35172 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Proposed Rules

1The General Counsel’s failure to include such

notice in the motion for summary judgment would

Subpart E—Miscellaneous

§ 171.501 Information you must provide

us.

(a) You must provide us with the

information we request to assist in the

proper administration, operation,

maintenance, and rehabilitation of our

facilities.

(b) We will request all information in

accordance with the local

administration manual.

§ 171.502 Your responsibility concerning

refuse.

You must not use our property or

rights of way to dispose of sewage,

trash, or other refuse.

Dated: May 24, 1996.

Ada E. Deer,

Assistant Secretary—Indian Affairs.

[FR Doc. 96–16184 Filed 7–3–96; 8:45 am]

BILLING CODE 4310–02–P

NATIONAL LABOR RELATIONS

BOARD

29 CFR Parts 101 and 102

Procedure Governing Advisory

Opinions and Rules Governing

Summary Judgment Motions and

Advisory Opinions

AGENCY: National Labor Relations

Board.

ACTION: Notice of proposed rulemaking.

SUMMARY: As part of its ongoing efforts

to streamline its operations by

eliminating unnecessary and inefficient

procedures, the National Labor

Relations Board (NLRB) is proposing to

revise its rules to eliminate the noticeto-show-cause procedure in summary

judgment cases and to remove

provisions which permit parties to

pending state proceedings to file

petitions for an advisory opinion on

whether the Board would assert

jurisdiction under its commerce

standards.

DATES: All comments must be received

on or before August 5, 1996.

ADDRESSES: All written comments

should be sent to the Office of the

Executive Secretary, National Labor

Relations Board, 1099 14th Street, NW.,

Room 11600, Washington, DC 20570.

The comments should be filed in eight

copies, double spaced, on 8 1/2 by 11

inch paper and shall be printed or

otherwise legibly duplicated.

FOR FURTHER INFORMATION CONTACT: John

J. Toner, Executive Secretary,

Telephone: (202) 273–1940.

SUPPLEMENTARY INFORMATION: Over

approximately the last two years, the

NLRB has been conducting an intensive

internal review of its procedures at all

levels of the Agency. The purpose of

this internal review has been to find

ways to maintain and improve the

Agency’s case-processing efficiency in

light of the Agency’s diminishing

resources. Many initiatives have already

been implemented by the Board as part

of this ongoing review, such as the

recent initiative authorizing the use of

settlement judges and providing judges

with the discretion to dispense with

briefs and to issue bench decisions,

which was published as a final rule on

February 23, 1996, following a one-year

experimental period (61 FR 6940). Other

initiatives are currently under

consideration. Two such initiatives,

involving the elimination of the noticeto-show-cause procedure in summary

judgment cases and the removal of

provisions permitting parties to pending

state proceedings to file petitions for an

advisory opinion on whether the Board

would assert jurisdiction under its

commerce standards, are set forth

below.

1. Notices to show cause in summary

judgment cases. Section 102.24(b) of the

Board’s rules currently requires the

Board to issue a notice to show cause to

the parties prior to granting a motion for

summary judgment or dismissal. Such

notices have historically served several

purposes or functions, including

providing notice of the motion to the

opposing party, postponing any

scheduled hearing date, and setting the

deadline for responding (normally 14

days from the date of the notice).

All of these functions are essentially

unnecessary, however. The motion itself

must be served on the opposing party

and the motion therefore provides its

own notice to the opposing party. No

further notice is necessary.

With respect to postponing the

hearing date, the Regional Director has

the unrestricted authority under Section

102.16 of the Board’s rules to do so at

any time prior to 21 days before the

hearing. Thus, the General Counsel need

not rely on the Board to postpone the

hearing upon filing a timely motion for

summary judgment, which under

Section 102.24(b) of the Board’s rules

must normally be filed at least 28 days

before the scheduled hearing. In the

event the General Counsel does not

determine that a motion for summary

judgment is warranted until after

expiration of the 28-day deadline for

filing such motions with the Board and

the 21-day deadline on the Regional

Director’s unrestricted authority to

postpone the hearing, the General

Counsel may in that event seek a

postponement from the Division of

Judges prior to filing the motion for

summary judgment. See, e.g., R. B.

Contracting Co., 321 NLRB No. 41 (May

20, 1996).

Of course, it may still be necessary in

certain circumstances for the Board to

issue an order postponing the hearing in

response to a respondent’s motion for

summary judgment or dismissal. The

Board’s experience with such motions,

however, indicates that in the vast

majority of such cases there are factual

issues which make summary judgment

or dismissal inappropriate. Thus, the

Board in the past has only rarely issued

notices to show cause postponing the

hearing in response to respondent

motions, and there is no reason why this

experience would change under the

revised rule. In any event, as under the

current rule, under the revised rule the

respondent may request the Regional

Director, administrative law judge, and/

or the Board to postpone the hearing

when it files the motion for summary

judgment or dismissal. The Board

normally completes its initial review of

the respondent’s motion prior to the

hearing, and in the event that its initial

review indicates that summary

judgment may be appropriate, and the

hearing has not already been postponed,

as under the current rule the Board may

issue an order postponing the hearing.

With respect to setting the time for

responding, there is no reason why the

deadline for responding cannot be

established by rule in all cases. Similar

deadlines are set forth in the Board’s

rules for the filing of other pleadings

(see, e.g., Sec. 102.20 of the Board’s

rules, setting 14-day deadline for filing

an answer to the complaint), and no

further or special notice of the deadline

is required with respect to those

pleadings. See, e.g., Superior Industries,

289 NLRB 834, 835 n. 13 (1988) (no

further reminder or warning of the

failure to file an answer required).

Moreover, we note that the General

Counsel’s practice with respect to

complaints and compliance

specifications has been to specifically

advise the respondent in the complaint

or specification itself of the time for

filing an answer. See NLRB

Casehandling Manual, Sec. 10267

(complaints) and 10622.1 and App. 14

(compliance specifications). We approve

of this practice and anticipate that the

General Counsel would also adopt this

practice with respect to default and

other summary judgment motions in the

event the proposed revisions are

adopted by the Board.1
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Proposed Rules 35173

not necessarily require denial of the motion, but

would be considered by the Board as a factor in

ruling on any subsequent motion filed by the

respondent for reconsideration of the Board’s

decision granting the General Counsel’s motion for

summary judgment.

2The Board typically receives about 10–15 party

petitions for advisory opinion each year. Although

relatively few in number, substantial staff resources

are consumed in preparing and issuing the Board’s

opinion in each case.

Accordingly, the Board is proposing

to revise Section 102.24(b) of its rules to

eliminate the notice-to-show-cause

procedure in summary judgment cases,

and to instead provide that the 14-day

period for responding to the motion

shall commence upon service of the

motion. The revised rule specifically

provides that the hearing is not

automatically postponed upon filing of

the motion for summary judgment, and

that it is the responsibility of the party

moving for summary judgment to

postpone the hearing (if the General

Counsel files the motion for summary

judgment) or to file a request for a

postponement with the regional

director, administrative law judge, and/

or the Board (if the respondent or

charging party files the motion for

summary judgment or dismissal). This

latter provision is intended to make

clear that the General Counsel should

not rely on the Board to postpone the

hearing or assume that the Board will

issue an order postponing the hearing,

which was a function of the traditional

notice to show cause. Thus, when the

General Counsel files the motion for

summary judgment, the General

Counsel should also postpone the

hearing (assuming the General Counsel

wishes to postpone the hearing and has

the authority to do so under Section

102.16 of the Board’s rules.)

2. Party petitions for an advisory

opinion. Sections 102.98(a) and

102.99(a) of the Board’s rules, and

Section 101.39 of the Board’s statements

of procedures, currently authorize

parties to pending state proceedings to

file a petition for an advisory opinion

with the Board as to whether the Board

would assert jurisdiction under its

current commerce standards. There is

no statutory requirement that the Board

entertain such advisory opinions,

however, and the procedure is not

widely utilized.2 Further, the Board’s

jurisdictional standards are generally

well developed, and are readily

available in numerous published

decisions and opinions. Experience

with past party petitions has shown that

the parties themselves, or the state

agency or court, could just as easily

have researched and applied the Board’s

current commerce standards without

invoking the Board’s processes.

Moreover, there are other, often more

speedy, avenues available for obtaining

a jurisdictional determination or

opinion. For example, Section 101.41 of

the Board’s statements of procedure

provides that persons may seek informal

opinions on jurisdictional issues from

the Regional offices. And the Regional

Office will also make a jurisdictional

determination early in its investigation

of any representation petition or unfair

labor practice charges filed with that

office. See NLRB Casehandling Manual,

Sec. 11706.

Finally, the proposed change would

not affect the provisions of current

Section 102.98(b) and 102.99(b) of the

Board’s rules and Section 101.39 of the

Board’s statements of procedure, which

permit the state or territorial agency or

court itself to file a petition for an

advisory opinion on whether the Board

would decline to assert jurisdiction

based either on its commerce standards

or because the employer is not within

the jurisdiction of the Act. The

provisions permitting such petitions are

retained, with minor modification to

Section 101.39 of the Board’s statements

of procedure to conform it with Board

decisions indicating that the Board will

not issue an opinion unless the relevant

facts are undisputed or the state agency

or court has already made the relevant

factual findings. See Correctional

Medical Systems, 299 NLRB 654 (1990);

University of Vermont, 297 NLRB 291

(1989); and St. Paul Ramsey Medical

Center, 291 NLRB 755 (1988). See also

Brooklyn Bureau of Community Service,

320 NLRB No. 157 (April 15, 1996).

Although the Agency has decided to

give notice of proposed rulemaking with

respect to these rule changes, the

changes involve rules of agency

organization, procedure or practice and

thus no notice of proposed rulemaking

is required under Sec. 553 of the

Administrative Procedure Act (5 U.S.C.

553). Accordingly, the Regulatory

Flexibility Act (5 U.S.C. 601), does not

apply to these rule changes.

List of Subjects in 29 CFR Parts 101 and

102

Administrative practice and

procedure, Labor management relations.

For the reasons set forth above, the

NLRB proposes to amend 29 CFR parts

101 and 102 as follows:

PART 101—STATEMENTS OF

PROCEDURE

1. The authority citation for 29 CFR

part 101 continues to read as follows:

Authority: Sec. 6 of the National Labor

Relations Act, as amended (29 U.S.C. 151,

156), and sec. 522(a) of the Administrative

Procedure Act (5 U.S.C. 552(a)). Section

101.14 also issued under sec. 2112(a)(1) of

Pub. L. 100–236, 28 U.S.C. 2112(a)(1).

2. § 101.39 is revised to read as

follows:

§ 101.39 Initiation of advisory opinion

case.

(a) The question of whether the Board

will assert jurisdiction over a labor

dispute which is the subject of a

proceeding in an agency or court of a

State or territory is initiated by the filing

of a petition with the Board. This

petition may be filed only if:

(1) A proceeding is currently pending

before such agency or court;

(2) The petitioner is the agency or

court itself; and

(3) The relevant facts are undisputed

or the agency or court has already made

the relevant factual findings.

(b) The petition must be in writing

and signed. It is filed with the Executive

Secretary of the Board in Washington,

DC. No particular form is required, but

the petition must be properly captioned

and must contain the allegations

required by § 102.99 of the Board’s

Rules and Regulations. None of the

information sought relates to the merits

of the dispute. The petition may be

withdrawn at any time before the Board

issues its advisory opinion determining

whether it would or would not assert

jurisdiction on the basis of the facts

before it.

PART 102—RULES AND

REGULATIONS

1. The authority citation for 29 CFR

part 102 continues to read as follows:

Authority: Section 6, National Labor

Relations Act, as amended (29 U.S.C. 151,

156). Section 102.117(c) also issued under

Section 552(a)(4)(A) of the Freedom of

Information Act, as amended (5 U.S.C.

552(a)(4)(A)), and section 552a(j) and (k) of

the Privacy Act (5 U.S.C. 552a(j) and (k).

Sections 102.143 through 102.155 also issued

under Section 504(c)(1) of the Equal Access

to Justice Act, as amended (5 U.S.C.

504(c)(1)).

2. Section 102.24(b) is revised to read

as follows:

§ 102.24 Motions; where to file; contents;

service on other parties; promptness in

filing and response; summary judgment

procedures.

* * * * *

(b) All motions for summary judgment

or dismissal shall be filed with the

Board no later than 28 days prior to the

scheduled hearing. Where no hearing is

scheduled, or where the hearing is

scheduled less than 28 days after the
35174 Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Proposed Rules

date for filing an answer to the

complaint or compliance specification,

whichever is applicable, the motion

shall be filed promptly. Any opposition

to the motion shall be filed within 14

days after the service of the motion for

summary judgment on the opposing

party. It is not required that the

opposition be supported by affidavits or

other documentary evidence showing

that there is a genuine issue for hearing.

The Board in its discretion may deny

the motion where the motion itself fails

to establish the absence of a genuine

issue, or where the opposing party’s

pleadings and/or opposition indicate on

their face that a genuine issue may exist.

If the opposing party files no

opposition, the Board may treat the

motion as conceded, and summary

judgment or dismissal, if appropriate,

shall be entered. The hearing shall not

be automatically postponed upon filing

of the motion for summary judgment. It

shall be the responsibility of the party

filing the motion to postpone the

hearing (if the General Counsel files the

motion for summary judgment, subject

to the provisions of § 102.16 of the

Board’s rules and regulations) or to file

a request for a postponement with the

Regional Director, administrative law

judge, and/or the Board (if the

respondent or charging party files the

motion).

§ 102.98 [Amended]

3. In § 102.98, paragraph (a) and the

paragraph designation (b) are removed.

§ 102.99 [Amended]

4. In § 102.99, paragraph (a) is

removed and paragraphs (b) and (c) are

redesignated as paragraphs (a) and (b)

respectively.

Dated, Washington, DC, June 28, 1996.

By direction of the Board:

John J. Toner,

Executive Secretary.

[FR Doc. 96–16986 Filed 7–3–96; 8:45 am]

BILLING CODE 7545–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[I.D. 062596B]

RIN 0648–AH68

Groundfish of the Gulf of Alaska;

Pacific Ocean Perch; Amendment 38

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Notice of availability; request

for comments.

SUMMARY: The North Pacific Fishery

Management Council (Council) has

submitted Amendment 38 to the Fishery

Management Plan for Groundfish of the

Gulf of Alaska (FMP) for Secretarial

review. Amendment 38 would provide

the flexibility for the Council to

recommend a total allowable catch

amount for Pacific ocean perch (POP)

below the level currently established in

the FMP. NMFS is requesting comments

from the public on the proposed

amendment. Copies of the amendment

may be obtained from the Council (see

ADDRESSES).

DATES: Comments on the FMP

amendment should be submitted on or

before August 30, 1996.

ADDRESSES: Comments on the FMP

amendment should be submitted to

Ronald J. Berg, Chief, Fisheries

Management Division, Alaska Region,

NMFS, P.O. Box 21668, Juneau, AK

99802–1668; Attn: Lori Gravel, or

delivered to the Federal Building, 709

West 9th Street, Juneau, AK.

Copies of Amendment 38 and the

environmental assessment and the

economic analysis prepared for the

amendment are available from the North

Pacific Fishery Management Council,

605 W 4th Ave., Suite 306, Anchorage,

AK 99501–2252; telephone: 907–271–

2809.

FOR FURTHER INFORMATION CONTACT: Kaja

Brix, 907–586–7228.

SUPPLEMENTARY INFORMATION: The

Magnuson Fishery Conservation and

Management Act (Magnuson Act)

requires that each Regional Fishery

Management Council submit any fishery

management plan or plan amendment it

prepares to the Secretary of Commerce

(Secretary) for review and approval,

disapproval, or partial disapproval. The

Magnuson Act also requires that the

Secretary, upon receiving a fishery

management plan or amendment,

immediately publish a notice that the

fishery management plan or amendment

is available for public review and

comment. The Secretary will consider

the public comments received during

the comment period in determining

whether to approve the FMP or

amendment.

Decline of the POP stock since the

early period of the foreign fishery (mid

1960’s) prompted the Council to

recommend a rebuilding plan for POP.

The Pacific Ocean Perch Rebuilding

Plan (Rebuilding Plan) was established

in Amendment 32 to the FMP. Details

of the justification for the Rebuilding

Plan can be found in the Notice of

Availability for Amendment 32 (59 FR

295; January 4, 1994). The POP

Rebuilding Plan provides a specific

rebuilding strategy for POP stocks,

based on available biological and

economic information. The Rebuilding

Plan establishes a formula to determine

annually the POP TAC, which is then

apportioned among Gulf of Alaska

(GOA) regulatory areas based on

biomass distribution. However, the

amendment does not provide for any

flexibility to reduce the TAC below the

amount specified by the formula.

Under the current Rebuilding Plan,

the potential exists for the calculated

TAC to be greater than the acceptable

biological catch (ABC), which would be

inconsistent with the current

management practice for other

groundfish stocks. The Council has also

expressed concern that it does not have

the flexibility to lower the POP TAC

under the Rebuilding Plan to

accomodate other resource conservation

concerns. Therefore, the Council

adopted Amendment 38 to the FMP at

its December 1995 meeting. Amendment

38 would not prescribe a TAC lower

than that specified by the formula;

however, it would allow the Council the

flexibility to recommend a TAC below

the level of the specified formula in one

or more GOA regulatory areas or

districts. To be consistent with the

Rebuilding Plan for POP, any downward

adjustment of TAC would be based on

biological or resource conservation

concerns.

Under the Rebuilding Plan, an ABC is

set for POP in the GOA and this ABC

is apportioned among regulatory areas

based on biomass distribution. The TAC

is determined using the formula and is

then apportioned to each regulatory area

according to the percentage biomass

distribution used for the ABC

apportionment.

Under Amendment 38, once the TAC

is apportioned among regulatory areas,

as specified by the current FMP, the

Council could recommend a further

downward adjustment of the POP TAC

in one or more of the GOA regulatory

areas or districts. Any downward

adjustments would be based on

biological or resource conservation

concerns about the POP resource or

associated with the POP fishery that are

not accounted for in the Rebuilding Plan

or the annual Stock Assessment and

Fishery Evaluation (SAFE) reports, or to

maintain the TAC below the ABC.

NMFS will consider information

provided by a recognized scientific body

such as the Council’s Scientific and

Statistical Committee, Plan Team, or by