[Federal Register Volume 72, Number 53 (Tuesday, March 20, 2007)]
[Rules and Regulations]
[Pages 12947-12958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4959]



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  Federal Register / Vol. 72, No. 53 / Tuesday, March 20, 2007 / Rules 
and Regulations  

[[Page 12947]]



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: Final rule.

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

SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations 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of this chapter, update outdated information, and remove the internal 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. These regulations continue the basic intent of 
making administrative law judges independent in matters of appointment, 
tenure and compensation.

DATES: This rule is effective April 19, 2007.

FOR FURTHER INFORMATION CONTACT: 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 December 13, 2005, the Office of 
Personnel Management (OPM) published a proposed rule at 70 FR 73646, to 
revise the Administrative Law Judge Program. On December 21, 2005, OPM 
republished the proposed rule at 70 FR 75745 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), which is codified, in relevant part, in title 5, United 
States Code (U.S.C.), at sections 556, 557, 1305, 3105, 3344, 
4301(2)(D), 5372, and 7521. Administrative law judges preside in formal 
proceedings requiring a decision on the record after the opportunity 
for a hearing. The APA requires that this function be carried out in an 
impartial manner. To ensure 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 
appointment, tenure, and compensation.
    The goal of these revised regulations is to streamline the existing 
administrative law judge regulations as prescribed in title 5, Code of 
Federal Regulations (CFR), part 930, subpart B. The proposed 
regulations remove redundant procedures and outdated information, 
clarify bar membership requirements, and provide for the administrative 
law judge examination process to be established in a manner similar to 
other OPM competitive examinations.
    During the comment period, OPM received written comments from six 
Federal agencies; five professional organizations; the exclusive 
bargaining representative of administrative law judges serving at the 
Social Security Administration (SSA) and the Department of Health and 
Human Services (HHS); and seventeen individuals. Based on these 
comments, OPM adopts several suggestions and clarifies areas where 
there appeared to be some confusion and misunderstanding. OPM is 
addressing the comments according to topics identified.

OPM's Authority To Administer the Administrative Law Judge Program

    OPM's authority to administer the employment of administrative law 
judges (formerly called hearing examiners) was created by the APA. Text 
in section 11(1st) of the APA (5 U.S.C. 1010(1st)) stated that agencies 
must appoint ``qualified and competent'' administrative law judges. 
Although former section 1010(1st) was replaced by 5 U.S.C. 3105 when 
title 5 was enacted into positive law in 1966, the amendment was not 
substantive, and the requirement that administrative law judges be 
qualified and competent continued to apply. See Pub. L. 89-554, sec. 
7(a), 80 Stat. 631 (the purpose of sections 1-6 of the 1966 Act, 
codifying title 5, was ``to restate, without substantive change, the 
laws replaced by those sections on the effective date of this Act 
[Sept. 6, 1966]''); H.R. Rep. No. 89-901, at 36 (1965) (replacement of 
5 U.S.C. 1010(1st) with 5 U.S.C. 3105 did not effect a substantive 
amendment); S. Rep. No. 89-1380, at 55 (1966) (same). The APA's 
legislative history, commenting on this requirement, states that the 
Civil Service Commission, OPM's forerunner, must ``fix appropriate 
qualifications'' for administrative law judges and that the agencies 
must ``seek fit persons.'' See S. Rep. No. 79-572 (1945), reprinted in 
Administrative Procedure Act, Legislative History, 79th Congress, 1944-
46, S. Doc. No. 79-248, at 187, 215 (1946); H.R. Rep. No. 79-1980 
(1946), reprinted in S. Doc. No. 79-248, at 235, 280.
    The President has the authority to set standards for individuals 
entering into the Federal civil service in the executive branch, and to 
prescribe rules for competitive examinations. 5 U.S.C. 3301, 3304; see 
also Hampton v. Mow Sun Wong, 426 U.S. 88, 115 n.47 (1976); Am. Fed'n 
of Govt. Employees v. Hoffman, 543 F.2d 930, 938 (D.C. Cir. 1976). The 
President delegated his authority to the Director of OPM through 
Executive Order 10577, Rule II, codified as amended in 5 CFR 2.1(a). 
Mow Sun Wong, 426 U.S. at 111; Am. Fed'n, 543 F.2d at 938. See also 5 
U.S.C. 1104(a)(1), reflecting the President's authority to delegate the 
authority for competitive examinations to the Director of OPM. 
Additionally, Congress required OPM to prescribe regulations for 
competitive service examinations, including the administrative law 
judge examination. 5 U.S.C. 1302. See also Mow Sun Wong, 426 U.S. at 
115 n.47. Under the preceding authorities, OPM is responsible for 
regulating and conducting competitive examinations for administrative 
law judges, and for establishing qualification standards for 
administrative law judge candidates and incumbents that promote the 
efficiency of the competitive service.

Discussion of Comments

    Many commenters challenge OPM's authority to modify the 
administrative law judge program. These commenters

[[Page 12948]]

claim that Congress established the administrative law judge position 
under the APA and only Congress can make the types of changes OPM is 
proposing. As noted above, we have identified authorities under which 
OPM administers the administrative law judge program.
    Two commenters claim that OPM does not have the authority to 
approve non-competitive personnel actions for administrative law 
judges, including but not limited to promotions, transfers, 
reinstatements, restorations, reassignments, and pay adjustments and 
that by doing so, OPM violates 5 U.S.C. 7521. OPM's authority to 
approve movement of administrative law judges such as promotions, 
reassignments, transfers, reinstatements, restorations, and pay 
adjustments is prescribed in the existing regulations in Sec. Sec.  
930.204 through 930.210. These regulations are authorized by 5 U.S.C. 
1305, which states that OPM may investigate and regulate to give effect 
to the provisions applicable to administrative law judges in 5 U.S.C. 
3105, 3344, 4301, and 5372. OPM has not changed the procedures for 
approving non-competitive personnel actions, which ensure that such 
actions are consistent with the statutes cited above.
    An agency suggests OPM consider giving agencies the authority to 
promote, transfer, and detail administrative law judges in excess of 
120 days without obtaining OPM's approval. The agency is concerned 
about being able to bring back a specific judge with the in-depth 
knowledge of a case after he or she has separated from the agency. OPM 
is not adopting this suggestion. OPM is responsible for ensuring the 
independence of administrative law judges, and OPM believes it can best 
discharge this obligation if it continues to approve these requests. 
Accordingly, as prescribed in 5 CFR part 930, subpart B, OPM will 
continue to require agencies to obtain OPM's approval for non-
competitive actions such as promotions, reassignments, transfers, 
reinstatements, restorations, pay adjustments, and details in excess of 
120 days. OPM also will continue to work with agencies to fill their 
vacant administrative law judge positions with qualified administrative 
law judges as promptly as possible.
    One commenter recognizes that OPM has the authority to administer 
the administrative law judge program; however, the commenter asserts 
that OPM does not have the authority to re-delegate to agencies the 
authority to assign an administrative law judge to cases in rotation so 
far as practicable and to ensure the independence of the administrative 
law judge. Under the APA, OPM and the employing agencies have 
responsibilities related to administrative law judges. Although OPM 
also has the authority, pursuant to 5 U.S.C. Sec.  1305, to issue 
regulations concerning the requirement in 5 U.S.C. 3105, the employing 
agency's obligation to assign its administrative law judges to cases in 
rotation, insofar as practicable, arises directly under the applicable 
statute, 5 U.S.C. 3105, not pursuant to any re-delegation from OPM. The 
language with which the commenter took issue was meant to be 
descriptive rather than prescriptive. OPM is revising Sec.  930.201(e) 
and (f) to clarify this point.

Professional License Requirement

Background

    Under the APA, administrative law judges preside in formal 
proceedings requiring a decision on the record after an opportunity for 
a hearing. Administrative law judges must be held to a high standard of 
conduct so that the integrity and independence of the administrative 
judiciary is preserved. OPM has a longstanding policy that an 
administrative law judge applicant or incumbent must have an active bar 
membership or a current license to practice law (i.e., must be both 
licensed and authorized to practice law). The purpose of a professional 
license is to ensure that administrative law judges, like attorneys, 
remain subject to a code of professional responsibility. These ethical 
requirements cannot be waived.
    Under the current ``OPM Examination Announcement No. 318, as 
amended, Opportunities in the Federal Government as an Administrative 
Law Judge,'' if an applicant wishes to apply for an administrative law 
judge position the applicant must possess a total of 7 years of 
experience as an attorney and must be duly licensed and 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. Applicants must continue to be licensed 
and authorized to practice law throughout the selection process, 
including any period on the standing register of eligibles. At the time 
of appointment, the newly appointed administrative law judge is 
required to be duly licensed and authorized to practice law. Once 
appointed, the administrative law judge is expected to maintain the 
qualifying requirement for a professional license to practice law while 
serving as an administrative law judge in the Federal competitive 
service. Additionally, if a retired administrative law judge wishes to 
return to Federal Service as a senior administrative law judge the 
retired judge must be duly licensed and authorized to practice law.
    OPM is authorized to establish standards for competitive service 
applicants that will best promote the efficiency of the service. The 
requirement for administrative law judge applicants and incumbents to 
be both licensed and authorized to practice law was professionally 
developed, is supported by a job analysis, and is rationally related to 
performance in the position to be filled.
    The bar license requirement is based on the results of three job 
analyses of the administrative law judge occupation conducted by OPM's 
Personnel Research Psychologists in 1990, 1999, and 2002. The job 
analyses were based on administrative law judge subject matter expert 
input, and developed and conducted in accordance with the Uniform 
Guidelines on Employee Selection Procedures.
    The results of these studies show that Integrity/Honesty is 
fundamental for performing the duties of an administrative law judge. 
In particular, the 2002 study documents the usefulness and job-
relatedness of requiring, as minimum qualifications, bar membership and 
seven (7) years of certain qualifying experience. Accordingly, OPM has 
determined to adhere to its long-standing position that an 
administrative law judge applicant must demonstrate he or she is an 
active member or has judicial status that authorizes the practice of 
law and requires adherence to his or her State's or jurisdiction's 
ethical requirements.
    In meeting OPM's goal to establish the administrative law judge 
examination process in a manner similar to other OPM competitive 
examinations, the requirement that a bar membership applies to both 
applicants and employees is in accordance with all other OPM 
qualification standards for the competitive service. Failure at any 
time (applicant or incumbent) to meet a minimum qualification 
requirement means the individual is not qualified to perform the duties 
of the position.
    In addition, the requirement for administrative law judge 
applicants and incumbents to be both licensed and authorized to 
practice law is historically grounded. The Federal Circuit has found 
that a qualification requirement's long-standing role in administrative 
law judge selection is an important factor in evaluating the standard's 
rationality. See Meeker v. Merit Sys. Protection Bd., 319 F.3d 1368, 
1378 (Fed. Cir. 2003),

[[Page 12949]]

affirming minimum qualification requirement of seven years of relevant 
legal experience, and noting ``the important role that experience has 
always played in the selection of ALJs''. At the time the APA was 
approved, most of the agencies and departments recommended to the Civil 
Service Commission, OPM's forerunner, that a law degree and bar 
membership be required of candidates for administrative law judge 
positions. In subsequent years, a report by the Committee on Hearing 
Officers of the President's Conference on Administrative Procedure 
contained recommendations that in addition to legal experience, a law 
degree and bar membership be required of all candidates. In the early 
1960's, following the recommendations by the President's Administrative 
Conference, the Civil Service Commission established an Advisory 
Committee to review the entire program. Based on previous 
recommendations that bar membership be required and the nature of the 
work, the Advisory Committee made a similar recommendation indicating 
that the requirement would help ensure that candidates possessed the 
degree of expertise to perform satisfactorily in the job. The Civil 
Service Commission adopted the recommendation concerning bar membership 
and it has been a standard in the Program since 1964.
    Minimum qualification requirements do not disappear after an 
individual is appointed as an administrative law judge. As described in 
the following discussion of comments, a standard for career-entry 
promotes the efficiency of the competitive service only if it applies 
continuously to applicants and incumbents alike.

Discussion of Comments

    OPM received comments opposing the license requirement for 
incumbent administrative law judges. A few commenters claim that the 
license requirement is a new qualification requirement; therefore, the 
public must be given an opportunity to comment on it. As discussed 
above, the license requirement is not a new requirement and the Federal 
Register notice proposing these regulations is correct in stating that 
OPM was clarifying bar membership.
    The first category of comments states that OPM exceeded its 
authority under authorizing statutes. This is incorrect. The President 
has the power to establish qualifications and conditions of employment 
in the competitive service under 5 U.S.C. 3301 and 3304, and has 
delegated this standard-setting authority to OPM under Executive Order 
10577, Rule II, codified as amended in 5 CFR 2.1(a). See also 5 U.S.C. 
1104(a)(1). OPM is required by 5 U.S.C. 1302 to promulgate regulations 
for competitive service examinations implementing Rule II. The Supreme 
Court and the District of Columbia Circuit have ruled that where OPM 
promulgates a standard under 5 U.S.C. 3301 and 5 CFR 2.1(a), OPM 
requires no further statutory or executive authority for its action. 
See Mow Sun Wong, 426 U.S. at 113 (holding that where OPM promulgates a 
standard under 5 U.S.C. 3301 and Rule II, it ``may either retain or 
modify the * * * requirement without further authorization from 
Congress or the President''); Hoffman, 543 F.2d at 941 n.17 (same). It 
is nonetheless notable that Congress also expressed its specific intent 
in the legislative history of section 11 of the APA that OPM be 
responsible for fixing standards to ensure that qualified and competent 
administrative law judges are appointed.
    Several commenters state that while OPM has the statutory authority 
to establish qualifications for administrative law judge applicants and 
appointees, including ``active'' bar membership requirements, OPM's 
authority does not extend to incumbent administrative law judges. Under 
controlling District of Columbia Circuit case law, OPM's authority 
under 5 U.S.C. 3301 and 5 CFR 2.1(a) extends to establishing ongoing 
``conditions of employment for civil servants in the executive 
branch,'' not just appointment qualifications. Hoffman, 543 F.2d at 
938. A standard for career entry promotes the efficiency of the 
competitive service only if it applies continuously to applicants and 
incumbents alike.
    According to a second category of comments, even if OPM has the 
authority to impose a license requirement, its implementation is too 
broad and not rationally related to OPM's goals. These commenters 
assert that the representative licensing jurisdictions allow incumbent 
judges to take an inactive, judicial, or retired status on grounds that 
they are not actively engaged in the practice of law, so there is no 
rational basis for OPM to require ``active'' bar status or a current 
license to practice law. Some commenters assert that inactive, 
judicial, or retired status would continue to subject the incumbent to 
appropriate State bar disciplinary oversight while exempting them from 
potentially burdensome fees, continuing legal education requirements, 
and reexamination requirements. One commenter asserts that by taking 
judicial status in lieu of ``active'' status, an administrative law 
judge appropriately remains subject to discipline under State codes of 
judicial conduct, even if the administrative law judge is no longer 
subject to rules of professional responsibility applicable to 
practicing attorneys. Another commenter asserts, conversely, that 
administrative law judges should be allowed to maintain an inactive 
status specifically so that they will not be subject to disciplinary 
oversight by State licensing authorities. Two commenters recommend that 
if the ``active'' bar membership or current license requirement is 
adopted, it should be phased in to allow all incumbent administrative 
law judges time to come into compliance because of the potential 
financial burden associated with a change in bar status in some 
jurisdictions.
    We disagree with these comments and recommendations because 
application of the ``active'' bar membership or current license 
requirement to both applicant and incumbent administrative law judges 
promotes the efficiency of the competitive service. Moreover, as it is 
not a new requirement, a transition period is not needed.
    According to a third category of comments, the license requirement 
will cause administrative law judges to violate State law. Several 
commenters state that requiring incumbent administrative law judges to 
maintain a current license to practice law may cause administrative law 
judges to violate a provision of the Model Code of Judicial Conduct 
that bars judges from the practice of law. This argument is misplaced. 
Canon 4G of the Model Code and related Commentary, when incorporated in 
the law of the relevant licensing jurisdiction, prohibits a judge only 
from practicing law ``in a representative capacity,'' and does not 
prohibit, or in any way restrict, a judge from maintaining a current 
license to practice law. In addition, the final regulations accommodate 
State law by allowing an administrative law judge to take judicial 
status where he or she is prohibited by State law from taking 
``active'' status.
    A fourth category of comments raises a concern that the regulations 
subject administrative law judges to overlapping ethics and license 
requirements. The commenters state a concern that if incumbent 
administrative law judges are required to maintain ``active'' bar 
membership or a current license to practice law, they may, under 28 
U.S.C. 530B(a), be subject to both the rules of professional

[[Page 12950]]

responsibility applicable to attorneys practicing in the jurisdiction 
where the administrative law judge conducts proceedings, and the rules 
of professional responsibility of the jurisdiction where the 
administrative law judge is licensed. Pursuant to 28 U.S.C. 530B(c) and 
the Department of Justice's implementing regulations in 28 CFR 77.2(a), 
28 U.S.C. 530B(a) applies only to certain Department of Justice and 
Independent Counsel officials, and plainly does not apply to any 
administrative law judge performing a function under 5 U.S.C. 3105.
    A fifth category of comments states that the license requirement 
violates Federalism principles. Two commenters assert that requiring 
incumbent administrative law judges to maintain a current license to 
practice law constitutes a Federal infringement on the States' 
regulation of the legal profession. OPM does not assert in these 
regulations the authority to preempt State laws governing the licensing 
of attorneys. Rather, OPM's regulations establish a minimum 
qualification requirement for an administrative law judge position in 
the Federal competitive service that incorporates relevant State 
license requirements. In fact, OPM's regulations avoid conflict with 
State license requirements by allowing administrative law judges to 
take a judicial status where State law prohibits an ``active'' status.
    One commenter asserts that requiring incumbent administrative law 
judges to maintain a current license to practice law in essence gives 
OPM the authority to make licensing determinations currently made by 
the States. OPM is not asserting or exercising any authority to license 
the legal profession in these regulations.
    Certain commenters express a concern that by requiring 
administrative law judges to maintain an ``active'' bar membership or 
license to practice law, OPM is defining administrative law judges as 
persons engaged in the practice of law while performing their official 
duties. This interpretation is not OPM's position and it is not 
supported by the text of these regulations.
    A sixth category of comments states that the license requirement 
will allow collateral attacks on administrative proceedings and actions 
against administrative law judges. Specifically, an agency is concerned 
that an incumbent administrative law judge's failure to meet the 
license requirement would encourage a disappointed litigant to 
collaterally attack the administrative proceedings over which the 
administrative law judge presides, and could subject the presiding 
administrative law judge to State bar complaints related to official 
adjudicative duties, even though under Supreme Court case law, 
administrative law judges are immune from lawsuits related to the 
performance of their official duties. This comment is addressed to the 
commenter's perception of litigation risk associated with including 
this longstanding requirement in the revised regulations, rather than 
the merits or appropriateness of the requirement per se. Accordingly, 
OPM has disregarded this comment.
    A seventh category of comments asserts that the requirement for 
``active'' bar membership or a current license to practice law has a 
retroactive legal effect. OPM disagrees. As OPM has repeatedly stated, 
these regulations clarify an existing requirement. They have 
prospective legal effect, consistent with 5 U.S.C. 551(4) and Bowen v. 
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).
    The final category of comments asserts that the license requirement 
is unconstitutional. Specifically, a commenter asserts that requiring 
an incumbent administrative law judge to maintain an ``active'' bar 
membership or current license to practice law potentially violates the 
5th Amendment. OPM disagrees. The license requirement does not effect a 
deprivation of life, liberty, or property without due process of law. 
Further, this requirement does not raise an equal protection concern 
because it does not constitute a classification adversely affecting a 
category of regulated persons without a rational basis.
    OPM has considered all the comments submitted by individuals, 
professional organizations, agencies, and the exclusive bargaining 
representative for administrative law judges at SSA and HHS. OPM has 
not received any compelling argument to change its policy on the 
professional license requirement for administrative law judges. As we 
have stated previously, this is not a new requirement but a 
clarification of a longstanding OPM policy that an administrative law 
judge must have an ``active'' bar membership or current license to 
practice law. The license requirement is a qualification requirement, 
in addition to the requirement for 7 years of attorney experience, 
which must be maintained for successful performance as an 
administrative law judge. It is an on-going permanent requirement for 
any individual serving in an administrative law judge position.
    Consequently, to ensure that the professional license requirement 
is maintained, OPM is incorporating the professional license 
requirement in Sec.  930.204(b) of these regulations and as a Condition 
of Employment in the Qualification Standard for Administrative Law 
Judges, which applies to both applicants and incumbents. OPM will also 
incorporate the requirement in the new administrative law judge vacancy 
announcement. The final rule expressly reaffirms OPM's longstanding 
requirement that an administrative law judge possess a professional 
license to practice law and be authorized to practice law. The 
requirement attaches at the time of application. If the applicant is 
determined to be eligible, the requirement continues to apply while the 
applicant is on the administrative law judge competitive register and 
at the time of appointment. Following appointment, the requirement 
continues to apply for as long as the appointee continues to serve as 
an administrative law judge. The requirement would also apply at the 
time of application to serve and while serving as a senior 
administrative law judge.
    OPM has provided two alternatives in lieu of ``active'' status, 
that is, ``judicial'' and ``good standing'' status. Judicial status is 
acceptable in States that prohibit sitting judges from maintaining an 
``active'' status to practice law. Being in ``good standing'' is also 
acceptable in lieu of ``active'' status in States where the licensing 
authority construes ``good standing'' to mean having a current license 
to practice law.

Elimination of the Administrative Law Judge Examination Process

Background

    A lengthy description of the administrative law judge examination 
and its procedures is contained in the existing Sec.  930.203. The 
method by which examinations are conducted and administered, however, 
is subject to periodic changes. For that reason, OPM has decided to 
remove from the regulations the detailed language describing the 
internal examining process and procedures, such as the language 
concerning periodic open competition, minimum qualifications, 
supplemental qualifications, participation in examination procedures, 
and final rating. OPM has concluded, based upon its experience and 
expertise, that a better vehicle for addressing this type of 
information is the vacancy announcement, as prescribed in 5 U.S.C. 3330 
and 5 CFR part 330, and as required in all other

[[Page 12951]]

competitive service vacancy announcements.
    Sections 1104, 1302, 3301, and 3304 of title 5, U.S.C., authorize 
OPM to develop and administer the administrative law judge competitive 
examination. To maintain the relevance and validity of the examination, 
OPM has periodically conducted occupational studies of the 
administrative law judge occupation to revise and update elements of 
the administrative law judge examination. The administrative law judge 
examination should be allowed to evolve based on new technology and 
advances in the state of the art of examination methodology. In order 
to fulfill its responsibility to develop the administrative law judge 
examination in the optimal manner, OPM should be in a position to 
incorporate these advances promptly, without having to amend its 
regulations. Information on the examination process will be included in 
the new vacancy announcement for administrative law judge positions. 
The revised regulations, therefore, do not include detailed information 
about the examination and related processes.
    Since 1963, 5 CFR 337.101(a) has prescribed a general process for 
scoring competitive examinations, while Sec.  930.203 has prescribed a 
specialized process for scoring administrative law judge examinations, 
separate from the default process in Sec.  337.101(a). Prior to 1987, 
the administrative law judge scoring process was codified in Sec.  
930.203(a), and Sec.  337.101(a) contained a cross-reference to Sec.  
930.203(a). In 1987 and 1991, however, OPM amended Sec.  930.203 to 
describe the examination process in additional paragraphs of that 
section, but OPM did not make a conforming amendment to the cross-
reference in Sec.  337.101(a). Because the cross-reference in Sec.  
337.101(a) has been out-of-date for several years, and because the 
revised regulations do not include a detailed description of the 
examination scoring process, we are replacing the cross-reference with 
a more general statement that Sec.  337.101(a) applies ``except as 
otherwise provided in this chapter.'' Section 930.201(e)(1) of the 
revised regulations, in turn, states that the use of the examination 
scoring process published in Sec.  337.101(a) is not required in 
scoring the administrative law judge examination, consistent with OPM's 
and the Civil Service Commission's regulatory policy, since 1963, of 
excepting the administrative law judge examination process from the 
requirements of Sec.  337.101(a).

Discussion of Comments

    Several commenters oppose the removal of the detailed description 
of the administrative law judge internal examination process and 
procedures from the regulations and incorporating the information in an 
administrative law judge vacancy announcement. The commenters assert 
that this action will weaken the administrative law judge rating and 
selection process to the detriment of the American public; may not 
provide uniformity of treatment or adequate opportunity for public 
review and comment, particularly where criteria may vary from notice to 
notice; and will be changeable at will without notice and comment by 
the public. The commenters suggest that OPM continue incorporating the 
examination process in the regulations to ensure public confidence, and 
that OPM publish any changes to the examination process for public 
comment, so that such changes can be fully evaluated.
    OPM's course of action, in laying out the detailed description of 
the examination process and procedures in the new vacancy announcement, 
is consistent with OPM's practice for other competitive examinations. 
There has never been any suggestion, in the statutes governing the 
appointment of administrative law judges, that the examination process 
and procedures were required to be encompassed in regulations. The 
examination process and procedures information described in the 
existing regulations are also described in the current ``OPM 
Examination Announcement No. 318, as amended, Opportunities in the 
Federal Government as an Administrative Law Judge.'' Any significant 
changes to the administrative law judge examination or examination 
process will be publicly announced in the vacancy announcement. In 
addition, OPM is developing a stand-alone administrative law judge 
qualification standard that will be described and supplemented in the 
new administrative law judge vacancy announcement. OPM, therefore, is 
not adopting the suggestion to retain the descriptive language of the 
examination process and procedures in the regulations.
    Several commenters express concern that OPM is eliminating the 
administrative law judge examination. OPM is not eliminating the 
administrative law judge examination; in fact, OPM is developing a new 
administrative law judge examination.
    One commenter identifies several factors that the commenter 
believes are a prerequisite to being an excellent candidate for an 
administrative law judge position such as decision-making, developing 
evidence, and assessing credibility. The commenter requests that OPM 
consider these factors in the examination process for selecting 
effective administrative law judge candidates. The commenter's 
suggestion for specific criteria to be used for rating candidates in 
future administrative law judge examinations is outside the scope of 
this rulemaking and will not, therefore, be considered in the context 
of revising these regulations.
    Two commenters express a concern related to the conforming 
revision. The first comment by an agency suggests that the change to 5 
CFR 337.101(a) is in conflict with Sec.  930.201(e)(1). OPM disagrees. 
Section 337.101(a) prescribes a scoring process while allowing 
alternatives. Section 930.201(e)(1) gives OPM the option to use this 
scoring process or an alternative, depending on the examining 
methodology used to develop the administrative law judge competitive 
examination. The second commenter did not clearly state an objection to 
the revision and we therefore do not address it.

Elimination of OPM Examination Announcement No. 318, as Amended

Background

    The revised regulations remove any reference to ``OPM Examination 
Announcement No. 318, as Amended, Opportunities in the Federal 
Government as an Administrative Law Judge'' (Announcement). The 
Announcement is a vacancy announcement issued in 1993 and amended in 
1996 to recruit individuals for administrative law judge positions in 
the Federal competitive service. It describes the duties of an 
administrative law judge, the rating process, qualifying education and 
experience requirements, the rating appeal process, and general 
information for the applicant. The Announcement is similar to other 
vacancy announcements used to recruit individuals for positions into 
the Federal Government, except that it was incorporated by reference in 
the existing regulations. In the existing regulations, the Announcement 
is referenced to the extent that it addresses meeting the examination 
or qualification requirements for an administrative law judge position.

Discussion of Comments

    Several commenters oppose the removal of the reference to the 
Announcement from the regulations. The commenters claim OPM is removing 
the administrative law judge qualification requirements, omitting

[[Page 12952]]

qualifying military experience, and eliminating the administrative law 
judge examination. These commenters suggest OPM retain the Announcement 
in the regulations.
    There appears to be a misunderstanding among commenters that by 
eliminating the Announcement from the regulations, OPM is eliminating 
the qualification requirements for administrative law judges. To the 
contrary, Sec.  930.201(e)(3) of the revised regulations specifically 
authorizes OPM to issue a qualification standard for administrative law 
judges. The regulations also prescribe a qualification requirement for 
``active'' bar membership or a current license to practice law. OPM has 
separately posted for comment, on its Web site, a stand-alone 
qualification standard prescribing the proposed minimum qualification 
requirements for administrative law judge positions, including the bar 
license requirement. When the qualification requirement is finalized, 
it will again be posted on OPM's Web site, consistent with OPM's 
practice in publishing other qualification standards. The new 
administrative law judge vacancy announcement will describe the minimum 
qualification requirements for administrative law judge positions and 
provide supplemental information, as needed.
    OPM received a consolidated comment submission from the Departments 
of the Army, Air Force, and Navy; Headquarters, U.S. Marine Corps; and 
the Department of Homeland Security, U.S. Coast Guard, expressing 
concern that OPM omitted language to allow military experience as 
qualifying for an administrative law judge position. It was not OPM's 
intent, in drafting its proposed qualification standard, to eliminate 
military experience as qualifying experience for an administrative law 
judge position. In order to make this principle more clear, OPM is 
adopting the military services' comments to the extent necessary to 
reflect differences in terminology between military and civilian legal 
practice. For additional information, OPM has published on its Web site 
guidance on how to credit military experience, at http://www.opm.gov/qualifications, and on veterans' preference, at http://www.opm.gov/veterans.

Definition of Superior Qualifications

    OPM proposed to revise the definition of ``superior 
qualifications'' which is covered in the existing Sec.  930.210(g)(2). 
The definition of ``superior qualifications'' is redesignated to Sec.  
930.202 in the final regulations.

Discussion of Comments

    Several commenters oppose the proposed expanded definition for 
``superior qualifications.'' The commenters state that OPM's proposal 
to add the phrase ``special skills that will meet a demonstrated need 
of the hiring agency'' is equivalent to selective certification 
criteria and suggest OPM remove the phrase from the definition. OPM is 
adopting the suggestion and is removing this phrase from the superior 
qualifications definition.

Definition of Removal

    OPM proposed to revise the definition of ``removal'' for clarity.

Discussion of Comments

    Two commenters claim the proposed definition of ``removal'' 
violates 5 U.S.C. 7521 because it excludes the phrase ``involuntary 
reassignment, demotion, or promotion to a position other than that of 
an administrative law judge.'' The commenters suggest that OPM retain 
the existing definition for ``removal.'' OPM does not object to keeping 
the existing definition for ``removal'' and is adopting the suggestion.

Administrative Law Judge Pay System

    OPM proposed to add a new paragraph (i) to Sec.  930.205 to clarify 
that an agency may reduce the level or rate of basic pay of an 
administrative law judge for good cause after the Merit Systems 
Protection Board (MSPB) orders the action, as provided in Sec.  
930.211, or to reduce the level of basic pay of an administrative law 
judge if agreed upon by the administrative law judge with OPM's prior 
approval. The reason for the proposal is that OPM periodically receives 
requests from agencies to reduce an administrative law judge's level of 
basic pay, based on the administrative law judge's voluntary request 
for personal reasons (e.g., the desire for a position of less 
responsibility). These requests are thoroughly documented by the agency 
prior to OPM's approval.

Discussion of Comments

    Two commenters oppose OPM's proposed revisions of Sec.  930.205(i), 
asserting that the revisions violate 5 U.S.C. 7521, Actions against 
administrative law judges. The commenters suggest that the revisions 
would allow an agency to negotiate a settlement agreement with the 
administrative law judge prior to an MSPB ``good cause'' hearing which 
may result in a voluntary request for a reduction in pay from the 
administrative law judge. OPM did not intend such a result in proposing 
this revision. OPM's regulations governing administrative law judges do 
not address settlement agreements.
    In response to the comments, OPM is revising the proposed language 
to distinguish with greater precision between a reduction in an 
administrative law judge's level or rate of basic pay following a 
disciplinary proceeding, governed by Sec. Sec.  930.205(i) and 930.211, 
and a reduction in an administrative law judge's level of basic pay 
based on a voluntary request for personal reasons. OPM is adding a new 
paragraph (j) to Sec.  930.205 to describe a reduction in pay based on 
a voluntary request for personal reasons.

Priority Referral List

    OPM proposed revising Sec.  930.215(c)(5) of the existing 
regulations, redesignated as Sec.  930.210(c)(3), in order to emphasize 
a hiring flexibility that allows an agency, with OPM's approval, to 
fill its administrative law judge positions by reassigning 
administrative law judges within its workforce, in lieu of selecting a 
displaced administrative law judge on OPM's priority referral list. The 
intent of this revision was to emphasize that an agency does have the 
option of selecting an administrative law judge from other than the OPM 
priority referral list.

Discussion of Comments

    Three commenters oppose the proposed revisions of Sec.  
930.210(c)(3). The commenters state that the revisions will permit an 
agency to circumvent the use of the OPM priority referral list by 
intra-agency reassignment of administrative law judges or appointment 
of an administrative law judge from an OPM certificate of eligibles; 
that it will allow an agency to bypass an adversely affected 
administrative law judge who has very few opportunities for 
reappointment, yet who is qualified for appointment at all agencies and 
in any administrative law judge position at any agency; and that by 
removing the phrase ``extraordinary circumstances'' from the existing 
regulations, the proposed regulations might not allow adequate 
oversight. After reviewing these comments, OPM is not implementing the 
proposed hiring flexibility. The existing provision will be restored, 
except for clarifying language specifically explaining that OPM has the 
authority ``under extraordinary circumstances'' to allow an agency to 
fill a vacant position through competitive examining, promotion, 
transfer, reassignment, or reinstatement procedures instead of 
selecting a

[[Page 12953]]

displaced administrative law judge from OPM's priority referral list.
    One commenter suggests that OPM allow administrative law judges on 
OPM's priority referral list to have two opportunities for declining an 
offer of full-time employment as an administrative law judge before the 
administrative law judge's eligibility on the OPM priority referral 
list terminates. OPM disagrees with this commenter and is not adopting 
the suggestion. With the limited number of administrative law judge 
positions open at any given time and the infrequency of vacancies, OPM 
does not believe it is appropriate for a displaced administrative law 
judge to have more than one opportunity to decline an offer of full-
time employment as an administrative law judge at the pay level held at 
the time of reduction in force and in the geographical location 
indicated as acceptable. OPM will continue its long-standing practice 
of allowing only one full-time employment offer declination before an 
administrative law judge is terminated from OPM's priority referral 
list.

Suitability

    OPM has published suitability regulations in 5 CFR part 731 and in 
the existing administrative law judge regulations in Sec. Sec.  
930.214(c) and 930.216(f). The revised regulations clarify the 
suitability requirements. The revised provisions appear in Sec. Sec.  
930.204(a), 930.209(b)(3) and 930.211(c)(1).

Discussion of Comments

    Two commenters state that the suitability language in the revised 
Sec.  930.211(c)(1) is a new requirement and object to it. The 
commenters imply that suitability actions against administrative law 
judge applicants and incumbents are not consistent with 5 U.S.C. 7521, 
governing adverse actions. OPM disagrees. Administrative law judge 
applicants, appointees, and employees, like other competitive service 
applicants, appointees, and employees, are subject to suitability 
investigations and determinations. The adverse action provisions in 5 
U.S.C. 7521, and the suitability provisions in 5 CFR parts 2, 5, and 
731 apply independently to administrative law judges. The suitability 
requirement is not new and the text of Sec. Sec.  930.204(a), 
930.209(b)(3) and 930.211(c)(1) include only clarifying changes.

Performance and Incentive Awards

    The existing regulations state, at Sec.  930.210(b), ``An agency 
may not grant a monetary and honorary award under 5 U.S.C. 4503 for 
superior accomplishment by an administrative law judge in the 
performance of adjudicatory functions.'' OPM removed the phrase ``in 
the performance of adjudicatory functions'' in redesignated Sec.  
930.206(b), and added references to 5 U.S.C. 4502 and 4504.

Discussion of Comments

    One commenter claims OPM made a substantial change to the 
regulations on the granting of any award or financial incentives to an 
administrative law judge. The commenter insists that by eliminating the 
phrase ``in the performance of adjudicatory functions,'' OPM strips all 
possibility of any awards or financial incentives for an administrative 
law judge, even if the administrative law judge performs executive and 
management functions in an exemplary manner, devises an innovative 
administrative technique, or makes a suggestion outside the duties of 
an administrative law judge that saves an agency thousands of dollars. 
The commenter claims this is discriminatory and, therefore, urges OPM 
to retain the existing language.
    Under the APA, OPM has the responsibility to ensure the 
independence of an administrative law judge in matters of appointment, 
tenure, and compensation, as well as to ensure independent judgments 
from administrative law judges. See 5 U.S.C. 1305 (authorizing OPM to 
regulate and investigate agencies to give effect to 5 U.S.C. 3105, 
3344, 4301(2)(D), and 5372); Ramspeck v. Fed. Trial Examiners Conf., 
345 U.S. 128, 139-142 (1953). An award or discretionary financial 
incentive of any kind poses an unacceptable risk of interfering with an 
administrative law judge's judicial independence, and could have the 
additional effect of circumventing the legal prohibition against 
performance appraisals. See 5 U.S.C. 4301(2)(D), Sec.  930.211 of OPM's 
existing regulations, and Sec.  930.206(a) of the final regulations 
published with this notice. By removing the phrase ``in the performance 
of adjudicatory functions'' from the regulations and adding specific 
references to 5 U.S.C. 4502 and 4504 to the regulations, OPM is 
clarifying that monetary or honorary awards or financial incentives of 
any kind, whether granted under Chapter 45 or other authority, are 
prohibited. OPM is not adopting the commenter's suggestion, and is 
adding clarifying language to state that honorary, as well as monetary 
awards and incentives are prohibited.
    OPM received two opposing views on the issue of pay for performance 
for administrative law judges. OPM did not consider either view since 
the existing law does not permit administrative law judges to be rated 
on performance.

General Comments

    One commenter suggests that all Federal administrative judges 
become administrative law judges for consistency and for the best 
interest of the public. This recommendation is both contrary to the 
requirements of the APA and outside the scope of these regulations, and 
cannot be considered.
    OPM received several comments requesting the reestablishment of an 
Office of Administrative Law Judges within OPM. This comment cannot be 
considered, as it concerns OPM's internal management and organization, 
a matter outside the scope of these regulations.

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

    The following derivation table has been prepared to make it easier 
for readers to compare OPM's new rule in part 930, subpart B, with the 
current regulations.

                Derivation Table for 5 CFR 930 Subpart B
------------------------------------------------------------------------
                New section                        Current 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 (11)................  New.
930.201(f)(1) through (4).................  New.
930.201(f)(2).............................  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).
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).

[[Page 12954]]

 
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).
930.204(i)................................  New.
930.205...................................  930.210.
930.205(f)(2).............................  930.210(g)(2).
930.205(i)................................  New.
930.205(j)................................  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.

0
Accordingly, OPM is amending 5 CFR parts 337 and 930 as follows:

PART 337--EXAMINING SYSTEM

0
1. The authority citation for part 337 is revised to read as follows:

    Authority: 5 U.S.C. 1104(a), 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; 116 Stat. 2135, 2290; and 
117 Stat 1392, 1665.

Subpart A--General Provisions

0
2. Revise Sec.  337.101 paragraph (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)

0
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), 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.

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 the 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. 3301, 3304, 1104(a), and 1302, 
and Executive Order 10577, as amended, 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;
    (4) Approve noncompetitive personnel actions for administrative law 
judges, including but not limited to promotions, transfers, 
reinstatements, restorations, and reassignments;
    (5) Approve personnel actions related to pay for administrative law 
judges under Sec.  930.205(c), (f)(2), (g), and (j);
    (6) 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;
    (7) 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;
    (8) 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;
    (9) Maintain and administer the administrative law judge priority 
referral program under Sec.  930.210(c);
    (10) Promulgate regulations for purposes of sections 3105, 3344, 
4301(2)(D) and 5372 of title 5, U.S.C.; and
    (11) Ensure the independence of the administrative law judge.
    (f) An agency employing administrative law judges under 5 U.S.C. 
3105 has:
    (1) The authority to appoint as many administrative law judges as 
necessary for proceedings conducted under 5 U.S.C. 556 and 557;
    (2) The authority to assign an administrative law judge to cases in 
rotation so far as is practicable;
    (3) The responsibility to ensure the independence of the 
administrative law judge; and

[[Page 12955]]

    (4) The responsibility to obtain OPM's approval before taking any 
of the personnel actions described in paragraphs (e)(4) through (8) of 
this section.


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 administrative law judge position to another 
administrative law judge position without change in civil service or 
pay status.
    Removal means discharge of an administrative law judge from the 
position of an administrative law judge or involuntary reassignment, 
demotion, or promotion to a position other than that of an 
administrative law judge.
    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 of this chapter.
    Superior qualifications means an appointment made at a rate above 
the minimum rate based on such qualifications as experience practicing 
law before the hiring agency; experience practicing before another 
forum in a field of law relevant to the hiring agency; or an 
outstanding reputation among others in a field of law relevant to the 
hiring agency.


Sec.  930.203  Cost of competitive examination.

    Each agency employing administrative law judges must reimburse OPM 
for the cost of developing and administering the administrative law 
judge examination. 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 under part 315 of 
this chapter. An administrative law judge appointment is subject to 
investigation, and an administrative law judge is subject to the 
suitability requirements in part 731 of this chapter.
    (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 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.
    (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 from a non-administrative law judge 
position. Except as provided 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 paragraph, 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 served under 5 U.S.C. 3105, passed an OPM administrative 
law judge competitive examination, and meets the professional license 
requirement in paragraph (b) of this section.
    (h) Transfer. An agency may not transfer an individual from one 
administrative law judge position to another administrative law judge 
position within 1 year after the individual's last appointment, unless 
the gaining and losing agencies agree to the transfer.
    (i) Conformity. Actions under this section must be consistent with 
Sec.  930.201(f).


Sec.  930.205  Administrative law judge pay system.

    (a) OPM assigns each administrative law judge position to one of 
the three 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 1st 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 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.

[[Page 12956]]

    (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 and placement 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-or 104-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 the 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 
rate for the level.
    (i) An employing agency may reduce the level or rate of basic pay 
of an administrative law judge under Sec.  930.211.
    (j) With prior OPM approval, an employing agency may reduce the 
level of basic pay of an administrative law judge if the administrative 
law judge submits to the employing agency a written request for a 
voluntary reduction due to personal reasons.


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 monetary or honorary award or 
incentive under 5 U.S.C. 4502, 4503, or 4504, or under any other 
authority, 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) Investigations and suitability requirements in part 731 of this 
chapter.
    (c) Under the Senior Administrative Law Judge Program, OPM 
authorizes agencies that have temporary, irregular

[[Page 12957]]

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 administrative 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 subgroup 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, a list 
of acceptable geographical locations, 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 indicated as acceptable 
under paragraph (c)(2)(i) of this section.
    (3) 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 only from OPM's priority referral 
list, unless the agency obtains prior approval from OPM to fill the 
vacant position through competitive examining, promotion, transfer, 
reassignment, or reinstatement procedures. OPM will grant such 
approvals only under extraordinary circumstances. The agency must 
demonstrate that the potential administrative law judge candidate 
possesses experience and qualifications superior to any available 
displaced administrative law judge 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 circumstances 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 part 
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 12958]]

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

[FR Doc. E7-4959 Filed 3-19-07; 8:45 am]
BILLING CODE 6325-39-P