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

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Rules and Regulations Federal Register

9343 

Vol. 74, No. 41 

Wednesday, March 4, 2009 

MERIT SYSTEMS PROTECTION 

BOARD 

5 CFR Parts 1201 and 1210 

MSPB Practices and Procedures; 

Department of Homeland Security 

Human Resources Management 

System 

AGENCY: Merit Systems Protection 

Board. 

ACTION: Final rule. 

SUMMARY: The Merit Systems Protection 

Board (‘‘MSPB’’) has decided to remove 

its DHS-specific regulations that 

concern the processing and adjudication 

of appeals filed under the DHS Human 

Resources Management System to 

conform with Department of Homeland 

Security regulations. 

DATES: This rule is effective on March 4, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

William D. Spencer, Clerk of the Board, 

Merit Systems Protection Board, 1615 M 

Street, NW., Washington, DC 20419; 

(202) 653–7200, fax: (202) 653–7130 or 

e-mail: mspb@mspb.gov. 

SUPPLEMENTARY INFORMATION: On 

February 1, 2005, the Department of 

Homeland Security (DHS) and the 

Office of Personnel Management (OPM) 

jointly issued final regulations at 5 CFR 

Part 9701 establishing the DHS Human 

Resources Management System. 70 FR 

5272. Thereafter, pursuant to 5 CFR 

9701.102(b)(2), DHS phased in coverage 

to certain employees under Subpart F 

(Adverse Actions) and G (Appeals). 

On October 5, 2007, MSPB published 

an interim rule revising its regulations 

to clarify the procedures applicable to 

MSPB processing and adjudication of 

cases arising under Subparts F and G of 

the DHS Human Resources Management 

System. 72 FR 56883. Thereafter, on 

April 18, 2008, the MSPB published a 

final rule further revising its regulations 

applicable to the processing and 

adjudication of such cases. 73 FR 21019. 

Effective October 1, 2008, the DHS 

rescinded application of 5 CFR 9701, 

Subparts A–G, of the DHS Human 

Resources Management System. 73 FR 

58435. DHS took this action pursuant to 

the Consolidated Security, Disaster 

Assistance and Continuing 

Appropriations Act, 2009, Public Law 

110–329 (2008) (the ‘‘FY 09 DHS 

Appropriations Act’’), which barred 

DHS from using funds appropriated in 

this act or any other appropriations act 

for the development, testing, 

deployment, or operation of any portion 

of the DHS personnel system. 

As a result of DHS’s rescission of the 

application of Subparts F and G, the 

MSPB has decided to amend its 

regulations by removing all regulations 

that are specific to Subparts F and G of 

the DHS Human Resources Management 

System. The Board considered staying 

these regulations, but determined that 

removing the regulations is appropriate 

in order to ensure that DHS employees 

are not confused concerning which 

regulations apply. In addition, staying 

the DHS-specific regulations was 

problematic because DHS-specific rules 

are contained in numerous places 

within 5 CFR 1201, the Board’s 

generally applicable practices and 

procedures. As a result, the Board is 

removing all DHS-specific rules from its 

regulations pending future 

developments with regard to the DHS 

Human Resources Management System. 

List of Subjects in 5 CFR Parts 1201 and 

1210 

Administrative practice and 

procedure, Government employees. 

■ Accordingly, under the authority at 5 

U.S.C. 1204(h), the Board amends 5 CFR 

Chapter II 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, unless 

otherwise noted. 

■ 2. Section 1201.3 is amended by 

removing paragraphs (a)(21) and (b)(3) 

and revising paragraphs (a)(19) and 

(a)(20) as follows: 

§ 1201.3 Appellate jurisdiction. 

* * * * * 

(a) * * * 

(19) Employment practices 

administered by the Office of Personnel 

Management to examine and evaluate 

the qualifications of applicants for 

appointment in the competitive service 

(5 CFR 300.104); and 

(20) Reduction-in-force action 

affecting a career or career candidate 

appointee in the Foreign Service (22 

U.S.C. 4011). 

* * * * * 

■ 3. Section 1201.11 is revised to read 

as follows: 

§ 1201.11 Scope and policy. 

The regulations in this subpart apply 

to Board appellate proceedings except 

as otherwise provided in § 1201.13. The 

regulations in this subpart apply also to 

appellate proceedings and stay requests 

covered by part 1209 unless other 

specific provisions are made in that 

part. These regulations also apply to 

original jurisdiction proceedings of the 

Board except as otherwise provided in 

subpart D. It is the Board’s policy that 

these rules will be applied in a manner 

that expedites the processing of each 

case. It is the Board’s policy that these 

rules will be applied in a manner that 

ensures the fair and efficient processing 

of each case. 

■ 4. Section 1201.21 is revised to read 

as follows: 

§ 1201.21 Notice of appeal rights. 

When an agency issues a decision 

notice to an employee on a matter that 

is appealable to the Board, the agency 

must provide the employee with the 

following: 

(a) Notice of the time limits for 

appealing to the Board, the 

requirements of § 1201.22(c), and the 

address of the appropriate Board office 

for filing the appeal; 

(b) A copy, or access to a copy, of the 

Board’s regulations; 

(c) A copy of the MSPB appeal form 

available at the Board’s Web site 

(http://www.mspb.gov), and 

(d) Notice of any right the employee 

has to file a grievance, including: 

(1) Whether the election of any 

applicable grievance procedure will 

result in waiver of the employee’s right 

to file an appeal with the Board; 

(2) Whether both an appeal to the 

Board and a grievance may be filed on 

the same matter and, if so, the 

circumstances under which proceeding 

with one will preclude proceeding with 

9344 Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Rules and Regulations 

the other, and specific notice that filing 

a grievance will not extend the time 

limit for filing an appeal with the Board; 

and 

(3) Whether there is any right to 

request Board review of a final decision 

on a grievance in accordance with 

§ 1201.154(d). 

■ 5. Section 1201.22 is amended by 

revising paragraph (b)(2) to read as 

follows: 

§ 1201.22 Filing an appeal and responses 

to appeals. 

(b) * * * 

(2) The time limit prescribed by 

paragraph (b)(1) of this section for filing 

an appeal does not apply where a law 

or regulation establishes a different time 

limit or where there is no applicable 

time limit. No time limit applies to 

appeals under the Uniformed Services 

Employment and Reemployment Rights 

Act (Pub. L. 103–353), as amended; see 

part 1208 of this title. See part 1208 of 

this title for the statutory filing time 

limits applicable to appeals under the 

Veterans Employment Opportunities 

Act (Pub. L. 105–339). See part 1209 of 

this title for the statutory filing time 

limits applicable to whistleblower 

appeals and stay requests. 

* * * * * 

PART 1210—[REMOVED AND 

RESERVED] 

■ 6. Part 1210 is removed and reserved. 

William D. Spencer, 

Clerk of the Board. 

[FR Doc. E9–4290 Filed 3–3–09; 8:45 am] 

BILLING CODE 7400–01–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 984 

[Doc. No. AMS–FV–08–0093; FV09–984–2 

FIR] 

Walnuts Grown in California; 

Decreased Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule which decreased the 

assessment rate established for the 

California Walnut Board (Board) for the 

2008–09 and subsequent marketing 

years from $0.0158 to $0.0131 per 

kernelweight pound of assessable 

walnuts. The Board locally administers 

the marketing order which regulates the 

handling of walnuts grown in 

California. Assessments upon walnut 

handlers are used by the Board to fund 

reasonable and necessary expenses of 

the program. The marketing year began 

September 1 and ends August 31. The 

assessment rate will remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Effective Date: April 3, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Debbie Wray, Marketing Specialist, or 

Kurt J. Kimmel, Regional Manager, 

California Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487– 

5901, Fax: (559) 487–5906, or e-mail: 

Debbie.Wray@ams.usda.gov, or 

Kurt.Kimmel@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or e-mail: 

Jay.Guerber@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

984, as amended (7 CFR part 984), 

regulating the handling of walnuts 

grown in California, hereinafter referred 

to as the ‘‘order.’’ The order is effective 

under the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

U.S.C. 601–674), hereinafter referred to 

as the ‘‘Act.’’ 

USDA is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, California walnut handlers are 

subject to assessments. Funds to 

administer the order are derived from 

such assessments. It is intended that the 

assessment rate as issued herein will be 

applicable to all assessable walnuts 

beginning September 1, 2008, and 

continue until amended, suspended, or 

terminated. This rule will not preempt 

any State or local laws, regulations, or 

policies, unless they present an 

irreconcilable conflict with this rule. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. Such 

handler is afforded the opportunity for 

a hearing on the petition. After the 

hearing, USDA would rule on the 

petition. The Act provides that the 

district court of the United States in any 

district in which the handler is an 

inhabitant, or has his or her principal 

place of business, has jurisdiction to 

review USDA’s ruling on the petition, 

provided an action is filed not later than 

20 days after the date of the entry of the 

ruling. 

This rule continues in effect the 

action that decreased the assessment 

rate established for the Board for the 

2008–09 and subsequent marketing 

years from $0.0158 to $0.0131 per 

kernelweight pound of assessable 

walnuts. 

The California walnut marketing 

order provides authority for the Board, 

with the approval of USDA, to formulate 

an annual budget of expenses and 

collect assessments from handlers to 

administer the program. The members 

of the Board are producers and handlers 

of California walnuts. They are familiar 

with the Board’s needs and the costs for 

goods and services in their local area 

and are thus in a position to formulate 

an appropriate budget and assessment 

rate. The assessment rate is formulated 

and discussed at a public meeting. 

Thus, all directly affected persons have 

an opportunity to participate and 

provide input. 

For the 2008–09 and subsequent 

marketing years, the Board 

recommended, and USDA approved, an 

assessment rate of $0.0158 per 

kernelweight pound of assessable 

walnuts that would continue in effect 

from year to year unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the Board or other 

information available to the USDA. The 

Board recommended this rate in May 

2008 along with expenditures of 

$4,594,300 for 2008–09. 

The Board met on September 12, 

2008, and unanimously recommended 

reducing its 2008–09 expenditures to 

$3,809,000 and reducing the assessment 

rate to $0.0131 per kernelweight pound 

of assessable walnuts. The assessment 

rate of $0.0131 per kernelweight pound 

of assessable walnuts is $0.0027 per 

kernelweight pound lower than the rate 

previously in effect. The decreased 

assessment rate is primarily due to an 

$800,000 decrease in domestic market 

development expenditures previously 

recommended for the 2008–09 

marketing year.