Unknown. Interim rule with request for comments

6,737 words·~31 min read·/register/2004/09/27/04-21589·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2004-09-27.xml --- 69 186 Monday, September 27, 2004 Contents Actuaries Actuaries, Joint Board for Enrollment See Joint Board for Enrollment of Actuaries Agency for Healthcare Research and Quality Agency for Healthcare Research and Quality NOTICES Agency information collection activities; proposals, submissions and approvals [ **Editorial Note:** This document appearing at 69 FR 57297 in the **Federal Register ** of September 24, 2004, was inadvertently dropped from that issue's Table of Contents] Agricultural Agricultural Marketing Service NOTICES Meetings:

National Organic Standards Board, 57669-57670 04-21552 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See Natural Resources Conservation Service Animal Animal and Plant Health Inspection Service RULES Plant-related quarantine, domestic: Karnal bunt, 57632 04-21575 NOTICES Agency information collection activities; proposals, submissions, and approvals; correction, Z4-02344 Antitrust Antitrust Division NOTICES Competitive impact statements and proposed consent judgments:

Sygenta AG et al., 57716-57736 04-21548 Army Army Department See Engineers Corps NOTICES Meetings: Armed Forces Institute of Pathology Scientific Advisory Board, 57677-57678 04-21574 Patent licenses; non-exclusive, exclusive, or partially exclusive: Horizontally adjusted wheelchair, 57678 04-21573 Lid driver and apparatus for fastening lid to container, 57678 04-21572 Arts Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Centers Centers for Disease Control and Prevention NOTICES Committees; establishment, renewal, termination, etc.:

Breast and Cervical Cancer Early Detection and Control Advisory Committee, 57706 04-21567 Children Children and Families Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 57706-57708 04-21608 04-21609 04-21610 Grant and cooperative agreement awards: Head Start programs— National Center for Family Literacy, 57708 04-21547 Civil Civil Rights Commission NOTICES Meetings; State advisory committees: Virginia, 57671 04-21597 Coast Guard Coast Guard RULES Regattas and marine parades:

Sunset Lake Hydrofest, 57647-57649 04-21593 PROPOSED RULES Anchorage regulations: Virginia, 57656-57662 04-21523 NOTICES Reports and guidance documents; availability, etc.: Great Lakes shipping; discharge of dry cargo residues; enforcement policy, 57711 04-21599 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration NOTICES Privacy Act: Systems of records, 57671 04-21619 Defense Defense Department See Army Department See Engineers Corps See Navy Department Energy Energy Department See Federal Energy Regulatory Commission Engineers Engineers Corps PROPOSED RULES Corps Regulatory Program and new Historic Preservation Advisory Council regulations; historic properties protection procedures, 57662-57664 04-21540 EPA Environmental Protection Agency RULES Superfund program:

National oil and hazardous substances contingency plan— National priorities list update, 57649-57651 04-21493 PROPOSED RULES Superfund program: National oil and hazardous substances contingency plan— National priorities list update, 57664 04-21494 NOTICES Agency information collection activities; proposals, submissions, and approvals, 57687-57695 04-21576 04-21577 04-21582 04-21584 Air pollution control: State operating permits programs— New York, 57695 04-21583 Grants and cooperative agreements; availability, etc.:

Children's Environmental Health; State, Territorial, and Tribal Capacity to Address; Childhood Asthma Environmental Triggers, 57695-57705 04-21580 FAA Federal Aviation Administration RULES Airworthiness directives: Boeing, 57632-57638 04-21271 04-21272 FDIC Federal Deposit Insurance Corporation NOTICES Agency information collection activities; proposals, submissions, and approvals, 57705-57706 04-21602 Federal Energy Federal Energy Regulatory Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 57678-57679 E4-2377 Environmental statements; notice of intent:

Golden Pass LNG Terminal LP et al., 57684-57687 E4-2384 *Applications, hearings, determinations, etc.:* Abacus Group, Ltd., et al.; market-based rate tariffs revocation, 57679-57680 E4-2379 AEP Power Marketing, Inc., et al., 57680-57681 E4-2375 Bethpage Energy Center 3, LLC, 57681 E4-2381 Goldendale Energy Center, LLC, 57681 E4-2380 POSDEF Power Co., LP, 57681-57682 E4-2383 Sound Energy Solutions, 57682-57683 E4-2378 TBG Cogen Partners, 57683 E4-2382 White Pine Electric Power, L.L.C., 57683 E4-2376 Federal Motor Federal Motor Carrier Safety Administration NOTICES Motor carrier safety standards:

Exemption applications— Werner Enterprises, Inc.; correction, 57749 C4-21139 Fish Fish and Wildlife Service RULES Migratory bird hunting: Seasons, limits, and shooting hours; establishment, etc., 57751-57807 04-21485 NOTICES Endangered and threatened species: Recovery plans— Catesbaea melanocarpa, 57712-57713 04-21565 Food Food and Drug Administration RULES Animal drugs, feeds, and related products: Bacitracin methylene disalicylate and chlortetracycline Correction, 57638-57639 04-21560 Health Health and Human Services Department See Agency for Healthcare Research and Quality See Centers for Disease Control and Prevention See Children and Families Administration See Food and Drug Administration See National Institutes of Health See Public Health Service See Substance Abuse and Mental Health Services Administration Homeland Homeland Security Department See Coast Guard Industry Industry and Security Bureau NOTICES Export privileges, actions affecting:

Talyi, Yaudat Mustafa, et al., 57671-57673 04-21558 Meetings: Materials Technical Advisory Committee, 57673 04-21564 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See Minerals Management Service See Surface Mining Reclamation and Enforcement Office IRS Internal Revenue Service RULES Employment taxes and collection of Income taxes at source: Procedure and administration; correction, 57639 04-21613 International International Trade Administration NOTICES Antidumping:

Stainless steel sheet and strip in coils from— Mexico, 57673-57674 E4-2390 Steel concrete reinforcing bars from— Latvia, 57674 E4-2391 Overseas trade missions: 2004 trade missions— Malaysia, Singapore, and Vietnam; Oil and Gas Equipment and Services Trade Mission, 57674-57676 04-21606 International International Trade Commission NOTICES Meetings; Sunshine Act, 57714 04-21672 Joint Joint Board for Enrollment of Actuaries NOTICES Committees; establishment, renewal, termination, etc.:

Actuarial Examinations Advisory Committee, 57669 04-21614 Meetings: Actuarial Examinations Advisory Committee, 57669 04-21615 Justice Justice Department See Antitrust Division RULES Organization, functions, and authority delegations: Employee overpayment debt claims; waiver authority; technical correction, 57639-57640 04-21604 NOTICES Executive Office for Immigration Review: Class action settlements— Durnford v. Ashcroft, 57714-57716 04-21603 Labor Labor Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 57736-57737 04-21562 Land Land Management Bureau NOTICES Meetings:

Resource Advisory Councils— Front Range, 57713 04-21563 Northwest California, 57713 04-21607 Merit Merit Systems Protection Board RULES Practice and procedure: Electronic filing; implementation, 57627-57632 04-21589 Minerals Minerals Management Service NOTICES Meetings: Royalty Policy Committee, 57713-57714 04-21595 NASA National Aeronautics and Space Administration PROPOSED RULES Acquisition regulations: Research announcements; small business subcontracting plans and publication acknowledgement and disclaimers, 57664-57665 04-21414 National Foundation National Foundation on the Arts and the Humanities NOTICES Agency information collection activities; proposals, submissions, and approvals, 57737-57738 04-21556 Meetings:

Arts and Humanities, President's Committee, 57738 04-21555 National Highway National Highway Traffic Safety Administration NOTICES Meetings: Crash Injury Research and Engineering Network, 57746-57747 04-21594 NIH National Institutes of Health NOTICES Meetings: Advisory Committee to Director, 57708-57709 04-21617 National Institute of Mental Health, 57709 04-21616 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management: Alaska; fisheries of Exclusive Economic Zone— Pacific ocean perch, 57654 04-21549 Rougheye rockfish, 57654 04-21550 Trawl gear in the Gulf of Alaska, 57655 04-21551 Northeastern United States fisheries— Tilefish, 57653 04-21590 West Coast States and Western Pacific fisheries— Oregon sport fisheries;

Pacific halibut, 57651-57653 04-21553 PROPOSED RULES Fishery conservation and management: West Coast States and Western Pacific fisheries— Western Pacific Fishery Management Council; meetings, 57665-57668 04-21554 NOTICES Fishery conservation and management: Magnuson-Stevens Act provisions— Domestic fisheries; exempted fishing permit applications, 57676-57677 E4-2388 Permits: Endangered and threatened species, 57677 04-21598 National Science National Science Foundation NOTICES Antarctic Conservation Act of 1978; permit applications, etc., 57738-57739 04-21601 NRCS Natural Resources Conservation Service NOTICES Environmental statements; availability, etc.:

Williamson River Delta Restoration Project, OR, 57670 04-21600 Navy Navy Department NOTICES Meetings: Naval Postgraduate School Board of Advisors to Superintendent, 57678 04-21546 Public Public Health Service NOTICES Meetings: National Toxicology Program— Scientific Counselors Board, 57709-57710 04-21618 SEC Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 57739 04-21639 04-21682 Public Utility Holding Company Act of 1935 filings, 57739-57740 E4-2389 Securities:

Suspenison of trading— Village Green Bookstore, Inc., 57740 04-21684 Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC; correction, Z4-02245 New York Stock Exchange, Inc., 57741-57742 E4-2386 Pacific Exchange, Inc., 57742-57745 E4-2385 E4-2387 SBA Small Business Administration NOTICES Disaster loan areas: North Carolina, 57745 04-21545 Meetings: Regulatory Fairness Boards— Region IV; hearing, 57745-57746 04-21544 State State Department NOTICES Art objects; importation for exhibition:

Nineteenth-Century European Paintings Galleries, 57746 04-21612 Nonproliferation measures imposition: Chinese entity; correction, 57746 04-21611 Substance Substance Abuse and Mental Health Services Administration NOTICES Meetings: Drug Testing Advisory Board, 57710 04-21568 Substance Abuse Prevention Center National Advisory Council, 57711 04-21569 Surface Surface Mining Reclamation and Enforcement Office RULES Permanent program and abandoned mine land reclamation plan submissions:

Ohio, 57640-57647 04-21539 Surface Surface Transportation Board NOTICES Railroad services abandonment: R.J. Corman Equipment Co, 57747 04-21681 Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See National Highway Traffic Safety Administration See Surface Transportation Board Treasury Treasury Department See Internal Revenue Service Veterans Veterans Affairs Department NOTICES Meetings: Former Prisoners of War Advisory Committee, 57747-57748 04-21543 Prosthetics and Special Disabilities Programs Advisory Committee, 57748 04-21542 Separate Parts In This Issue Part II Interior Department, Fish and Wildlife Service, 57751-57807 04-21485 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 69 186 Monday, September 27, 2004 Rules and Regulations MERIT SYSTEMS PROTECTION BOARD 5 CFR Parts 1201, 1203, 1208, and 1209 Interim Regulatory Changes for Implementation of Electronic Filing AGENCY: Merit Systems Protection Board.

ACTION: Interim rule with request for comments. SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is amending the rules of practice and procedure that govern how participants in Board proceedings file and receive documents in electronic form. This change reflects an upgrade to e-Appeal, the MSPB's Web-based application for electronic filing (e-filing). Previously, only new appeals could be filed via the Internet, with electronic filing thereafter restricted to using e-mail.

E-filers can now use the e-Appeal site to file almost any type of pleading. DATES: This rule is effective September 27, 2004. Written comments should be submitted on or before November 29, 2004. ADDRESSES: Submit comments to the Office of the Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419. Comments may be submitted by regular mail to this address, by facsimile to

(202)653-7130, or by e-mail to *mspb@mspb.gov.* FOR FURTHER INFORMATION CONTACT: Timothy Korb, 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: When the MSPB instituted electronic filing on October 20, 2003 (68 FR 59859), its Web-based application was available only for the filing of new appeals. The only tool available to those who wanted to engage in e-filing thereafter was e-mail. E-Appeal ( *https://e-appeal.mspb.gov* ) has become quite popular over the past year, and presently accounts for about 10% of new appeals filed. By contrast, few have elected to engage in e-filing via e-mail. The Board has now upgraded e-Appeal so that it can accommodate virtually any type of pleading. Filing pleadings via e-Appeal will have several advantages for e-filers compared to filing by e-mail:

(1)They will have access to context-specific Help text and links;

(2)should they choose to do so, e-filers will have the option of submitting pleadings and attachments in the form of declarations made under penalty of perjury;

(3)they can choose between entering their pleadings online and uploading them as electronic files; and

(4)they will not be required to disclose their e-mail addresses to anyone except the MSPB. When all participants in an appeal are e-filers, the filing process should be quick and easy. The Board as well as the parties will receive documents on the same day they are sent, rather than having to wait for mail delivery. This should facilitate quicker processing, particularly when the proceeding is pending in headquarters, because letters addressed to Washington, D.C. are first sent to Ohio for irradiation. And e-filers will be relieved of the burden of serving electronic documents on other e-filers. Having all electronic filings go through the Board's Web-based application will enable the Board to manage these electronic documents more effectively. Because e-Appeal is now integrated with the Board's case management system and its document management system, making docket entries and placing pleadings into the appropriate electronic repository will be done automatically. Accordingly, the Board will no longer allow pleadings to be submitted via e-mail. Electronic filing at the Board includes the following features: • Documents can be submitted in any common electronic format, including word-processing and image formats (electronic files created by scanning paper documents). (1201.14(f)(2)) • E-filers will be able to submit “hybrid” pleadings, in which part of a pleading is submitted in electronic form, and the rest is submitted in paper form. (1201.14(g)) • Regardless of whether it is uploaded or entered online, each pleading will be assembled into a single PDF document, which will include all electronic attachments, and which will be sequentially paginated. Pagination will enable everyone involved to make specific citations to the record. • Before submitting an electronic pleading, e-filers will be able to review and make changes to it. • If unable to complete a pleading while online, an e-filer will be able to save his or her work and complete it during a later session. • E-filers will be provided a confirmation of electronic filing, and will be able to print or download a copy of the assembled pleading as a PDF document. • Service of pleadings on other e-filers will be automated. (1201.14(h)) • Documents issued by the Board will be served on e-filers as PDF documents, which will be sent to the e-filer's e-mail address of record. (1201.14(k)) • When a party who is an individual is represented, the party and the representative can separately decide whether to register for e-filing. If only the representative registers for e-filing, the party will continue to receive documents by regular mail. (1201.14(e)(3)) • Although registration as an e-filer permits participants to file pleadings electronically, they may file any pleading, or portion of a pleading, by non-electronic means. (1201.14(e)(4)) • Registration as an e-filer can be withdrawn at any time, but while in effect the individual consents to accept electronic service of all documents issued by the Board and all pleadings submitted by other e-filers. (1201.14(e)(1), (e)(5)) Although numerous sections of the Board's regulations required minor revision in light of the upgrade to e-Appeal, the primary rules governing e-filing can be found in § 1201.14 (formerly 1201.5). Participation in electronic filing is entirely voluntary. As before, where only one party is registered as an e-filer, the Board will set deadlines so that parties filing and receiving documents by conventional means will have adequate time to prepare and file responses. List of Subjects 5 CFR Part 1201 Administrative practice and procedure, Civil rights, Government employees. 5 CFR Part 1203 Administrative practice and procedure, Civil rights, Government employees. 5 CFR Part 1208 Administrative practice and procedure, Government employees, Veterans. 5 CFR Part 1209 Administrative practice and procedure, Government employees, Whistleblowing. Accordingly, the Board amends 5 CFR parts 1201, 1203, 1208, and 1209 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 1201.4 is amended by deleting paragraph (o), and by revising paragraphs (i), and

(k)through

(n)as follows: § 1201.4 General definitions.

(i)*Service.* The process of furnishing a copy of any pleading to Board officials, other parties, or both, by mail, by facsimile, by commercial or personal delivery, or by electronic filing (e-filing) in accordance with § 1201.14.

(k)*Certificate of service* . A document certifying that a party has served copies of pleadings on the other parties or, in the case of paper documents associated with electronic filings under paragraph

(g)of § 1201.14, on the Board.

(l)*Date of filing* . A document that is filed with a Board office by personal delivery is considered filed on the date on which the Board office receives it. The date of filing by facsimile is the date of the facsimile. The date of filing by mail is determined by the postmark date; if no legible postmark date appears on the mailing, the submission is presumed to have been mailed five days (excluding days on which the Board is closed for business) before its receipt. The date of filing by commercial delivery is the date the document was delivered to the commercial delivery service. The date of filing by e-filing is the date of electronic submission.

(m)*Electronic filing (e-filing)* . Filing and receiving documents in electronic form in proceedings within the Board's appellate or original jurisdiction in accordance with § 1201.14.

(n)*E-filer* . A party or representative who has registered to engage in e-filing under paragraph

(e)of § 1201.14. § 1201.5 [Redesignated and revised] 3. Section 1201.5 is redesignated as § 1201.14, and revised to read as follows: § 1201.14 Electronic filing procedures.

(a)*General.* This section prescribes the rules and procedures by which parties and representatives to proceedings within the Board's appellate and original jurisdiction may file and receive documents in electronic form.

(b)*Matters subject to electronic filing.* Subject to the registration requirement of paragraph

(e)of this section, parties and representatives may use electronic filing (e-filing) to do any of the following:

(1)File any pleading, including a new appeal, in any matter within the Board's appellate jurisdiction (§ 1201.3);

(2)File any pleading, other than the original complaint or request, in any matter within the Board's original jurisdiction (§ 1201.2);

(3)File a petition for enforcement of a final Board decision (§ 1201.182);

(4)File a motion for attorney fees as a prevailing party (§ 1201.203);

(5)File a motion for compensatory or consequential damages (§ 1201.204);

(6)Designate a representative, revoke such a designation, or change such a designation (§ 1201.31); or

(7)Notify the Board of a change in contact information such as address (geographic or electronic mail) or telephone number.

(c)*Matters excluded from electronic filing* . Electronic filing may not be used to:

(1)File the original complaint or request in a matter within the Board's original jurisdiction, which includes: a complaint filed by the Special Counsel seeking corrective or disciplinary action (§§ 1201.122, 1201.128); a request by the Special Counsel for the stay of certain personnel actions (§ 1201.134); a proposal to take action against an administrative law judge under 5 U.S.C. 7521 (§ 1201.137); or a request for a hearing on a proposed removal of a career appointee from the Senior Executive Service for performance reasons (§ 1201.143);

(2)File a request to hear a case as a class appeal or any opposition thereto (§ 1201.27);

(3)Serve a subpoena (§ 1201.83); or

(4)File a pleading with the Special Panel (§ 1201.137).

(d)*Internet is sole venue for electronic filing* . Following the instructions at the Board's e-Appeal site ( *https://e-appeal.mspb.gov* ) is the only method allowed for filing electronic pleadings with the Board. The Board will not accept pleadings filed by electronic mail.

(e)*Registration as an e-filer* .

(1)Except when filing a new appeal within the Board's appellate jurisdiction (§ 1201.3), no party or representative may file an electronic pleading with the Board unless he or she has registered with the Board as an e-filer. Registration as an e-filer constitutes consent to accept electronic service of pleadings filed by other registered e-filers and documents issued by the Board.

(2)The exclusive means for a party or representative to register as an e-filer during a Board proceeding is to follow the instructions at the Board's e-Appeal site ( *https://e-appeal.mspb.gov* ).

(3)When a party who is an individual is represented, the party and the representative can make separate determinations whether to register as an e-filer. For example, an appellant may file and receive pleadings and Board documents by non-electronic means, even though his or her representative has registered as an e-filer. Similarly, when a party has more than one representative, each representative has the choice of registering as an e-filer or filing and receiving pleadings and Board documents by non-electronic means.

(4)A party or representative who has registered as an e-filer may file any pleading, or portion of a pleading as described in paragraph

(g)of this section, by non-electronic means.

(5)A party or representative may withdraw his or her registration as an e-filer. Such withdrawal means that, effective upon the Board's receipt of this withdrawal, pleadings and Board documents will no longer be served on that person in electronic form. A withdrawal of registration as an e-filer may be filed at the Board's e-Appeal site, in which case service is governed by paragraph

(h)of this section, or by non-electronic means, in which case service is governed by section 1201.26(b) of this part.

(f)*Form of electronic pleadings* —(1) *Options for e-filing* . An appellant or representative using e-Appeal to file a new appeal within the Board's appellate jurisdiction (§ 1201.3) must complete the structured interview at the Board's e-Appeal site ( *https://e-appeal.mspb.gov* ). For all other pleadings, the e-filer has the option of uploading an electronic file or entering the text of the pleading online. Regardless of the means of filing a particular pleading, the e-filer will be allowed to submit supporting documentation as attachments, in both electronic and paper form, as described in paragraphs (f)(2) and (f)(3) of this section.

(2)*Electronic formats allowed.* The Board will accept numerous electronic formats, including word-processing and spreadsheet formats, Portable Document Format (PDF), and image files (files created by scanning). A list of formats allowed can be found at the Board's e-Appeal site. All electronic documents must be formatted so that they will print on standard 8 1/2 inch by 11 inch paper.

(3)*Limitation on number of electronic attachments* . E-filers may upload up to three electronic files as supporting documentation, in addition to the document that constitutes the primary pleading. There is no limit on the number of non-electronic documents that may be submitted as attachments under paragraph

(g)of this section.

(g)*Hybrid pleadings that include both electronic and paper documents* . An e-filer may file a hybrid pleading in which part of the pleading is submitted electronically, and part of the pleading consists of one or more paper documents filed by non-electronic means. If one or more parts of a hybrid pleading are untimely filed, the judge or the Clerk may reject the untimely part or parts while accepting timely filed parts of the same pleading.

(h)*Service of electronic pleadings.* The Board will serve electronic pleadings on other parties and representatives who have registered as e-filers. The Board's e-Appeal application will notify the e-filer of all documents that must be served by non-electronic means. The e-filer must certify that he or she will serve all such documents no later than the first business day after the electronic submission.

(i)*Documents requiring a signature.* An electronic document filed by a party who has registered as an e-filer pursuant to this section shall be deemed to be signed for purposes of any regulation in part 1201, 1203, 1208, or 1209 of this title that requires a signature.

(j)*Affidavits and Declarations made under penalty of perjury.* Registered e-filers may submit electronic pleadings in the form of declarations made under penalty of perjury under 28 U.S.C. 1746, as described in Appendix IV of this part. If the declarant is someone other than the e-filer, a physically signed affidavit or declaration should be uploaded as an image file, or submitted separately as a non-electronic document under paragraph

(g)of this section.

(k)*Issuance of Board documents to e-filers.* The Board's notices, orders, and decisions will be served on e-filers as PDF files attached to electronic mail messages, which will be sent to the electronic mail address supplied by the e-filer.

(l)*Date electronic documents are received* . Pleadings and Board documents served electronically on registered e-filers are deemed received on the date of electronic submission or, if submitted on a weekend or federal holiday, on the first business day after the electronic submission.

(m)*Authority of a judge or the Clerk to regulate e-filing* —(1) In the event that the Board or any party encounters repeated or unexplained difficulties filing, serving, or receiving electronic documents, the judge or the Clerk of the Board may order one or more parties to cease filing pleadings by e-filing, cease serving documents in electronic form, or take both these actions. In such instances, filing and service shall be undertaken in accordance with § 1201.26. The authority to order the cessation of the use of electronic filing may be for a particular submission, for a particular time frame, or for the duration of the pendency of a case.

(2)A judge or the Clerk of the Board may require that any document filed electronically be submitted in non-electronic form and bear the written signature of the submitter. A party receiving such an order from a judge or the Clerk of the Board shall, within 5 calendar days, serve on the judge or Clerk of the Board by regular mail, by facsimile, or by commercial or personal delivery a signed, non-electronic copy of the document. 4. Section 1201.22 is amended by revising paragraphs

(d)and (e), and by deleting paragraph

(f)to read as follows: § 1201.22 Filing an appeal and responses to appeals.

(d)*Method of filing an appeal.* Filing of an appeal must be made with the appropriate Board office by commercial or personal delivery, by facsimile, by mail, or by electronic filing under § 1201.14.

(e)*Filing a response* . Filing of a response must be made with the appropriate Board office by commercial or personal delivery, by facsimile, by mail, or by electronic filing under § 1201.14. 5. Section 1201.24 is amended by revising paragraphs

(a)introductory text, (a)(9), and

(c)to read as follows: § 1201.24 Content of an appeal; right to hearing.

(a)*Content* . Only an appellant, his or her designated representative, or a party properly substituted under § 1201.35 may file an appeal. Appeals may be in any format, including letter form. An appeal may be filed in electronic form provided that the requirements of § 1201.14 have been satisfied. All appeals must contain the following:

(9)The signature of the appellant or, if the appellant has a representative, of the representative. If the appeal is electronically filed, compliance with § 1201.14 and the directions at the Board's e-Appeal site ( *https://e-appeal.mspb.gov* ) satisfy the signature requirement.

(c)*Use of Board form or electronic filing.* An appellant may comply with paragraph

(a)of this section, and with § 1201.31, by completing MSPB Form 185, or by completing all requests for information marked as required at the e-Appeal site ( *https://e-appeal.mspb.gov* ). MSPB Form 185 can be accessed at the Board's Web site ( *http://www.mspb.gov* ). 6. Section 1201.26 is amended by revising paragraphs (a), (b)(2), and

(c)to read as follows: § 1201.26 Number of pleadings, service, and response.

(a)*Number.* The appellant must file two copies of both the appeal and all attachments with the appropriate Board office, unless the appellant files an appeal in electronic form under § 1201.14. (b)(2) *Service by the parties* . The parties must serve on each other one copy of each pleading, as defined by § 1201.4(b), and all documents submitted with it, except for the appeal. They may do so by mail, by facsimile, by commercial or personal delivery, or by electronic filing in accordance with § 1201.14. Documents and pleadings must be served upon each party and each representative. A certificate of service stating how and when service was made must accompany each pleading. The parties must notify the appropriate Board office and one another, in writing, of any changes in the names, or addresses on the service list.

(c)*Paper size.* Pleadings and attachments must be filed on 8 1/2 by 11-inch paper, except for good cause shown. This requirement enables the Board to comply with standards established for U.S. courts. All electronic documents must be formatted so that they will print on 8 1/2 by 11-inch paper. 7. Section 1201.27 is amended by revising paragraph

(d)to read as follows: § 1201.27 Class appeals.

(d)*Electronic filing* . A request to hear a case as a class appeal and any opposition thereto may not be filed in electronic form. Subsequent pleadings may be filed and served in electronic form, provided that the requirements of § 1201.14 are satisfied. 8. Section 1201.31 is amended by revising paragraph

(a)to read as follows: § 1201.31 Representatives.

(a)*Procedure* . A party to an appeal may be represented in any matter related to the appeal. Parties may designate a representative, revoke such a designation, and change such a designation in a signed submission, submitted as a pleading. 9. Section 1201.114 is amended by revising paragraphs

(c)and

(h)to read as follows: § 1201.114 Filing petition and cross petition for review.

(c)*Place for filing* . A petition for review, cross petition for review, responses to those petitions, and all motions and pleadings associated with them must be filed with the Clerk of the Merit Systems Protection Board, Washington, DC 20419, by commercial or personal delivery, by facsimile, by mail, or by electronic filing in accordance with § 1201.14.

(h)*Service.* A party submitting a pleading must serve a copy of it on each party and on each representative, as required by paragraph (b)(2) of § 1201.26. 10. Section 1201.122 is amended by revising paragraphs

(b)and

(e)to read as follows: § 1201.122 Filing complaint; serving documents on parties.

(b)*Initial filing and service.* The Special Counsel must file two copies of the complaint, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing each party or the party's representative. The certificate of service must show the last known address, telephone number, and facsimile number of each party or representative. The Special Counsel must serve a copy of the complaint on each party or the party's representative, as shown on the certificate of service. The initial filing in a complaint may not be submitted in electronic form.

(e)*Electronic filing.* All pleadings, other than the complaint, may be filed and served in electronic form at the Board's e-Appeal site ( *https://e-appeal.mspb.gov* ), provided the requirements of § 1201.14 are satisfied. 11. Section 1201.128 is amended by revising paragraphs

(b)and

(e)to read as follows: § 1201.128 Filing complaint; serving documents on parties.

(b)*Initial filing and service.* The Special Counsel must file two copies of the complaint, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing the respondent agency or the agency's representative, and each person on whose behalf the corrective action is brought. The certificate of service must show the last known address, telephone number, and facsimile number of the agency or its representative, and each person on whose behalf the corrective action is brought. The Special Counsel must serve a copy of the complaint on the agency or its representative, and each person on whose behalf the corrective action is brought, as shown on the certificate of service. The initial filing in a complaint may not be submitted in electronic form.

(e)*Electronic filing.* All pleadings, other than the complaint, may be filed and served in electronic form at the Board's e-Appeal site ( *https://e-appeal.mspb.gov* ), provided the requirements of § 1201.14 are satisfied. 12. Section 1201.134 is amended by revising paragraphs

(d)and

(g)to read as follows: § 1201.134 Deciding official; filing stay request; serving documents on parties.

(d)*Initial filing and service.* The Special Counsel must file two copies of the request, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing the respondent agency or the agency's representative. The certificate of service must show the last known address, telephone number, and facsimile number of the agency or its representative. The Special Counsel must serve a copy of the request on the agency or its representative, as shown on the certificate of service. The initial filing in a request for a stay may not be submitted in electronic form.

(g)*Electronic filing.* All pleadings, other than the complaint, may be filed and served in electronic form at the Board's e-Appeal site ( *https://e-appeal.mspb.gov* ), provided the requirements of § 1201.14 are satisfied. 13. Section 1201.137 is amended by revising paragraphs

(c)and

(f)to read as follows: § 1201.137 Covered actions; filing complaint; serving documents on parties.

(c)*Initial filing and service.* The agency must file two copies of the complaint, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing each party or the party's representative. The certificate of service must show the last known address, telephone number, and facsimile number of each party or representative. The agency must serve a copy of the complaint on each party or the party's representative, as shown on the certificate of service. The initial filing in a complaint may not be submitted in electronic form.

(f)*Electronic filing.* All pleadings, other than the complaint, may be filed and served in electronic form at the Board's e-Appeal site ( *https://e-appeal.mspb.gov* ), provided the requirements of § 1201.14 are satisfied. 14. Section 1201.143 is amended by revising paragraphs

(c)and

(f)to read as follows: § 1201.143 Right to hearing; filing complaint; serving documents on parties.

(c)*Initial filing and service.* The appointee must file two copies of the request, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing the agency proposing the appointee's removal or the agency's representative. The certificate of service must show the last known address, telephone number, and facsimile number of the agency or its representative. The appointee must serve a copy of the request on the agency or its representative, as shown on the certificate of service. The initial filing may not be submitted in electronic form.

(f)*Electronic filing.* All pleadings, other than the complaint, may be filed and served in electronic form at the Board's e-Appeal site ( *https://e-appeal.mspb.gov* ), provided the requirements of § 1201.14 are satisfied. 15. Section 1201.153 is amended by revising paragraph

(b)to read as follows: § 1201.153 Contents of appeal.

(b)*Use of Board form or Internet filing option.* An appellant may comply with paragraph

(a)of this section by completing MSPB Form 185, or by completing all requests for information marked as required at the e-Appeal site ( *https://e-appeal.mspb.gov* ). MSPB Form 185 can be accessed at the Board's Web site ( *http://www.mspb.gov* ). 16. Section 1201.173 is amended by revising paragraph

(k)to read as follows: § 1201.173 Practices and procedures of Special Panel.

(k)*Electronic filing.* Pleadings in matters before the Special Panel may not be filed or served in electronic form. PART 1203—[AMENDED] 17. The authority citation for part 1203 continues to read as follows: Authority: 5 U.S.C. 1204(a), 1204(f), and 1204(h). 18. Section 1203.13 is amended by revising paragraph

(d)to read as follows: § 1203.13 Filing pleadings.

(d)*Method and date of filing.* An initial filing in a request for review of a regulation may be filed with the Office of the Clerk by mail, by commercial or personal delivery, or by facsimile. Pleadings, other than an initial request for a regulation review under this part, may be filed with the Office of the Clerk by mail, by commercial or personal delivery, by facsimile, or by e-filing in accordance with § 1201.14 of this chapter. If the document was submitted by certified mail, it is considered to have been filed on the mailing date. If it was submitted by regular mail, it is presumed to have been filed five days before the Office of the Clerk receives it, in the absence of evidence contradicting that presumption. If it was delivered personally, it is considered to have been filed on the date the Office of the Clerk receives it. If it was submitted by facsimile, the date of the facsimile is considered to be the filing date. If it was submitted by commercial delivery, the date of filing is the date it was delivered to the commercial delivery service. If it was submitted by e-filing, it is considered to have been filed on the date of electronic submission. 19. Section 1203.14 is amended by revising paragraph

(c)to read as follows: § 1203.14 Serving documents.

(c)*Electronic filing.* Other than the initial request for a regulation review, pleadings in a regulation review proceeding may be filed with the Board and served upon other parties by electronic filing, provided the requirements of § 1201.14 of this chapter are satisfied. 20. Section 1203.22 is amended by revising paragraph

(a)to read as follows: § 1203.22 Enforcement of order.

(a)Any party may ask the Board to enforce a final order it has issued under this part. The request may be made by filing a petition for enforcement with the Office of the Clerk of the Board and by serving a copy of the petition on each party to the regulation review. The request may be filed in electronic form, provided the requirements of § 1201.14 are satisfied. The petition must include specific reasons why the petitioning party believes that there has been a failure to comply with the Board's order. PART 1208—[AMENDED] 21. The authority citation for part 1208 continues to read as follows: Authority: 5 U.S.C. 1204(h), 3330a, 3330b, 38 U.S.C. 4331. 22. Section 1208.13 is amended by revising paragraph

(c)to read as follows: § 1208.13 Content of appeal; request for hearing.

(c)*Electronic filing.* An appeal may be filed electronically by using the Board's e-Appeal site ( *https://e-appeal.mspb.gov* ) in accordance with § 1201.14 of this chapter. 23. Section 1208.14 is revised to read as follows: § 1208.14 Representation by Special Counsel. The Special Counsel may represent an appellant in a USERRA appeal before the Board. A written statement (in any format) that the appellant submitted a written request to the Secretary of Labor that the appellant's complaint under 38 U.S.C. 4322(a) be referred to the Special Counsel for litigation before the Board, and that the Special Counsel has agreed to represent the appellant, will be accepted as the written designation of representative required by 5 CFR 1201.31(a). The designation of representative may be filed by electronic filing, provided the requirements of § 1201.14 of this chapter are satisfied. 24. Section 1208.23 is amended by revising paragraph

(c)to read as follows: § 1208.23 Content of appeal; request for hearing.

(a)to read as follows: § 1208.24 Election to terminate MSPB proceeding.

(a)*Election to terminate.* At any time beginning on the 121st day after an appellant files a VEOA appeal with the Board, if a judicially reviewable Board decision on the appeal has not been issued, the appellant may elect to terminate the Board proceeding as provided under 5 U.S.C. 3330b and file a civil action with an appropriate United States district court. Such election must be in writing, signed, filed with the Board office where the appeal is being processed, and served on the parties. The election is effective immediately on the date of receipt by the Board office where the appeal is being processed. The election may be filed by electronic filing, provided the requirements of § 1201.14 of this chapter are satisfied. PART 1209—[AMENDED] 26. The authority citation for part 1209 continues to read as follows: Authority: 5 U.S.C. 1204, 1221, 2302(b)(8), and 7701. 27. Section 1209.6 is amended by revising paragraph

(d)to read as follows: § 1209.6 Content of appeal; right to hearing.

(d)*Electronic filing.* An appeal may be filed electronically by using the Board's e-Appeal site ( *https://e-appeal.mspb.gov* ) in accordance with § 1201.14 of this chapter. 28. Section 1209.8 is amended by deleting paragraphs

(e)and (f), and by revising paragraph

(d)to read as follows: § 1209.8 Filing a request for a stay.

(d)*Method of filing.* A stay request must be filed with the appropriate Board regional or field office by mail, by facsimile, by commercial or personal delivery, or by electronic filing in accordance with § 1201.14 of this chapter. Dated: September 22, 2004. Bentley M. Roberts, Jr., Clerk of the Board. [FR Doc. 04-21589 Filed 9-24-04; 8:45 am]

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