Federal Register 1992-01-31

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1-31-92
Vol. 57 No. 21
Friday
January 31, 1992
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IX Federal Register / Vol. 57, No. 21 / Friday, January 31, 1992
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Ill
Contents
Federal Register
Vol. 57, No. 21
Friday, January 31, 1992
Agricultural Marketing Service Commodity Futures Trading Commission
RULES RULES
Avocados grown in Florida, 3715 Organization, functions* and authority delegations:
PROPOSED RULES Central Regional Office; address change, 3722
Watermelon research and promotion plan, 3727
Defense Department
Agriculture Department
NOTICES
See Agricultural Marketing Service; Animal and Plant
Meetings:
Health Inspection Service; Commodity Credit
Defense Policy Board task forces, 3751
Corporation; Farmers Home Administration; Food
Safety and Inspection Service
Employment and Training Administration
Animal and Plant Health Inspection Service notices _
Adjustment assistance:
RULES
ABB Power et al., 3798
Interstate transportation of animals and animal products
Carbonaire, Inc., 3799
(quarantine):
Comtek Manufacturing of Oregon, Inc., 3799
Brucellosis in cattle—
Inter-City Products, 3799
State and area classifications, 3717
Northern Processors, Inc., 3800
PROPOSED RULES
Shell Oil Co. et al., 3800
Exportation and importation of animals and animal
products:
Pork and pork products from Sonora, Mexico; movement Employment Standards Administration
and handling, 3729 notices
Minimum wages for Federal and federally-assisted
Blind and Other Severely Handicapped, Committee for construction; general wage determination decisions,
Purchase From 3796
See Committee for Purchase From the Blind and Other
Severely Handicapped Energy Department
See also Federal Energy Regulatory Commission
Census Bureau notices
NOTICES Grants and cooperative agreements; availability, etc.:
Surveys, determinations, etc.; Energy efficiency and renewable energy technologies and
Capital expenditures, annual, 3739 practices, 3751
Centers for Disease Control Environmental Protection Agency
NOTICES RULES
Meetings: Hazardous waste program authorizations:
Device-mediated bloodbome infections national Illinois, 3722
conference; NIOSH meeting, 3759 Michigan, 3724
Mine Health Research Advisory Committee, 3759 NOTICES
Vital and Health Statistics National Committee, 3759 Environmental statements; availability, etc.:
Agency statements—
Commerce Department Comment availability, 3753
See Census Bureau; Foreign-Trade Zones Board; Weekly receipts, 3754
International Trade Administration; National Institute Meetings:
of Standards and Technology; National Oceanic and FIFRA Scientific Advisory Panel, 3754
Atmospheric Administration; National Technical Pesticide registration, cancellation, etc.:
Information Service Inorganic arsenicals for non-wood preservative, 3755
Superfund; response and remedial actions, proposed
Committee for Purchase From the Blind and Other settlements, etc.:
Severely Handicapped Bayou Aux Carpes site, LA, 3757
NOTICES Toxic and hazardous substances control:
Procurement list; additions and deletions, 3750 Lead abatement professionals; model worker training
(2 documents) course, 3756
Commodity Credit Corporation Executive Office of the President
RULES See Trade Representative, Office of United States
Loan and purchase programs:
Grains and similarly handled commodities; Farmer Farmers Home Administration
Owned Reserve program; 1991 wheat as collateral, NOTICES
3716 Section 515 loan fund recipients 1991 FY; list, 8739
VI Federal Register / Vol. 57, No. 21 / Friday, January 31,1992 / Contents
Veterans Affairs Department
NOTICES
Disciplinary and grievance procedures, 3815
Wage and Hour Division
Migrant and seasonal agricultural workers protection:
Vehicle liability insurance requirements, 3904
Separate Parts In This Issue
Part II
Department of Transportation, Federal Aviation
Administration, 3830
Part III
Trade Representative, Office of United States, 3834
Part IV
Small Business Administration, 3848
Part V .
Department of Transportation, Research and Special
Programs, 3854
Part VI
Department of the Treasury, Fiscal Service 3870
Part VII
Department of Labor, Wage and Hour Division, 3904
Part VIII
Department of the Interior, Bureau of Indian Affairs, 3908
Reader Aids
Additional information, including a list of public
laws, telephone numbers, and finding aids, appears
in the Reader Aids section at the end of this issue.
Federai Register / Voi. 57, No. 21 / Friday, January 31, 1992 / Contenta VII
CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in
the Reader Aids section at the end of this issue.
5 CFR
531..........................
536..........................
772.........................
831..........................
841....................................3707
842...........................
846..........................
870...........................
890...........................
7 CFR
915...........................
1421........................
Proposed Rules:
1210.........................
9 CFR
78...........................
Proposed Rules:
94............................
318...........................
319...........................
10 CFR
25............................
13 CFR
122...........................
14 CFR
Proposed Rules:
170...........................
17 CFR
140...........................
145............................
26 CFR
Proposed Rules:
40.............................
49..............................
29 CFR
500............................
31 CFR
Proposed Rules:
349............................
356.......................
40 CFR
272 (2 documents)...........3722,
3724
49 CFR
Proposed Rules:
171.............................
172.............................
173.......................
174......................
176............................
50 CFR

: : ■ - 3707
Rules and Regulations
Federal Register
Voi. 57, No. 21
Friday, January 31, 1992
This section of the FEDERAL REGISTER and explanation of changes to various and whether time limits for effecting
contains regulatory documents having parts of the Code of Federal Regulations, interim relief should be set. With respect
general applicability and legal effect, most are discussed below. to the first issue, OPM notes that interim
of which are keyed to and codified in
The Whistleblower Protection Act of relief is never appropriate unless an
the Code of Federal Regulations, which is
1989 (WPA) provided that prevailing MSPB initial decision orders such relief.
published under 50 titles pursuant to 44
U.S.C. 1510. parties in an appeal to the Merit A typical situation where interim relief
The Code of Federal Regulations is sold Systems Protection Board (MSPB) . . would not be ordered might involve a
by the Superintendent of Documents. shall be granted the relief provided in 30-day suspension which had been
Prices of new books are listed in the the decision, and remaining in effect served and the employee was returned
first FEDERAL REGISTER issue of each pending the outcome of any petition for to duty by the time the MSPB issued an
week. review. ...” The final regulations initial decision. Even where interni relief
authorize agencies to take interim has been ordered, OPM believes, after
personnel actions to provide a further review of the WPÀ, that interim
OFFICE OF PERSONNEL
prevailing applicant or employee the relief is only appropriate if a petition for
MANAGEMENT
interim relief ordered in an MSPB initial review is filed (or will be filed) with the
5 CFR Parts 531,536,772,831,841, decision. Interim personnel actions full Board. In this regard, OPM notes
842, 846,870, and 890 include, but are not limited to, interim that the current MSPB practice of
appointments, interim repromotions advising agencies to implement interim
RIN 3206-AE16 after demotions, and interim within- relief “if a petition for review is filed”
grade increases. appears to be consistent with this
Interim Relief position.
1. Part 772—When Interim Relief Is
With respect to the second issue of
AGENCY; Office of Personnel Appropriate and When It Is Effective
whether interim relief is required when
Management.
Two commenters suggested that the the petitioner is an appellant, OPM
ACTION: Final rule. regulations address the question of notes that the WPA requires interim
whether or not interim relief is only relief “pending the outcome of any
SUMMARY: The U.S. Office of Personnel
appropriate when an appellant alleges petition for review” (emphasis supplied)
Management (OPM) is publishing final
that an appealed action was taken in without noting the identity of the
regulations at 5 CFR parts 531, 536, 772,
reprisal for whistleblowing. In response, petitioner. As a result, OPM believes
831, 841, 842, 846, 870, and 890 to provide
OPM has amended § 772.101 to clarify that interim relief is required, whether
agencies with the authorities necessary
that the interim relief provisions of the the petitioner is the agency or the
to take personnel actions providing
interim relief under the Whistleblower WPA apply to MSPB appeals involving appellant. If the petitioner is the
Protection Act of1989, Public Law 101- employees and applicants for appellant (e.g., when a removal is
employment—as opposed to, for mitigated to a demotion by the initial
12, codified at 5 U.S.C. 7701(b)(2)(A).
example, applicants for retirement— decision and only the appellant
These regulations address the areas of:
whether or not whistleblowing issues challenges the decision), interim relief
(1) Taking personnel actions to effect
are involved. would still be appropriate because the
interim relief, (2) pay and benefits
Two commenters suggested that the appealhas not yet reached finality (the
administration, and (3) the effect of
circumstances should be defined under matter is still under adjudication and
interim relief on entitlement to
which an agency determines that it could result in the initial decision being
retirement, health, and life insurance
would be “unduly disruptive to the work overturned and the agency’s action
benefits for the period of time an
environment” under the WPA for the completely sustained). OPM also notes
employee, former employee, or applicant
appellant to be returned or to be present that the current MSPB practice of
for employment remains in an interim
at the place of employment. OPM ordering interim relief as noted above
relief status.
believes that the WPA authorized appears to be consistent with this
EFFECTIVE DATE: March 2,1992.
agencies to make this determination as position.
FOR FURTHER INFORMATION CONTACT: the agency sees fit on a case-by-case Finally, with respect to the third issue
For parts 531 and 536: Robert T. basis and that it would be inappropriate about time limits, OPM believes that
Gatewood [phone] or FTS 266- for OPM to restrict an agency’s exercise such limits are unnecessary. In this
2858; for part 772: Gary D. Wahlert (202) of this authority. The regulations note regard, the WPA only requires that the
606-2920 or FTS 266-2920; and for parts that, when such an “unduly disruptive” effective date of interim relief be the
831, 841, 842, 846, 870, and 890: Patricia determination is made, the individual same date as the MSPB decision
A. Rochester [phone] or FTS 266- affected is placed in a paid, non-duty ordering relief. No additional constraints
0299. status with all of the compensation and are provided by law. In view of the
SUPPLEMENTARY INFORMATION: OPM benefits he or she would receive had the position stated above that interim relief
published for comment proposed individual been placed in a paid, duty is only appropriate if there is (or will be)
regulations on this subject in the Federal status on interim relief. a petition for review, OPM has
Register on February 5,1991, on pages Several commenters raised questions concluded that an agency must initiate
4562-4567. Comments and suggestions about whether interim relief is required interim relief by the time a petition for
were received from eight agencies and in all instances, whether interim relief is review is filed by the agency and, when
one union. These comments and required when the appellant rather than a petition is filed by the appellant, must
suggestions, along with the rationale for the agency files a petition for review, initiate interim relief within a
Federal Register / Vol, 57, No. 21 / Friday, January 31, 1992 / Rules and Regulations
3708
position, he or she must be returned to a interim relief to credit for that period of
reasonable time after it becomes aware
of the appellant’s petition for review. similar position of the same grade and time for these purposes.
Again, and in any circumstance, the pay and which would provide for the Another commenter also suggested
effective date of the interim relief must same benefits (e.g., basic pay, overtime, that time Spent in an interim relief status
be the date of the MSPB initial decision. differential pay, locality pay, within- (i.e., the time between the effective date
Accordingly, OPM is amending grade increases, gain-sharing, merit and the ending date of interim relief)
§ 772.102 to clarify the conditions under increases granted under the should not be counted toward
which a grant of interim relief is Performance Management and completion of an employee’s
appropriate and to describe the timing Recognition System, OWCP benefits, life probationary period. OPM disagrees.
of an agency’s actions to initiate interim insurance, health insurance, retirement OPM believes that interim relief service
relief, coverage, leave accrual, status, tenure, should be counted toward completion of
retention level, and, as appropriate, the probationary period because the
2. Part 772—Ending of Relief Provided participation in the Thrift Savings Plan) employee is in a pay status (contrary to
by an Interim Personnel Action in order to be in compliance with die the time period between a separation
The relief provided by an interim intent of the WPA. In addition, it is and the beginning of interim relief noted
personnel action ends upon the issuance noted that employees in an interim relief in the paragraph above where no pay is
of a final Board order under 5 U.S.C. status are subject to the same rules provided).
7701(b)(2)(A) or when a party withdraws affecting other employees, e.g., 5 CFR Additional staffing guidance
a petition for review such that no Part 752, Adverse Actions; 5 CFR Part concerning interim relief appointments
petition remains pending at the full 432, Performance Based Reduction in will be issued after these regulations are
Board. The ending of relief provided by Grade and Removal Actions; 5 CFR Part published.
an interim personnel action in such 351, Reduction in Force; etc. Any
4. Part 772-—Back Pay and Attorney
circumstances is not subject to adverse disputes as to whether a similar position
action procedures and is neither provided the same benefits as the Fees
appealable nor grievable. In this regard, formeT position would be an appropriate Interim relief does not entitle the
one commenter noted that, even though subject for review by MSPB. applicant or employee to awards of
interim relief may be ended by a final Accordingly, OPM is amending back pay or attorney fees. Decisions
Board order sustaining the agency’s § 772.102 by clarifying that interim relief concerning these awards will be made
action and the ending of relief is not requires that an employee be placed in after a decision is issued by the full
appealable or grievable, the applicant or the same or similar position occupied Board, or after an initial decision
employee could still continue to prior to the agency’s action. becomes final pursuant to 5 U.S.C.
challenge the agency’s original action by With regard to participation in die 7701(e)(1)(A).
seeking review by the Court of Appeals Thrift Savings Man, one commenter One commenter questioned whether
for the Federal Circuit. OPM agrees. suggested that the Federal Retirement
interim relief ordered in the case of
An interim personnel action may be Thrift Investment Board be informed
appealed enforced leave would require
ended sooner in certain other about the possible impact of interim
die agency to restore die leave at issue.
circumstances. These include the relief on its activities. OPM agrees with
OPM believes that such restoration
reaching of a settlement agreement this suggestion and will provide
during interim relief would effectively
which involves cancelling the interim information about die interim relief
constitute bade pay and thus not be
personnel action, the requesting by the program to the Thrift Board. OPM will
permissible under the WPA.
applicant or employee that the interim consult with the Board concerning
personnel action be cancelled after he or benefits questions that may be brought 5. Part 531—Interim Within-Grade
she secures other employment, leaves to OPM's attention. Increases
the agency or retires, or the removing With regard to RIF actions that might
Under OPM's current regulations at
under adverse action procedures of an affect an employee on interim relief, one
part 531, if an agency properly grants a
employee from an interim appointment commenter suggested that the final
within-grade increase, there is no
for cause such as misconduct during the regulations address matters such as
mechanism for specifically terminating
interim relief period, bump and retreat rights that might be
the employee’s entitlement to the
affected by interim appointments. OPM
3. Part 772—Employee Entitlements within-grade increase. However, when
has declined to elaborate in regulation
While in an Interim Relief Status the personnel action being appealed is
on this subject but notes that the guiding
the withholding of a within-grade
Several commenters questioned principle to be followed is that
increase, the only possible interim relief
whether an employee or former employees serving under interim
is the interim granting of the within-
employee who is a prevailing party and appointments should be treated for RIF
grade increase. Should die full Board
is granted interim relief must be purposes as if the disputed or appealed
ultimately sustain the agency’s
returned to the exact position die actions had not occurred (and whether
withholding of the within-grade
employee occupied prior to the agency's or not the employees were returned to
increase, the agency needs a mechanism
action, e.g., the position occupied before their original positions or to the same or
for terminating the interim relief, teM
the employee was removed, demoted, similar positions).
terminating die employee’s entitlement
etc. OPM believes that since the WPA Two commenters suggested that the
to the within-grade increase, which no
does not require "cancellation” of the period of time between the date of an
longer has a legal basis. OPM is
action appealed, placement in the same action taken (e.g., removal) and the
position would not be necessary in order effective date of interim relief should not amending part 531 to permit agencies to
grant interim within-grade increases,
for the agency to provide all of the be creditable for qualifications, time in
benefits of interim relief envisioned by grade, or other staffing purposes except which may be terminated or made
the WPA. to die extent normally permitted. OPM permanent, as appropriate, after the
OPM believes, however, that if the agrees. Die final regulations should not Board’s final action.
employee is not returned to the same be construed to entitle an employee on The break in service immediately