[Federal Register Volume 75, Number 194 (Thursday, October 7, 2010)]
[Proposed Rules]
[Pages 61998-61999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25316]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 75, No. 194 / Thursday, October 7, 2010 / 
Proposed Rules  

[[Page 61998]]



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: Proposed rule with request for comments.

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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 [email protected]; or fax at (202) 606-2329.

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: 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 Sec.  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:

[[Page 61999]]

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 Sec.  930.204 by revising paragraph (b) to read as 
follows:


Sec.  930.204  Appointments and conditions of employment.

* * * * *
    (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.
* * * * *
[FR Doc. 2010-25316 Filed 10-6-10; 8:45 am]
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