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contains regulatory documents having general

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are keyed to and codified in the Code of

Federal Regulations, which is published under

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Rules and Regulations Federal Register

6833 

Vol. 73, No. 25 

Wednesday, February 6, 2008 

MERIT SYSTEMS PROTECTION 

BOARD 

5 CFR Parts 1201 and 1207 

Practices and Procedures 

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 to 

clarify a number of matters: That the 

date of receipt of an agency decision is 

date on which the petitioner receives it; 

that a witness who is not a federal 

employee may obtain an order requiring 

the payment of witness fees; that the 

time for filing a petition for review 

begins on the date the initial decision is 

first received by either the appellant or 

the representative; and that complaints 

of discrimination must be clearly 

marked as raising such an issue. The 

Board also amends its mixed case 

procedures to make clear that any case 

older than 120 days is subject to the 30 

day filing requirement once the 

appellant receives the agency’s final 

decision. The Board also deletes an 

outdated reference to Appendix 1. 

DATES: Effective Date: February 6, 2008. 

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: The Board 

is amending its rules of practice and 

procedure in 5 CFR part 1201 and 5 CFR 

Part 1207 as follows: 

Section 1201.22(b)(1) is amended to 

make clear that the date of receipt of the 

agency’s decision is the date on which 

the petitioner receives the decision; 

Section 1201.37(d) and (e) and 

1201.182(c) are amended to state that a 

witness who is not a federal employee 

may obtain an order requiring the 

payment of witness fees and may file a 

petition for enforcement of such an 

order. 

Section 1201.114(d) is amended to 

make clear that the time for filing a 

petition for review begins to run from 

the date of receipt of the initial decision 

by either the appellant or the 

representative, whichever comes first. 

The rule is consistent with that followed 

by the Federal Circuit with respect to 

petitions for judicial review. See Monzo 

v. Department of Transportation, 735 

F.2d 1335 (Fed. Cir. 1984); 

1201.154(a) & (d) are amended to 

make clear that the date of receipt of the 

agency’s decision is the date on which 

the petitioner receives the decision; 

1201.154(b)(2) is amended to make 

clear that an agency case older than 120 

days is subject to the 30 day filing 

requirement once the appellant receives 

the agency’s final decision. This 

amendment addresses an issue that 

arose in Paine v. MSPB, 467 F.3d 1344 

(2006). 

1207.170(b)(2) & (4) are amended to 

ensure that MSPB administrative judges 

and the Board are aware that a party is 

raising a complaint of discrimination in 

the adjudication of a Board case. 

List of Subjects 

5 CFR Part 1201 

Administrative practice and 

procedure, Government employees. 

5 CFR Part 1207 

Administrative practice and 

procedure, Government employees. 

■ Accordingly, the Board amends 5 CFR 

parts 1201 and 1207 as follows: 

PART 1201—[AMENDED] 

■ 1. The authority citation for part 1201 

continues to read as follows: 

Authority: 5 U.S.C. 1204, 1305, and 7701, 

and 38 U.S.C. 4331, unless otherwise noted. 

■ 2. Revise § 1201.22(b)(1) to read as 

follows: 

§ 1201.22 Filing an appeal and responses 

to appeals. 

* * * * * 

(b) * * * 

(1) Except as provided in paragraph 

(b)(2) of this section, an appeal must be 

filed no later than 30 days after the 

effective date, if any, of the action being 

appealed, or 30 days after the date of the 

appellant’s receipt of the agency’s 

decision, whichever is later. Where an 

appellant and an agency mutually agree 

in writing to attempt to resolve their 

dispute through an alternative dispute 

resolution process prior to the timely 

filing of an appeal, however, the time 

limit for filing the appeal is extended by 

an additional 30 days—for a total of 60 

days. A response to an appeal must be 

filed within 20 days of the date of the 

Board’s acknowledgment order. The 

time for filing a submission under this 

section is computed in accordance with 

§ 1201.23 of this part. 

* * * * * 

■ 3. In § 1201.37, add paragraphs (d) 

and (e) as follows: 

§ 1201.37 Witness fees. 

* * * * * 

(d) A witness who is denied the 

witness fees and travel costs required by 

paragraphs (b) and (c) of this section 

may file a written request that the judge 

order the party who requested the 

presence of the witness to provide such 

fees and travel costs. The judge will act 

on such a request promptly and, where 

warranted, will order the party to 

comply with the requirements of 

paragraphs (b) and (c) of this section. 

(e) An order obtained under 

paragraph (d) of this section may be 

enforced as provided under subpart F of 

this part. 

■ 4. Revise § 1201.114(d) to read as 

follows: 

§ 1201.114 Filing petition and cross 

petition for review. 

* * * * * 

(d) Time for filing. Any petition for 

review must be filed within 35 days 

after the date of issuance of the initial 

decision or, if the petitioner shows that 

the initial decision was received more 

than 5 days after the date of issuance, 

within 30 days after the date the 

petitioner received the initial decision. 

If the petitioner is represented, the 30- 

day time period begins to run upon 

receipt of the initial decision by either 

the representative or the petitioner, 

whichever comes first. A cross petition 

for review must be filed within 25 days 

of the date of service of the petition for 

review. Any response to a petition for 

review or to a cross petition for review 

must be filed within 25 days after the 


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6834 Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / Rules and Regulations 

date of service of the petition or cross 

petition. 

* * * * * 

■ 5. Amend § 1201.154 by revising 

paragraphs (a), (b)(2), and (d) to read as 

follows: 

§ 1201.154 Time for filing appeal; closing 

record in cases involving grievance 

decisions. 

* * * * * 

(a) Where the appellant has been 

subject to an action appealable to the 

Board, he or she may either file a timely 

complaint of discrimination with the 

agency or file an appeal with the Board 

no later than 30 days after the effective 

date, if any, of the action being 

appealed, or 30 days after the date of the 

appellant’s receipt of the agency’s 

decision on the appealable action, 

whichever is later. 

(b) * * * 

(2) If the agency has not resolved the 

matter or issued a final decision on the 

formal complaint within 120 days, the 

appellant may appeal the matter directly 

to the Board at any time after the 

expiration of 120 calendar days. Once 

the agency resolves the matter or issues 

a final decision on the formal 

complaint, an appeal must be filed 

within 30 days after the appellant 

receives the agency resolution or final 

decision on the discrimination issue. 

* * * * * 

(d) This paragraph does not apply to 

employees of the Postal Service or to 

other employees excluded from the 

coverage of the federal labormanagement relations laws at chapter 

71 of title 5, United States Code. If the 

appellant has filed a grievance with the 

agency under a negotiated grievance 

procedure, he may ask the Board to 

review the final decision on the 

grievance if he alleges before the Board 

that he is the victim of prohibited 

discrimination. Usually, the final 

decision on a grievance is the decision 

of an arbitrator. A full description of an 

individual’s right to pursue a grievance 

and to request Board review of a final 

decision on the grievance is found at 5 

U.S.C. 7121 and 7702. The appellant’s 

request for Board review must be filed 

within 35 days after the date of issuance 

of the decision or, if the appellant 

shows that he or she received the 

decision more than 5 days after the date 

of issuance, within 30 days after the 

date the appellant received the decision. 

The appellant must file the request with 

the Clerk of the Board, Merit Systems 

Protection Board, Washington, DC 

20419. The request for review must 

contain: 

(1) A statement of the grounds on 

which review is requested; 

(2) References to evidence of record or 

rulings related to the issues before the 

Board; 

(3) Arguments in support of the stated 

grounds that refer specifically to 

relevant documents, and that include 

relevant citations of authority; and 

(4) Legible copies of the final 

grievance or arbitration decision, the 

agency decision to take the action, and 

other relevant documents. Those 

documents may include a transcript or 

tape recording of the hearing. 

* * * * * 

■ 6. Amend § 1201.182 as follows: 

■ a. Redesignate paragraphs (c)(3) and 

(c)(4) as paragraphs (c)(4) and (c)(5) 

respectively. 

■ b. Add new paragraph (c)(3) and 

revise newly redesignated paragraph 

(c)(5) to read as follows: 

§ 1201.182 Petition for enforcement. 

* * * * * 

(c) * * * 

(3) Under § 1201.37(e) of this part, a 

nonparty witness who has obtained an 

order requiring the payment of witness 

fees and travel costs may petition the 

Board for enforcement of the order. 

* * * * * 

(5) A petition for enforcement under 

paragraph (c)(1), (c)(2), (c)(3) or (c)(4) of 

this section must be filed promptly with 

the regional or field office that issued 

the order or, if the order was issued by 

the Board, with the Clerk of the Board. 

The petitioner must serve a copy of the 

petition on each party or the party’s 

representative. If the petition is filed 

under paragraph (c)(1) of this section, 

the motion to intervene must be filed 

and served with the petition. 

PART 1207—[AMENDED] 

■ 7. The authority citation for part 1207 

continues to read as follows: 

Authority: 29 U.S.C. 794. 

■ 8. Amend § 1207.170 by revising 

paragraphs (b)(2) and (b)(4) to read as 

follows: 

§ 1207.170 Compliance procedures. 

* * * * * 

(b) * * * 

(2) An allegation of discrimination in 

the adjudication of a Board case must be 

raised within 10 days of the alleged act 

of discrimination or within 10 days 

from the date the complainant should 

reasonably have known of the alleged 

discrimination. If the complainant does 

not submit a complaint within that time 

period, it will be dismissed as untimely 

filed unless a good reason for the delay 

is shown. The pleading must be clearly 

marked ‘‘5 CFR part 1207 allegation of 

discrimination in the adjudication of a 

Board case.’’

* * * * * 

(4) If the judge to whom the case was 

assigned has issued the initial decision, 

recommended decision, or 

recommendation by the time the party 

learns of the alleged discrimination, the 

party may raise the allegation in a 

petition for review, cross petition for 

review, or response to the petition or 

cross petition. The petition for review, 

cross petition for review or response to 

the petition or cross petition must be 

clearly marked ‘‘5 CFR part 1207 

allegation of discrimination in the 

adjudication of a Board case.’’

* * * * * 

Dated: January 31, 2008. 

William D. Spencer, 

Clerk of the Board. 

[FR Doc. E8–2104 Filed 2–5–08; 8:45 am] 

BILLING CODE 7400–01–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 915 

[Docket No. AO–254–A10; AMS–FV–06–

0220; FV06–915–2] 

Avocados Grown in South Florida; 

Order Amending Marketing Order No. 

915 

AGENCY: Agricultural Marketing Service 

(AMS), USDA. 

ACTION: Final rule. 

SUMMARY: This final rule amends 

Marketing Order No. 915 (order), which 

regulates the handling of avocados 

grown in South Florida. The 

amendments are based on those 

proposed by the Florida Avocado 

Administrative Committee (committee), 

which is responsible for local 

administration of the order. The 

amendments will: Add authority for the 

committee to borrow funds; revise 

voting requirements for changing the 

assessment rate; allow for District 1 

nominations to be conducted by mail; 

and, add authority for the committee to 

accept voluntary contributions. All of 

the proposals were favored by avocado 

growers in a mail referendum, held July 

23 through August 6, 2007. The 

amendments are intended to improve 

the operation and functioning of the 

marketing order program. 

DATES: This rule is effective February 7, 

2008. 

FOR FURTHER INFORMATION CONTACT: 

Marc McFetridge or Melissa 


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