E8-16487. Programs for Specific Positions and Examinations (Miscellaneous)

AGENCY:

U.S. Office of Personnel Management.

ACTION:

Interim rule with request for comments.

SUMMARY:

The U.S. Office of Personnel Management is issuing an interim rule suspending the requirement set forth in 5 CFR 930.204(b) that requires incumbent administrative law judges (“ALJs”) to “possess a professional license to practice law and be authorized to practice law.”

DATES:

Effective July 18, 2008. Comments must be received on or before September 16, 2008.

ADDRESSES:

Send, deliver, or fax written comments to: Ms. Angela Bailey, Deputy Associate Director for Talent and Capacity Policy, U.S. Office of Personnel Management, Room 6551, 1900 E Street, NW., Washington, DC 20415-9700; e-mail: [e-mail]; fax: [phone].

Comments may also be sent 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 rulemaking.

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:

The U.S. Office of Personnel Management is issuing an interim rule suspending the requirement set forth in 5 CFR 930.204(b) that requires incumbent administrative law judges (“ALJs”) to “possess a professional license to practice law and be authorized to practice law.” This provision requires ALJs to maintain “active status,” (or “judicial status” in States that prohibit sitting judges from maintaining “active status” to practice law), or to be in “good standing” where the licensing authority considers “good standing” as having a current license to practice law. This licensure requirement set forth in section 930.204(b) henceforth will not apply to incumbent administrative law judges.

ALJ applicants are unaffected by this suspension, and the requirement that applicants possess a professional license to practice law and be authorized to practice law continues to apply. We remain convinced that active licensure at the time of application and appointment is vital as an indicator that the applicant presenting him or herself for assessment and possible appointment has been subject to rigorous ethical requirements right up to the point of appointment. We have reconsidered comments received during the notice and comment period, however, 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. We intend once again to solicit comments on this point in a new rulemaking. In the interim, we seek to prevent any adverse impact on incumbents while we engage in this process by suspending the current requirement as to incumbents.

Waiver of Notice of Proposed Rulemaking and Delay in Effective Date

Pursuant to 5 U.S.C. 553 (d)(1), we deem it appropriate to waive the 30-day waiting period and make this regulation effective immediately because this is “a substantive rule which grants or recognizes an exemption or relieves a restriction” set forth in the regulation that is being revised. Further, pursuant to 5 U.S.C. 553(b) (B) and (d)(3), we find that good cause exists to waive the general notice of proposed rulemaking. Because we understand that some incumbents have raised concerns that coming into compliance with bar requirements in section 930.204(b) or continuing legal education requirements of bar membership will impose a burden or hardship on them, we are suspending the requirement in order to alleviate those concerns while we consider its efficacy, as well as comments addressing whether active bar status is necessary to ensure good conduct among incumbent administrative law judges.

Executive Order 12866, Regulatory Review

This interim 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.

Linda M. Springer,

Director.

Accordingly, OPM is amending 5 CFR part 930 as follows:

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

1. The authority for subpart B of 930 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. Revise paragraph (b) of § 930.204 to read as follows:

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(b) Licensure. (1) At the time of application and any new appointment and while serving as an administrative law judge, 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.

(2) The requirements contained in paragraph (b)(1) are suspended until further notice with respect to incumbents serving as administrative law judges.

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