05-10652. 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 relating to Board organization in 5 CFR part 1200 to more accurately reflect the Board's staff organization and functions. The Board is also amending its rules of practice and procedure in 5 CFR part 1201 to correct statutory references and to clarify certain matters.

DATES:

Effective May 27, 2005.

FOR FURTHER INFORMATION CONTACT:

Bentley M. Roberts, Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419; [phone]; fax: [phone]; or e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

The Board is amending its rules relating to Board organization in 5 CFR part 1200 and its rules of practice and procedure in 5 CFR part 1201 as follows:

1200.10(a)(8) and (b)(8) are amended to reflect the fact that the Financial and Administrative Management Division has been re-designated as the Office of Financial and Administrative Management;

1200.10(a)(9) and (b)(9) are amended to reflect the fact that the Information Resources Management Division has been re-designated as the Office of Information Resources Management;

1200.10(b)(8) is amended to reflect the fact that the Board's accounting functions are performed by the U.S. Department of Treasury's Bureau of Public Debt instead of the U.S. Department of Agriculture's National Finance Center;

1201.3(a)(2) is amended to correct a statutory reference by amending “5 U.S.C. 7512” to read “5 U.S.C. 7511-7514”;

1201.3(a)(19) is amended by adding the word “and” at the end of the paragraph;

1201.3(a)(20) is deleted because 5 U.S.C. 3592(a)(3) was repealed in Pub. L. 107-296, Title XIII, § 1321(a)(2)(A)(iii), Nov. 25, 2002, 116 Stat. 2297;

1201.3(a)(21) is re-designated as (a)(20) and is amended to correct a statutory reference by deleting “22 U.S.C. 4011” and replacing it with “22 U.S.C. 4010a”;

1201.53(c) is amended to clarify that the Clerk of the Board has authority to rule on requests for exceptions to the payment of costs for a hearing tape recording or transcript made after the initial decision is issued;

1201.56(a)(1)(i) is amended to delete a reference to 5 U.S.C. 3592(a)(3) as that statute was repealed by Pub. L. 107-296, Title XIII, § 1321(a)(2)(A)(iii), Nov. 25, 2002, 116 Stat. 2297;

1201.81(a) is amended to clarify the extent of the Board's subpoena authority under 5 U.S.C. 1204(b)(2)(A);

1201.103(c) is amended to delete a reference to the Board's standards of conduct (the Board has no such standards of conduct);

1201.112(a) is amended to clarify that judges do not have authority to rule on requests for exceptions to the payment of costs for a hearing tape recording or transcript made after the initial decision is issued;

1201.125(c)(1) is amended to add a reference to 5 U.S.C. 7323; and

1201.126(c) is amended to be more clear and to add references to 5 U.S.C. 7323 and 7324.

List of Subjects

5 CFR Part 1200

• MSPB organization

5 CFR Part 1201

• Administrative practice and procedure
• Civil rights
• Government employees

Accordingly, the Board amends 5 CFR parts 1200 and 1201 as follows:

PART 1200—[AMENDED]

1. The authority citation for subpart B of part 1200 continues to read as follows:

Authority: 5 U.S.C. 1204(h) and (j).

2. Section 1200.10 is amended by revising paragraphs (a)(8), (a)(9), (b)(8), and (b)(9) to read as follows:

§ 1200.10

Staff organization and functions.

(a) * * *

(8) Office of Financial and Administrative Management.

(9) Office of Information Resources Management.

(b) * * *

(8) Office of Financial and Administrative Management. The Office of Financial and Administrative Management administers the budget, accounting, procurement, property management, physical security, and general services functions of the Board. It also develops and coordinates internal management programs and projects, including review of internal controls agencywide. It performs certain personnel functions, including policy, training, drug testing, and the Employee Assistance Program. It also administers the agency's cross-servicing arrangements with the U.S. Department of Treasury's Bureau of Public Debt for accounting services and with the U.S. Department of Agriculture's National Finance Center for payroll and personnel action processing services and with the U.S. Department of Agriculture's APHIS Business Services for most human resources management services.

(9) Office of Information Resources Management. The Office of Information Resources Management develops, implements, and maintains the Board's automated information systems.

* * * * *

PART 1201—[AMENDED]

3. The authority citation for part 1201 continues to read as follows:

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

4. Section 1201.3 is amended by deleting paragraph (a)(21) and revising paragraphs (a)(2), (a)(19), and (a)(20) to read as follows:

§ 1201.3

Appellate jurisdiction.

(a) * * *

(2) Removal, reduction in grade or pay, suspension for more than 14 days, or furlough for 30 days or less for cause that will promote the efficiency of the service. (5 CFR part 752, subparts C and D; 5 U.S.C. 7511-7514);

* * * * *

(19) Employment practices administered by the Office of Personnel Management to examine and evaluate the qualifications of applicants for appointment in the competitive service (5 CFR 300.104); and

(20) Reduction-in-force action affecting a career or career candidate appointee in the Foreign Service (Pub. L. 103-236, § 181(a)(2), to be codified at 22 U.S.C. 4010a).

* * * * *

5. Section 1201.53 is amended by revising paragraph (c) to read as follows:

§ 1201.53

Record of proceedings.

* * * * *

(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 to support a request for an exception. If a party believes he has a good reason and the request is made before the judge issues an initial decision, the party must send 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, who shall have authority to grant or deny such requests. The party must clearly state the reason for the request in an affidavit or sworn statement.

* * * * *

6. Section 1201.56 is amended by revising paragraph (a)(1)(i) to read as follows:

§ 1201.56

Burden and degree of proof; affirmative defenses.

(a) * * *

(1) * * *

(i) It is brought under 5 U.S.C. 4303 or 5 U.S.C. 5335 and is supported by substantial evidence; or

* * * * *

7. Section 1201.81 is amended by revising paragraph (a) to read as follows:

§ 1201.81

Requests for subpoenas.

(a) Request. Parties who wish to obtain subpoenas that would require the attendance and testimony of witnesses, or subpoenas that would require the production of documents or other evidence under 5 U.S.C. 1204(b)(2)(A), should file their motions for those subpoenas with the judge. The Board has authority under 5 U.S.C. 1204(b)(2)(A) to issue a subpoena requiring the attendance and testimony of any individual regardless of location and for the production of documentary or other evidence from any place in the United States, any territory or possession of the United States, the Commonwealth of Puerto Rico or the District of Columbia. Subpoenas are not ordinarily required to obtain the attendance of Federal employees as witnesses.

* * * * *

8. Section 1201.103 is amended by deleting paragraph (c)(3) and revising paragraph (c)(2) to read as follows:

§ 1201.103

Placing communications in the record; sanctions.

* * * * *

(c) * * *

(2) Other persons. The Board may invoke appropriate sanctions against other offending parties.

9. Section 1201.112 is amended by revising paragraph (a) to read as follows:

§ 1201.112

Jurisdiction of the judge.

(a) After issuing the initial decision, the judge will retain jurisdiction over a case only to the extent necessary to:

(1) Correct the transcript; when one is obtained;

(2) Rule on a request by the appellant for attorney fees, consequential damages, or compensatory damages under subpart H of this part;

(3) Process any petition for enforcement filed under subpart F of this part;

(4) Vacate an initial decision before that decision becomes final under § 1201.113 in order to accept a settlement agreement into the record.

* * * * *

10. Section 1201.125 is amended by revising paragraph (c)(1) to read as follows:

§ 1201.125

Administrative law judge.

* * * * *

(c) * * *

(1) In a Special Counsel complaint seeking disciplinary action against a Federal or District of Columbia government employee for a violation of 5 U.S.C. 7323 or 7324, where the administrative law judge finds that the violation does not warrant removal, the administrative law judge will issue a recommended decision to the Board in accordance with 5 U.S.C. 557.

* * * * *

11. Section 1201.126 is amended by revising paragraph (c) to read as follows:

§ 1201.126

Final decisions.

* * * * *

(c) In any Hatch Act action in which the administrative law judge, or the Board on petition for review, finds that a Federal or District of Columbia government employee has violated 5 U.S.C. 7323 or 7324 and that the violation warrants removal, the administrative law judge, or the Board on petition for review, will issue a written decision ordering the employee's removal. If the administrative law judge finds a violation of 5 U.S.C. 7323 or 7324 and determines that removal is not warranted, the judge will issue a recommended decision under § 1201.125(c)(1) of this part. If the Board finds a violation of 5 U.S.C. 7323 or 7324 and determines by unanimous vote that the violation does not warrant removal, it will impose instead a penalty of not less than 30 days suspension without pay. If the Board finds by majority vote that the violation warrants removal, it will order the employee's removal.

Bentley M. Roberts, Jr.,

Clerk of the Board.