[Federal Register Volume 70, Number 102 (Friday, May 27, 2005)]
[Rules and Regulations]
[Pages 30607-30609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10652]


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MERIT SYSTEMS PROTECTION BOARD

5 CFR Parts 1200 and 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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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; (202) 653-7200; fax: (202) 653-7130; or e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: The Board is amending its rules relating to 
Board

[[Page 30608]]

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    1201.3(a)(20) is deleted because 5 U.S.C. 3592(a)(3) was repealed 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, Sec.  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, 
Sec.  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.


0
Accordingly, the Board amends 5 CFR parts 1200 and 1201 as follows:

PART 1200--[AMENDED]

0
1. The authority citation for subpart B of part 1200 continues to read 
as follows:

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


0
2. Section 1200.10 is amended by revising paragraphs (a)(8), (a)(9), 
(b)(8), and (b)(9) to read as follows:


Sec.  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]

0
3. The authority citation for part 1201 continues to read as follows:


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

0
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:


Sec.  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, Sec.  
181(a)(2), to be codified at 22 U.S.C. 4010a).
* * * * *
0
5. Section 1201.53 is amended by revising paragraph (c) to read as 
follows:


Sec.  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.
* * * * *

0
6. Section 1201.56 is amended by revising paragraph (a)(1)(i) to read 
as follows:


Sec.  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
* * * * *

0
7. Section 1201.81 is amended by revising paragraph (a) to read as 
follows:


Sec.  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),

[[Page 30609]]

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.
* * * * *

0
8. Section 1201.103 is amended by deleting paragraph (c)(3) and 
revising paragraph (c)(2) to read as follows:


Sec.  1201.103  Placing communications in the record; sanctions.

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

0
9. Section 1201.112 is amended by revising paragraph (a) to read as 
follows:


Sec.  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 Sec.  1201.113 in order to accept a settlement agreement into the 
record.
* * * * *

0
10. Section 1201.125 is amended by revising paragraph (c)(1) to read as 
follows:


Sec.  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.
* * * * *

0
11. Section 1201.126 is amended by revising paragraph (c) to read as 
follows:


Sec.  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 Sec.  
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.
[FR Doc. 05-10652 Filed 5-26-05; 8:45 am]
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