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

35499

Vol. 63, No. 125

Tuesday, June 30, 1998

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 is amending its rules of practice

and procedure to provide notice that a

judge may exclude a party, a

representative, or other person from all

or any portion of a Board proceeding

before him or her because of

misconduct. The amendment further

provides procedures for a person facing

exclusion to show cause why he or she

should not be excluded, for an

interlocutory appeal to the Board of a

judge’s order excluding a person, and

for a motion to stay the proceeding

pending the Board’s decision on an

interlocutory appeal of an exclusion

order. The intent of the amendment is

to inform parties and their

representatives that MSPB judges have

the authority to exclude a person from

a proceeding and will exercise it when

necessary to ensure that adjudication of

cases proceeds expeditiously and

without undue disruption.

EFFECTIVE DATE: June 30, 1998.

FOR FURTHER INFORMATION CONTACT:

Robert E. Taylor, Clerk of the Board,

(202) 653–7200.

SUPPLEMENTARY INFORMATION: The Board

previously published an interim rule to

provide notice that a judge may exclude

a party, a representative, or other person

from all or any portion of a Board

proceeding before him or her because of

misconduct (62 FR 62689, November 25,

1997). The interim rule requested public

comments and allowed 60 days, until

January 26, 1998, for receipt of such

comments.

Comments were received from two

practitioners before the Board. Both

commenters recommended that the

interim rule be amended to provide: (1)

an opportunity for the person facing

exclusion to show cause why he or she

should not be excluded from the

proceeding; and (2) automatic Board

review of a judge’s exclusion order upon

the filing of a motion for certification of

the order as an interlocutory appeal. In

the interest of due process, the Board

has adopted both of these

recommendations in the final rule.

Subsection 1201.31(d)(2) in the interim

rule has been replaced by subsections

1201.31(d)(2) and (d)(3) in the final rule.

The former prescribes procedures for

issuance of a show cause order and for

a response to such an order, while the

latter provides procedures for the

certification of an interlocutory appeal.

One commenter recommended that

the interim rule be amended to provide

for a stay of the proceeding by a single

Board member where a judge’s

exclusion order has been certified as an

interlocutory appeal to the Board. The

Board has not adopted this specific

recommendation but, instead, has added

new language at subsection

1201.31(d)(4)(ii) providing that where

an exclusion order has been certified to

the Board as an interlocutory appeal, the

judge or the Board may stay the

proceeding. The provision also permits

a party to move for a stay of the

proceeding. This approach preserves the

Board’s discretion to control the

conduct of the proceeding and to

determine whether, under the particular

circumstances of the case, a stay would

serve the interests of the parties. There

has been no change in the interim rule’s

requirement that where the judge

excludes a party’s representative, the

party be given a reasonable time to

obtain another representative; see

subsection 1201.31(d)(4)(i).

In the final rule, the Board also has

amended section 1201.41(b)(7) to clarify

that the authority of a judge to exclude

a person from a proceeding is to be

exercised as provided under section

1201.31(d).

Three other recommendations made

in the public comments have not been

adopted in the final rule. One

commenter recommended that the

Board require that all prehearing and

settlement conferences be recorded and

that the interim rule be amended to

provide a procedure for purging a

person’s exclusion from a proceeding

from the record. The burden of

implementing the former

recommendation in over 8,000

prehearing conferences each year would

far exceed the anticipated benefit, given

that misconduct at that stage occurs

infrequently. In addition, recording

conferences could have the effect of

inhibiting free discussion of settlement

terms during the course of a settlement

conference. The Board concludes that

the decision to record a conference is

best left to the judge’s discretion. As to

purging the record, the Board has

determined that a special procedure is

unnecessary; a motion could be filed in

an appropriate case. The other

commenter recommended that a

procedure be established outside the

context of adjudication of a specific case

for filing a complaint against an

administrative judge. This

recommendation is outside the scope of

the present rule. The Board, however,

has referred the recommendation to its

Director, Office of Regional Operations,

for review and a determination as to

whether a demonstrated need for such

a complaint procedure has been

established.

The Board has determined that one

further change should be made in the

interim rule in the interest of clarity. In

subsection 1201.31(d)(1), the phrase,

‘‘misbehavior that obstructs the

hearing,’’ has been replaced by

‘‘conduct that is prejudicial to the

administration of justice.’’ The new

language incorporates the standard

established by the American Bar

Association (ABA) Model Rules of

Professional Conduct (Rule 8.4(d)),

which has been adopted by over forty

state bars and construed by the courts.

See Howell v. State Bar, 843 F.2d 205,

208 (5th Cir.), cert. denied, 488 U.S. 982

(1988) (holding that the phrase

‘‘prejudicial to the administration of

justice’’ is neither overbroad nor vague

on its face as case law, court rules, and

the ‘‘lore of the profession’’ provide

sufficient guidance).

Finally, subsection 1201.31(d)(4) in

the interim rule has been renumbered

1201.31(d)(5).

The Board is publishing this rule as

a final rule pursuant to 5 U.S.C. 1204(h).
35500 Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 /Rules and Regulations

List of Subjects in 5 CFR Part 1201

Administrative practice and

procedure, Civil rights, Government

employees.

Accordingly, the Board adopts as final

its interim rule published at 62 FR

62689, November 25, 1997, with the

following changes:

1. Section 1201.31(d), as added by the

interim rule, is revised to read as

follows:

§ 1201.31 Representatives.

* * * * *

(d)(1) A judge may exclude a party, a

representative, or other person from all

or any portion of the proceeding before

him or her for contumacious

misconduct or conduct that is

prejudicial to the administration of

justice.

(2) When a judge determines that a

person should be excluded from

participation in a proceeding, the judge

shall inform the person of this

determination through issuance of an

order to show cause why he or she

should not be excluded. The show cause

order shall be delivered to the person by

the most expeditious means of delivery

available, including issuance of an oral

order on the record where the

determination to exclude the person is

made during a hearing. The person must

respond to the judge’s show cause order

within three days (excluding Saturdays,

Sundays, and Federal holidays) of

receipt of the order, unless the judge

provides a different time limit, or forfeit

the right to seek certification of a

subsequent exclusion order as an

interlocutory appeal to the Board under

paragraph (d)(3) of this section.

(3) When, after consideration of the

person’s response to the show cause

order, or in the absence of a response to

the show cause order, the judge

determines that the person should be

excluded from participation in the

proceeding, the judge shall issue an

order that documents the reasons for the

exclusion. The person may obtain

review of the judge’s ruling by filing,

within three days (excluding Saturdays,

Sundays, and Federal holidays) of

receipt of the ruling, a motion that the

ruling be certified to the Board as an

interlocutory appeal. The judge shall

certify an interlocutory appeal to the

Board within one day (excluding

Saturdays, Sundays, and Federal

holidays) of receipt of such a motion.

Only the provisions of this paragraph

apply to interlocutory appeals of rulings

excluding a person from a proceeding;

the provisions of §§ 1201.91 through

1201.93 of this part shall not apply.

(4) A proceeding will not be delayed

because the judge excludes a person

from the proceeding, except that:

(i) Where the judge excludes a party’s

representative, the judge will give the

party a reasonable time to obtain

another representative; and

(ii) Where the judge certifies an

interlocutory appeal of an exclusion

ruling to the Board, the judge or the

Board may stay the proceeding sua

sponte or on the motion of a party for

a stay of the proceeding.

(5) The Board, when considering a

petition for review of a judge’s initial

decision under subpart C of this part,

will not be bound by any decision of the

judge to exclude a person from the

proceeding below.

2. Section 1201.41(b)(7), is revised to

read as follows:

§ 1201.41 Judges.

* * * * *

(b) * * *

(7) Exclude any person from all or any

part of the proceeding before him or her

as provided under § 1201.31(d) of this

part;

* * * * *

Dated: June 22, 1998.

Robert E. Taylor,

Clerk of the Board.

[FR Doc. 98–16930 Filed 6–29–98; 8:45 am]

BILLING CODE 7400–01–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 29, 31, 32, 36, 51, 52, 53,

54, 56, 58, 70, and 160

[Docket Number FV–95–303]

Removal of U.S. Grade Standards and

Other Selected Regulations

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture is adopting two interim

final rules concerning removal of

voluntary U.S. grade standards and

other selected regulations from the Code

of Federal Regulations (CFR). This

action is part of the National

Performance Review Program to

eliminate unnecessary regulations and

improve those that remain in force.

EFFECTIVE DATE: July 30, 1998.

FOR FURTHER INFORMATION CONTACT: Eric

Forman, Associate Deputy

Administrator, Fruit and Vegetable

Programs, USDA, AMS, Room 2085–S,

P.O. Box 96456, Washington, D.C.

20090–6456, (202) 690–0262.

SUPPLEMENTARY INFORMATION: An

interim final rule was published in the

Federal Register on December 4, 1995.

That rule removed most of the voluntary

U.S. grade standards and other selected

regulations covering a number of

agricultural commodities (dairy

products, tobacco, wool, mohair, fresh

and processed fruits and vegetables,

livestock, meats and meat products,

eggs, and poultry and rabbit products)

from the CFR. A second interim final

rule was published on August 13, 1997

which: removed from the CFR those

standards that had been retained

pending completion of rulemaking at

the time an interim final rule was

published on December 4, 1995 which

removed most of the U.S. standards

from the CFR; reinstated the U.S.

standards for Wisconsin Cigar-Binder

Tobacco, and regulations related to the

purchase of samples of wool and of

mohair grades; and, lastly added a new

part titled ‘‘Procedures by Which the

Agricultural Marketing Service

Develops, Revises, Suspends, or

Terminates Voluntary Official Grade

Standards.’’ These procedures were first

discussed in the original interim rule

and further developed and published in

the August 13, 1997 interim final rule

providing specifics as to the procedures

that AMS will follow when developing,

revising, suspending, or terminating

voluntary U.S. grade standards. The

Department is making final the

December 4, 1995, interim final rule,

and the August 13, 1997, interim final

rule. This regulatory action is being

taken as part of the National

Performance Review program to

eliminate unnecessary regulations and

improve those that remain in force.

Executive Order 12866

The Department of Agriculture

(Department) is issuing this rule in

conformance with Executive Order

12866.

Executive Order 12988

This rule has been reviewed under

Executive Order 12988, Civil Justice

Reform. This rule is not intended to

have preemptive effect with respect to

any State or local laws, regulations, or

policies unless they present an

irreconcilable conflict with this rule.

This rule is not intended to have

retroactive effect. There are no

administrative procedures which must

be exhausted prior to any judicial

challenge to this rule or the application

of its provisions.

Effect on Small Entities

This action was reviewed under the

Regulatory Flexibility Act (RFA) (5