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

67607

Vol. 65, No. 219

Monday, November 13, 2000

MERIT SYSTEMS PROTECTION

BOARD

5 CFR Part 1209

Practices and Procedures for Appeals

and Stay Requests of Personnel

Actions Allegedly Based on

Whistleblowing

AGENCY: Merit Systems Protection

Board.

ACTION: Final rule.

SUMMARY: The Merit Systems Protection

Board (MSPB or the Board) is amending

its rules of practice and procedure in

this part to permit an appellant who

files a whistleblower appeal with MSPB

after first seeking corrective action from

the Office of Special Counsel (OSC) to

satisfy certain requirements for the

information to be included in the appeal

by filing a copy of Part 2: Reprisal for

Whistleblowing of the complaint form

submitted to OSC, Form OSC–11

(Complaint of Possible Prohibited

Personnel Practice or Other Prohibited

Activity), as revised August 2000. On

October 31, 2000, OSC amended its

rules to require that, effective December

1, 2000, complaints of prohibited

personnel practices or other prohibited

activity (other than an alleged Hatch Act

violation) be submitted on Form OSC–

11. The amendment to the Board’s rules

is intended to assist appellants who file

whistleblower appeals after first seeking

corrective action from the Special

Counsel to provide the information

necessary for the Board to determine

whether the appellant has satisfied the

requirement to exhaust OSC procedures

prior to filing with the Board.

EFFECTIVE DATE: November 13, 2000.

FOR FURTHER INFORMATION CONTACT:

Robert E. Taylor, Clerk of the Board,

(202) 653–7200.

SUPPLEMENTARY INFORMATION: On

October 31, 2000, the Office of Special

Counsel amended its rules at 5 CFR

1800.1, effective December 1, 2000, to

require an individual who files a

complaint of a prohibited personnel

practice or other prohibited activity

(other than an alleged Hatch Act

violation) to complete and submit Form

OSC–11, Complaint of Possible

Prohibited Personnel Practice or Other

Prohibited Activity (65 FR 64881). OSC

revised the complaint form in August

2000 to group details of whistleblower

reprisal allegations in a separate section

of the form. That section, designated as

Part 2: Reprisal for Whistleblowing,

requires the complainant to describe

each whistleblowing disclosure and to

identify when and to whom the

disclosure was made, the personnel

action that was taken or threatened

because of the whistleblowing

disclosure, and the date of any such

action or threat. The form is available on

the OSC Web site (www.osc.gov).

Under the Whistleblower Protection

Act, a Federal employee, former

employee, or applicant for employment

may file an appeal with the Board

challenging a personnel action that the

individual believes was taken or

threatened because of whistleblowing

activity. If the individual seeks to

challenge a personnel action that is not

directly appealable to the Board under

another law, rule, or regulation,

however, he must first seek corrective

action from the Special Counsel. Such

an individual may file an individual

right of action (IRA) appeal with the

Board only if the Special Counsel

declines to seek corrective action from

the Board or does not inform the

individual within 120 days of the filing

of the complaint that corrective action

will be sought. 5 U.S.C. 1214(a)(3), 5

U.S.C. 1221(a), 5 CFR 1209.2(b)(1), 5

CFR 1209.5(a).

An individual who may appeal a

personnel action directly to the Board

under another law, rule, or regulation

may file his appeal with the Board and

raise the allegation that the personnel

action was based on whistleblowing as

a part of that appeal. 5 U.S.C. 1221(b),

5 CFR 1209.2(b)(2). Alternatively, such

an individual may first file a complaint

with the Special Counsel and

subsequently file an otherwise

appealable action (OAA) appeal with

the Board after exhausting OSC

procedures. 5 CFR 1209.5(b); also see

Hartfield v. Department of Defense, 70

M.S.P.R. 20 (1996).

The U.S. Court of Appeals for the

Federal Circuit held in Ward v. Merit

Systems Protection Board, 981 F.2d 521,

526–27 (Fed. Cir. 1992), that in an IRA

appeal, the Board may consider only

those matters raised by the appellant in

the complaint to the Special Counsel.

By providing the Board a copy of Part

2 of Form OSC–11, describing each

whistleblowing reprisal claim, an

appellant who first sought corrective

action from the Special Counsel will

help ensure that the Board has sufficient

information to determine whether the

appellant has satisfied the statutory

requirement of exhausting the OSC

procedures with respect to all matters

raised before the Special Counsel before

filing an appeal with the Board.

Therefore, the Board is amending its

rule at 5 CFR 1209.6 by adding a new

subsection (a)(6) to permit an appellant

who files a whistleblower appeal with

the Board after first seeking corrective

action from the Special Counsel to

satisfy the requirements of subsections

(a)(3) through (a)(5) of that section by

filing a copy of Part 2 of Form OSC–11,

together with a copy of any continuation

sheet with answers to Part 2 questions

filed with OSC, and any supplement to

the original complaint filed with OSC or

completed by OSC and furnished to the

appellant.

The Board is making two additional

changes to reflect Board rulings that an

appellant is protected by the

Whistleblower Protection Act if a

personnel action is taken against him

because the agency believed he made

whistleblowing disclosures (Special

Counsel v. Department of the Navy, 46

M.S.P.R. 274 (1990)) or because of his

close relationship to a whistleblower

(Duda v. Department of Veterans

Affairs, 51 M.S.P.R. 444 (1991)). In

§ 1209.6(a)(4), ‘‘the appellant’s

disclosure’’ is replaced by ‘‘each

disclosure.’’ In § 1209.6(a)(5)(ii), ‘‘the

appellant’s whistleblowing’’ is replaced

by ‘‘the whistleblowing disclosure.’’

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 1209

Administrative practice and

procedure, Government employees.

Accordingly, the Board amends 5 CFR

part 1209 as follows:

67608 Federal Register / Vol. 65, No. 219 / Monday, November 13, 2000 / Rules and Regulations

PART 1209—PRACTICES AND

PROCEDURES FOR APPEALS AND

STAY REQUESTS OF PERSONNEL

ACTIONS ALLEGEDLY BASED ON

WHISTLEBLOWING

1. The authority citation for part 1209

continues to read as follows:

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

and 7701.

2. Amend § 1209.6 at paragraph (a) by

revising subparagraphs (a)(4) and

(a)(5)(ii) and by adding new

subparagraph (a)(6) to read as follows:

§ 1209.6 Content of appeal; right to

hearing.

(a) * * *

(4) A description of each disclosure

evidencing whistleblowing as defined in

§ 1209.4(b) of this part; and

(5) * * *

(ii) The personnel action was or will

be based wholly or in part on the

whistleblowing disclosure, as described

in § 1209.4(b) of this part.

(6) An appellant who first sought

corrective action from the Special

Counsel may satisfy the requirements of

paragraphs (a)(3) through (a)(5) of this

section by filing with the appeal a copy

of Part 2: Reprisal For Whistleblowing of

the complaint form submitted to the

Office of Special Counsel (Form OSC–

11, Complaint of Possible Prohibited

Personnel Practice or Other Prohibited

Activity, Rev. 8/00), together with a

copy of any continuation sheet with

answers to Part 2 questions filed with

the Office of Special Counsel, and any

supplement to Part 2 of the original

complaint filed with the Office of

Special Counsel or completed by the

Office of Special Counsel and furnished

to the appellant.

* * * * *

Dated: November 6, 2000

Robert E. Taylor,

Clerk of the Board.

[FR Doc. 00–28823 Filed 11–9–00; 8:45 am]

BILLING CODE 7400–01–P

DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1424

RIN 0560–AG16

Bioenergy Program

AGENCY: Commodity Credit Corporation,

USDA.

ACTION: Final rule.

SUMMARY: The Commodity Credit

Corporation (CCC) is adopting as final

the proposed rule published July 27,

2000, in the Federal Register to

accelerate the development and use of

bio-based technologies in stimulating

the industrial use of agricultural

commodities into bio-based fuels and

products. CCC will make incentive cash

payments to bioenergy producers who

increase their purchases of eligible

agricultural commodities, as compared

to the corresponding period in the prior

fiscal year (FY), and convert that

commodity into increased bioenergy

production.

EFFECTIVE DATE: This program will

become effective December 1, 2000. The

FY 2001 sign-up period will begin that

day and will end December 31, 2000.

FOR FURTHER INFORMATION CONTACT:

Steve Gill, Director, Warehouse and

Inventory Division, FSA, United States

Department of Agriculture (USDA),

STOP 0553, 1400 Independence

Avenue, SW., Washington, DC 20250–

0553, telephone (202) 720–2121 or email address,

Steve_Gill@wdc.fsa.usda.gov or Jim Goff

at (202) 720–5396. Persons with

disabilities who require alternative

means of communication for regulatory

information (braille, large print,

audiotape, etc.) should contact USDA’s

TARGET Center at (202) 720–2600

(voice and TDD).

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This rule has been determined to be

economically significant for the

purposes of Executive Order 12866 and

therefore has been reviewed by the

Office of Management and Budget

(OMB). A summary of the cost-benefit

assessment is included in the

Background section explaining the

actions this rule will take.

Small Business Regulatory Enforcement

Fairness Act

This rule was determined to be Major

under the Small Business Regulatory

Enforcement Fairness Act of 1996

(SBREFA). Section 801 of SBREFA

requires a 60-day delay for

Congressional review before Major

regulations can go into effect. However,

section 808 of SBREFA allows an

agency to promulgate a rule at such time

as it determines necessary,

notwithstanding the Congressional

review required by section 801 of

SBREFA, if the agency finds for good

cause that it is impracticable,

unnecessary, or contrary to the public

purpose to delay the rule. It is hereby

determined that delaying this rule

would be contrary to the public interest

and, accordingly, this rule is effective

December 1, 2000.

Regulatory Flexibility Act

It has been determined that the

Regulatory Flexibility Act is not

applicable to this rule because CCC is

not required by 5 U.S.C. 553 or any

other provision of law to publish a

notice of proposed rule making with

respect to the matter of this rule.

Executive Order 12372

This program is not subject to the

provisions of Executive Order 12372,

which requires intergovernmental

consultation with State and local

officials. See the notice related to 7 CFR

part 3015 subpart V published at 48 FR

29115 (June 24, 1983).

Environmental Assessment

An environmental assessment has

been completed and it has been

determined that there will be no

significant impact on the environment.

Executive Order 12988

This rule has been reviewed in

accordance with Executive Order 12988,

Civil Justice Reform. All State and local

laws and regulations that are in conflict

with this rule will be preempted. No

retroactive effect will be given to this

rule. It will not effect agreements

entered into prior to the effective date

of the rule. The administrative appeal

provisions published at 7 CFR parts 11

and 780 must be exhausted before

bringing any action for judicial review.

Executive Order 12612

It has been determined that this rule

does not have sufficient Federalism

implications to warrant the preparation

of a Federalism Assessment. The

provisions contained in this Rule will

not have a substantial direct effect on

States or their political subdivisions or

on the distribution of power and

responsibilities among the various

levels of Government.

Unfunded Mandates Reform Act of

1995

This Rule contains no Federal

mandates under the regulatory

provisions of Title II of the Unfunded

Mandates Reform Act of 1995 (UMRA)

for State, local, and tribal governments

or the private sector. Therefore, this rule

is not subject to the requirements of

sections 202 and 205 of the UMRA

regulations.

Paperwork Reduction Act

The information collection reporting

and recordkeeping requirements

associated with this rulemaking have