00-8861. 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 what a party in a Board proceeding must do to get a copy of the hearing tape recording or written transcript, to provide that the official hearing record may be a video tape recording, and to comply with the President's Memorandum on Plain Language. The amendment also informs a non-party who wants a copy of a hearing tape recording or written transcript to send a request under the Board's Freedom of Information Act regulations (5 CFR part 1204). The purpose of the amendment is to guide parties to MSPB cases, representatives, and non-parties on the appropriate way to get copies of hearing tape recordings and written transcripts.

EFFECTIVE DATE:

April 11, 2000.

FOR FURTHER INFORMATION CONTACT:

Robert E. Taylor, Clerk of the Board, [phone].

SUPPLEMENTARY INFORMATION:

The Board's current rule at 5 CFR 1201.53(a) provides that a verbatim record of a hearing in a Board case must be prepared under the supervision of the judge. The amendment to this rule published today makes clear that a verbatim record, the single official record of the hearing, will be kept in the Board's copy of the appeal file. The amendment also makes clear that an audio tape recording, video tape recording, or written transcript will be the official hearing record. Under the Board's current rule at 5 CFR 1201.53(b), a copy of a hearing tape recording or written transcript is to be made available to a party upon request and upon payment of costs. The amendment to 5 CFR 1201.53(b) published today requires that parties send requests for copies of hearing tape recordings or written transcripts to the adjudicating regional or field office or to the Clerk of the Board as appropriate. Because the current rule at 5 CFR 1201.53(b) only states procedures for parties to request copies of hearing tape recordings or written transcripts, the amendment notifies non-parties that their requests for copies of hearing tape recordings or written transcripts are controlled by the Board's rules at 5 CFR part 1204 (Freedom of Information Act). In addition, the amendment provides that only hearing tape recordings or written transcripts prepared by the official hearing reporter will be accepted by the Board as the official record of the hearing. The amendment to 5 CFR 1201.53(c) clarifies procedures for parties to request an exception to payment of the cost for hearing tape recordings or written transcripts. The current rule at 5 CFR 1201.53(d) has been amended because it refers to written transcripts and the Board now tape records its hearings. The new section 5 CFR 1201.53(e) includes a revision of 5 CFR 1201.54 Thus, the current rule at 5 CFR 1201.54 has been removed.

The Board is publishing this rule as a final rule in accordance with 5 U.S.C. 1204(h).

List of Subjects in 5 CFR Part 1201

• Administrative practice and procedure
• Civil rights
• Government employees

Accordingly, the Board amends 5 CFR part 1201 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 1201.53 is revised to read as follows:

§ 1201.53

Record of proceedings.

(a) Preparation. A word-for-word record of the hearing is made under the judge's guidance. It is kept in the Board's copy of the appeal file and it is the official record of the hearing. Only hearing tape recordings or written transcripts prepared by the official hearing reporter will be accepted by the Board as the official record of the hearing. When the judge assigned to the case tape records a hearing (for example, a telephonic hearing in a retirement appeal), the judge is the “official hearing reporter” under this section.

(b) Copies. When requested and when costs are paid, a copy of the official record of the hearing will be provided to a party. A party must send a request for a copy of a hearing tape recording or written transcript to the adjudicating regional or field office, or to the Clerk of the Board, as appropriate. A request for a copy of a hearing tape recording or written transcript sent by a non-party is controlled by the Board's rules at 5 CFR part 1204 (Freedom of Information Act). Requests for hearing tape recordings or written transcripts under the Freedom of Information Act must be sent to the appropriate Regional Director, the Chief Administrative Judge of the appropriate MSPB Field Office, or to the Clerk of the Board at MSPB headquarters in Washington, DC.

(c) Exceptions to payment of costs. A party may not have to pay for a hearing tape recording or written transcript if he has a good reason. If a party believes he has a good reason and the request is made before the judge issues and initial decision, the party must sent the request for an exception to the judge. If the request is made after the judge issues an initial decision, the request must be sent to the Clerk of the Board. The party must clearly state the reason for the request in an affidavit or sworn statement.

(d) Corrections to written transcript. Corrections to the official written transcript may be made on motion by a party or on the judge's own motion. Motions for corrections must be filed within 10 days after the receipt of a written transcript. Corrections of the official written transcript will be made only when substantive errors are found and only with the judge's approval.

(e) Official record. Exhibits, the official hearing record, if a hearing is held, all papers filed, and all orders and decisions of the judge and the Board, make up the official record of the case.

§ 1201.54

(Removed)

3. Section 1201.54 is removed in its entirety.

Dated: April 5, 2000.

Robert E. Taylor,

Clerk of the Board.