2010-25316. Programs for Specific Positions and Examinations (Miscellaneous)

AGENCY:

U.S. Office of Personnel Management.

ACTION:

Proposed rule with request for comments.

SUMMARY:

The U.S. Office of Personnel Management (OPM) is proposing to eliminate the licensure requirements for incumbent administrative law judges who are covered under the Administrative Law Judge Program.

DATES:

Comments must be received on or before December 6, 2010.

ADDRESSES:

You may submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. All submissions received through the Portal must include the agency name and docket number or Regulation Identifier Number (RIN) for this proposed rulemaking.

You may also send, deliver, or fax comments to Angela Bailey, Deputy Associate Director for Recruitment and Hiring, U.S. Office of Personnel Management, Room 6566, 1900 E Street, NW., Washington, DC 20415-9700; e-mail at [e-mail]; or fax at [phone].

FOR FURTHER INFORMATION CONTACT:

Ms. Linda Watson by telephone at [phone]; by fax at [phone]; by TTY at [phone]; or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

On March 20, 2007, OPM published a final rule at 72 FR 12947, to revise the Administrative Law Judge Program. These revisions included a requirement for incumbent administrative law judges (ALJs) to “possess a professional license to practice law and be authorized to practice law under the laws of a State, the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court established under the United States Constitution.” That regulation (currently at 5 CFR 930.204(b)(1)) goes on to state, “Judicial status is acceptable in lieu of `active' status in States that prohibit sitting judges from maintaining `active' status to practice law. Being in `good standing' is also acceptable in lieu of `active' status in States where the licensing authority considers `good standing' as having a current license to practice law.” See 72 FR at 12955.

At the time the final rule was published, OPM noted that under the Administrative Procedure Act, ALJs preside in formal proceedings requiring a decision on the record after an opportunity for a hearing, and consequently, ALJs must be held to a high standard of conduct so that the integrity and independence of the administrative judiciary is preserved. The requirement was intended to ensure that ALJs, like attorneys, remain subject to a code of professional responsibility. However, on July 18, 2008, OPM published an interim rule, at 73 FR 41235, suspending the professional license requirement as it applies to incumbent ALJs, to prevent any adverse impact on incumbents, because we had “reconsidered comments received during the notice and comment period * * * about the burdens imposed by the active licensure requirement, as it applies to incumbents, the potential differences between the ethical requirements that pertain to an advocate and those requirements that pertain to someone asked to adjudicate cases impartially, and the variations in what States require as to lawyers serving as ALJs.”

OPM is considering whether the licensure requirement for incumbents should be eliminated from the final rule. In addition to the reasons stated above, OPM recognizes that once an applicant is appointed as an ALJ, he or she becomes subject both to supervision appropriate to the position and to the standards of ethical conduct for employees of the Executive Branch, codified by the Office of Government Ethics at part 2635 of this title. Moreover, an ALJ who exhibits conduct that rises to the level of “good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing by the Board,” 5 U.S.C. 7521, may be subject to an adverse action pursuant to statute. 5 CFR 930.211(c) enumerates other actions that may be taken in appropriate circumstances.

In conclusion, OPM believes that the standards of ethical conduct that apply to ALJs as Federal employees, and agencies' existing authority to supervise ALJs and take actions against them in appropriate circumstances, are sufficient to ensure that ALJs are held to a high standard of conduct. Accordingly, OPM is proposing to permanently eliminate the requirement in § 930.204(b), that an incumbent ALJ must maintain a particular sort of license or status with respect to the practice of law, as unnecessary. OPM is soliciting comments, once again, on this narrow issue.

However, OPM is proposing no amendment to part 930, as it concerns applicants. OPM remains convinced that active licensure at the time of application and appointment is vital as an indicator that the applicant presenting himself or herself for assessment and possible appointment has been subject to rigorous ethical requirements right up to the time of appointment.

OPM will consider comments on this proposed rule and comments on the interim rule published at 73 FR 41235 when issuing a final rule.

Executive Order 12866, Regulatory Review

This proposed rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

Regulatory Flexibility Act

I certify that these regulations would not have a significant economic impact on a substantial number of small entities (including small businesses, small organizational units, and small governmental jurisdictions) because they would affect only some Federal agencies and employees.

List of Subjects in 5 CFR Part 930

• Administrative practice and procedure
• Computer technology
• Government employees
• Motor vehicles

U.S. Office of Personnel Management.

John Berry,

Director.

Accordingly, OPM proposes to amend 5 CFR part 930 as follows:

PART 930—PROGRAMS FOR SPECIFIC POSITIONS AND EXAMINATIONS (MISCELLANEOUS)

Subpart B—Administrative Law Judge Program

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

Authority: 5 U.S.C. 1104(a), 1302(a), 1305, 3105, 3301, 3304, 3323(b), 3344, 4301(2)(D), 5372, 7521, and E.O. 10577, 3 CFR, 1954-1958 Comp., p. 219.

2. Amend § 930.204 by revising paragraph (b) to read as follows:

§ 930.204

Appointments and conditions of employment.

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(b) Licensure. At the time of application and any new appointment, the individual must possess a professional license to practice law and be authorized to practice law under the laws of a State, the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court established under the United States Constitution. Judicial status is acceptable in lieu of “active” status in States that prohibit sitting judges from maintaining “active” status to practice law. Being in “good standing” is also acceptable in lieu of “active” status in States where the licensing authority considers “good standing” as having a current license to practice law.

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