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

66813

Vol. 62, No. 245

Monday, December 22, 1997

MERIT SYSTEMS PROTECTION

BOARD

5 CFR Part 1201

Practices and Procedures

AGENCY: Merit Systems Protection

Board.

ACTION: Interim rule; request for

comments.

SUMMARY: The Merit Systems Protection

Board (MSPB or the Board) is amending

its rules of practice and procedure to

implement provisions of the Uniformed

Services Employment and

Reemployment Rights Act of 1994

(USERRA). The purpose of these

amendments is to provide guidance to

the parties to MSPB cases, and their

representatives, on how to proceed in

cases raising claims that an agency

employer or the Office of Personnel

Management (OPM) has not complied

with a USERRA provision governing the

employment and reemployment rights

to which a person is entitled after

service in the uniformed services.

DATES: Effective date December 22,

1997. Submit written comments on or

before February 20, 1998.

ADDRESSES: Send comments to Robert E.

Taylor, Clerk of the Board, Merit

Systems Protection Board, 1120

Vermont Avenue, NW, Washington, DC

20419. Comments may be sent via

e-mail to mspb@mspb.gov.

FOR FURTHER INFORMATION CONTACT:

Robert E. Taylor, Clerk of the Board,

(202) 653–7200.

SUPPLEMENTARY INFORMATION: The

Uniformed Services Employment and

Reemployment Rights Act of 1994, Pub.

L. 103–353 (108 Stat. 3149), consists

principally of a revision of chapter 43 of

title 38 of the United States Code,

‘‘Employment and Reemployment

Rights of Members of the Uniformed

Services.’’

Under USERRA, Federal employees

have expanded employment and

reemployment rights and benefits after

service in the uniformed services,

including a new statutory right to

appeal USERRA violations to MSPB.

Previously, a Federal employee had the

right to appeal only an alleged failure to

restore to duty, or improper restoration

to duty, after military service, a right

provided under OPM regulations (5 CFR

part 353).

USERRA provides new mechanisms

for Federal employees to enforce their

employment or reemployment rights. In

addition to the right to appeal to MSPB,

a Federal employee has the right to seek

assistance from the Secretary of Labor,

to file a complaint with the Secretary of

Labor, and to request representation

before MSPB by the Special Counsel if

the Secretary of Labor is unable to

resolve the complaint. 38 U.S.C. 4321,

4322, and 4324.

USERRA authorizes OPM and the

agencies involved in enforcement of

USERRA rights for Federal employees—

the Department of Labor (DOL), Office

of Special Counsel (OSC), and the

Board—to promulgate regulations to

carry out their functions under the Act.

38 U.S.C. 4331(b)(2)(A).

OPM has issued interim regulations,

in the form of amendments to 5 CFR

parts 353, 870, and 890, to implement

USERRA (60 FR 45650, September 1,

1995). As amended, part 353 includes

separate MSPB appeal right provisions

for USERRA appeals at 5 CFR 353.211

and for appeals involving restoration to

duty after recovery from a compensable

injury at 5 CFR 353.304.

The Board is amending its regulation

at 5 CFR 1201.3(a), describing

appealable actions, to conform to this

change by OPM. Section 1201.3(a)(12) is

amended to describe only restoration

after recovery from a compensable

injury and to conform the language to

that in OPM’s regulation at 5 CFR

353.304. USERRA actions are described

in a new section 1201.3(a)(22), which

includes citations to both the applicable

enforcement provision of USERRA (38

U.S.C. 4324) and the OPM regulation at

5 CFR 353.211.

In describing appealable USERRA

actions in new section 1201.3(a)(22), the

Board has relied on the following

provisions of the Act. The enforcement

mechanisms for Federal employees

under 38 U.S.C. 4324 apply to an agency

employer’s or OPM’s failure or refusal to

comply with the provisions of chapter

43 of title 38. 38 U.S.C. 4322(a)(2)(B).

The Act prohibits discrimination against

an employee on the basis of service in

the uniformed services and prohibits

acts of reprisal for exercising a right or

seeking to enforce a protection under

chapter 43 of title 38. 38 U.S.C. 4311.

One kind of action related to the rights

and benefits afforded by USERRA is

specifically excluded from the

enforcement mechanism—an ‘‘action

relating to benefits to be provided under

the Thrift Savings Plan under title 5.’’

38 U.S.C. 4322(f).

USERRA does not prescribe specific

procedures that the Board must apply to

appeals brought under chapter 43 of

title 38. The Board has determined that

all USERRA cases should be processed

under its appellate jurisdiction

procedures and that its original

jurisdiction procedures, contained in

subpart D of part 1201, should not be

applied to those USERRA appeals filed

by the Special Counsel. Appeals

involving restoration after military

service that were authorized by OPM

regulation have traditonally fallen under

the Board’s appellate jurisdiction.

Congress was presumably aware of that

practice, and nothing in USERRA or its

legislative history suggests an intent that

this practice be changed.

Subpart B of part 1201 is amended at

section 1201.2(a) to exclude USERRA

appeals from the Special Counsel

actions included under the Board’s

‘‘original jurisdiction,’’ at section

1201.3(a) to add USERRA actions to the

list of appealable actions as new

paragraph (a)(22), and at section 1201.31

to add a specific provision in new

paragraph (e) for representation of a

person in a USERRA appeal by the

Special Counsel. Subpart D of part 1201

is amended at sections 1201.121 and

1201.131 to exclude USERRA appeals

specifically from the original

jurisdiction procedures applying to

corrective actions brought by the

Special Counsel.

USERRA does not establish a time

limit for appealing to the Board, nor

does it specifically prohibit the

establishment of a time limit. Petersen

v. Department of the Interior, 71

M.S.P.R. 227 (1996); Duncan v. U.S.

Postal Service, 73 M.S.P.R. 86 (1997);

Jasper v. U.S. Postal Service, 73

M.S.P.R. 367 (1997); Wright v.
66814 Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Rules and Regulations

Department of Veterans Affairs, 73

M.S.P.R. 453 (1997). The Board is

authorized by 5 U.S.C. 1204(h) to

promulgate regulations to carry out its

functions and has used this authority

since its inception to prescribe time

limits for filing appeals with the Board.

The Board is also authorized by 38

U.S.C. 4331(b)(2)(A) to promulgate

regulations to carry out its functions

under USERRA.

The Act provides a person three

opportunities to file an appeal with

MSPB: (1) after the alleged violation, if

the person does not file a complaint

with DOL; (2) after DOL notifies the

person that it cannot resolve the matter

with the agency, if the person chooses

not to have the matter referred to the

Special Counsel; and (3) after being

advised that the Special Counsel

chooses not to represent the person in

an appeal to MSPB. 38 U.S.C. 4324(b).

If a matter is referred to the Special

Counsel, the Special Counsel may file

an appeal with MSPB. 38 U.S.C.

4324(a)(2).

Any filing time limit established by

the Board by regulation must allow

sufficient time for a person to explore

his or her options, including possibly

pursuing the matter with DOL and OSC,

while not allowing the matter to become

stale. The Board has ruled that if a

person files a formal complaint with

DOL, the DOL procedure must be

exhausted before an appeal may be filed

with MSPB. Petersen, 71 M.S.P.R. at

233; Jasper, 73 M.S.P.R. at 370.

The Board is amending its regulation

at 5 CFR 1201.22(b), prescribing time

limits for filing, to provide that a

USERRA appeal may be filed directly

with MSPB within 180 days of the

alleged violation. If a person seeks

assistance from DOL under 38 U.S.C.

4321 but does not file a formal

complaint under 38 U.S.C. 4322(a), he

or she may subsequently file an appeal

with MSPB at any time during the 180-

day period. If a person files a formal

complaint with DOL under 38 U.S.C.

4322(a) and receives notification from

DOL that it has been unable to resolve

the matter, he or she may subsequently

file an appeal with MSPB within 30

days after receipt of the notification

from DOL or within 180 days of the

alleged violation, whichever is later. If

DOL refers a person’s complaint to OSC

under 38 U.S.C. 4322(a) and the person

receives notification from the Special

Counsel that OSC will not represent the

person before MSPB, he or she may

subsequently file an appeal with MSPB

within 30 days after receipt of the

notification from the Special Counsel or

within 180 days of the alleged violation,

whichever is later.

This guarantees that a person will

have at least six months from the time

of an alleged violation of USERRA to

file an appeal with MSPB. If a person

files a formal complaint with DOL or

seeks OSC representation, the time limit

for filing with MSPB may be greater

than six months.

Where the Special Counsel chooses to

represent a person in a USERRA appeal

before MSPB, the Board has not set a

time limit for filing. The intent is to

allow the Special Counsel time to secure

voluntary compliance before filing an

appeal with MSPB. Because DOL will

have already tried, and failed, to secure

compliance by the agency, the Board

expects that the Special Counsel will

file an appeal with MSPB expeditiously

where a matter cannot be resolved with

the agency.

In addition to the amendments with

respect to USERRA discussed above, the

Board is making several technical

amendments to its regulation at 5 CFR

1201.3(a).

The Board is publishing this rule as

an interim rule pursuant to 5 U.S.C.

1204(h) and 38 U.S.C. 4331.

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 1201.2 is amended by

revising paragraph (a) to read as follows:

§ 1201.2 Original jurisdiction.

* * * * *

(a) Actions brought by the Special

Counsel under 5 U.S.C. 1214, 1215, and

1216;

* * * * *

3. Section 1201.3 is amended by

revising paragraph (a)(12), by removing

‘‘and’’ at the end of paragraph (a)(19), by

removing the period at the end of

paragraph (a)(20) and adding a semicolon in its place, by revising the

citation in the parenthetical at the end

of paragraph (a)(21) to read ‘‘(22 U.S.C.

4011)’’, by deleting the period at the end

of paragraph (a)(21) and substituting ‘‘;

and’’, and by adding a new paragraph

(a)(22) to read as follows:

§ 1201.3 Appelate jurisdiction

(a)* * *

(12) Failure to restore, improper

restoration of, or failure to return

following a leave of absence an

employee or former employee of an

agency in the executive branch

(including the U.S. Postal Service and

the Postal Rate Commission) following

partial or full recovery from a

compensable injury (5 CFR 353.304);

* * * * *

(22) Non-compliance by a Federal

executive agency employer or the Office

of Personnel Management with the

provisions of chapter 43 of title 38 of the

United States Code relating to the

employment or reemployment rights or

benefits to which a person is entitled

after service in the uniformed services

(38 U.S.C. 4324, 5 CFR 353.211),

excluding any action related to benefits

to be provided under the Thrift Savings

Plan under title 5 of the United States

Code (38 U.S.C. 4322(f)).

* * * * *

4. Section 1201.22 is amended by

redesignating the text of paragraph (b) as

paragraph (b)(1), by revising the first

sentence of paragraph (b)(1) and by

adding a new paragraph (b)(2) to read as

follows:

§ 1201.22 Filing an appeal and responses

to appeals.

* * * * *

(b) * * * (1) Except as provided in

paragraph (b)(2) of this section, an

appeal must be filed no later than 30

days after the effective date, if any, of

the action being appealed, or 30 days

after the date of receipt of the agency’s

decision, whichever is later. * * *

(2) (i) Where a person alleges noncompliance with the provisions of

chapter 43 of title 38 of the United

States Code relating to the employment

or reemployment rights or benefits to

which a person is entitled after service

in the uniformed services (see paragraph

(a)(22) of § 1201.3 of this part), he or she

may file an appeal directly with the

Board within 180 days after the alleged

act or incidence of non-compliance.

(ii) Where a person seeks assistance

from the Secretary of Labor under 38

U.S.C. 4321 but does not file a

complaint under 38 U.S.C. 4322(a), he

or she may file an appeal directly with

the Board within 180 days after the

alleged act or incidence of noncompliance.

(iii) Where a person files a complaint

with the Secretary of Labor under 38

U.S.C. 4322(a) and receives notification

under 38 U.S.C. 4322(e) that the

Secretary has been unable to resolve the

matter, he or she may subsequently file

an appeal with the Board within 30 days

after the date of receipt of the

Secretary’s notification or within 180

days after the alleged act or incidence of

non-compliance, whichever is later. A
Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / Rules and Regulations 66815

copy of the Secretary’s notification must

be submitted with the appeal.

(iv) Where the Secretary of Labor

refers a person’s complaint to the

Special Counsel under 38 U.S.C. 4322(a)

and the person receives notification that

the Special Counsel declines to

represent the person in an appeal to the

Board, he or she may subsequently file

an appeal with the Board within 30 days

after the date of receipt of the Special

Counsel’s notification or within 180

days after the alleged act or incidence of

non-compliance, whichever is later. A

copy of the Special Counsel’s

notification must be submitted with the

appeal.

(v) Where the Secretary of Labor refers

a person’s complaint to the Special

Counsel under 38 U.S.C. 4322(a) and the

Special Counsel agrees to represent the

person in an appeal to the Board, the

Special Counsel may file an appeal with

the Board at any time thereafter.

* * * * *

5. Section 1201.31 is amended by

adding a new paragraph (d) to read as

follows:

§ 1201.31 Representatives.

* * * * *

(e) The Special Counsel may represent

a person in an appeal alleging noncompliance with the provisions of

chapter 43 of title 38 of the United

States Code relating to the employment

or reemployment rights or benefits to

which a person is entitled after service

in the uniformed services (see paragraph

(a)(22) of § 1201.3 of this part and 38

U.S.C. 4324). In such an appeal, a copy

of any written request by the person to

the Secretary of Labor that the matter be

referred to the Special Counsel for

litigation before the Board will be

accepted as the written designation of

representative required by paragraph (a)

of this section.

6. Section 1201.121 is amended by

adding a new paragraph (c) to read as

follows:

§ 1201.121 Scope of jurisdiction;

application of subparts B, F, and H.

* * * * *

(c) The provisions of this subpart do

not apply to appeals alleging noncompliance with the provisions of

chapter 43 of title 38 of the United

States Code relating to the employment

or reemployment rights or benefits to

which a person is entitled after service

in the uniformed services, in which the

Special Counsel appears as the

designated representative of the

appellant. Such appeals are governed by

subpart B of this part.

§ 1201.131 [Amended]

7. Section 1201.131 is amended at

paragraph (a) by adding after ‘‘Special

Counsel’’ the phrase, ‘‘under this

subpart’’.

Dated: December 17, 1997.

Robert E. Taylor,

Clerk of the Board.

[FR Doc. 97–33353 Filed 12–19–97; 8:45 am]

BILLING CODE 7400–01–U

DEFENSE NUCLEAR FACILITIES

SAFETY BOARD

10 CFR Part 1703

Rules Implementing the Freedom of

Information Act

AGENCY: Defense Nuclear Facilities

Safety Board.

ACTION: Final rule.

SUMMARY: The Defense Nuclear

Facilities Safety Board (Board) is

amending its Freedom of Information

Act (FOIA) rules to provide for

expedited processing of certain requests,

to conform response deadlines with

those now provided in the statute, and

to add a category of documents to be

made available in the Public Reading

Room. These changes result from new

statutory provisions in the Electronic

Freedom of Information Act

Amendments of 1996, Pub. L. 104–231.

A minor change is also made in the

Board’s fee provision.

EFFECTIVE DATE: January 21, 1998.

FOR FURTHER INFORMATION CONTACT:

Robert M. Andersen, General Counsel,

Defense Nuclear Facilities Safety Board,

625 Indiana Ave. NW, Suite 700,

Washington, D.C. 20004, (202) 208–

6387.

SUPPLEMENTARY INFORMATION: On

October 21, 1997, the Board published

proposed changes to its Freedom of

Information Act rule (62 FR 54594) in

response to the Electronic Freedom of

Information Act Amendments of 1996,

Pub. L. 104–231. One additional change

was proposed to the Board’s FOIA fee

provision. No public comments were

received on the proposed changes.

Therefore, the amendments are being

made final without change.

Executive Order No. 12866

These amendments do not meet the

criteria for a significant regulatory

action under Executive Order 12866.

Thus, they were not subject to Office of

Management and Budget review.

Regulatory Flexibility Act

These amendments will not have a

significant economic impact on a

substantial number of small entities

since these rules affect only individuals.

Therefore, a regulatory flexibility

analysis as provided in the Regulatory

Flexibility Act, as amended, is not

required.

Paperwork Reduction Act

These regulations will impose no

additional reporting and recordkeeping

requirements subject to Office of

Management and Budget clearance.

List of Subjects in 10 CFR Part 1703

Freedom of information.

For the reasons stated in the

preamble, the Board amends 10 CFR

part 1703 as follows:

PART 1703—PUBLIC INFORMATION

AND REQUESTS

1. The authority citation for part 1703

continues to read as follows:

Authority: 5 U.S.C. 552 as amended; 42

U.S.C. 2286b(c).

2. Section 1703.103 is amended by

adding paragraph (b)(12) to read as

follows:

§ 1703.103 Requests for Board records

available through the public reading room.

* * * * *

(b) * * *

(12) Copies of records released

pursuant to FOIA requests, along with

an index to these records. The format

will generally be the same as the format

of the released records.

3. Section 1703.105 is amended by

adding a new paragraph (e) to read as

follows:

§ 1703.105 Requests for Board records not

available through the public reading room

(FOIA requests).

* * * * *

(e)(1) Expedited processing. A person

may request expedited processing of an

FOIA request when a compelling need

for the requested records has been

shown. ‘‘Compelling need’’ means:

(i) Circumstances in which the lack of

expedited treatment could reasonably be

expected to pose an imminent threat to

the life or physical safety of an

individual;

(ii) An urgency to inform the public

about an actual or alleged Federal

Government activity, if the request is

made by a person primarily engaged in

disseminating information; or

(iii) The records pertain to an

immediate source of risk to the public

health and safety or worker safety at a

defense nuclear facility under the

Board’s jurisdiction.

(2) A requester seeking expedited

processing should so indicate in the