions.

The Board is amending section

1201.182 at paragraph (c) to provide an

exception to the requirement that a

nonparty file a motion to intervene at

the same time as a petition for

enforcement where the nonparty is a

Federal employee witness seeking

enforcement of a Board order for official

time or an individual seeking

enforcement of a protective order.

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.

2. Section 1201.33 is amended by

redesignating the existing text as

paragraph (a) and by adding paragraphs

(b) and (c) to read as follows:

§ 1201.33 Federal witnesses.

* * * * *

(b) A Federal employee who is denied

the official time required by paragraph

(a) of this section may file a written

request that the judge order the

employing agency to provide such

official time. The judge will act on such

a request promptly and, where

warranted, will order the agency to

comply with the requirements of

paragraph (a) of this section.

(c) An order obtained under

paragraph (b) of this section may be

enforced as provided under subpart F of

this part.

§ 1201.182 [Amended]

3. Section 1201.182 is amended at

paragraph (a) by adding ‘‘or order’’ after

‘‘decision’’ in the first sentence.

4. Section 1201.182 is amended at

paragraph (b) by removing ‘‘Board

order’’ in the first sentence and by

adding in its place ‘‘final Board decision

or order.’’

5. Section 1201.182 is amended by

revising paragraph (c) to read as follows:

§ 1201.182 Petition for enforcement.

* * * * *

(c) Petition by an employee other than

a party. (1) Under 5 U.S.C. 1204(e)(2)(B),

any employee who is aggrieved by the

failure of any other employee to comply

with an order of the Board may petition

the Board for enforcement. Except for a

petition filed under paragraph (c)(2) or

(c)(3) of this section, the Board will
48936 Federal Register / Vol. 62, No. 181 / Thursday, September 18, 1997 / Rules and Regulations

entertain a petition for enforcement

from an aggrieved employee who is not

a party only if the employee seeks and

is granted party status as a permissive

intervenor under § 1201.34(c) of this

part. The employee must file a motion

to intervene at the time of filing the

petition for enforcement. The petition

for enforcement must describe

specifically why the petitioner believes

there is noncompliance and in what

way the petitioner is aggrieved by the

noncompliance. The motion to

intervene will be considered in

accordance with § 1201.34(c) of this

part.

(2) Under § 1201.33(c) of this part, a

nonparty witness who has obtained an

order from a judge that his or her

employing agency provide the witness

with official time may petition the

Board for enforcement of the order.

(3) Under § 1201.55(d) of this part, a

nonparty witness or other individual

who has obtained a protective order

from a judge during the course of a

Board proceeding for protection from

harassment may petition the Board for

enforcement of the order.

(4) A petition for enforcement under

paragraph (c)(1), (c)(2), or (c)(3) of this

section must be filed promptly with the

regional or field office that issued the

order or, if the order was issued by the

Board, with the Clerk of the Board. The

petitioner must serve a copy of the

petition on each party or the party’s

representative. If the petition is filed

under paragraph (c)(1) of this section,

the motion to intervene must be filed

and served with the petition.

Dated: September 12, 1997.

Robert E. Taylor,

Clerk of the Board.

[FR Doc. 97–24750 Filed 9–17–97; 8:45 am]

BILLING CODE 7400–01–U

FEDERAL RETIREMENT THRIFT

INVESTMENT BOARD

5 CFR Part 1605

Correction of Administrative Errors

AGENCY: Federal Retirement Thrift

Investment Board.

ACTION: Final rule; amendment.

SUMMARY: The Executive Director of the

Federal Retirement Thrift Investment

Board (Board) is publishing an

amendment to final rules on correction

of administrative errors affecting Thrift

Savings Plan (TSP) accounts. The effect

of the amendment will be that earnings

on contributions made to the TSP by a

person who is ineligible to participate

will be returned to that person and not

used to offset TSP adminis trative

expenses.

EFFECTIVE DATE: This amendment is

effective December 27, 1996.

FOR FURTHER INFORMATION CONTACT: John

J. O’Meara, (202) 942–1661.

SUPPLEMENTARY INFORMATION: A final

rule governing the correction of

administrative errors affecting Thrift

Savings Plan accounts was published in

the Federal Register on December 27,

1996 (61 FR 68464). That rule revised

the final regulations that were published

in the Federal Register on December 4,

1987 (52 FR 46314). In both sets of

regulations the Board provided that

when an individual who was not

eligible to participate in the TSP

nevertheless contributed funds to the

TSP, the individual’s contributions

would be returned, but the earnings on

those contributions would be forfeited

and used to pay administrative expenses

of the TSP. Upon review of this matter,

the Board has decided that in

promulgating this regulation insufficient

emphasis was placed on the ineligible

participant’s equitable claim to these

earnings.

For this reason, § 1605.9(a)(1) of the

error correction regulations is being

amended to provide that these earnings

will be paid to the ineligible participant.

Because the equity interest in these

earnings by the ineligible participant is

so substantial, this amendment is being

given retroactive effect to the effective

date (December 27, 1996) of the current

error correction regulations.

Regulatory Flexibility Act

I certify that this amendment will not

have a significant economic impact on

a substantial number of small entities. It

will only affect Thrift Savings Plan

participants.

Paperwork Reduction Act

I certify that these regulations do not

require additional reporting under the

criteria of the Paperwork Reduction Act

of 1980.

Unfunded Mandates Reform Act of

1995

Pursuant to the Unfunded Mandates

Reform Act of 1995, section 201, Public

Law 104–4, 109 Stat. 48, 64, the effect

of these regulations on State, local, and

tribal governments, and on the private

sector has been assessed. This

regulation will not compel the

expenditure in any one year of $100

million or more by any State, local, and

tribal governments in the aggregate, or

by the private sector. Therefore, a

statement under section 202, 109 Stat.

48, 64–65, is not required.

Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A), the Board

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives, and the Comptroller

General of the United States before the

publication of this rule in today’s

Federal Register. This rule is not a

major rule as defined in section 804(2).

List of Subjects in 5 CFR Part 1605

Administrative practice and

procedure, Employee benefit plans,

Government employees, Pensions,

Retirement.

Roger W. Mehle,

Executive Director, Federal Retirement Thrift

Investment Board.

For the reasons set forth in the

preamble, part 1605 of chapter VI of title

5 of the Code of Federal Regulations is

amended as follows:

PART 1605—CORRECTION OF

ADMINISTRATIVE ERRORS

1. The authority citation for Part 1605

continues to read as follows:

Authority: 5 U.S.C. 8351 and 8474.

2. Section 1605.9 is amended by

revising the second sentence of

paragraph (a)(1) to read as follows:

§ 1605.9 Miscellaneous provisions.

(a)(1) * * * In that case, the earnings

will be removed from the account and

paid to the ineligible participant. * * *

* * * * *

[FR Doc. 97–24760 Filed 9–17–97; 8:45 am]

BILLING CODE 6760–01–U

DEPARTMENT OF AGRICULTURE

Grain Inspection, Packers and

Stockyards Administration

7 CFR Part 800

RIN 0580–AA56

Fees for Official Inspection and Official

Weighing Services

AGENCY: Grain Inspection, Packers and

Stockyards Administration, USDA.

ACTION: Final rule.

SUMMARY: The Grain Inspection, Packers

and Stockyards Administration (GIPSA)

is implementing, effective October 1,

1997, a 12.5-percent increase in the

administrative service fee for official

inspection and weighing services

performed in the United States under

the United States Grain Standards Act

(USGSA), as amended. The fee