Federal Register / Vol. 62, No. 68 / Wednesday, April 9, 1997 / Rules and Regulations 17047

(2) Defer a decision on the request for

an addendum proceeding. Except as

provided in paragraph (e) of this

section, the addendum proceeding will

be held after issuance of a final decision

in the proceeding on the merits. As used

in this section, a ‘‘final decision in the

proceeding on the merits’’ has the same

meaning as in § 1201.203(b) of this part.

(d) Initiation of addendum

proceeding. If a decision on a request for

consequential damages or compensatory

damages has been deferred for an

addendum proceeding, the judge will

schedule the proceeding after issuance

of an initial decision that becomes final

or a final Board decision.

(e) Discretion of Board to order

addendum proceeding. Notwithstanding

paragraphs (a) through (d) of this

section, the Board, at its discretion, may

order that an addendum proceeding to

decide a request for consequential

damages or compensatory damages be

held prior to the issuance of a final

decision on the merits. If the Board

exercises this discretion, the Board

order will provide for initiation of the

addendum proceeding.

(f) Hearing; applicability of subpart B.

The judge may hold a hearing on a

request for consequential damages or

compensatory damages and may apply

appropriate provisions of subpart B of

this part to the addendum proceeding.

(g) Review by the Board. (1) An initial

decision issued by a judge under this

section, whether in accordance with

paragraph (c)(1) of this section or in an

addendum proceeding, shall be subject

to the provisions for a petition for

review by the Board under subpart C of

this part.

(2) A recommended decision issued

by an administrative law judge in

accordance with paragraph (c)(1) of this

section shall be subject to the provisions

of subpart D of this part.

(h) EEOC review of decision on

compensatory damages. A final decision

of the Board on a request for

compensatory damages pursuant to the

Civil Rights Act of 1991 shall be subject

to review by the Equal Employment

Opportunity Commission as provided

under subpart E of this part.

§ 1201.205 Judicial review.

A final Board decision under this

subpart is subject to judicial review as

provided under 5 U.S.C. 7703.

Dated: April 1, 1997.

Robert E. Taylor,

Clerk of the Board.

[FR Doc. 97–8643 Filed 4–8–97; 8:45 am]

BILLING CODE 7400–01–U

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: Interim rule with request for

comments.

SUMMARY: The Merit Systems Protection

Board (MSPB or the Board) is amending

its rules of practice and procedure for

whistleblower appeals to implement the

provisions of Public Law 103–424

(MSPB and Office of Special Counsel

reauthorization of 1994) that: Added a

new personnel action and amended

another in the statutory provisions

governing prohibited personnel

practices; and added a requirement that

the Board refer its findings to the

Special Counsel when it determines in

a whistleblower proceeding that a

current Federal employee may have

committed a prohibited personnel

practice. The Board is also amending its

rules of practice and procedure for

whistleblower appeals to include a

cross-reference to subpart H of part 1201

regarding awards of attorney fees and

consequential damages. The purpose of

these amendments is to provide

guidance to the parties to MSPB cases

and their representatives regarding the

new and amended personnel actions, to

refer parties and their representatives to

subpart H of part 1201 for the

procedures governing requests for

attorney fees and consequential

damages, and to provide public notice

of the requirement that the Board refer

certain prohibited personnel practice

findings to the Special Counsel. The

Board is implementing other provisions

of Public Law 103–424 through an

amendment to its rules at 5 CFR part

1201, which is being published

simultaneously with this amendment.

DATES: Effective date April 9, 1997.

Submit written comments on or before

June 9, 1997.

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 email to mspb@mspb.gov.

FOR FURTHER INFORMATION CONTACT:

Robert E. Taylor, Clerk of the Board,

(202) 653–7200.

SUPPLEMENTARY INFORMATION: Public

Law 103–424, which reauthorized the

Board and the Office of Special Counsel

in October 1994, also included a

number of provisions that affect cases

involving prohibited personnel

practices, especially actions based on

whistleblowing. This amendment to the

Board’s rules at 5 CFR part 1209 reflects

two of those provisions.

New and Amended Personnel Actions

Section 5 of Public Law 103–424

amended 5 U.S.C. 2302(a)(2)(A), the list

of personnel actions that may form the

basis for a prohibited personnel

practice, to: (1) add a new personnel

action, ‘‘a decision to order psychiatric

testing or examination;’’ and (2) replace

the existing provision, ‘‘any other

significant change in duties or

responsibilities which is inconsistent

with the employee’s salary or grade

level,’’ with an amended provision,

‘‘any other significant change in duties,

responsibilities, or working conditions.’’

Because the Board’s rules at 5 CFR

1209.4(a) incorporate the statutory list

of personnel actions at 5 U.S.C.

2302(a)(2)(A), it is necessary to amend

the Board’s rules to reflect the changes

made in the statutory provision by

Public Law 103–424.

The Board has ruled that these

amendments to 5 U.S.C. 2302(a)(2)(A)

may not be applied retroactively to

cases pending on the effective date of

the amendments, October 29, 1994,

where the personnel action occurred

prior to the effective date, because the

amendments enlarge the category of

conduct that may form the basis of a

prohibited personnel practice. See

Caddell v. Department of Justice, 66

M.S.P.R. 347, 352–54 (1995), and Briley

v. National Archives and Records

Administration, 71 M.S.P.R. 211, 223–

224 (1996).

Referrals to the Special Counsel.

Section 4(c) of Public Law 103–424

amended 5 U.S.C. 1221(f) to add a new

requirement that when the Board

determines in a proceeding under

section 1221 of title 5 (governing

individual right of action appeals and

certain other whistleblower appeals)

that a current Federal employee may

have committed a prohibited personnel

practice, the Board is to refer the matter

to the Special Counsel for investigation

and possible prosecution under 5 U.S.C.

1215. The Board began making such

referrals to the Special Counsel soon

after this provision took effect on

October 29, 1994. It is now amending its

rules at 5 CFR part 1209 by adding a

new subpart E to provide public notice

that it is required to make such referrals.
17048 Federal Register / Vol. 62, No. 68 / Wednesday, April 9, 1997 / Rules and Regulations

Cross-Reference to Subpart H of Part

1201

This amendment also includes a

change to 5 CFR 1209.3, ‘‘Application of

5 CFR part 1201,’’ to include a statement

that requests for attorney fees and

consequential damages in connection

with appeals under part 1209 are

governed by subpart H of part 1201.

Citations

All citations to MSPB decisions are to

West Publishing Company’s Merit

Systems Protection Board Reporter

(M.S.P.R.). This publication is available

in many law libraries and some public

libraries. It is also available in the MSPB

Library, 1120 Vermont Avenue, NW, 8th

Floor, Washington, DC, which is open to

the public between 1:00 and 5:00 PM,

Monday through Friday (excluding

Federal holidays).

The Board is publishing this rule as

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

1204(h).

List of Subjects in 5 CFR Part 1209

Administrative practice and

procedure, Civil rights, Government

employees.

Accordingly, the Board amends 5 CFR

part 1209 as follows:

PART 1209—[AMENDED]

1–2. The authority citation for part

1209 continues to read as follows:

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

and 7701.

3. Section 1209.3 is amended by

adding at the end of the existing text the

following sentence:

§ 1209.3 Application of 5 CFR part 1201.

* * * The Board will apply the

provisions of subpart H of part 1201

regarding awards of attorney fees and

consequential damages under 5 U.S.C.

1221(g) to appeals governed by this part.

4. Section 1209.4 is amended by

removing ‘‘or’’ at the end of paragraph

(a)(9), by redesignating paragraph (a)(10)

as (a)(11) and revising it, and by adding

a new paragraph (a)(10) to read as

follows:

§ 1209.4 Definitions.

(a) * * *

* * * * *

(10) A decision to order psychiatric

testing or examination; or

(11) Any other significant change in

duties, responsibilities, or working

conditions.

* * * * *

5. Part 1209 is amended by adding

subpart E to read as follows:

Subpart E—Referrals to the Special

Counsel

§ 1209.13 Referral of findings to the

Special Counsel.

When the Board determines in a

proceeding under this part that there is

reason to believe that a current Federal

employee may have committed a

prohibited personnel practice described

at 5 U.S.C. 2302(b)(8), the Board will

refer the matter to the Special Counsel

to investigate and take appropriate

action under 5 U.S.C. 1215.

Dated: April 1, 1997.

Robert E. Taylor,

Clerk of the Board.

[FR Doc. 97–8644 Filed 4–8–97; 8:45 am]

BILLING CODE 7400–01–U

DEPARTMENT OF JUSTICE

Immigration and Naturalization

Service; Executive Office for

Immigration Review

8 CFR Part 3

[INS 1788–96; AG Order No. 2071–97]

RIN 1115–AE47

Immigration and Naturalization Service

and Executive Office for Immigration

Review; Inspection and Expedited

Removal of Aliens; Detention and

Removal of Aliens; Conduct of

Removal Proceedings; Asylum

Procedures; Correction

AGENCY: Immigration and Naturalization

Service and Executive Office for

Immigration Review.

ACTION: Correction to interim regulation.

SUMMARY: This document contains a

correction to the interim regulation,

published Thursday, March 6, 1997 (62

FR 10312), relating to inspection and

expedited removal of aliens, detention

and removal of aliens, conduct of

removal proceedings, and asylum

procedures.

EFFECTIVE DATE: April 9, 1997.

FOR FURTHER INFORMATION CONTACT:

Margaret M. Philbin, (703) 305–0470

(not a toll free call).

SUPPLEMENTARY INFORMATION:

Background

The interim regulation that is the

subject of these corrections amends the

regulations of the Immigration and

Naturalization Service and Executive

Office for Immigration Review to

implement the provisions of the Illegal

Immigration Reform and Immigrant

Responsibility Act of 1996 governing

expedited and regular removal

proceedings, handling of asylum claims,

and other activities involving the

apprehension, determination, hearing of

claims and ultimately the removal of

inadmissible and deportable aliens. This

rule also incorporates a number of

changes which are part of the

Administration’s reinvention and

regulation streamlining effort. On April

1, 1997, a correction notice (62 FR

15362, FR Doc. 97–8105) was published

correcting those technical errors

contained in the interim regulation.

This notice corrects an additional

technical error contained in the interim

regulation.

Need for Correction

As published, the interim regulation

contained errors which were in need of

clarification.

Correction of Publication

Accordingly, the publication on

March 6, 1997, of the interim regulation

(INS No. 1788–96; AG Order No. 2071–

97), which was the subject of FR Doc.

97–5250, is corrected as follows:

§ 3.23 [Corrected]

1. On page 10333, in the first column,

in § 3.23(b)(1), the reference to

‘‘§ 208.22(f)’’ at the end of paragraph

(b)(1) introductory text is removed and

is replaced with a reference to

‘‘§ 208.22(e)’’.

Rosemary Hart,

Federal Register Liaison Officer.

[FR Doc. 97–8984 Filed 4–8–97; 8:45 am]

BILLING CODE 4410–87–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 25

[Docket No. NM–132, Special Conditions

No. 25–ANM–124]

Special Conditions: Lockheed Martin

Aerospace Corp. Model L382J Airplane

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Final special conditions.

SUMMARY: These special conditions are

for the Lockheed Martin Aerospace

Corp. Model L382J airplane. This

airplane will have a novel or unusual

design feature(s) associated with the

installation of a dual head up display

(HUD) to be used as a primary flight

display (PFD) for all regimes of normal

operation. The HUD will satisfy the

basic requirements of § 25.1321 and

serve as the primary source of flight