[Federal Register Volume 70, Number 244 (Wednesday, December 21, 2005)]
[Proposed Rules]
[Pages 75745-75752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24286]


 ========================================================================
 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. 70, No. 244 / Wednesday, December 21, 2005 / 
Proposed Rules  

[[Page 75745]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 337 and 930

RIN 3206-AK86


Examining System and Programs for Specific Positions and 
Examinations (Miscellaneous)

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management (OPM) is republishing the 
proposed rule published on December 13, 2005, due to information that 
was inadvertently omitted. The purpose of these regulations is to 
revise the Administrative Law Judge Program. The purpose of these 
revisions is to remove procedures that appear in other parts of this 
chapter, update outdated information, and remove the internal examining 
processes from the regulations. Additionally, these revisions describe 
OPM and agency responsibilities concerning the Administrative Law Judge 
Program. This proposed regulation continues the basic intent of making 
administrative law judges independent in matters of tenure and 
compensation.

DATES: Comments must be received on or before February 21, 2006.

ADDRESSES: Send, deliver, or fax written comments to: Mr. Mark Doboga, 
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 Office of Personnel Management (OPM) is 
republishing the proposed rule published on December 13, 2005, (70 FR 
73646) due to information that was inadvertently omitted. The 
administrative law judge function was established by the Administrative 
Procedure Act (APA) (Act of June 11, 1946, 60 Stat. 237, as amended) 
and codified in title 5, United States Code (U.S.C.), sections 556, 
557, 1305, 3105, 3344, 4301(2)(D), 5372, and 7521. Administrative law 
judges preside at formal hearings and make or recommend decisions on 
the basis of the record. The APA requires that this function be carried 
out in an impartial manner. To assure objectivity of administrative law 
judges and to insulate them from improper pressure, the law made these 
positions independent of the employing agencies in matters of tenure 
and compensation.
    The goal of this revision is to streamline the current 
administrative law judge regulations as prescribed in 5 CFR part 930, 
subpart B. Therefore, OPM is proposing a substantive rewrite of the 
administrative law judge regulations to eliminate procedures that 
appear in other parts of this chapter, remove the internal examination 
process, and remove obsolete instructions for implementing the current 
pay system authorized by the Federal Employees Pay Comparability Act of 
1990; to add clarifying language; to include OPM and agency 
responsibilities under the program; to emphasize components of the 
Administrative Law Judge Program; to organize information into new 
sections for emphasis and clarity; and to revise the language to 
improve readability.
    We propose in Sec.  930.201, ``Coverage,'' to clarify that 
administrative law judge positions are in the competitive service, and 
competitive examining procedures apply. In addition, we propose to move 
Sec. Sec.  930.203b, ``Title of administrative law judge,'' and 
930.212, ``Rotation of administrative law judges,'' to Sec.  930.201 
because this information applies to the general coverage of the 
Administrative Law Judge Program.
    We also propose to add the authorities and responsibilities of OPM 
and agencies that employ administrative law judges in Sec.  930.201. 
Currently, the regulations do not identify these authorities and 
responsibilities. Although OPM does not employ administrative law 
judges for the Federal Government, OPM does administer the 
Administrative Law Judge Program. In Sec.  930.201, we describe OPM's 
authority and responsibility, according to the APA, as assuring that 
administrative law judges are independent in matters of appointment, 
pay, and tenure.
    Proposed Sec.  930.201(e)(3) states that OPM has the authority to 
establish classification and qualification standards for administrative 
law judge positions. OPM's authority to establish classification 
standards for administrative law judge positions is 5 U.S.C. 
5372(b)(2). Section 104 of Public Law 101-509 removed administrative 
law judge positions from coverage under 5 U.S.C. 5104 and amended 5 
U.S.C. 5372(b)(2) to authorize OPM to classify administrative law judge 
positions outside the General Schedule. Under 5 U.S.C. 1305, OPM may 
use its rulemaking authority to implement this classification authority 
for administrative law judge positions.
    OPM's authority to establish administrative law judge 
qualifications as an adjunct to competitive examination is Civil 
Service Rule II, 5 CFR 2.1(a), which authorizes OPM ``to establish 
standards with respect to citizenship, age, education, training and 
experience, suitability, and physical and mental fitness, and for 
residence or other requirements which applicants must meet to be 
admitted to or rated in examinations.''
    The legislative history of 5 U.S.C. 3105, formerly section 11 (1st 
sentence) of the APA, governing administrative law judge appointments, 
confirms the clear intent of Congress to give OPM the authority to 
establish qualification standards for administrative law judges as an 
adjunct to competitive examination. OPM may utilize its rulemaking 
authority in 5 U.S.C. 1305 to authorize qualification standards for 
administrative law judges.
    An agency employing administrative law judges is responsible for 
appointing as many administrative law judges as needed and to assign 
cases to administrative law judges on a rotational basis so far as 
practicable.
    We propose to move paragraph (c) of the current Sec.  930.201, 
``Coverage,'' to

[[Page 75746]]

Sec.  930.203, ``Cost of competitive examination.'' Paragraph (c) 
discusses the financial responsibility for the Administrative Law Judge 
Program. By adding paragraph (c) to Sec.  930.203, we are highlighting 
agencies' responsibility for the cost of the examination. Currently, 
under 5 U.S.C. 1104(a)(2), agencies employing administrative law judges 
are required to reimburse OPM for its examining services. Reimbursement 
is currently based on the agency's relative number of administrative 
law judge positions as of March 31 of the preceding fiscal year. To 
ensure an accurate count of administrative law judges, we also propose 
to change the time period from March 31 of the preceding fiscal year to 
the current fiscal year. The cost is calculated by OPM and each 
employing agency is notified of its share.
    We propose to remove the definition of ``Promotion'' from Sec.  
930.202, ``Definitions.'' This term uses a common definition throughout 
the Federal Government and is defined in 5 CFR part 210.102(b)(11). 
Standardizing definitions of common terms ensures their consistent 
application. We propose to add and define two significant terms to the 
regulations and clarify their specific use in this subpart: senior 
administrative law judge and superior qualifications.
    We propose to change the title of Sec.  930.203, ``Examination,'' 
to ``Cost of competitive examination.'' OPM has great discretion to 
design and administer competitive examinations (See 5 U.S.C. 1104, 
1302, 3301, 3304.) OPM must be able to incorporate advances in the 
state of the art of examination methodology in the design of each 
administrative law judge examination. Consequently, OPM proposes to 
remove the examination scoring process currently published in section 
930.203, and to state in Sec.  930.201(e)(1) that use of the 
examination scoring process published in 5 CFR 337.101(a) is not 
required in scoring administrative law judge examinations. OPM is 
proposing a conforming revision in part 337. The current examination 
covered by OPM Examination Announcement No. 318 is closed and will be 
replaced by a new administrative law judge examination; therefore, we 
propose to remove all references to Announcement No. 318 from this 
subpart. When the new examination is available, OPM will announce the 
examinations as prescribed in 5 U.S.C. 3330.
    A lengthy description of the administrative law judge examination 
and its procedures is contained in the existing Sec.  930.203 of this 
subpart. The method by which examinations are conducted and 
administered is subject to periodic changes; therefore, removing these 
procedures from the regulations will provide OPM with the flexibility 
to adopt such changes, as appropriate. We propose to remove the 
detailed language describing internal examining and program processes 
and procedures from the regulations, such as the language concerning 
periodic open competition, minimum qualifications, supplemental 
qualifications, participation in examination procedures, final rating, 
preparation of certificates, and appeal of rating. The appropriate 
mechanism to address this type of information is the vacancy 
announcement. This information is prescribed in 5 U.S.C. 3330 and 5 CFR 
300.104(b), 330.102(b) and 330.707, and is required in all vacancy 
announcements. As appropriate, OPM will continue to work with employing 
agencies to review the Administrative Law Judge Program for 
effectiveness and efficiency consistent with statutory requirements.
    We propose to redesignate Sec.  930.203a, ``Appointment,'' as Sec.  
930.204, ``Appointments and conditions of employment.'' We also propose 
to move paragraphs (b), (c), and (e) of Sec.  930.203a, 
``Appointment,'' and Sec. Sec.  930.204, ``Promotion,'' 930.205, 
``Reassignment,'' 930.206, ``Transfer,'' and 930.207, 
``Reinstatement,'' to section 930.204. The purpose is to highlight the 
prohibition of a probationary period for administrative law judges and 
to consolidate the various types of appointments under one section. 
With the consolidation, we propose to remove the internal examining 
processes and procedures involved in appointing an individual to an 
administrative law judge position; revise the language to clarify that 
agencies must obtain OPM's approval before making any promotion, 
transfer, reinstatement, reassignment, pay adjustments or senior 
administrative law judge appointments to an administrative law judge 
position; and include information related to the type of appointment 
and tenure group. Because provisions of the Ramspeck Act formerly 
codified at 5 U.S.C. 3304(c) were repealed by Public Law 104-65 on 
December 19, 1997, we are removing paragraph (d) of section 930.203a 
which involves the appointment of legislative and judicial employees to 
an administrative law judge position. These individuals now must 
compete with other outside candidates and meet the qualification and 
examination requirements for an administrative law judge position.
    We propose to remove Sec.  930.208, ``Restoration'' from this 
regulation. Part 353 of title 5, Code of Federal Regulations, governs 
the restoration of an employee to duty after military service or 
recovering from compensable injury, also applies to restoration to an 
administrative law judge position.
    Currently, the administrative law judge regulations contain two 
terms, ``absolute status'' and ``career absolute appointment,'' that 
are not defined in either the United States Code or Code of Federal 
Regulations. We propose to remove these terms from the regulations and 
replace them with terms used in the competitive service, ``competitive 
status'' and ``career appointment.'' To be a career employee in the 
competitive service, an employee must serve 3 years of substantially 
continuous creditable service and is subject to a 1-year probationary 
period. However, Sec.  315.201(c), ``Exceptions from service 
requirement,'' includes an exception from the 3-year service 
requirement when an appointment to a position is required by law to be 
filled on a permanent basis. The APA provides administrative law judges 
protection from improper influences and ensures independence when 
carrying out their duties by conferring competitive status at the time 
of appointment. Therefore, the requirements for probationary and 
career-conditional periods do not apply to administrative law judges. 
An administrative law judge appointment confers competitive status, 
places the employee in tenure group I, and does not require a 
probationary period.
    Currently Sec.  930.203a(c)(3), ``Appointment of incumbents of 
newly classified administrative law judge positions,'' addresses the 
appointment of employees whose positions are classified as an 
administrative law judge position on the basis of legislation, 
Executive order, or decision of the court. An agency has 6 months after 
the classification to recommend to OPM the appointment of an 
administrative law judge. We propose to delete the 6-month requirement 
and rely on the terms of the legislation, Executive order, or court 
decision for any time frames for appointments. Paragraph (c)(4) of the 
current regulations states that in an emergency situation OPM may 
authorize a conditional appointment of an employee to an administrative 
law judge position pending final decision on the employee's eligibility 
for career appointment. We propose to delete this provision because it 
is inconsistent with the intent of the APA that administrative law 
judges serve without condition.
    The function of an administrative law judge is to prepare for and 
preside at formal hearings in accordance with the

[[Page 75747]]

APA. Administrative law judges must be held to a high standard of 
conduct so that the integrity and independence of the administrative 
judiciary can be maintained. Similar to the attorneys employed by the 
Federal Government who are required to maintain an ``active'' status to 
practice law, administrative law judges are expected to meet 
professional licensing requirements as attorneys. Presently, an 
applicant who wishes to be an administrative law judge must have been 
duly licensed and authorized to practice law as an attorney 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. We propose to clarify that a professional license 
requirement continues as a condition of employment for any individual 
serving as an administrative law judge. A professional license to 
practice law is required while serving as an administrative law judge. 
This requirement applies to eligibles on the Administrative Law Judge 
register, incumbent administrative law judges, former administrative 
law judges applying for reinstatement or reemployment, and retired 
administrative law judges applying under the Senior Administrative Law 
Judge Program. An administrative law judge must maintain an ``active'' 
status 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. In lieu of 
maintaining an ``active'' status to practice law, judicial status is 
acceptable 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.
    For clarity, we propose to redesignate Sec.  930.210, ``Pay'' as 
section 930.205, ``Administrative law judge pay system.''
    We propose to delete paragraphs (j) through (m) of current Sec.  
930.210, which contain instructions for converting GS employees to the 
administrative law judge pay system on the first day of the first pay 
period beginning on or after February 10, 1991. Because all 
administrative law judges have been converted to the current pay 
system, these paragraphs are obsolete.
    Currently, with OPM approval, an agency may pay a higher minimum 
rate to a candidate with superior qualifications who is appointed from 
an OPM certificate of eligibles to an administrative law judge position 
at level AL-3. Under Sec.  930.205(f)(2), we propose to expand coverage 
under this authority to include an administrative law judge applicant 
with superior qualifications as well as a former administrative law 
judge with superior qualifications who is eligible for reinstatement.
    We propose to add a new paragraph (i) to Sec.  930.205 (as 
redesignated) to clarify that an agency may reduce the pay level or 
rate of basic pay of an administrative law judge for good cause either 
after the Merit Systems Protection Board orders the action, as provided 
in Sec.  930.211 (as redesignated), or if agreed upon by the 
administrative law judge and with OPM's approval.
    We propose to redesignate the existing Sec.  930.211 as Sec.  
930.206, ``Performance rating and awards,'' and to move paragraph (b) 
of existing Sec.  930.210, ``Pay,'' to Sec.  930.206. This change 
consolidates the information on performance rating and awards into one 
section.
    We propose to redesignate Sec.  930.209 as Sec.  930.207, and to 
change its title from ``Detail and assignment to other duties'' to 
``Details and assignments to other duties within the same agency.'' The 
new title emphasizes the movement of an administrative law judge within 
the agency.
    We propose to redesignate Sec.  930.213, ``Use of administrative 
law judges on detail from other agencies,'' as Sec.  930.208, 
``Administrative law judge loan program--detail to other agencies.'' 
The title change echoes the term commonly used by the administrative 
law judge community for the process of detailing administrative law 
judges to other agencies. We also propose to clarify OPM's current 
practice of detailing an administrative law judge for a period within 
the current fiscal year with the possibility of an extension into the 
next fiscal year. OPM approves extensions on a case-by-case basis. 
Section 930.208 gives agencies the flexibility to meet unusual work 
circumstances requiring an administrative law judge to stay beyond the 
initial 1-year period.
    We propose to redesignate Sec.  930.216, ``Temporary reemployment: 
senior administrative law judges,'' as Sec.  930.209, ``Senior 
administrative law judge program,'' to echo the term commonly used by 
the administrative law judge community for the process of employing 
retired administrative law judges. The title distinguishes this program 
from the loan program described in Sec.  930.208 (as redesignated). We 
also are clarifying the employment limitation for reemployed 
administrative law judges to be either a specified period not to exceed 
1 year or such periods as may be necessary to conduct and complete the 
hearing of one or more specified cases.
    We propose to redesignate Sec.  930.215, ``Reduction in force,'' as 
Sec.  930.210. At the present time, agencies are allowed to fill vacant 
positions only through the OPM priority referral list. We propose to 
add a hiring flexibility allowing agencies to fill their vacant 
administrative law judge positions by reassigning administrative law 
judges within their workforce. This flexibility allows agencies to 
manage their administrative law judge workforce by providing the 
flexibility to make reassignments within their agency and will assure 
that adversely affected administrative law judges retain priority when 
the agency seeks to fill from outside its workforce. OPM will continue 
to retain the authority to grant exceptions to the order of selection.
    We propose to redesignate Sec.  930.214, ``Actions against 
administrative law judges,'' as Sec.  930.211. We also propose to 
revise this section to improve clarity and readability. This section 
continues to recognize that administrative law judge applicants and 
appointees, like other applicants and appointees to the competitive 
service, are subject to suitability investigations and determinations.

Derivative Table Comparing New Section Numbers in Part 930, Subpart B 
With Old Section Numbers.

    To assist readers in comparing OPM's proposed rule to 5 CFR part 
930, subpart B with the regulation as it is currently published, we 
have prepared the following derivation table.

                Derivation Table for 5 CFR 930 Subpart B
------------------------------------------------------------------------
                New section                          Old section
------------------------------------------------------------------------
930.201...................................  930.201.
930.201(a)................................  930.201(a).
930.201(b)................................  930.201(b).
930.201(c)................................  930.203b.
930.201(d)................................  New.
930.201(e)(1) through (9).................  New.
930.201(f)(1) and (2).....................  New.
930.201(f)(2)(i)..........................  930.212.
930.202...................................  930.202.
Administrative Law Judge Position.........  930.202(c).
Agency....................................  930.202(a).
Detail....................................  930.202(b).
                                            930.202(d) (Removed).
                                            930.202(e) (Removed).
Removal...................................  930.202(f).

[[Page 75748]]

 
Senior Administrative Law Judge...........  930.216(a)(2).
Superior Qualifications...................  930.210(g)(2).
930.203...................................  930.201(c).
930.204...................................  930.203a.
930.204(a)................................  930.203a(a) and (b).
930.204(b)................................  New.
930.204(c)................................  930.203a(c).
930.204(c)(1).............................  930.203a(c)(1).
930.204(c)(2).............................  930.203a(c)(2).
930.204(c)(3).............................  930.203a(c)(3) (Revised).
930.204(c)(4).............................  930.203a(c)(4) (Revised).
                                            930.203a(d) (Removed).
930.204(d)................................  930.203a(e).
930.204(e)................................  930.204 (Revised).
930.204(f)................................  930.205 (Revised).
930.204(g)................................  930.207 (Revised).
930.204(h)................................  930.206 (Revised).
                                            930.208 (Removed).
930.205...................................  930.210.
930.205(f)(2).............................  930.210(g)(2).
930.205(i)................................  New.
                                            930.210(j) through (m)
                                             (Removed).
930.206...................................  New title.
930.206(a)................................  930.211.
930.206(b)................................  930.210(b).
930.207...................................  930.209.
930.208...................................  930.213.
930.209...................................  930.216.
930.210...................................  930.215.
930.211...................................  930.214.
------------------------------------------------------------------------

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 Parts 337 and 930

    Administrative practice and procedure, Computer technology, 
Government employees, Motor vehicles.

    U.S. Office of Personnel Management.
Linda M. Springer,
Director.
    Accordingly, OPM is proposing to amend 5 CFR parts 337 and 930 as 
follows:

PART 337--EXAMINING SYSTEM

    1. The authority citation for part 337 continues to read as 
follows:

    Authority: 5 U.S.C. 1104(a) (2), 1302, 2302, 3301, 3302, 3304, 
3319, 5364, E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; 33 FR 12423, 
Sept. 4, 1968; and 45 FR 18365, Mar. 21, 1980.

Subpart A--General Provisions

    2. Revise Sec.  337.101(a) to read as follows:


Sec.  337.101  Rating applicants.

    (a) OPM shall prescribe the relative weights to be given subjects 
in an examination, and shall assign numerical ratings on a scale of 
100. Except as otherwise provided in this chapter, each applicant who 
meets the minimum requirements for entrance to an examination and is 
rated 70 or more in the examination is eligible for appointment.
* * * * *

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

    3. Revise subpart B to read as follows:

Subpart B--Administrative Law Judge Program

Sec.
930.201 Coverage.
930.202 Definitions.
930.203 Cost of competitive examination.
930.204 Appointments and conditions of employment.
930.205 Administrative law judge pay system.
930.206 Performance rating and awards.
930.207 Details and assignments to other duties within the same 
agency.
930.208 Administrative Law Judge Loan Program--detail to other 
agencies.
930.209 Senior Administrative Law Judge Program.
930.210 Reduction in force.
930.211 Actions against administrative law judges.

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

Subpart B--Administrative Law Judge Program


Sec.  930.201  Coverage.

    (a) This subpart applies to individuals appointed under 5 U.S.C. 
3105 for proceedings required to be conducted in accordance with 5 
U.S.C. 556 and 557 and to administrative law judge positions.
    (b) Administrative law judge positions are in the competitive 
service. Except as otherwise stated in this subpart, the rules and 
regulations applicable to positions in the competitive service apply to 
administrative law judge positions.
    (c) The title ``administrative law judge'' is the official title 
for an administrative law judge position. Each agency must use only 
this title for personnel, budget, and fiscal purposes.
    (d)The Director of OPM, or designee, shall prescribe the 
examination methodology in the design of each administrative law judge 
examination.
    (e) OPM does not hire administrative law judges for other agencies 
but has authority to:
    (1) Recruit and examine applicants for administrative law judge 
positions, including developing and administering the administrative 
law judge examinations under 5 U.S.C. 1104(a)(2), except OPM is not 
required to use the examination scoring process in 5 CFR 337.101(a);
    (2) Assure that decisions concerning the appointment, pay, and 
tenure of administrative law judges in Federal agencies are consistent 
with applicable laws and regulations;
    (3) Establish classification and qualification standards for 
administrative law judge positions in Federal agencies;
    (4) Approve noncompetitive personnel actions for administrative law 
judges, including but not limited to promotions, transfers, 
reinstatements, restorations, reassignments, and pay adjustments;
    (5) Approve an intra-agency detail or assignment of an 
administrative law judge to a non-administrative law judge position 
that lasts more than 120 days or when an administrative law judge 
cumulates a total of more than 120 days for more than one detail or 
assignment within the preceding 12 months;
    (6) Arrange the temporary detail (loan) of an administrative law 
judge from one agency to another under the provisions of the 
administrative law judge loan program in Sec.  930.208;
    (7) Arrange temporary reemployment of retired administrative law 
judges to meet changing agency workloads under the provisions of the 
senior administrative law judge program in Sec.  930.209;
    (8) Maintain and administer the administrative law judge priority 
referral program; and
    (9) Comply with 5 U.S.C. 1305 for purposes of sections 3105, 3344, 
4301(2)(D) and 5372 of title 5 U.S.C. and the provisions of section 
5335(a)(B) of 5 U.S.C. that relate to administrative law judges.

[[Page 75749]]

    (f) An agency employing administrative law judges under 5 U.S.C. 
3105 has:
    (1) Authority to appoint as many administrative law judges as 
necessary for proceedings conducted under 5 U.S.C. 556 and 557; and
    (2) Responsibility for:
    (i) Assigning an administrative law judge to cases in rotation so 
far as is practicable;
    (ii) Obtaining OPM's approval before making any promotion, 
transfer, detail in excess of 120 days, reinstatement, reassignment, or 
restoration appointments to an administrative law judge position, 
employment of senior administrative law judges, or pay adjustments as 
required under Sec.  930.205; and
    (iii) Ensuring the independence of the administrative law judge.


Sec.  930.202  Definitions.

    In this subpart:
    Administrative law judge position means a position in which any 
portion of the duties requires the appointment of an administrative law 
judge under 5 U.S.C. 3105.
    Agency has the same meaning given in 5 U.S.C. 551(1).
    Detail means the temporary assignment of an administrative law 
judge from one position to another administrative law judge position 
without change in civil service or pay status.
    Removal means the involuntary separation of an administrative law 
judge from employment as an administrative law judge or employment with 
an agency.
    Senior administrative law judge means a retired administrative law 
judge who is reemployed under a temporary appointment under 5 U.S.C. 
3323(b)(2) and Sec.  930.209.
    Superior qualifications means an appointment made at a rate above 
the minimum rate based on such qualifications that may include, but are 
not restricted to, experience practicing law before the hiring agency; 
experience practicing before another forum in a field of law relevant 
to the hiring agency; outstanding reputation among others in a field of 
law relevant to the hiring agency; or special skills that will meet a 
demonstrated need of the hiring agency.


Sec.  930.203  Cost of competitive examination.

    Each agency employing administrative law judges must reimburse OPM 
for the cost of developing, examining, and administering the 
administrative law judge examinations. Each agency is charged a pro 
rata share of the examination cost, based on the actual number of 
administrative law judges the agency employs. OPM computes the cost of 
the examination program on an annual basis and notifies the employing 
agencies of their respective shares after the calculations are made.


Sec.  930.204  Appointments and conditions of employment.

    (a) Appointment. An agency may appoint an individual to an 
administrative law judge position only with prior approval of OPM, 
except when it makes its selection from the list of eligibles provided 
by OPM. An administrative law judge receives a career appointment and 
is exempt from the probationary period requirements.
    (b) Licensure. 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 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.
    (c) Appointment of incumbents of newly classified administrative 
law judge positions. An agency may give an incumbent employee an 
administrative law judge career appointment if that employee is serving 
in the position when it is classified as an administrative law judge 
position on the basis of legislation, Executive order, or a decision of 
a court and if:
    (1) The employee has competitive status or is serving in an 
excepted position under a permanent appointment;
    (2) The employee is serving in an administrative law judge position 
on the day the legislation, Executive order, or decision of the court 
on which the classification of the position is based becomes effective;
    (3) OPM receives a recommendation for the employee's appointment 
from the agency concerned; and
    (4) OPM determines the employee meets the qualification 
requirements and has passed the current examination for an 
administrative law judge position.
    (d) Appointment of an employee of non-administrative law judge 
positions. Except as provided for in paragraphs (a) and (c) of this 
section, an agency may not appoint an employee who is serving in a 
position other than an administrative law judge position to an 
administrative law judge position.
    (e) Promotion. (1) Except as otherwise stated in this subpart, 5 
CFR part 335 applies in the promotion of administrative law judges.
    (2) To reclassify an administrative law judge position at a higher 
level, the agency must submit a request to OPM. When OPM approves the 
higher level classification, OPM will direct the promotion of the 
administrative law judge occupying the position prior to the 
reclassification.
    (f) Reassignment. Prior to OPM's approval, the agency must provide 
a bona fide management reason for the reassignment.
    (g) Reinstatement. An agency may reinstate a former administrative 
law judge who has served under 5 U.S.C. 3105, meets the qualification 
requirements, and has passed either the current or immediately 
preceding administrative law judge examination.
    (h) Transfer. An agency may not transfer an individual from one 
administrative law judge position to another administrative law judge 
position sooner than 1 year after the individual's last appointment, 
unless the gaining and losing agencies agree to the transfer.


Sec.  930.205  Administrative law judge pay system.

    (a) OPM assigns each administrative law judge position in one of 
the three grades or levels of basic pay, AL-3, AL-2 or AL-1, of the 
administrative law judge pay system established under 5 U.S.C. 5372 in 
accordance with this section. Pay level AL-3 has six rates of basic 
pay, A, B, C, D, E, and F.
    (1) The rate of basic pay for AL-3, rate A, may not be less than 65 
percent of the rate of basic pay for level IV of the Executive 
Schedule. The rate of basic pay for AL-1 may not exceed the rate for 
level IV of the Executive Schedule.
    (2) The President determines the appropriate adjustment for each 
level in the administrative law judge pay system, subject to paragraph 
(a)(1) of this section. Such adjustments take effect on the first day 
of the first pay period beginning on or after the first day of the 
month in which adjustments in the General Schedule rates of basic pay 
under 5 U.S.C. 5303 take effect.
    (3) An agency must use the following procedures to convert an 
administrative law judge's annual rate of basic pay to an hourly, 
daily, weekly, or biweekly rate:
    (i) To derive an hourly rate, divide the annual rate of pay by 
2,087 and round

[[Page 75750]]

to the nearest cent, counting one-half cent and over as the next higher 
cent.
    (ii) To derive a daily rate, multiply the hourly rate by the number 
of daily hours of service required by the administrative law judge's 
basic daily tour of duty.
    (iii) To derive a weekly or biweekly rate, multiply the hourly rate 
by 40 or 80, respectively.
    (b) Pay level AL-3 is the basic pay level for administrative law 
judge positions filled through a competitive examination.
    (c) Subject to OPM approval, agencies may establish administrative 
law judge positions in pay levels AL-2 and AL-1. Administrative law 
judge positions are placed at these levels when they involve 
significant administrative and managerial responsibilities.
    (d) Administrative law judges must serve at least 1 year in each AL 
pay level, or in an equivalent or higher level in positions in the 
Federal service, before advancing to the next higher level and may 
advance only one level at a time.
    (e) Except as provided in paragraph (f) of this section, upon 
appointment to an administrative law judge position placed in level AL-
3, an administrative law judge is paid at the minimum rate A of AL-3. 
He or she is automatically advanced successively to rates B, C, and D 
of that level upon completion of 52 weeks of service in the next lower 
rate, and to rates E and F of that level upon completion of 104 weeks 
of service in the next lower rate. Time in a non-pay status is 
generally creditable service when computing the 52-week period as long 
as it does not exceed 2 weeks per year for each 52 weeks of service. 
However, absence due to uniformed service or compensable injury is 
fully creditable upon reemployment as provided in part 353 of this 
chapter.
    (f) Upon appointment to a position at AL-3, an administrative law 
judge may be paid at the minimum rate A, unless the administrative law 
judge is eligible for a higher rate B, C, D, E, or F because of prior 
service or superior qualifications, as provided in paragraphs (f)(1) 
and (f)(2) of this section.
    (1) An agency may offer an administrative law judge applicant with 
prior Federal service a higher than minimum rate up to the lowest rate 
of basic pay that equals or exceeds the applicant's highest previous 
Federal rate of basic pay, not to exceed the maximum rate F.
    (2) With prior OPM approval, an agency may pay the rate of pay that 
is next above the applicant's existing pay or earnings up to the 
maximum rate F. The agency may offer a higher than minimum rate to:
    (i) An administrative law judge applicant with superior 
qualifications (as defined in Sec.  930.202) who is within reach for 
appointment from an administrative law judge certificate of eligibles; 
or
    (ii) A former administrative law judge with superior qualifications 
who is eligible for reinstatement.
    (g) With prior OPM approval, an agency, on a one-time basis, may 
advance an administrative law judge in an AL-3 position with added 
administrative and managerial duties and responsibilities one rate 
above the administrative law judge's current AL-3 pay rate, up to the 
maximum rate F.
    (h) Upon appointment to an administrative law judge position placed 
at AL-2 or AL-1, an administrative law judge is paid at the established 
rates for those levels.
    (i) An employing agency may reduce the level or rate of basic pay 
of an administrative law judge under Sec.  930.211 or if the 
administrative law judge voluntarily consents in writing to the 
reduction and with prior OPM approval.


Sec.  930.206  Performance rating and awards.

    (a) An agency may not rate the job performance of an administrative 
law judge.
    (b) An agency may not grant any award or financial incentives under 
5 U.S.C. 4502, 4503, or 4504 to an administrative law judge.


Sec.  930.207  Details and assignments to other duties within the same 
agency.

    (a) An agency may detail an administrative law judge from one 
administrative law judge position to another administrative law judge 
position within the same agency in accordance with 5 U.S.C. 3341.
    (b) An agency may not detail an employee who is not an 
administrative law judge to an administrative law judge position.
    (c) An agency may assign an administrative law judge to perform 
non-administrative law judge duties only when:
    (1) The other duties are consistent with administrative law judge 
duties and responsibilities;
    (2) The assignment is to last no longer than 120 days; and
    (3) The administrative law judge has not had a total of more than 
120 days of such assignments or details within the preceding 12 months.
    (d) OPM may authorize a waiver of paragraphs (c)(2) and (c)(3) of 
this section if an agency shows that it is in the public interest to do 
so. In determining whether a waiver is justified, OPM may consider, but 
is not restricted to considering, such factors as unusual case load or 
special expertise of the detailee.


Sec.  930.208  Administrative Law Judge Loan Program--detail to other 
agencies.

    (a) In accordance with 5 U.S.C. 3344, OPM administers an 
Administrative Law Judge Loan Program that coordinates the loan/detail 
of an administrative law judge from one agency to another. An agency 
may request from OPM the services of an administrative law judge if the 
agency is occasionally or temporarily insufficiently staffed with 
administrative law judges, or an agency may loan the services of its 
administrative law judges to other agencies if there is insufficient 
work to fully occupy the administrative law judges' work schedule.
    (b) An agency's request to OPM for the services of an 
administrative law judge must:
    (1) Identify and briefly describe the nature of the cases(s) to be 
heard;
    (2) Specify the legal authority for which the use of an 
administrative law judge is required; and
    (3) Demonstrate, as appropriate, that the agency has no 
administrative law judge available to hear the case(s).
    (c) The services of an administrative law judge under this program 
are made from the starting date of the detail until the end of the 
current fiscal year, but may be extended into the next fiscal year with 
OPM's approval. Decisions for an extension are made by OPM on a case-
by-case basis.
    (d) The agency requesting the services of an administrative law 
judge under this program is responsible for reimbursing the agency that 
employs the administrative law judge for the cost of the service.


Sec.  930.209  Senior Administrative Law Judge Program.

    (a) OPM administers a Senior Administrative Law Judge Program in 
accordance with 5 U.S.C. 3323(b)(2). The Senior Administrative Law 
Judge Program is subject to the requirements and limitations in this 
section.
    (b) A senior administrative law judge must meet the:
    (1) Annuitant requirements under 5 U.S.C. 3323;
    (2) Professional license requirement in Sec.  930.204(b); and
    (3) Suitability requirements in 5 CFR parts 5 and 731.
    (c) Under the Senior Administrative Law Judge Program, OPM 
authorizes

[[Page 75751]]

agencies that have temporary, irregular workload requirements for 
conducting proceedings in accordance with 5 U.S.C. 556 and 557 to 
temporarily reemploy administrative law judge annuitants. If OPM is 
unable to identify an administrative law judge under Sec.  930.208 who 
meets the agency's qualification requirements, OPM will approve the 
agency's request.
    (d) An agency wishing to temporarily reemploy an administrative law 
judge must submit a written request to OPM. The request must:
    (1) Identify the statutory authority under which the administrative 
law judge is expected to conduct proceedings;
    (2) Demonstrate the agency's temporary or irregular workload 
requirements for conducting proceedings;
    (3) Specify the tour of duty, location, period of time, or 
particular cases(s) for the requested reemployment; and
    (4) Describe any special qualifications the retired administrative 
law judge possesses that are required of the position, such as 
experience in a particular field, agency, or substantive area of law.
    (e) OPM establishes the terms of the appointment for a senior 
administrative law judge. The senior administrative law judge may be 
reemployed either for a specified period not to exceed 1 year or for 
such time as may be necessary for the senior administrative law judge 
to conduct and complete the hearing and issue decisions for one or more 
specified cases. Upon agency request, OPM may reduce or extend such 
period of reemployment, as necessary, to coincide with changing 
staffing requirements.
    (f) A senior administrative law judge serves subject to the same 
limitations as any other administrative law judge employed under this 
subpart and 5 U.S.C. 3105.
    (g) A senior law judge is paid the rate of basic pay for the pay 
level at which the position has been classified. If the position is 
classified at pay level AL-3, the senior administrative law judge is 
paid the lowest rate of basic pay in AL-3 that equals or exceeds the 
highest previous rate of basic pay attained by the individual as an 
administrative law judge immediately before retirement, up to the 
maximum rate F.


Sec.  930.210  Reduction in force.

    (a) Retention preference regulations. Except as modified by this 
section, the reduction in force regulations in part 351 of this chapter 
apply to administrative law judges.
    (b) Determination of retention standing. In determining retention 
standing in a reduction in force, each agency lists its administrative 
law judges by group and subgroups according to tenure of employment, 
veterans' preference, and service date as outlined in part 351 of this 
chapter. Because administrative law judges are not given performance 
ratings (see Sec.  930.206), the provisions in part 351 of this chapter 
referring to the effect of performance ratings on retention standing 
are not applicable to administrative law judges.
    (c) Placement assistance. (1) An administrative law judge who is 
reached in an agency's reduction in force and receives a notification 
of separation is eligible for placement assistance under the agency's 
reemployment priority list established and maintained in accordance 
with subpart B of part 330 of this chapter.
    (2) An administrative law judge who is reached by an agency in a 
reduction in force and who is notified of being separated, furloughed 
for more than 30 days, or demoted, is entitled to have his or her name 
placed on OPM's administrative law judge priority referral list for the 
level in which last served and for all lower levels.
    (i) To have his or her name placed on the OPM priority referral 
list, a displaced administrative law judge must provide OPM with a 
request for priority referral placement, a resume or equivalent, and a 
copy of the reduction in force notice at any time after the receipt of 
the specific reduction in force notice, but not later than 90 days 
after the date of separation, furlough for more than 30 days, or 
demotion.
    (ii) Eligibility on the OPM priority referral list expires 2 years 
after the effective date of the reduction in force action.
    (iii) Referral and selection of administrative law judges are made 
without regard to selective certification or special qualification 
procedures.
    (iv) Termination of eligibility on the OPM priority referral list 
takes place when an administrative law judge submits a written request 
to terminate eligibility, accepts a permanent full-time administrative 
law judge position, or declines one full-time employment offer as an 
administrative law judge at or above the level held when reached for 
reduction in force at geographic locations previously indicated as 
acceptable.
    (3) With OPM's prior approval, when there is no administrative law 
judge available on the agency's reemployment priority list, an agency 
may fill a vacant administrative law judge position through any of the 
following methods:
    (i) OPM's administrative law judge priority referral list;
    (ii) Reassignment from within the agency; or
    (iii) Competitive examining, promotion, transfer, or reinstatement 
procedures; provided that the proposed candidate possesses experience 
and qualifications superior to an available displaced administrative 
law judge(s) on OPM's priority referral list.


Sec.  930.211  Actions against administrative law judges.

    (a) Procedures. An agency may remove, suspend, reduce in level, 
reduce in pay, or furlough for 30 days or less an administrative law 
judge only for good cause established and determined by the Merit 
Systems Protection Board on the record and after opportunity for a 
hearing before the Board as prescribed in 5 U.S.C. 7521 and 5 CFR part 
1201. Procedures for adverse actions by agencies under part 752 of this 
chapter do not apply to actions against administrative law judges.
    (b) Status during removal proceedings. In exceptional cases when 
there are circumstances in which the retention of an administrative law 
judge in his or her position, pending adjudication of the existence of 
good cause for his or her removal, is detrimental to the interests of 
the Federal Government, the agency may:
    (1) Assign the administrative law judge to duties consistent with 
his or her normal duties in which these conditions would not exist;
    (2) Place the administrative law judge on leave with his or her 
consent;
    (3) Carry the administrative law judge on annual leave, sick leave, 
leave without pay, or absence without leave, as appropriate, if he or 
she is voluntarily absent for reasons not originating with the agency; 
or
    (4) If the alternatives in paragraphs (b)(1) through (b)(3) of this 
section are not available, the agency may consider placing the 
administrative law judge in a paid non-duty or administrative leave 
status.
    (c) Exceptions from procedures. The procedures in paragraphs (a) 
and (b) of this section do not apply:
    (1) In making dismissals or taking other actions under 5 CFR parts 
5 and 731;
    (2) In making dismissals or other actions made by agencies in the 
interest of national security under 5 U.S.C. 7532;
    (3) To reduction in force actions taken by agencies under 5 U.S.C. 
3502; or

[[Page 75752]]

    (4) In any action initiated by the Office of Special Counsel under 
5 U.S.C. 1215.

[FR Doc. 05-24286 Filed 12-16-05; 9:42 am]
BILLING CODE 6325-39-P