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

60609 

Vol. 73, No. 199 

Tuesday, October 14, 2008 

The President 

3 CFR 

Proclamation 8296—To Modify Dutyfree Treatment Under The Caribbean 

Basin Economic Recovery Act and for 

Other Purposes 

Correction 

In Presidential document E8–23562 

beginning on page 57475 in the issue of 

Friday, October 3, 2008, make the 

following correction: 

On page 57483 the Filed date should 

read ‘‘10–2–08’’. 

[FR Doc. Z8–23562 Filed 10–10–08; 8:45 am] 

BILLING CODE 1505–01–D 

GOVERNMENT ACCOUNTABILITY 

OFFICE 

4 CFR Part 22 

Rules of Procedure of the Government 

Accountability Office Contract Appeals 

Board 

AGENCY: Government Accountability 

Office. 

ACTION: Final rule. 

SUMMARY: This document contains the 

final revisions to the interim rules of 

procedures of the Government 

Accountability Office (GAO) Contract 

Appeals Board (Board), which was 

published in the Federal Register on 

June 26, 2008. These rules supersede the 

interim rules of the Board and will 

govern all proceedings before the Board 

filed on or after October 1, 2007. 

DATES: Effective Date: October 14, 2008. 

FOR FURTHER INFORMATION CONTACT: 

James A. Spangenberg (Chairman), 

David Ashen (Vice Chairman), or 

Sharon L. Larkin (Member), 202–512– 

3342, cab@gao.gov. Hearing or speech 

impaired individuals may contact the 

Board via TTY by calling the toll-free 

Federal Information Relay Service at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

The Board published in the Federal 

Register at 73 FR 36257, June 26, 2008, 

interim rules of procedure along with a 

notice inviting comments on those 

rules. This notice announced the 

intention to promulgate final rules of 

procedure, following the Board’s review 

and consideration of all comments, to 

govern all proceedings before the Board 

that are filed on or after October 1, 2007. 

The Board has considered all comments 

received, revised the interim rules in 

part (as explained below), and now 

promulgates its final rules of procedure. 

These rules are promulgated pursuant to 

the Board’s authority contained in 

section 1501(d) of title I of division H 

of the Consolidated Appropriations Act 

of 2008, and will be contained in 4 CFR 

part 22. 

Summary of Comments and Changes 

The Board received comments from 

two commentators, including one 

legislative branch agency and one bar 

association. The Board carefully 

considered each comment and adopted 

some of the suggestions made by the 

commentators. In addition, the Board 

made minor changes to the interim rules 

to correct numbering of certain 

paragraphs and to clarify discovery 

rules to reflect current motions practice 

before the Board. The comments and 

changes are discussed below. 

Sec. 22.2 [Board Consideration]. One 

commentator suggested that the Board 

clarify how all Board members ‘‘will be 

in a position to make an informed 

decision’’ in cases where a hearing is 

conducted by only one member of a 

three-member Board. In such cases, it is 

the Board’s practice to make the entire 

record, including the hearing transcript, 

available to all members of the panel. 

The Board does not believe that 

clarification of the rules is necessary to 

address this issue. 

Secs. 22.3 [Appeals—How Taken] and 

22.28 [Time]. One commentator raised 

concern that the Board’s reference to 

5:30 p.m. ‘‘Eastern Standard Time’’ in 

paragraph (b) of section 22.3 and in 

section 22.28 could cause confusion 

because of the use of daylight savings 

time. The commentator suggested that 

the Board instead refer to 5:30 p.m. 

‘‘local time in Washington, DC.’’ The 

Board agrees and has revised the 

sections accordingly. 

One commentator also suggested that 

paragraph (d) of section 22.3, referring 

to the Board’s issuance of a docketing 

notice, be modified to indicate that the 

Board will identify in the docketing 

notice the presiding member of the 

panel, as well as the availability of 

alternative dispute resolution (ADR). 

Current Board practice is to provide this 

information in the docketing notices 

issued in all cases. The Board believes 

that these matters can be appropriately 

addressed in its docketing notices and 

declines to modify its rule. 

Secs. 22.4 [Appeal File] and 22.5 

[Pleadings]. One commentator suggested 

that the Board reverse the order of these 

sections. The Board declines to do so. 

The Appeal file is commonly referred to 

as the Rule 4 file and the placement of 

the rule at section 22.4 [Rule 4] was 

intentional so as to avoid confusion. 

Reference to the ‘‘Rule 4’’ file is 

consistent with other board practice and 

with what is expected by experienced 

practitioners in this field. 

Sec. 22.8 [General Discovery 

Procedures]. The interim rules have led 

to confusion among some parties as to 

whether motions concerning discovery 

must be filed before the end date for 

discovery. To clarify, the Board adds 

paragraph (k) to section 22.8 to require 

parties to file all motions concerning 

discovery, including motions to compel 

discovery, on or before the end date of 

discovery to the maximum extent 

possible. The revised rule further 

provides that late-filed motions will not 

be considered except for good cause 

shown. 

Sec. 22.13 [Requests for Admission]. 

Paragraphs (a)(1)(A) and (a)(1)(B) are 

renumbered as (a)(1)(i) and (a)(1)(ii) to 

be consistent with the numbering in 

other sections and paragraphs. 

Sec. 22.15 [Conferences and Orders]. 

One commentator suggested that the 

Board consider holding a mandatory 

initial scheduling conference after the 

filing of the complaint and answer to 

discuss procedural issues, discovery, 

and case development and resolution. 

The Board agrees that an initial 

scheduling conference with the parties 

is a useful tool to orderly case 

development and resolution. Therefore, 

the Board revises section 22.15 to 

include a new paragraph (a), titled 


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60610 Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Rules and Regulations 

‘‘Initial Scheduling Conference,’’ which 

states: ‘‘As soon as practicable after the 

filing of the complaint and answer, the 

Board shall schedule an initial status 

conference to discuss the issues of case, 

the procedures available under the 

Board’s rules of resolution of the case, 

and a tentative schedule for such 

resolution, including the plan for 

possible discovery required by Rule 

8(c), the possibility of alternative 

dispute resolution (see Rule 24), and the 

possibility of dispositive motions.’’ 

Paragraphs (a) and (b) of the interim rule 

are renumbered as paragraphs (b) and 

(c). 

Sec. 22.16 [Hearings]. One 

commentator suggested that the Board 

clarify whether the Board must honor a 

party’s election of a hearing when the 

other party elects to proceed without a 

hearing. The Board intends to hold a 

hearing if a hearing is requested. Thus, 

paragraph (a) of section 22.16 is revised 

to replace the word ‘‘may’’ with ‘‘shall.’’ 

Sec. 22.19 [Findings and Decisions of 

the Board]. One commentator queried 

how the Board’s decision will be made 

available to the public, and how 

judgments will be paid. As is the 

current practice, Board decisions will be 

made available on the Board Web site 

(http://www.gao.gov) and through CCH, 

Westlaw, and Lexis. The Board declines 

to address the availability of its 

decisions and the payment of judgments 

in its rules. 

Sec. 22.24 [Alternative Dispute 

Resolution]. One commentator 

suggested that the Board clarify the rule 

to ‘‘enhance’’ the Board’s delivery of 

ADR services, address confidentiality 

restrictions with respect to the Board’s 

use of ADR, and provide guidance 

concerning available ADR techniques. 

As the Board notes in its interim rules, 

ADR guidelines, procedures, and 

requirements for implementing ADR 

will be prescribed by the agreement of 

the parties and the Board. This 

recognizes the uniqueness of each case 

and provides the flexibility to adapt 

ADR procedures to fit the needs and the 

concerns of the parties. The Board 

believes that specifying procedures in 

its rules would serve only to limit the 

possible uses of ADR and therefore 

declines to revise its rule. 

List of Subjects in 4 CFR Part 22 

Administrative practice and 

procedure, Contract Appeals Board, 

Government contracts. 

■ Accordingly, the interim rule which 

was published in the Federal Register at 

73 FR 36257, June 26, 2008, is adopted 

as a final rule with the following 

changes to part 22. 

PART 22—RULES OF PROCEDURE OF 

THE GOVERNMENT ACCOUNTABILITY 

OFFICE CONTRACT APPEALS BOARD 

■ 1. The authority citation for part 22 

continues to read as follows: 

Authority: Sec. 1501, Pub. L. 110–161, 121 

Stat. 2249. 

■ 2. Amend § 22.3 by revising paragraph 

(b)(5) as follows: 

§ 22.3 Appeals—How Taken [Rule 3]. 

* * * * * 

(b) * * * 

(5) An appeal filed with the Board 

will be deemed ‘‘filed’’ on the date 

actually received by the Board if 

received by 5:30 p.m. local time in 

Washington, DC, or on the next business 

day if received after 5:30 p.m. 

* * * * * 

■ 3. Amend § 22.8 by adding paragraph 

(k) as follows: 

§ 22.8 General Discovery Procedures [Rule 

8]. 

* * * * * 

(k) Discovery Motions, Timing. All 

motions concerning discovery, 

including motions to compel discovery, 

shall be filed on or before the scheduled 

end date of discovery to the maximum 

extent practicable. Motions that are filed 

after the end date of discovery will not 

be considered except for good cause 

shown. 

§ 22.13 [Amended] 

■ 4. Amend § 22.13 by redesignating 

paragraphs (a)(1)(A) and (a)(1)(B) as 

paragraphs (a)(1)(i) and (a)(1)(ii). 

■ 5. Revise § 22.15 to read as follows: 

§ 22.15 Conferences and Orders [Rule 15]. 

(a) Initial Status Conference. As soon 

as practicable after the filing of the 

complaint and answer, the Board shall 

schedule an initial status conference to 

discuss the issues of case, the 

procedures available under the Board’s 

rules of resolution of the case, and a 

tentative schedule for such resolution, 

including the plan for possible 

discovery required by Rule 8(c), the 

possibility of alternative dispute 

resolution (see Rule 24), and the 

possibility of dispositive motions. 

(b) Status Conferences and Reports. 

At any time during the appeal, the 

Board, upon its own initiative or upon 

the request of one of the parties, may 

call upon the parties or their attorneys 

or representatives to appear before the 

Board (or one or more members thereof) 

for a status conference to consider or 

report on whatever matters are 

necessary to aid in the disposition of the 

appeal. Such matters may include, for 

example, the simplification or 

clarification of issues, the necessity or 

desirability of amendments to the 

pleadings, agreements and rulings to 

facilitate discovery, progress reports 

during discovery, and pre-hearing 

procedures and scheduling. Status 

conferences may be conducted in 

person or by telephone, and the Board 

generally will make an order which 

recites the action taken at the 

conference(s). From time to time, the 

Board also may require one or more of 

the parties, either jointly or 

individually, to provide status reports 

concerning any matter that aids in the 

disposition of the appeal. 

(c) Rulings, Orders, and Directions. 

The Board may make such rulings and 

issue such orders and directions as are 

necessary to secure the informal, 

expeditious, and inexpensive resolution 

of every case before the Board. Any 

ruling, order, or direction that the Board 

may make or issue pursuant to the rules 

of this Board may be made on the 

motion of any party or on the initiative 

of the Board. The Board may also 

amend, alter, or vacate a ruling, order, 

or direction upon such terms as it 

deems appropriate. In making rulings 

and issuing orders and directions, the 

Board will take into consideration those 

Federal Rules of Civil Procedure and 

Federal Rules of Evidence which 

address matters not specifically covered 

herein. 

■ 6. Amend § 22.16 by revising 

paragraph (a) to read as follows: 

§ 22.16 Hearings [Rule 16]. 

(a) Election of Hearing or Record 

Submission. Each party shall inform the 

Board, in writing, whether it elects a 

hearing or submission of the case on the 

record pursuant to § 22.17 of this part 

[Rule 17]. Such election shall occur no 

later than 15 days after the conclusion 

of discovery, unless the Board directs 

otherwise. In the event that only one 

party waives a hearing and submits its 

case on the record, the Board shall 

proceed with a hearing attended by the 

remaining parties. 

* * * * * 

■ 7. Revise § 22.28 to read as follows: 

§ 22.28 Time [Rule 28]. 

In computing any period of time 

described in these rules, ‘‘days’’ refer to 

calendar days, unless otherwise 

specified in these rules. The first day 

from which the period begins to run is 

not counted, and when the last day of 

the period is Saturday, Sunday, or a 

Federal holiday, the period extends to 

the next day that is not a Saturday, 


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Federal Register / Vol. 73, No. 199 / Tuesday, October 14, 2008 / Rules and Regulations 60611 

Sunday, or a Federal holiday. 

Documents shall be deemed ‘‘filed’’ on 

the date and time received by the Board 

if received before 5:30 p.m. local time in 

Washington, DC, or the next business 

day if received after 5:30 p.m. 

Dated: October 8, 2008. 

James A. Spangenberg, 

Chairman, Government Accountability 

Contract Appeals Board. 

[FR Doc. E8–24340 Filed 10–10–08; 8:45 am] 

BILLING CODE 1610–02–P 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Parts 315 and 316 

RIN 3206–AL29 

Disabled Veterans Documentation 

AGENCY: U.S. Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The U.S. Office of Personnel 

Management (OPM) is issuing final 

regulations regarding documentation 

required for appointments of disabled 

veterans. The purpose of this change is 

to provide consistency with the policy 

implemented by the Department of 

Veterans Affairs. 

DATES: Effective Date: November 13, 

2008. 

FOR FURTHER INFORMATION CONTACT: 

Darlene Phelps at (202) 606–0960, by 

FAX on (202) 606–2329, TDD at (202) 

418–3134, or by e-mail at 

Darlene.Phelps@opm.gov. 

SUPPLEMENTARY INFORMATION: On August 

20, 2007, OPM proposed regulations at 

72 FR 46410 regarding documentation 

required for noncompetitive temporary 

and term appointments, and conversion 

of 30 percent or more disabled veterans 

from nonpermanent appointments. The 

Department of Veterans Affairs (VA) 

considers any VA disability letter issued 

for purposes of establishing veterans’ 

preference in employment proof of a 

permanent record of disability, unless 

the letter specifically states otherwise. 

We proposed to modify sections 

315.707(a)(2)(ii) and (iii), 316.302(b)(4), 

and 316.402(b)(4) of title 5, Code of 

Federal Regulations. In addition, in 

section 315.707(a)(2)(ii) and (iii), we are 

adding a reference to disability 

determinations from a branch of the 

Armed Forces, as these entities may also 

certify the existence of 30 percent or 

more disability. These modifications 

will clarify that a 30 percent or more 

disabled veteran who has proof of 

disability from the VA or a branch of the 

Armed Forces dated 1991 or later is 

eligible for a noncompetitive temporary 

or term appointment. The employee 

may be noncompetitively converted to a 

permanent appointment in the 

competitive service at any time during 

such an appointment. Lastly, we are 

adding the word ‘‘so’’ in section 

315.707(a)(2)(iii) to clarify that ‘‘rated’’ 

refers to a service-connected disability 

rating of 30 percent or more. We 

inadvertently omitted this clarification 

in the proposed regulation. 

Comments 

Comments on the proposed rule were 

requested by October 19, 2007. OPM 

received one comment from a private 

citizen who noticed a typographical 

error in sections 316.302(b)(4) and 

316.402(b)(4). We have corrected this 

error by changing ‘‘of’’ to ‘‘or’’ the third 

time it appears in each of those 

paragraphs. 

E.O. 12866, Regulatory Review 

This rule has been reviewed by the 

Office of Management and Budget in 

accordance with Executive Order 12866. 

Regulatory Flexibility Act 

I certify that this regulation will not 

have a significant economic impact on 

a substantial number of small entities 

because it will apply only to Federal 

agencies and employees. 

Paperwork Reduction Act 

The information collection 

requirements contained in this final rule 

are currently approved by OMB under 

3206–0001. This final regulation does 

not modify this approved collection. 

List of Subjects in 5 CFR Parts 315 and 

316 

Government employees. 

U.S. Office of Personnel Management. 

Michael W. Hager, 

Acting Director. 

■ Accordingly, OPM is amending 5 CFR 

parts 315 and 316 as follows: 

PART 315—CAREER AND CAREER 

CONDITIONAL EMPLOYMENT 

■ 1. The authority citation for part 315 

continues to read as follows: 

Authority: 5 U.S.C. 1302, 3301, and 3302; 

E.O. 10577, 3 CFR, 1954–1958 Comp. p. 218, 

unless otherwise noted; and E.O. 13162. 

Secs. 315.601 and 315.609 also issued under 

22 U.S.C. 3651 and 3652. Secs. 315.602 and 

315.604 also issued under 5 U.S.C. 1104. Sec. 

315.603 also issued under 5 U.S.C. 8151. 

Section 315.605 also issued under E.O. 

12034, 3 CFR, 1978 Comp. p. 111. Section 

315.606 also issued under E.O. 11219, 3 CFR, 

1964–1965 Comp. p. 303. Sec 315.607 also 

issued under 22 U.S.C. 2506. Sec. 315.608 

also issued under E.O. 12721, 3 CFR, 1990 

Comp. p. 293. Sec. 315.610 also issued under 

5 U.S.C. 3304(d). Sec. 315.611 also issued 

under Section 511, Pub. L. 106–117, 113 Stat. 

1575–76. Sec. 315.708 also issued under E.O. 

13318. Sec. 315.710 also issued under E.O. 

12596, 3 CFR, 1987 Comp. p. 229. Subpart I 

also issued under 5 U.S.C. 3321, E.O. 12107, 

3 CFR, 1978 Comp. p. 264. 

Subpart G—Conversion to Career or 

Career-Conditional Employment From 

Other Types of Employment 

■ 2. In 315.707, revise paragraphs 

(a)(2)(ii) and (iii) to read as follows: 

§ 315.707 Disabled veterans. 

(a) * * * 

(2) * * * 

(ii) Have been rated by the 

Department of Veterans Affairs since 

1991 or later, or by a branch of the 

Armed Forces at any time, as having a 

compensable service-connected 

disability of 30 percent or more; or 

(iii) Have been so rated by the 

Department of Veterans Affairs, or by a 

branch of the Armed Forces, at the time 

of a qualifying temporary appointment 

effected within the year immediately 

preceding, or a term appointment 

effected within four years immediately 

preceding, the conversion. 

* * * * * 

PART 316—TEMPORARY AND TERM 

EMPLOYMENT 

■ 3. The authority citation for part 316 

continues to read as follows: 

Authority: 5 U.S.C. 3301, 3302; E.O. 10577, 

3 CFR, 1954–1958 Comp., p. 218. 

Subpart C—Term Employment 

■ 4. In 316.302, revise paragraph (b)(4) 

to read as follows: 

§ 316.302 Selection of term employees. 

* * * * * 

(b) * * * 

(4) Appointment under 5 U.S.C. 3112 

(veterans with compensable serviceconnected disability of 30 percent or 

more). The disability must be 

documented by a notice of retirement or 

discharge due to service-connected 

disability from active military service 

dated at any time, or by a notice of 

compensable disability rating from the 

Department of Veterans Affairs, dated 

1991 or later; 

* * * * * 

Subpart D—Temporary Limited 

Employment 

■ 5. In 316.402, revise paragraph (b)(4) 

to read as follows: 


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