Unknown. Final rule

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--- schema: federal-register doc_type: fedreg source_file: FR-2013-12-02.xml --- 78 231 Monday, December 2, 2013 Contents Agriculture Agriculture Department See Forest Service Army Army Department See Engineers Corps NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 72069 2013-28751 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 72087-72088 2013-28755 2013-28756 Agency Information Collection Activities;

Proposals, Submissions, and Approvals; Withdrawal, 72088 2013-28767 Statements of Organization, Functions, and Delegations of Authority, 72088 2013-28754 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare and Medicaid Programs: Home Health Prospective Payment System Rate Update for CY 2014, Home Health Quality Reporting Requirements, and Cost Allocation of Home Health Survey Expenses, 72256-72320 2013-28457 Medicare Programs: End-Stage Renal Disease Prospective Payment System, Quality Incentive Program, and Durable Medical Equipment, Prosthetics, Orthotics, and Supplies, 72156-72253 2013-28451 NOTICES Medicare, Medicaid, and Childrens Health Insurance Programs:

Provider Enrollment Application Fee Amount for Calendar Year 2014, 72089-72091 2013-28733 Civil Rights Civil Rights Commission NOTICES Meetings: District of Columbia Advisory Committee, 72060-72061 2013-28762 Coast Guard Coast Guard RULES Drawbridge Operations: Atlantic Intracoastal Waterway, Wrightsville Beach, NC, 72022-72023 2013-28694 Genessee River, Rochester, NY, 72023-72025 2013-28695 Passaic River, Kearney and Newark, NJ, 72020-72022 2013-28033 Upper Mississippi River, Dubuque, IA, 72022 2013-28692 Security Zones:

Naval Base Point Loma; Naval Mine Anti Submarine Warfare Command; San Diego Bay, San Diego, CA, 72025-72028 2013-28035 Special Local Regulations: Southern California Annual Marine Events for the San Diego Captain of the Port Zone, 72019-72020 2013-28697 Commerce Commerce Department See Economic Development Administration See International Trade Administration See National Institute of Standards and Technology See Patent and Trademark Office Commodity Futures Commodity Futures Trading Commission RULES Derivatives Clearing Organizations and International Standards, 72476-72525 2013-27849 Defense Department Defense Department See Army Department See Engineers Corps See Navy Department NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 72065-72066 2013-28780 2013-28787 Arms Sales, 72066-72069 2013-28766 Drug Drug Enforcement Administration RULES Schedules of Controlled Substances: Placement of Perampanel into Schedule III, 72013-72016 2013-28778 Economic Development Economic Development Administration NOTICES Eligibility to Apply for Trade Adjustment Assistance; Petitions, 72061 2013-28744 Education Department Education Department NOTICES Meetings: President's Advisory Commission on Educational Excellence for Hispanics, 72070-72071 2013-28739 Energy Department Energy Department See Energy Efficiency and Renewable Energy Office NOTICES Application Requirements for the American Assured Fuel Supply, 72071-72072 2013-28770 Proposed Subsequent Arrangement, 72072 2013-28769 Energy Efficiency Energy Efficiency and Renewable Energy Office NOTICES Commercial Refrigerator, Freezer and Refrigerator-Freezer Test Procedures;

Waivers: Felix Storch, Inc., 72074-72077 2013-28764 Hussmann Corp., 72072-72074 2013-28772 Energy Efficiency Program for Industrial Equipment: UL Verification Services Inc.; Certification Program for Small Electric Motors, 72077-72078 2013-28763 Engineers Engineers Corps NOTICES Meetings: Inland Waterways Users Board, 72070 2013-28785 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans, Approvals and Promulgations: Florida; General Requirements and Gasoline Vapor Control;

Correction, 72033-72036 2013-28654 Georgia; Redesignation of the Atlanta 1997 8-Hour Ozone Moderate Nonattainment Area to Attainment, 72040-72055 2013-28105 New York; Determination of Clean Data for the 1987 PM10 Standard for the New York County Area, 72032-72033 2013-28655 North Carolina; Redesignation of the Charlotte; 1997 8-Hour Ozone Moderate Nonattainment Area to Attainment, 72036-72040 2013-28099 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals:

NSPS for Electric Utility Steam Generating Units, 72079 2013-28783 NSPS for Phosphate Rock Plants, 72078-72079 2013-28781 Restructuring of the Stationary Source Audit Program, 72079-72080 2013-28782 National Pollutant Discharge Elimination System Permits: Discharges from Oil and Gas Extraction Point Source Category to Coastal Waters in Texas, etc., 72080-72081 2013-28819 Executive Office of the President See Presidential Documents See Trade Representative, Office of United States Federal Aviation Federal Aviation Administration RULES Airworthiness Directives:

Airbus Airplanes, 71992-71998 2013-28170 2013-28192 Bombardier, Inc. Airplanes, 71998-72001 2013-28104 The Boeing Company Airplanes, 71989-71992 2013-28616 Amendment of Class D and E Airspace; Establishment of Class E Airspace: Salisbury, MD, 72001-72002 2013-28674 Amendment of Class E Airspace: Danville, VA, 72002-72003 2013-28665 Olean, NY, 72003-72004 2013-28676 Tazewell, TN, 72004 2013-28681 Amendment of VOR Federal Airways: V-374, Northeastern United States, 72005 2013-28753 V-45, North Carolina, 72005-72006 2013-28757 Establishment of Class D and Class E Airspace:

Laguna Army Air Field, AZ, 72006-72007 2013-28482 Establishment of Class E Airspace: Aliceville, AL, 72008-72009 2013-28677 Magee, MS, 72010-72011 2013-28679 McConnellsburg, PA, 72007-72008 2013-28672 Star, NC, 72009-72010 2013-28678 Umatilla, FL; Correction, 72011 2013-28758 Interpretation Concerning Involvement of NASA Astronauts During a Licensed Launch or Reentry, 72011-72013 2013-28405 PROPOSED RULES Amendment of Class D and Class E Airspace: Christiansted, St. Croix, VI, 72056-72057 2013-28706 NOTICES Meetings:

Aviation Rulemaking Advisory Committee, 72141-72142 2013-28720 Military Airport Program; Criteria and Application Procedures, 72142-72145 2013-28748 Federal Communications Federal Communications Commission NOTICES Closed Auction of AM Broadcast Construction Permits Scheduled for May 6, 2014, 72081-72086 2013-28821 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 72086 2013-28920 Federal Emergency Federal Emergency Management Agency NOTICES Major Disaster and Related Determinations:

South Dakota, 72093-72094 2013-28784 Major Disaster Declarations: Pennsylvania; Amendment No. 1, 72094 2013-28773 Meetings: Board of Visitors for the National Fire Academy, 72094-72095 2013-28779 Federal Motor Federal Motor Carrier Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Training Certification for Drivers of Longer Combination Vehicles, 72145-72146 2013-28809 Motor Carrier Management Information System Changes to Improve Uniformity in the Treatment of Inspection Violation Data, 72146-72149 2013-28795 Qualification of Drivers;

Applications for Exemptions: Hearing, 72149-72151 2013-28804 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 72086-72087 2013-28777 Federal Trade Federal Trade Commission PROPOSED RULES Rules and Regulations Under the Wool Products Labeling Act, 72057 2013-28662 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: Listing the Northern Long-Eared Bat as an Endangered Species, 72058-72059 2013-28705 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Focus Groups About Drug Products as Used by the Food and Drug Administration, 72092-72093 2013-28736 Guidance for Industry on Planning for the Effects of High Absenteeism to Ensure Availability of Medically Necessary Drug Products, 72091-72092 2013-28735 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Chimney Rock National Monument Management Plan, San Juan National Forest, CO, 72060 2013-28774 Health and Human Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Food and Drug Administration See National Institutes of Health PROPOSED RULES Patient Protection and Affordable Care Act:

HHS Benefit and Payment Parameters for 2015, 72322-72392 2013-28610 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency Housing Housing and Urban Development Department NOTICES Funding Awards: Research Partnerships Program, Fiscal Year 2013, 72095-72096 2013-28786 Inter-American Inter-American Foundation NOTICES Meetings; Sunshine Act, 72096 2013-28892 Interior Interior Department See Fish and Wildlife Service See National Park Service See Ocean Energy Management Bureau See Office of Natural Resources Revenue See Reclamation Bureau Internal Revenue Internal Revenue Service RULES Net Investment Income Tax, 72394-72449 2013-28410 User Fees for Processing Installment Agreements and Offers in Compromise, 72016-72018 2013-28863 PROPOSED RULES Net Investment Income Tax, 72451-72474 2013-28409 NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 72151-72153 2013-28810 2013-28811 2013-28815 2013-28817 International Trade Adm International Trade Administration NOTICES Initiation of Five-Year (Sunset) Reviews, 72061-72063 2013-28807 International Trade Com International Trade Commission NOTICES Antidumping and Countervailing Duty Administrative Reviews; Results, Extensions, Amendments, etc.: Circular Welded Carbon Quality Steel Line Pipe From China, 72114-72116 2013-28791 Antidumping Duty Administrative Reviews;

Results, Extensions, Amendments, etc.: Diamond Sawblades and Parts Thereof From China, 72116-72119 2013-28793 Justice Department Justice Department See Drug Enforcement Administration National Institute National Institute of Standards and Technology NOTICES Meetings: Information Security and Privacy Advisory Board, 72063-72064 2013-28789 National Institute National Institutes of Health NOTICES Meetings: National Institute of Mental Health, 72093 2013-28727 National Park National Park Service RULES Snowmobiles and Off-Road Motor Vehicles;

Special Regulations: Curecanti National Recreation Area, CO, 72028-72032 2013-28788 National Science National Science Foundation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 72119-72120 2013-28738 Navy Navy Department NOTICES Atlantic Fleet Training and Testing; Record of Decision, 72070 2013-28771 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Construction Permits: Tennessee Valley Authority Watts Bar Nuclear Plant Unit No. 2, 72120-72122 2013-28813 Draft Guidance for Industry and Staff:

Emergency Preparedness Frequently Asked Questions, 72122-72123 2013-28816 License Amendments: Export High-Enriched Uranium, 72123 2013-28820 Ocean Energy Management Ocean Energy Management Bureau NOTICES Environmental Assessments; Availability, etc.: Oil, Gas, and Mineral Operations by the Gulf of Mexico Outer Continental Shelf Region, 72096-72099 2013-28728 Natural Resources Office of Natural Resources Revenue NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 72099-72109 2013-27084 Office of United States Trade Representative See Trade Representative, Office of United States Overseas Overseas Private Investment Corporation NOTICES Meetings;

Sunshine Act, 72123-72124 2013-28901 Patent Patent and Trademark Office NOTICES Methods for Studying the Diversity of Patent Applicants, 72064-72065 2013-28742 Peace Peace Corps NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 72124-72128 2013-28729 2013-28731 2013-28732 Pension Benefit Pension Benefit Guaranty Corporation RULES Allocation of Assets in Single-Employer Plans: Valuation of Benefits and Assets; Expected Retirement Age, 72018-72019 2013-28682 NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Multiemployer Plan Regulations, 72128-72131 2013-28680 Personnel Personnel Management Office RULES Programs for Specific Positions and Examinations (Miscellaneous), 71987-71989 2013-28289 Postal Service Postal Service NOTICES Meetings; Sunshine Act, 72131 2013-28822 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Minority Enterprise Development Week (Proc. 9062), 72527-72530 2013-28992 Thanksgiving Day (Proc. 9063), 72531-72532 2013-28993 Reclamation Reclamation Bureau NOTICES Quarterly Status Report of Water Service, Repayment, and Other Water-Related Contract Actions, 72109-72114 2013-28760 2013-28765 Securities Securities and Exchange Commission NOTICES Applications for Deregistration, 72131-72132 2013-28726 Applications:

RBS Securities Inc. and Citizens Investment Advisors, 72132-72133 2013-28759 Meetings; Sunshine Act, 72133-72134 2013-28837 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 72134-72135, 72137-72139 2013-28722 2013-28725 The Options Clearing Corporation, 72135-72137 2013-28721 Trading Suspension Orders: Nevada Gold Corp., 72139 2013-28871 Selective Selective Service System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 72139 2013-28740 Small Business Small Business Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 72139-72140 2013-28805 Disaster Declarations: New Mexico; Amendment 1, 72141 2013-28796 Texas, 72140-72141 2013-28803 Trade Representative Trade Representative, Office of United States NOTICES Extension of Investigations: Ukraine, 72141 2013-28806 Transportation Department Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration Treasury Treasury Department See Internal Revenue Service Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 72156-72253 2013-28451 Part III Health and Human Services Department, Centers for Medicare & Medicaid Services, 72256-72320 2013-28457 Part IV Health and Human Services Department, 72322-72392 2013-28610 Part V Treasury Department, Internal Revenue Service, 72394-72449, 72451-72474 2013-28409 2013-28410 Part VI Commodity Futures Trading Commission, 72476-72525 2013-27849 Part VII Presidential Documents, 72527-72532 2013-28992 2013-28993 Reader Aids Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 78 231 Monday, December 2, 2013 Rules and Regulations 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:

Final rule. SUMMARY: The U. S. Office of Personnel Management

(OPM)is issuing a final rule to eliminate the licensure requirement for incumbent administrative law judges. DATES: This rule is effective January 2, 2014. FOR FURTHER INFORMATION CONTACT: Mike Gilmore by telephone at

(202)606-2429; by fax at

(202)606-2329; by TTY at

(202)418-3134; or by email at *michael.gilmore@opm.gov.* SUPPLEMENTARY INFORMATION: Background On March 20, 2007, OPM published a final rule in the **Federal Register** at 72 FR 12947, codified in subpart B of part 930 of title 5, Code of Federal Regulations (CFR), 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. 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.” (5 CFR 930.204(b)(1).) Under the Administrative Procedure Act (specifically, sections 556 and 557 of title 5, United States Code (U.S.C.), ALJs preside over formal proceedings requiring a decision on the record after an opportunity for a hearing. The licensure requirement was intended to ensure that ALJs, like attorneys, remain subject to a code of professional responsibility. On July 18, 2008, OPM published an interim rule with request for comments in the **Federal Register** at 73 FR 41235 suspending the requirement in 5 CFR 930.204(b)(1) that incumbent ALJs must “possess a professional license to practice law and be authorized to practice law. . . .” OPM took this suspension action based on reconsideration of the comments received during the notice and comment period for the March 20, 2007, final rule. In response to the interim rule, OPM received written comments from three individuals and three professional organizations. These comments along with the comments received for the October 7, 2010, proposed rule, described below, are addressed in this final rule. On October 7, 2010, OPM published a proposed rule in the **Federal Register** at 75 FR 61998 to eliminate the licensure requirement for incumbent ALJs. This final rule implements the proposed rule published on October 7, 2010. During the comment period from October 7, 2010, through December 6, 2010, OPM received written comments from twelve individuals, two professional organizations, and a union. A total of 21 written comments were received in response to the issue of licensure requirements for incumbent ALJs. Of the written comments received, fourteen supported the elimination of the licensure requirement for incumbent ALJs and five opposed elimination. Two remaining comments addressed issues other than the topic of the proposed rule and are, therefore, outside the scope of the rulemaking. With respect to the combined group of commenters, the majority supported the elimination of the licensure requirement for incumbent ALJs. Of the commenters in the majority, four identified existing mechanisms for regulating conduct, such as the Standards of Ethical Conduct for Employees of the Executive Branch promulgated by the Office of Government Ethics and codified at 5 CFR part 2635, agency-prescribed ethics standards, and the adverse action procedures for ALJs in 5 U.S.C. 7521, as sufficient to ensure that ALJs are held to a high standard of professional conduct. However, three of the commenters expressed a concern that even if a licensure requirement for incumbents is inappropriate, the other mechanisms for regulating conduct described above are inadequate to preserve the integrity and independence of the administrative judiciary. These commenters suggested that ALJs should be required to adhere to a code of judicial conduct such as the Code of Conduct for United States Judges (CCUSJ). The CCUSJ applies to Article I and Article III judges, and not, by its terms, to the Federal administrative judiciary. OPM did not adopt this recommendation because the commenters did not identify the authority under which OPM could make this code applicable to incumbent ALJs Governmentwide. A professional organization supporting the proposed rule to eliminate the licensure requirement for incumbent ALJs requested that the requirement be eliminated for new appointments of Senior ALJs, arguing that, once appointed, Senior ALJs are subject to sufficient controls on their conduct. An individual inquired whether the licensure requirement applied to reemployed annuitants. OPM did not propose to amend section 930.209 governing the Senior ALJ Program, so the comments are beyond the scope of this rulemaking. OPM notes that the specific bar licensure requirement for appointment as a Senior ALJ has been in place since 1985. OPM explained in the Supplementary Information of the final rule published on April 18, 1985, that the purpose for requiring licensure for Senior ALJs was to give “assurance to the public that retired ALJs . . . have maintained proficiency in their legal knowledge, skills, and abilities.” (50 FR 15407) By way of clarification, OPM notes that under section 930.209(b)(2), Senior ALJs must meet the licensure requirements in section 930.204(b). As amended by this final rulemaking, the licensure requirements in section 930.204(b) will apply only at the time of application ( *including* while on the Senior ALJ list pending reemployment) and at the time of appointment, not during the Senior ALJ's incumbency as a reemployed annuitant. One commenter recommended eliminating the licensure requirement for new appointments. Again, because OPM did not propose to amend the licensure requirements for applicants, the comment is outside the scope of this rulemaking. As noted in the Supplementary Information accompanying the proposed rule published October 7, 2010, 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. (75 FR 61998) Another commenter recommended modifying the licensure requirement to allow as qualifying an attorney's authorization to practice before a Tribal court when he or she has not been authorized to practice before a court of a State, a Territory, or the District of Columbia. Because OPM did not propose to amend the licensure requirements for applicants, the comment is outside the scope of the rulemaking. However, OPM invites anyone with information concerning whether Tribal courts authorize the practice of law by licensed attorneys who are not authorized to practice before other courts, and whether such attorneys are subject to a code of ethical conduct and bar discipline, to provide such information to OPM's Employee Services so that OPM may consider it in determining what revisions might be appropriate in the future. Please email such information to Mike Gilmore at *Michael.gilmore@opm.gov.* The same commenter recommended allowing, in lieu of bar licensure, an applicant's enrollment to represent clients before a specific administrative agency, or an applicant's experience in a technical non-legal discipline. OPM cannot accept this comment. Not only is it outside the scope of the rulemaking, but it is at odds with the legal experience and judicial competency requirements for ALJ applicants, as well as the requirement that applicants be subject to a code of ethical conduct. One professional organization and one individual supported the elimination of the license requirement for incumbent ALJs and suggested that OPM add language to cover non-Federal judges who apply for Federal ALJ positions and whose licensure status is something other than “active.” Because OPM did not propose to change the qualification requirements for applicants, this comment is outside the scope of the rulemaking. OPM notes that non-Federal judges who apply for a Federal ALJ job are considered “applicants” and must meet the qualifications required by regulation for all applicants, including licensure requirements, at the time of application and appointment. Two commenters opposing the elimination of the licensure requirement for incumbent ALJs expressed concern about the perceived inequity between Federal ALJs and Federal attorneys. The commenters believe that it is not appropriate to allow incumbent ALJs to be unlicensed when Federal attorneys must maintain an “active” bar status. OPM disagrees with this analogy. Attorneys are appointed in the excepted service, subject to qualification standards prescribed by their employing agencies. Except for certain classes of attorneys whose bar licensure is governed by statute, there is no uniform standard for licensure, and agencies have the discretion to establish appropriate standards for their incumbent attorneys. In contrast, ALJs are appointed in the competitive service and are subject to uniform qualification standards prescribed by OPM. OPM has determined that, in light of their unique function and role, incumbent ALJs should not be required to maintain an active bar license. OPM notes, however, that this rule only concerns the qualification requirements to serve as an incumbent ALJ in the Federal service. This rule is not intended to have any effect on an incumbent ALJ's status or responsibilities under state law. In addition, one of these commenters urged that the bar licensure requirement for incumbent ALJs be reestablished so that ALJs will be subject to mandatory continuing legal education

(MCLE)requirements. OPM does not believe this is a compelling justification to reestablish the licensure requirement. MCLE requirements are not uniform among licensing jurisdictions. MCLE offerings typically concern the advocacy and fiduciary responsibilities of lawyers rather than the adjudicative responsibilities of judges. Agencies already have the statutory authority—and the responsibility—to provide training tailored to the specific needs of their ALJ workforces. *See* 5 U.S.C. 1402 and 4103. Another commenter suggested that a supervising ALJ who does not maintain an active bar license potentially could assign work that would jeopardize the staff attorney's adherence to the rules of professional responsibility, presumably due to the ALJ's unawareness of such rules. OPM believes this risk is speculative and remote, as the rules of professional responsibility are freely and easily accessible. Moreover, an attorney is obligated to know and follow the applicable rules of professional responsibility. If the attorney perceives a conflict he or she may bring it to the supervising ALJ's attention. The same commenter expressed concern that an unlicensed ALJ who supervises a staff attorney thereby engages in the unauthorized practice of law. OPM does not agree that it is an unauthorized practice of law for a sitting ALJ to review the work of an attorney whose job is to prepare draft judicial opinions. A professional organization opposing the elimination of the licensure requirement for incumbent ALJs was concerned that removing the licensure requirement will remove an incentive for the ALJs to stay current in relevant areas of the law, will allow a public perception that ALJs are not qualified, and will unnecessarily expose their employing agencies to litigation risk. OPM does not agree that lack of licensure will result in the concerns the professional organization raises. OPM has determined that the bar licensure requirement is not necessary to guarantee the integrity and independence of incumbent ALJs, so there is no basis to impose the requirement solely on the commenter's speculative concerns. Moreover, as previously noted, OPM believes that the existing mechanisms are sufficient to ensure the adequacy of ALJs' training and conduct. Another commenter's opposition to the elimination of the licensure requirement for incumbent ALJs was based on a belief that it is illogical to require an individual to be licensed at the time of application and appointment but not as an incumbent. OPM disagrees with the commenter's assertion. As noted in the Supplementary Information accompanying the proposed rule, 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. This is no longer necessary after appointment because the ALJ employee becomes subject to the Standards of Ethical Conduct for Employees of the Executive Branch in 5 CFR part 2635 and adverse action procedures pursuant to 5 U.S.C. 7521. The same commenter expressed a concern that this final rule would establish an inconsistent standard for adjudicatory officers in the Federal service. OPM wishes to clarify that this rule only concerns the licensure status of incumbent ALJs (including reemployed annuitants) who, as noted above, are employed in the competitive service subject to uniform qualification standards. Members of the administrative judiciary who are not ALJs typically are classified as attorneys, and as such are appointed in the excepted service. *See* 5 CFR 302.101(c)(9). The excepted service by its nature consists of positions where qualification requirements may differ based on the requirements of each agency. A final concern involved the integrity and objectivity of the administrative judiciary. The commenter believes that without an “active” license to practice law, ALJs would abandon their integrity and objectivity when certain parties appear before them. The commenter did not provide evidence of a causal link between active bar licensure and the ability to impartially and objectively adjudicate cases under the Administrative Procedure Act. OPM believes that the risk described by the commenter is speculative and remote. Executive Order 13563 and Executive Order 12866 The Office of Management and Budget has reviewed this rule in accordance with E.O. 13563 and 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 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. Katherine Archuleta, Director. Accordingly, OPM is revising 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. Revise § 930.204(b) to read as follows: § 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. 2013-28289 Filed 11-29-13; 8:45 am]

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