[Federal Register Volume 73, Number 139 (Friday, July 18, 2008)]
[Rules and Regulations]
[Pages 41235-41236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16487]



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  Federal Register / Vol. 73, No. 139 / Friday, July 18, 2008 / Rules 
and Regulations  

[[Page 41235]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 930

RIN 3206-AL67


Programs for Specific Positions and Examinations (Miscellaneous)

AGENCY: U.S. Office of Personnel Management.

ACTION: Interim rule with request for comments.

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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: [email protected]; fax: (202) 606-2329.
    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 (202) 
606-0830; by fax at (202) 606-2329; by TTY at (202) 418-3134; or by e-
mail at [email protected].

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.

0
Accordingly, OPM is amending 5 CFR part 930 as follows:

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

0
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


0
2. Revise paragraph (b) of Sec.  930.204 to read as follows:
* * * * *
    (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

[[Page 41236]]

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.
* * * * *

[FR Doc. E8-16487 Filed 7-17-08; 8:45 am]
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