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RULE PROPOSALS
Volume 41, Issue 6
Issue Date: March 16, 2009
Law and Public Safety
Division of Consumer Affairs
STATE BOARD OF COURT REPORTING

Proposed New Rule: N.J.A.C. 13:43-5.10

On the Record/Off the Record

Authorized By: State Board of Court Reporting, Dianne Tamaroglio, Executive Director.
Authority: N.J.S.A. 45:15B-1.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2009-79.
Submit written comments by May 15, 2009 to:

Dianne Tamaroglia, Executive Director
State Board of Court Reporting
PO Box 45019
Newark , New Jersey 07101

The agency proposal follows:

Summary

Pursuant to its rulemaking authority, N.J.S.A. 45:15B-1, the State Board of Court Reporting (the Board) is proposing a new rule, N.J.A.C. 13:43-5.10, concerning the circumstances when a certified court reporter or a temporary registered reporter either remains on the record or goes off the record.

The Board has received several inquiries from the public expressing concern about the dilemma faced by certified court reporters or temporary registered reporters when requested to go off the record by one party while the other party is opposed to such a request. Some certified court reporters and temporary registered reporters, when confronted with this situation have stayed on the record, others have gone off the record and others simply heeded the wishes of the party paying for their services. Some certified court reporters and temporary registered reporters have also contacted the Board requesting guidance as how to proceed in such situations. In an attempt to promote and retain the impartial role of the certified court reporters and temporary registered reporters, address the confusion experienced by those that use the services of certified court reporters and temporary registered reporters and provide direction to certified court reporters and temporary registered reporters, the Board proposes this new rule to provide guidance as to the appropriate conduct in these circumstances.

Subsection (a) defines "on the record" and "off the record." Subsection (b) of the proposed new rule states that when determining whether to go on the record or off the record, a certified court reporter or a temporary registered reporter must follow the requirements in the new rule. Subsection (c) provides that the presiding officer in either a judicial or administrative hearing will determine whether the proceeding remains on the record or off the record. Subsection (d) requires a certified court reporter or a temporary registered reporter to stay on the record in a deposition unless all the parties to or involved in the deposition agree that the reporter should be off the record. Subsection (e) provides that a certified court reporter or a temporary registered reporter must stay on the record in a non-judicial setting, unless all parties agree that the reporter may be off the record and that the presiding officer will make the final decision in any dispute between the parties whether to stay on or off the record. Subsection (f) requires that the certified court reporter or a temporary registered reporter make a parenthetical notation in the record when an off the record discussion takes place. Subsection (g) states that a certified court reporter or a temporary registered reporter is not prohibited from accepting an assignment from a third party at the conclusion of any proceeding provided that the transcript of the additional statement is bound separately and not made part of the transcript of the initial proceeding. Subsection (h) states that the new rule should not be interpreted to conflict with any rules of any Federal or State court of competent jurisdiction and if any conflict should arise, the applicable court rule takes precedence.

The Board has determined that the comment period for this notice of proposal shall be 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this notice of proposal is excepted from the rulemaking calendar requirement.

Social Impact

Proposed new rule N.J.A.C. 13:43-5.10 will have a positive impact on the regulated community and the public by clarifying when a certified court reporter or a temporary registered reporter is to be either on the record or off the record and by maintaining the certified shorthand reporter's impartiality. By clarifying these issues, the new rule will enable reporters to complete their assignments without controversy between the parties and will negate the need for a reporter and/or the parties to contact the Board for guidance. Certified court reporters and temporary registered reporters may also benefit from the potential [page=1163] additional employment at the end of a proceeding in order to record a statement from a third party.

The proposed new rule also benefits the public by ensuring that all parties have the opportunity to have their statements placed on the record if they choose, regardless of which party is employing the reporter. The public has registered numerous complaints with the Board in circumstances where a certified court reporter or a temporary registered reporter has been requested to go off the record by one party while the other party was opposed to such a request. The proposed new rule should address these complaints by providing certified court reporters and temporary registered reporters the guidance necessary to determine whether they should be on the record or off the record in a particular proceeding.

The proposed new rule will also benefit the Board by reducing the number of complaints registered by the public and by certified court reporters and temporary registered reporters in these situations.

Economic Impact

The Board does not expect that the proposed new rule will impose additional costs on certified court reporters or temporary registered reporters. However, certified court reporters or temporary registered reporters may benefit economically from the new rule, which permits them, at the conclusion of a proceeding, to accept an assignment from a third party for which they may charge and accept a fee.

Federal Standards Statement

A Federal standards analysis is not required because the proposed new rule is governed by N.J.S.A. 45:15B-1 and is not subject to any Federal requirements or standards. However, the proposed new rule provides in subsection (h) that if the rule conflicts with any Federal court rule, the Federal rule take precedence.

Jobs Impact

The Board does not expect that the proposed new rule will result in the loss of any jobs in the State. To the extent that a certified court reporter or temporary registered reporter may accept an assignment from a third party at the conclusion of a proceeding as specified in subsection (g) of the new rule, the new rule may generate additional work for certified court reporters and temporary registered reporters.

Agricultural Industry impact

The proposed new rule will have no impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

The Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. (the Act), requires the Board to give a description of the types and an estimate of the number of small businesses to which the proposed new rule will apply. If, for the purposes of the Act, the approximately 1,300 Board certified shorthand reporters are considered "small businesses" within the meaning of the Act, then the following analysis applies.

The Act requires the Board to set forth the reporting, recordkeeping and other compliance requirements of the proposed rules, including the kinds of professional services likely to be needed to comply with the requirements. The Act further requires the Board to estimate the initial and annual compliance costs, outline the manner in which it has designed the rules to minimize any adverse economic impact upon small businesses and to set forth whether the rules establish differing compliance requirements for small businesses.

The proposed new rule does not impose any reporting or recordkeeping requirements on small businesses and no professional services are required to comply with the requirements. However, the proposed new rule imposes several compliance requirements for certified court reporters and temporary registered reporters. Subsection (b) specifies that certified court reporters and temporary registered reporters must follow the requirements of the new rule when determining whether to go on the record or off the record. Subsection (c) provides that in determining whether the proceeding should be on the record or off the record, the certified court reporters or temporary registered reporters must comply with the decision of the presiding officer in a judicial or administrative setting or hearing. Subsection (d) states that a certified court reporter or temporary registered reporter must stay on the record in a deposition unless all parties agree that the reporter should be off the record. Subsection (e) requires that the certified court reporter or temporary registered reporter stay on the record in a non-judicial setting unless all parties agree that the reporter should be off the record. In the event of a dispute, the reporter and the parties must abide by the presiding officer's decision. Subsection (f) requires that the certified court reporter or temporary registered reporter make a parenthetical notation in the record when an off the record discussion takes place. Subsection (g) provides that a certified court reporter or temporary registered reporter may accept an assignment from a third party at the conclusion of any proceeding provided that the transcript of the subsequent proceeding is bound separately and not made part of the transcript of the initial proceeding. Subsection (h) provides that if there is any conflict between the proposed new rule and any Federal or State court rule, the applicable court rule will take precedence.

The Board believes that in order to promote consistency among all certified court reporters and temporary registered reporters and uniform application of the standards concerning when a reporter must be on the record or off the record, the new rule must be applied to all licensees and no differing compliance standards based on size of the business are included in the rule.

Smart Growth Impact

The proposed new rule will have no impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plan.

Housing Affordability Impact

The proposed new rule will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the rule would evoke a change in the average costs associated with housing because the proposed new rule concerns standards for when a certified court reporter or temporary registered reporter record statements as on the record.

Smart Growth Development Impact

The proposed new rule will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rule would evoke a change in housing production in Planning Areas 1 or 2 or within designated centers under the State Development and Redevelopment Plan in New Jersey because the proposed new rule concerns standards for when a certified court reporter or temporary registered reporter record statements as on the record.

Full text of the proposed new rule follows:

SUBCHAPTER 5. GENERAL PROVISIONS

13:43-5.10 On the record/off the record

(a) For purposes of this section, "on the record" means every word spoken during a proceeding is recorded stenographically for inclusion in the transcript and "off the record" means that portion of the proceeding that is not recorded for inclusion in the transcript.

(b) When determining whether to go on the record or off the record, certified court reporters and temporary registered reporters shall follow the requirements of this section.

(c) In a judicial setting or administrative setting or hearing, the presiding officer shall determine whether the proceeding shall be on the record or off the record.

(d) In a deposition, a certified court reporter or a temporary registered reporter shall stay on the record unless all parties to, or involved in, the deposition agree that the reporter should be off the record.

(e) In a non-judicial setting, a court reporter or a temporary registered reporter shall stay on the record, unless all parties agree that the reporter shall be off the record. In any dispute between the parties concerning whether to be on the record or off the record, the determination of the presiding officer shall be dispositive.

(f) The certified court reporter or a temporary registered reporter shall make a parenthetical notation in the record when an off the record discussion takes place.

(g) Nothing in this subsection shall prohibit a certified court reporter or a temporary registered reporter from accepting an assignment from a [page=1164] third party at the conclusion of any proceeding before any referee, board, commission or other body created by statute in this State in order to record a statement, provided the transcript of the subsequent statement is bound separately and not made part of the transcript of the initial proceeding.

(h) Nothing contained in this section shall be interpreted to conflict with any rules relating to the proceedings in any Federal or State court of competent jurisdiction. If there is any conflict between this section and any Federal or State court rule, the applicable court rule shall take precedence.

   
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