[Federal Register Volume 85, Number 183 (Monday, September 21, 2020)]
[Proposed Rules]
[Pages 59207-59217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17684]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 85, No. 183 / Monday, September 21, 2020 / 
Proposed Rules  

[[Page 59207]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 212, 213, 302, and 930

RIN 3206-AN72


Administrative Law Judges

AGENCY: Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Office of Personnel Management (OPM) is issuing proposed 
regulations governing the appointment and employment of administrative 
law judges (ALJs). The proposed rule will implement Executive Order 
(E.O.) 13843 titled ``Excepting Administrative Law Judges from the 
Competitive Service.'' These proposed revisions update the rules for 
ALJ hiring in light of the new Schedule E of the excepted service for 
ALJs and update the existing ALJ employment regulations to reflect 
other recent changes in the law.

DATES: Comments must be received on or before November 20, 2020.

ADDRESSES: You may submit comments, identified by document number and/
or Regulation Identification Number (RIN) ``3206-AN72'' and title using 
any of the following methods:
    Federal Rulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments. All submissions received through 
the Portal must include the agency name and docket number or RIN for 
this rulemaking.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
rulemaking. All comments received will be posted without change to 
regulations.gov, including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to regulations.gov.

FOR FURTHER INFORMATION CONTACT: Roseanna Ciarlante by telephone at 
(267) 392-8640 or Katika Floyd by telephone at (202) 606-0960; by email 
at [email protected]; by fax at (202) 606-4430; or by TTY at (202) 418-
3134.

SUPPLEMENTARY INFORMATION:

Background and Authority for this Rulemaking

    ALJs serve as independent impartial triers of fact in formal 
proceedings requiring a decision on the record after the opportunity 
for a hearing. In general, ALJs prepare for and preside at formal 
proceedings required by statute to be held under or in accordance with 
provisions of the Administrative Procedure Act (APA), codified, in 
relevant part, in sections 553 through 559 of title 5, United States 
Code (U.S.C.). ALJs rule on preliminary motions, conduct pre-hearing 
conferences, issue subpoenas, conduct hearings (which may include 
written and/or oral testimony and cross-examination), review briefs, 
and prepare and issue decisions, along with written findings of fact 
and conclusions of law.
    The Federal Government employs ALJs in a number of agencies 
throughout the United States. Previously, appointments to the position 
of ALJ have been made through competitive examination and competitive 
service selection procedures.\1\ As recognized by the Supreme Court in 
Lucia v. Securities and Exchange Commission, 138 S. Ct. 2044 (2018) at 
least some ALJs are ``inferior Officers'' of the United States and thus 
subject to the Constitution's Appointments Clause, which governs who 
may appoint such officials. In accordance with the Constitution, in 
such instances, Congress has vested the appointment of ALJs in the 
heads of departments or agencies. Although such department or agency 
head may rely on agency human resource officials or other staff to 
assess applications, conduct interviews, and the like, the final 
appointment must be made or approved by the department or agency head; 
this authority cannot be delegated. On July 10, 2018, the President 
signed Executive Order (E.O.) 13843 titled, ``Excepting Administrative 
Law Judges from the Competitive Service'' (83 FR 32755). E.O. 13843 
states ``that conditions of good administration make necessary an 
exception to the competitive hiring rules and examinations for the 
position of ALJ. These conditions include the need to provide agency 
heads with additional flexibility to assess prospective appointees 
without the limitations imposed by competitive examination and 
competitive service selection procedures.'' Section 2 of the Executive 
Order specifies that all appointments of administrative law judges made 
on or after July 10, 2018 must be made under Schedule E of the excepted 
service.\2\ Section 3(a) of the Executive Order amended Civil Service 
Rule VI to shift new hiring of ALJs from the competitive to the 
excepted service.
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    \1\ In the competitive service, individuals must go through a 
competitive process (i.e., competitive examining) which is open to 
all applicants. This process may consist of a written test, an 
evaluation of the individual's education and experience, and/or an 
evaluation of other attributes necessary for successful performance 
in the position to be filled. See e.g., 5 U.S.C. 2102 and 3304; 5 
CFR 2.1(a) and 300.102.
    \2\ Excepted service positions in the Executive Branch of the 
Federal Government are positions that are specifically excepted from 
the competitive service by or pursuant to statute, by the President, 
or by the Office of Personnel Management, and are not in the Senior 
Executive Service. See 5 U.S.C. 2103.
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    Section 3(b) of the Executive Order directed OPM to issue 
transitional guidance, and OPM issued explanatory guidance on the E.O. 
on July 10, 2018. See OPM Memorandum to Heads of Departments and 
Agencies, Executive Order--Excepting Administrative Law Judges from the 
Competitive Service, available at https://chcoc.gov/transmittals. OPM 
later issued more specific guidance to agencies on the ALJ loan program 
(August 1, 2018), on promotions and reassignments of ALJs (August 27, 
2018), and on the termination of the ALJ register and discontinuance of 
the ALJ examination (Sept. 20, 2018). OPM published a Fact Sheet: 
Administrative Law Judge (ALJ) Positions on August 19, 2019, available 
at https://www.opm.gov/services-for-agencies/administrative-law-judges/fact-sheet-administrative-law-judge-alj-positions-posted.pdf.
    Section 3(b) of the Executive Order also directed OPM to ``adopt 
such regulations as the Director determines may be necessary to 
implement this order, including, as appropriate, amendments to or 
rescissions of regulations that are inconsistent with, or that would 
impede the implementation of, this order, giving particular attention

[[Page 59208]]

to 5 CFR part 212, subpart D; 5 CFR part 213, subparts A and C; 5 CFR 
302.101; and 5 CFR part 930, subpart B.'' OPM is proposing rules for 
the newly created Schedule E hiring of ALJs. The proposed regulations 
make several significant changes to the recruitment, appointment, and 
movement of ALJs based on E.O. 13843 and formalize OPM's prior 
explanatory guidance. As described in detail below, OPM is also 
proposing other changes to comply with other recent changes in the law.
    OPM is proposing these regulations pursuant to this instruction, 
the Civil Service Rules, and OPM's own statutory authority to regulate 
the ALJ program, which includes, inter alia, sections 1103(a)(5)(A), 
1305, 3323(b)(2), and 5372(c) of title 5, U.S.C.

Summary of the Proposed Changes

Removal of References to the Competitive Examination

    In light of the Executive Order, OPM terminated the ALJ competitive 
service register, its centralized list of eligible ALJ applicants, as 
the Executive Order ended the need for competitive examination, rating 
and ranking, and selection from competitive certificates of eligibles 
issued by OPM. Therefore, OPM proposes to remove references to the ALJ 
competitive examination throughout subpart B of 5 CFR part 930.
    In particular, the text of the current regulations recites that 
ALJs are appointed in the competitive service and that OPM is 
responsible for examining ALJ candidates and producing registers of 
qualified ALJ applicants from which agencies make selections in 
accordance with the provisions of subpart B of 5 CFR part 930. The 
proposed rule aligns the text of OPM's regulations to the changes the 
President effected through E.O. 13843. The proposed rule changes 
reflect that OPM will no longer conduct recruitment and competitive 
examinations of ALJ candidates for employment in Federal agencies, and 
that agencies will no longer select ALJ candidates from competitive 
certificates of eligibles issued by OPM.

Excepted Appointments of ALJs

    As noted above, the proposed rule removes references to 
appointments in the competitive service. Instead, the proposed rule, 
conforming to E.O. 13843, recites that any ALJ selected (with the 
application of veterans' preference as far as administratively 
feasible) on or after July 10, 2018, must be appointed by the head of 
the hiring agency \3\ and placed in an ALJ position in the excepted 
service. Consistent with Civil Service Rule VI, as amended by section 
3(a) of the E.O., the proposed rule creates a new Schedule E in the 
excepted service specific to ALJs, except that an individual 
encumbering an ALJ position in the competitive service on July 10, 
2018, shall remain in the competitive service while he or she remains 
in the position (and will continue to be subject to the same conditions 
pertaining to appointment in the competitive service).
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    \3\ Generally, under Free Enter. Fund v. PCAOB, 561 U.S. 477, 
512-13 (2010), the ``agency head'' of a multi-member board, 
commission, or authority is the full body acting collectively, not 
its chair or a single member. Agencies with questions should seek 
the advice of the Department of Justice.
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Recruitment

    OPM's current regulations do not address requirements for job 
opportunity announcements for ALJs, because the requirements for job 
opportunity announcements for competitive service positions generally 
are set forth in 5 U.S.C. 3330 and in 5 CFR part 330, subpart A. OPM's 
August 17, 2019 transitional guidance explains that although the 
excepted service has no requirement to post a USAJOBS announcement or 
to follow the job posting requirements for competitive service 
positions, the merit system principles (5 U.S.C. 2301) apply to 
excepted service recruiting. Accordingly, agencies should tell 
potential applicants about ALJ vacancies, recruit in a manner to 
attract a sufficient pool of qualified applicants, and recruit in a 
manner that allows all qualified and eligible employees to apply for 
higher-level positions.
    OPM proposes to codify this guidance in the regulations. We note 
that this is consistent with E.O. 11478 of August 8, 1969, as amended, 
Equal Opportunity in the Federal Government, 42 U.S.C. 2000e note and 
similar to Administrative Conference Recommendation 2019-2, Agency 
Recruitment and Selection of Administrative Law Judges (para. 1), 84 FR 
38927, 38930-31 (Aug. 8, 2019).

Movement Between Agencies or Appointment After a Period of Separation

    OPM is proposing through this rule that an ALJ serving in the 
competitive service who accepts a new ALJ appointment at another agency 
on or after July 10, 2018, moves from the competitive service to an ALJ 
position under Schedule E of the excepted service, instead of 
transferring to another competitive service position. Likewise, a 
former ALJ who held a position in the competitive service prior to 
separation cannot be reinstated to an ALJ position in the competitive 
service, and must be given a new excepted appointment. The proposed 
rule recognizes that transfer and reinstatement are no longer available 
for ALJ appointments because these actions are exclusively competitive 
service appointment methods and accordingly, are no longer available 
for ALJ appointments.

Qualifications of ALJs in the Excepted Service

    Section 1 of the E.O. states that excepting the position of ALJ 
from the competitive service ``will give agencies greater discretion to 
assess critical qualities in ALJ candidates, such as work ethic, 
judgment, and ability to meet the particular needs of the agency,'' and 
to conduct assessments ``without proceeding through complicated and 
elaborate examination processes and rating procedures that do not 
necessarily reflect the agency's particular needs.''
    Under the proposed rule, the heads of agencies, not OPM, are 
authorized to assess prospective appointees for ALJ positions in their 
respective agencies without consideration of the competitive hiring 
rules and examination process. This provides agency heads with greater 
flexibility to assess critical qualities in ALJ applicants and 
determine whether an ALJ applicant meets the particular needs of the 
hiring agency. Appointments of ALJs are made pursuant to Schedule E of 
the excepted service, but are not subject to the provisions of OPM's 
regulations in 5 CFR part 302 governing appointments in the excepted 
service, including examination and rating requirements. However, an 
agency head must apply the principle of veterans' preference ``as far 
as administratively feasible'' when filling ALJ positions.
    Civil Service Rule VI, as amended by section 3(a) of the E.O., 
adopts, as a ``minimum standard of appointment to the position of 
administrative law judge,'' the bar licensure requirement that OPM 
previously prescribed through regulation in 5 CFR 930.204(b), and 
permits ``additional agency requirements'' for qualifications ``where 
appropriate.'' This means the minimum qualification and licensure 
requirement for an ALJ position is the possession of a professional 
license to practice law and being authorized to practice law under the 
laws of a State, the District of Columbia, the Commonwealth of Puerto 
Rico, or any territorial court established

[[Page 59209]]

under the United States Constitution at the time of selection and any 
new appointment (other than of an incumbent ALJ to another ALJ 
position). Judicial status is acceptable in lieu of ``active'' status 
in States that prohibit sitting judges from maintaining ``active'' 
status to practice law, and being in ``good standing'' also is 
acceptable in lieu of ``active'' status in States where the licensing 
authority considers ``good standing'' as having a current license to 
practice law.
    The proposed rule therefore continues only the existing bar 
licensure requirement as the minimum standard for appointment and 
explains that agency heads may prescribe additional requirements as 
appropriate.

Effect of a Promotion or Reassignment

    E.O. 13843 provides that ``[a]ppointments of ALJs shall be made 
under Schedule E of the excepted service,'' but that ``[i]ncumbents of 
this position who are, on July 10, 2018, in the competitive service 
shall remain in the competitive service as long as they remain in their 
current positions.'' Thus, as long as an ALJ in the competitive service 
on July 10, 2018, remains in the position of ALJ, and does not require 
a new appointment, he or she remains in the competitive service. Under 
generally-applicable regulations, the internal reassignment or 
promotion of an officer or employee by his or her agency involves only 
a position change, and does not involve a new appointment under civil 
service law. 5 CFR 210.102; see also 5 CFR 335.101. This rule also 
applies to ALJs as well as employees in other pay systems. See 70 FR 
75745, 75746 (Dec. 21, 2005). Therefore, under the proposed rule, and 
consistent with OPM's transitional guidance, an ALJ reassigned or 
promoted within his or her agency remains in the competitive service, 
as long as he or she remains an ALJ. In this circumstance, an agency 
must process and record the personnel action as a reassignment or 
promotion in the competitive service, not as an appointment in the 
excepted service.
    However, because some ALJs were deemed to have constitutional 
status as inferior officers of the United States under the Supreme 
Court's decision in Lucia v. Securities and Exchange Commission, OPM's 
transitional guidance instructed agencies that where a promotion or 
reassignment would involve a significant position change, such as a 
promotion to a position classified at a higher level (AL-1 or AL-2), a 
reassignment to a different bureau within the same department, or a 
reassignment to perform a significantly different kind of work (e.g., a 
change from presiding over ex parte cases to presiding over trials, or 
from adjudicating benefits cases to adjudicating regulatory enforcement 
cases), the agency's request for OPM to approve the action must 
document that the head of the requesting agency approved the promotion 
or reassignment. OPM's transitional guidance further instructed that 
this documentation is not necessary for routine geographic 
reassignments, or for the advancement of an ALJ's rate within pay level 
AL-3. This documentation requirement also does not require a change in 
the ALJ's status from the competitive service to the excepted service. 
The proposed rule formalizes these instructions.

Pay and Position Classification

    ALJ pay administration and position classification are governed by 
5 U.S.C. 5372, which assigns responsibility to OPM and makes no 
distinction between competitive service and excepted service ALJs. The 
proposed rule, therefore, makes no distinction between competitive and 
excepted service ALJs with respect to OPM's pay administration and 
position classification responsibility.

Adverse Actions and Personnel Vetting Requirements

    Adverse actions against ALJs are governed by 5 U.S.C. 7521, subject 
to regulations issued by the Merit Systems Protection Board (MSPB) 
under 5 U.S.C. 1305. These provisions likewise make no distinction 
between competitive service and excepted service ALJs. Therefore, under 
the proposed rule, the MSPB procedures prescribed in 5 U.S.C. 7521 and 
5 CFR part 1201 will apply to an agency action to remove, suspend, 
reduce in level, reduce pay, or furlough for 30 days or less an ALJ in 
the competitive or excepted service (i.e., adverse action).
    The current regulations provide that appointment as an ALJ is 
subject to the competitive service suitability requirements in 5 CFR 
part 731. OPM is amending these requirements due to changes in the law 
since the provisions were last amended in 2007. First, E.O. 13764 of 
January 23, 2017 amended Civil Service Rules II and V, authorizing OPM 
to prescribe minimum standards of fitness of character and conduct for 
excepted service appointments, and to require such appointments to be 
subject to a risk-based position designation and a corresponding 
background investigation under OPM-prescribed standards. E.O. 13764 
also amended Civil Service Rule VI to make excepted service 
appointments ``subject to the suitability and fitness requirements of 
the applicable Civil Service Rules and Regulations,'' namely, Civil 
Service Rules II and V. (E.O. 13843 subsequently acknowledged that this 
requirement applies to ``the position of administrative law judge.'') 
Finally, E.O. 13764 amended an earlier executive order, E.O. 13467 of 
June 30, 2008, to give the Director of National Intelligence, as the 
Security Executive Agent, the authority to prescribe investigative, 
adjudicative, and continuous vetting requirements for eligibility for 
access to classified information and for employment in a sensitive 
position; and to give the Director of OPM, as the Suitability and 
Credentialing Executive Agent, the authority to do the same for 
suitability, fitness, and eligibility for an identity credential. The 
Executive Order assigns this responsibility to ODNI and OPM for both 
competitive and excepted service positions, including, inter alia, ALJ 
positions. The proposed rule incorporates these changes.
    OPM's current regulations state that a removal or other action 
against an ALJ on grounds of suitability under part 731 is not subject 
to the statutory removal procedure in 5 U.S.C. 7521. OPM is eliminating 
this provision. In Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015), 
the Court of Appeals for the Federal Circuit ruled that, where an 
employee is covered by the statutory removal procedure in 5 U.S.C. 
chapter 75, subchapter II, that procedure governs his or her removal 
even if it is on grounds of suitability under the Civil Service Rules 
and OPM's regulations in 5 CFR part 731, because (at the time of the 
court's decision) the definition of an ``adverse action'' in 5 U.S.C. 
7512 did not explicitly exclude a suitability action. Subsequently, in 
section 1086 of Public Law 114-92, the National Defense Authorization 
Act for FY 2016, Congress amended 5 U.S.C. 7512 to explicitly exclude 
an OPM suitability action from the definition of an adverse action in 5 
U.S.C. 7512. Accordingly, suitability-based removals of employees who 
are covered by subchapter II are not subject to the statutory adverse 
action procedures. However, Congress did not make a corresponding 
amendment to 5 U.S.C. 7521, defining an ``adverse action'' for purposes 
of 5 U.S.C. chapter 75, subchapter III, which covers ALJs. Thus, while 
an ALJ may be subject to an unfavorable suitability determination, the 
removal action should follow the statutory procedure. The proposed rule 
retains references to other exceptions to

[[Page 59210]]

5 U.S.C. 7521 that have been prescribed by statute.
    OPM's current regulation describes the use of administrative leave 
when an adverse action is pending. The Administrative Leave Act of 
2016, section 1138 of Public Law 114-328, established new types of paid 
non-duty status in 5 U.S.C. 6389a and 6389b, namely, notice leave and 
investigative leave. OPM proposes to update the regulation to reflect 
this change. OPM has proposed separate rulemaking to implement the 
Administrative Leave Act, at 82 FR 32263 (July 13, 2017).

Performance Ratings, Awards, and Incentives

    The regulations in 5 CFR 930.206 currently provide that an agency 
may not rate the job performance of an ALJ and may not grant any 
monetary or honorary award or incentive under 5 U.S.C. 4502, 4503, 
4504, or any other authority, to an ALJ. Sections 1305 and 4305 of 
title 5, U.S.C. give OPM the responsibility to regulate the statutory 
prohibition on appraising the performance of ALJs--found in 5 U.S.C. 
4301(2)(D)--without regard to whether ALJs are in the competitive 
service or the excepted service. Accordingly, under the proposed rule, 
the prohibition against rating the job performance of an ALJ remains in 
effect for ALJs in the competitive and excepted service.
    OPM proposes revisions to this section, however, to clarify the 
incentives and similar payments for which an ALJ, whether in the 
competitive or excepted service, is ineligible. Specifically, the 
proposed rule clarifies that an ALJ is not eligible for recruitment, 
relocation, or retention incentives under 5 U.S.C. 5753 and 5754 
because the regulations in 5 CFR part 575, subparts A, B, and C, 
require an eligible employee to have or maintain a rating of record of 
at least ``Fully Successful'' or equivalent to receive an incentive. 
Similarly, the proposed rule further establishes that ALJs are not 
eligible for the student loan repayment program because, under 5 U.S.C. 
5379(d)(2) and 5 CFR 537.108(a)(2), an employee must maintain an 
acceptable level of performance to receive student loan repayment 
benefits. An ALJ cannot meet the requirements for these incentives and 
payments because an agency may not rate the job performance of an ALJ 
in either the competitive or excepted service.

ALJ Loan Program

    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. Section 3344 makes 
no distinction between competitive service and excepted service ALJs. 
The proposed rule, like OPM's transitional guidance, makes clear OPM 
continues its responsibilities under this Program whether ALJs are in 
the competitive or excepted service. However, because some ALJs were 
deemed to have constitutional status as inferior officers of the United 
States under the Supreme Court's decision in Lucia, OPM's transitional 
guidance instructed agencies that, upon accepting the services of a 
loaned ALJ, the receiving agency must provide to OPM, as soon as 
practicable, documentation that the head of that agency made, approved, 
or ratified the loan of the ALJ. Likewise, the agency lending the ALJ 
must provide OPM with documentation that the ALJ's appointment was 
originally made or approved, or later ratified, by the head of that 
agency. This documentation requirement does not require a change in the 
ALJ's status from the competitive service to the excepted service. The 
proposed rule formalizes these instructions.

Senior ALJ Program

    The Senior ALJ Program allows retired ALJs to be reemployed on a 
temporary or irregular basis to complete hearings of one or more 
specified case(s). Upon appointment, and while reemployed, the retired 
ALJ is referred to as a Senior ALJ. The proposed rule clarifies that an 
agency that temporarily reemploys a retired ALJ must use the newly 
created Schedule E excepted service appointment. It also clarifies that 
Senior ALJs appointed prior to July 10, 2018 remain in the competitive 
service for the duration of their appointment, including any extension 
periods authorized by OPM. OPM approval procedures have not otherwise 
changed with respect to reemploying retired ALJs, since the statute 
governing the Senior ALJ Program, 5 U.S.C. 3323(b)(2), assigns program 
responsibility to OPM and makes no distinction between competitive 
service and excepted service senior ALJs after they have been 
appointed.

Reduction in Force.

    The proposed rule amends the ALJ reduction in force (RIF) 
regulations currently described at 5 CFR 930.210. When implementing a 
reduction in force, the provisions in this section are a supplement to 
the RIF provisions in 5 CFR part 351 that have separate provisions for 
the treatment of competitive service and excepted service positions. 
The existing rule, which references part 351, makes clear that 
competitive service ALJs are subject to the provisions of 5 CFR part 
351 that apply to competitive service employees and that excepted 
service ALJs are subject to the provisions of 5 CFR part 351 that apply 
to excepted service employees.
    The proposed amendment establishes procedures for placement 
assistance for ALJs reached in an agency's reduction in force for those 
in both the competitive and excepted service. Under the proposed 
changes, an agency is required to establish an administrative law judge 
priority reemployment list and provide consideration to ALJs on its 
administrative law judge priority reemployment list before it may 
consider candidates on its regular employment lists, with certain 
exceptions.

Summary of Proposed Changes by Section

Changes Proposed for 5 CFR Part 212

    We propose to amend the authority citation to add a reference to 
E.O. 13843. OPM is retaining the existing reference to E.O. 10577, but 
adding a corresponding reference to 5 CFR part 6. From 1954 until the 
early 1980s, the organic Civil Service Rules were set forth in E.O. 
10577 and amended from time to time by the President. However, in 
recent decades, the practice has been for the President to amend the 
Civil Service Rules and, at the same time, directly amend a 
corresponding part in chapter I, subchapter A of title 5, Code of 
Federal Regulations without also further amending E.O. 10577. Since the 
Civil Service Rules are the product of both of these methods of 
presidential rulemaking, both E.O. 10577 and the corresponding part in 
5 CFR chapter I, subchapter A should be cited as authority for OPM's 
regulation.
    Proposed Sec.  212.401(b) adds the newly established Schedule E in 
the excepted service to the list of Schedules already in the rule. This 
provides that an employee in the competitive service at the time his or 
her position is first listed in schedule A, B, C, or E remains in the 
competitive service while occupying the position.

Changes Proposed for 5 CFR Part 213

    The authority citation is revised to include E.O. 13843 and 5 CFR 
part 6, and to correct the citation to E.O. 13562.
    Subpart A of 5 CFR part 213 General provisions is revised to 
include the Schedule E authority in Sec.  213.102, and to clarify that 
appointments to Schedule

[[Page 59211]]

E must be made on a permanent basis in accordance with part 930.
    Subpart C of 5 CFR part 213 Excepted schedules is revised by 
establishing Schedule E as a new schedule in part 213. Proposed Sec.  
213.3501 is labeled ``Positions of administrative law judge appointed 
under 5 U.S.C. 3105.'' This proposed section explains the reasoning and 
basis for appointments under Schedule E and requires that all 
appointments of ALJs on or after July 10, 2018 must be made under this 
excepted service authority in accordance with the provisions in subpart 
B of 5 CFR part 930.

Changes Proposed for 5 CFR Part 302

    The authority citation is revised to include references to 5 U.S.C. 
3317, 3318, and 3320 (in accordance with recent case law arising in a 
different context, see 81 FR 86290, 86291 (Nov. 30, 2016)), and to E.O. 
13843 and 5 CFR part 6.
    We propose to add ALJs to the list of positions in Sec.  302.101(c) 
that are exempt from the appointment procedures of 5 CFR part 302, and 
for which agencies shall apply the principle of veterans' preference as 
far as administratively feasible.

Changes Proposed for 5 CFR Part 930

    The proposed rule makes extensive changes to 5 CFR part 930.
    The proposed rule revises the authority citation for subpart B of 
part 930 by adding references to E.O. 13843 and 5 CFR parts 2, 5, and 
6, as well as to 5 U.S.C. 1103(a)(5)(A) (OPM's general substantive 
rulemaking authority) and 5 U.S.C. 4305 (which, together with 5 U.S.C. 
1305, authorizes OPM to regulate the exception from performance 
appraisals for ALJs).
    The proposed rule deletes, from the authority citation, references 
to 5 U.S.C. 1104(a) (pertaining to the ALJ examination) and 1302(a) 
(pertaining to competitive examinations).
    Proposed Sec.  930.201 is revised throughout to add references to 
the excepted service. Paragraph (b) is revised to make clear that, as 
of July 10, 2018, appointments of ALJs must be made under Schedule E of 
the excepted service in Sec.  213.3501. Paragraph (c) makes clear that 
ALJs appointed prior to July 10, 2018, remain in the competitive 
service as long as they remain in their positions, including when they 
are subject to actions within their agencies that do not result in a 
new appointment (including details, assignments, reassignments, pay 
adjustments, and promotions). The proposed rule also states that no new 
appointments of ALJs may be made to the competitive service after July 
9, 2018. Paragraph (e) establishes OPM's authority with respect to the 
ALJ program. This paragraph is revised to delete references to OPM's 
authority to recruit and examine ALJ applicants, to approve transfers 
and reinstatements to competitive service positions, and to maintain a 
central priority reemployment list, and to clarify that OPM's authority 
to classify positions under 5 U.S.C. 5372 includes the authority to 
approve classifications.
    We propose to change the text in paragraphs (e) and (f), stating 
that OPM has ``the authority to . . . [e]nsure the independence of the 
administrative law judge'' and that the employing agency has ``[t]he 
responsibility to ensure the independence of the administrative law 
judge.'' The revised text states that OPM has the authority, and the 
agency has the responsibility, to ``[e]nsure the qualified independence 
of the administrative law judge, and to faithfully administer the 
structural protections designed to ensure the impartiality of the 
administrative law judge.'' This is a clarifying change because the 
current reference to ``ensuring the independence of the administrative 
law judge'' encompasses two concepts: qualified decisional 
independence, and the statutory, structural protections designed to 
ensure judges' impartiality by limiting agency control in matters of 
position classification, pay, performance management, case assignment, 
and tenure. See, e.g., Ramspeck v. Fed. Trial Examiners Conf., 345 U.S. 
128 (1953).
    We propose removing and reserving Sec.  930.203 Cost of competitive 
examination, since OPM no longer conducts the examination. Under the 
current regulation each agency is charged a pro rata share of the 
examination cost, based on the actual number of administrative law 
judges the agency employs; and under OPM's Revolving Fund statute each 
agency is also charged a corresponding share for program administration 
costs (e.g., for administering the ALJ Loan and Senior ALJ programs, 
review of position descriptions and job opportunity announcements, 
approval of noncompetitive actions, and FOIA/Privacy Act activity). 
While this funding method for program administration must continue for 
the time being as a matter of appropriations law, the end of the 
examination has prompted OPM to rethink its funding method for the 
program. OPM is considering requesting the use of appropriated funds, 
instead of agency payments under the Revolving Fund, to fund its 
program costs. OPM seeks comment on the appropriate funding method and 
plans to amend this section after careful consideration of the 
feasibility of a new funding method and consideration of public 
comments.
    In Sec.  930.204 Appointments and conditions of employment, 
paragraph (a) is revised to make clear that ALJs are appointed on a 
permanent full-time basis, with the exception of appointments to the 
Senior ALJ Program, and to address requirements for excepted service 
appointments. Paragraph (a)(1) includes information on ALJ appointments 
under Schedule E, and paragraph (a)(2) clarifies that ALJs appointed 
prior to July 10, 2018, remain in the competitive service under the 
conditions described in Sec.  930.201(c). Information about hiring from 
competitive certificates is removed.
    Section 930.204(b), Licensure, continues the existing licensure 
requirement for competitive service ALJ appointments, which E.O. 13843 
has now extended to excepted service as the minimum standard for ALJ 
appointments. New Sec.  930.204(c) sets forth the qualification 
requirements for competitive service and excepted service ALJs. 
Paragraph (c)(1) addresses the qualifications for competitive service 
ALJs. OPM is retaining this information, even though E.O. 13843 does 
not permit new competitive service appointments, because it may be 
relevant to reconstructing past selections. Paragraph (c)(2) addresses 
the agency-specific requirements permitted by E.O. 13843 for excepted 
appointments. Existing provisions are renumbered accordingly.
    Current Sec.  930.204(g), Reinstatement, is proposed to be 
redesignated and recaptioned as Sec.  930.204(j) Appointment of a 
former administrative law judge. The proposed revisions to paragraph 
(j) make clear that any reappointments of ALJs must be made under 
Schedule E of part 213 in the excepted service. Current Sec.  
930.204(h)--Transfer, is proposed to be redesignated as Sec.  
930.204(k) and recaptioned as Movement between agencies. The proposed 
revisions to paragraph (k) make clear that any movements of ALJs 
between agencies must be made to positions under Schedule E of part 213 
in the excepted service in the gaining agency. The proposed revisions 
to this paragraph also require that the hiring agency inform an ALJ 
that such a move will place him or her in the excepted service, and 
requires the gaining agency to obtain a written statement from the ALJ 
that the ALJ understands he or she will be leaving the competitive 
service for an appointment in the excepted service.

[[Page 59212]]

    Proposed Sec.  930.204(g), Promotion to a higher level, is 
currently Sec.  930.204(e). The text is amended to address promotions 
of excepted-service ALJs, including application of agency policies and 
the need to document agency head approval in a request to OPM; and to 
ensure that incumbent ALJs have an opportunity to be considered for 
promotion to higher-level positions when the agency considers external 
applicants.
    Reclassification of ALJs is addressed in proposed Sec.  930.204(h).
    Reassignment of ALJs, currently addressed in Sec.  930.204(f), is 
addressed in proposed Sec.  930.204(j). The text is amended to explain 
the circumstances when an agency's request to OPM for approval of the 
reassignment must document that the head of the requesting agency 
approved it.
    Paragraph (l) is added to Sec.  930.204 to address recruitment and 
vacancy announcements.
    The proposed rule amends Sec.  930.205, Administrative law judge 
pay system, by including a statement that makes clear this section 
applies to ALJ positions in both the competitive and excepted services. 
The proposed rule modifies paragraph (b) by removing the reference to 
ALJ positions ``filled through a competitive examination,'' and 
replacing it with the words ``at the entry level.'' The proposed rule 
amends paragraph (f)(2)(i) by removing the words ``who is within reach 
for appointment from an administrative law judge certificate of 
eligibles'' and replacing them with ``who meets the minimum 
qualification and licensure requirement in paragraph (b) and any 
agency-specific requirements established under paragraph (c)(2).'' The 
proposed rule amends paragraph (f)(2)(ii) by removing the words ``who 
is eligible for reinstatement'' and replacing them with ``who is 
eligible for appointment under Schedule E and meets the minimum 
qualification and licensure requirement in paragraph (b) and any 
agency-specific requirements established under paragraph (c)(2).''
    The proposed rule modifies Sec.  930.206, Performance rating and 
awards, by inserting the words ``in the competitive or excepted 
service.'' Paragraph (b) is proposed to be modified by adding 5 U.S.C. 
4505, 4505a, 5379, 5753, and 5754 to the list of provisions under which 
ALJs may not be granted ``any monetary or honorary award, incentive, or 
similar payment.''
    The proposed rule modifies Sec.  930.207, Details and assignments 
to other duties within the same agency, to clarify that details that 
will last more than 120 days, and details exceeding more than a total 
of 120 days in a 12-month period, require OPM approval regardless of 
whether the ALJs are in the competitive or excepted service.
    The proposed rule modifies Sec.  930.208, Administrative law judge 
loan program-detail to other agencies, to make clear that OPM 
administers the ALJ loan program for loans/details of an ALJ in both 
the competitive and excepted services. The proposed rule also adds two 
new paragraphs to Sec.  930.208. New paragraph (e) requires the loaning 
agency to furnish OPM with documentation stating that the loaned ALJ's 
appointment was originally made, approved, or later ratified by the 
head of the agency. New paragraph (f) similarly requires the receiving 
agency of a loaned ALJ to provide documentation to OPM, as soon as 
practicable, stating that the head of the agency made, approved, or 
ratified the loan of the ALJ.
    The proposed rule modifies several provisions in Sec.  930.209, 
Senior Administrative Law Judge Program. The proposed rule modifies 
paragraph (b)(2) by removing the current language and replacing it with 
a reference to the licensure, qualification, and vetting requirements 
prescribed under Sec.  930.204(b) through (g). The proposed rule amends 
paragraph (c) by adding the phrase ``under Schedule E of Sec.  213.3501 
of this chapter'' to make clear that reemployed ALJ annuitants are 
appointed to positions in the excepted service. The proposed rule 
amends paragraph (d) to specify that an agency's request to OPM for a 
senior ALJ must document that the appointment will be made or approved 
by the head of the requesting agency.
    OPM is proposing to amend Sec.  930.210, Reduction in force. ALJs 
serving in Schedule E appointments in the excepted service will be 
subject to the provisions of 5 CFR part 351 specific to excepted 
service employees. ALJs in the competitive service remain subject to 
the provisions of 5 CFR part 351 specific to competitive service 
employees. Thus, the existing rule makes clear that for RIF purposes 
agencies use competitive service procedures for ALJs in the competitive 
service and excepted service procedures for ALJs in the excepted 
service to determine who will remain in their current positions. In 
either case, the rule makes clear that an agency may not use 
performance as a factor for purposes of retention standing in subpart E 
of 5 CFR part 351.
    The proposed rule also requires agencies to establish procedures 
for placement assistance for ALJs reached in an agency's RIF. Agencies 
are required to establish a priority reemployment list and provide 
consideration to ALJs on its priority reemployment list before it may 
consider candidates on its regular employment lists, with certain 
exceptions. This will replace the current procedure under which OPM 
maintains a central, government-wide priority referral list. The 
agency-specific approach we are proposing is more in keeping with the 
excepted hiring model established by E.O. 13843. There are currently no 
names on the OPM list, so no individuals will be adversely affected by 
this change.
    These new placement procedures will apply to ALJs in positions in 
both the competitive and the excepted service. However, the proposed 
rule also clarifies that displaced competitive service ALJs also will 
be eligible for consideration for non-ALJ competitive service positions 
pursuant to 5 CFR part 330, subpart B.
    Lastly, OPM proposes to amend Sec.  930.211, Actions against 
administrative law judges. The proposed rule amends paragraph (b)(4) to 
reference the use of notice leave, investigative leave, or 
administrative leave under the Administrative Leave Act of 2016, and 
amends paragraph (c) to remove a reference to actions taken under 5 CFR 
part 731.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant impact 
on a substantial number of small entities because it applies only to 
Federal agencies and employees.

E.O. 13563 and E.O. 12866, Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action,'' under Executive Order 12866 and has been reviewed by OMB.

Executive Order 13771, Reducing Regulation and Controlling Regulatory 
Costs

    This proposed rule is not expected to be subject to the 
requirements of E.O.

[[Page 59213]]

13771 (82 FR 9339, February 3, 2017) because it is expected to impose 
no more than de minimis costs.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any year and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

E.O. 13132, Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant preparation of a Federalism 
Assessment.

E.O. 12988, Civil Justice Reform

    This regulation meets the applicable standard set forth in section 
3(a) and (b)(2) of Executive Order 12988.

Congressional Review Act

    This action pertains to agency management, personnel, and 
organization and does not substantially affect the rights or 
obligations of nonagency parties and, accordingly, is not a ``rule'' as 
that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Paperwork Reduction Act

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act.

List of Subjects in 5 CFR Part 212, 213, 302, and 930

    Government employees.

    Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.

    Accordingly, the Office of Personnel Management proposes to amend 
title 5, Code of Federal Regulations parts 212, 213, 302, and 930 as 
follows:

PART 212--COMPETITIVE SERVICE AND COMPETITIVE STATUS

0
1. Revise the authority citation for part 212 to read as follows:

    Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR, 1954-
1958 Comp., p. 218; E.O. 13843, 83 FR 32755; 5 CFR part 6.

Subpart D--Effect of Competitive Status on Position

0
2. Amend Sec.  212.401 by revising paragraph (b) to read as follows:


Sec.  212.401  Effect of competitive status on the position.

* * * * *
    (b) An employee in the competitive service at the time the 
employee's position is first listed under Schedule A, B, C, or E 
remains in the competitive service while the employee occupies that 
position.

PART 213--EXCEPTED SERVICE

0
3. Revise the authority citation for part 213 to read as follows:

    Authority: 5 U.S.C. 3161, 3301 and 3302; E.O. 10577, 3 CFR 1954-
1958 Comp., p. 218; E.O. 13562, 3 CFR, 2010 Comp., p. 291; E.O. 
13843, 83 FR 32755; 5 CFR part 6; Sec. 213.101 also issued under 5 
U.S.C. 2103. Sec. 213.3102 also issued under 5 U.S.C. 3301, 3302, 
3307, 8337(h), and 8456; E.O. 13318, 3 CFR 1982 Comp., p. 185; 38 
U.S.C. 4301 et seq.; Pub. L. 105-339, 112 Stat 3182-83; E.O. 13162; 
E.O. 12125, 3 CFR 1979 Comp., p. 16879; and E.O. 13124, 3 CFR 1999 
Comp., p. 31103; and Presidential Memorandum--Improving the Federal 
Recruitment and Hiring Process (May 11, 2010).

Subpart A--General Provisions

0
4. Amend Sec.  213.102 by revising the heading and paragraph (b)(3)(i) 
to read as follows:


Sec.  213.102  Identification of Schedule A, B, C, D, or E.

* * * * *
    (b) * * *
    (3)(i) Upon determining that any position or group of positions, as 
defined in Sec.  302.101(c), should be excepted indefinitely or 
temporarily from the competitive service, the Office of Personnel 
Management will authorize placement of the position or group of 
positions into Schedule A, B, C, D, or E, as applicable. Unless 
otherwise specified in a particular appointing authority, an agency may 
make Schedule A, B, C, or, D appointments on either a permanent or 
nonpermanent basis, with any appropriate work schedule (i.e., full-
time, part-time, seasonal, on-call, or intermittent). An agency must 
make Schedule E appointments on a permanent basis, in accordance with 
part 930.
* * * * *
0
5. Amend Sec.  213.103 by revising the heading and paragraph (a) to 
read as follows:


Sec.  213.103  Publication of excepted appointing authorities in 
Schedules A, B, C, D, and E.

    (a) Schedule A, B, C, D, and E appointing authorities available for 
use by all agencies will be published as regulations in the Federal 
Register and the Code of Federal Regulations.
* * * * *

Subpart C--Excepted Schedules

0
6. At the end of subpart C, add undesignated heading and Sec.  213.3501 
to read as follows:

Schedule E


Sec.  213.3501  Positions of administrative law judge appointed under 5 
U.S.C. 3105.

    Agency heads may make appointments under this section to positions 
of administrative law judge appointed under 5 U.S.C. 3105. Conditions 
of good administration warrant that the position of administrative law 
judge be placed in the excepted service. Positions filled under this 
authority are excepted from the competitive service and constitute 
Schedule E. All appointments of administrative law judges made on or 
after July 10, 2018 must be made under Schedule E in accordance with 
the provisions of subpart B of part 930 of this chapter.

PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE

0
7. Revise the authority citation for part 302 to read as follows:

    Authority: 5 U.S.C. 1302, 3301, 3302, 3317, 3318, 3320, 8151, 
E.O. 10577 (3 CFR 1954-1958 Comp., p. 218); E.O. 13843, 83 FR 32755; 
5 CFR part 6; Sec.  302.105 also issued under 5 U.S.C. 1104, Pub. L. 
95-454, sec. 3(5); Sec.  302.501 also issued under 5 U.S.C. 7701 et 
seq.

Subpart A--General Provisions

0
8. Amend Sec.  302.101 by adding paragraph (c)(12) to read as follows:


Sec.  302.101  Positions covered by regulations.

* * * * *
    (c) * * *
    (12) Administrative law judge positions filled through appointment 
under 5 U.S.C. 3105 after July 9, 2018.

[[Page 59214]]

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

Subpart B--Administrative Law Judge Program

0
9. Revise the authority citation for part 930, subpart B to read as 
follows:

    Authority: 5 U.S.C. 1103(a)(5)(A), 1305, 3105, 3301, 3304, 
3323(b), 3344, 3502, 4301(2)(D), 4305, 5372, 7521; E.O. 10577, 3 
CFR, 1954-1958 Comp., p. 219; E.O. 13843, 83 FR 32755; 5 CFR parts 
2, 5, 6.

0
10. Revise Sec.  930.201 to read as follows:


Sec.  930.201  Coverage.

    (a) This subpart applies to individuals appointed under 5 U.S.C. 
3105 as administrative law judges for proceedings required to be 
conducted in accordance with 5 U.S.C. 556 and 557. This subpart applies 
to administrative law judge positions in both the competitive and 
excepted services unless otherwise stated.
    (b) On or after July 10, 2018, appointments of individuals to 
administrative law judge are made under Schedule E of the excepted 
service in Sec.  213.3501 of this chapter.
    (c) Individuals appointed to administrative law judge positions 
prior to July 10, 2018, remain in the competitive service as long as 
they remain in their positions, including when they are subject to 
actions within their agencies that do not result in a new appointment 
(including details, assignments, reassignments, pay adjustments, and 
promotions under this subchapter). No new appointments of 
administrative law judges to the competitive service may be made after 
July 9, 2018. Except as otherwise stated in this subpart, the rules and 
regulations applicable to positions in the competitive service apply to 
competitive service administrative law judge positions.
    (d) The title ``administrative law judge'' is the official title 
for an administrative law judge position in both the competitive and 
excepted services. Each agency must use only this title for personnel, 
budget, and fiscal purposes.
    (e) OPM does not hire administrative law judges for other agencies, 
but has the authority to:
    (1) Assure that decisions concerning the appointment, pay, and 
tenure of administrative law judges in the competitive and excepted 
services are consistent with applicable laws and regulations;
    (2) Establish classification standards and approve classification 
of administrative law judge positions;
    (3) Approve noncompetitive personnel actions for administrative law 
judges, including but not limited to promotions, restorations, and 
reassignments;
    (4) Approve personnel actions related to pay for administrative law 
judges under Sec.  930.205(c), (f)(2), (g), and (j);
    (5) Approve an intra-agency detail, or an 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) Promulgate regulations for purposes of sections 3105, 3344, 
4301(2)(D) and 5372 of title 5, U.S.C.; and
    (9) Ensure the qualified independence of the administrative law 
judge, and to faithfully administer the structural protections designed 
to ensure the impartiality 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 confirm that at the time of appointment 
administrative law judges meet the minimum qualification and licensure 
requirement under Sec.  930.204(b) and any agency-specific requirements 
identified by the agency under Sec.  930.204(c);
    (4) The responsibility to establish and maintain an ALJ priority 
referral program under Sec.  930.210(c);
    (5) The responsibility to ensure the qualified independence of the 
administrative law judge, and to faithfully administer the structural 
protections designed to ensure the impartiality of the administrative 
law judge; and
    (6) The responsibility to obtain OPM's approval before taking any 
of the personnel actions described in paragraphs (e)(3) through (7) of 
this section.


Sec.  930.203  [Removed and Reserved]

0
11. Remove and reserve Sec.  930.203:
0
12. Revise Sec.  930.204 to read as follows:


Sec.  930.204  Appointments and conditions of employment.

    (a) Appointment. Administrative law judges are appointed on a 
permanent full-time basis with the exception of appointments to the 
Senior Administrative Law Judge Program under Sec.  930.209.
    (1) Excepted service. (i) On and after July 10, 2018, an agency 
head may appoint an individual to an administrative law judge position 
made under Schedule E in Sec.  213.3501 of this chapter.
    (ii) An excepted service appointment as an administrative law judge 
is made in accordance with such regulations and practices as the head 
of the agency concerned finds necessary, provided that the appointee 
must meet the licensure, qualification, and vetting requirements 
described in paragraphs (b) through (d) of this section.
    (iii) An excepted service appointment as an administrative law 
judge is not subject to a trial period.
    (2) Competitive service. (i) Administrative law judges appointed 
prior to July 10, 2018, are employees in the competitive service and 
remain in the competitive service under the conditions described in 
Sec.  930.201(c).
    (ii) An administrative law judge in the competitive service who 
received a career appointment is exempt from the probationary period 
requirements under part 315 of this chapter.
    (iii) A competitive service appointment as an administrative law 
judge is subject to the licensure, qualification, and vetting 
requirements described in paragraphs (b) through (d) of this section.
    (iv) An administrative law judge serving in the competitive service 
who is appointed by another agency as an administrative law judge on or 
after July 10, 2018, or who separates from service and is reappointed 
as an administrative law judge on or after July 10, 2018, shall be 
appointed in the excepted service.
    (b) Licensure requirements. At the time of appointment as an 
administrative law judge, the individual, other than an incumbent 
administrative law judge, 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

[[Page 59215]]

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) Qualification requirements. (1) At the time of a competitive 
service appointment of an administrative law judge, the individual must 
meet qualification standards prescribed by OPM under Civil Service Rule 
II (as codified in Sec.  2.1 of this chapter).
    (2) At the time of an excepted service appointment as an 
administrative law judge, the individual must meet additional 
requirements for appointment, as appropriate, prescribed by the 
appointing agency under Civil Service Rule VI (as codified in Sec.  6.3 
of this chapter). Any such agency-specific requirements must be 
provided to potential applicants.
    (d) Vetting requirements. (1) Applicants and appointees for the 
position of administrative law judge, and incumbent administrative law 
judges, are subject to the applicable personnel vetting standards and 
guidelines prescribed for employment in the Executive branch, including 
for:
    (i) Eligibility for access to classified information or employment 
in a sensitive position, under Executive Orders 12968 and 13467, as 
amended, as implemented through standards and guidelines prescribed by 
the Office of the Director of National Intelligence;
    (ii) Suitability for employment in the competitive service under 
executive orders 13467 and 13488, as amended, Civil Service Rules II 
and V (as codified in Sec. Sec.  2.1 and 5.2 of this chapter), and part 
731 of this chapter;
    (iii) Fitness for employment in the excepted service under 
Executive Orders 13467 and 13488, as amended, and Civil Service Rules 
II, V, and VI (as codified in Sec. Sec.  2.1, 5.2, and 6.3 of this 
chapter); and
    (iv) Eligibility for a personal identity verification credential 
under Executive Order 13467, as amended, as implemented through 
standards and guidelines prescribed by OPM.
    (2) An adverse action against an administrative law judge based on 
an unfavorable vetting determination must follow the procedures in 
Sec.  930.211(a), unless one of the exceptions in Sec.  930.211(c) 
applies.
    (e) Appointment of incumbents of newly classified administrative 
law judge positions. An agency head may appoint an incumbent employee 
to an administrative law judge position under Schedule E authority at 
Sec.  213.3501 of this chapter if:
    (1) The 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
    (2) The agency determines the employee meets the licensure 
requirement in paragraph (b) of this section and any agency-specific 
requirements established under paragraph (c)(2) of this section.
    (f) Appointment of an employee from a non-administrative law judge 
position. An agency head may appoint an employee who is serving in a 
position other than an administrative law judge position to an 
administrative law judge position under Schedule E of the excepted 
service at Sec.  213.3501 of this chapter if that employee meets the 
licensure requirement in paragraph (b) of this section and any agency-
specific requirements established under paragraph (c)(2) of this 
section.
    (g) Promotion to a higher level. (1) Except as otherwise stated in 
this paragraph, 5 CFR part 335 applies in the promotion of 
administrative law judges in the competitive service.
    (2) An agency may promote an administrative law judge in the 
excepted service according to the agency's excepted service policies on 
promotion, subject to the administrative law judge pay provisions at 
Sec.  930.205.
    (3) An agency must give its administrative law judges, whether in 
the competitive or excepted service, the opportunity to be considered 
for promotion to a higher level when it seeks candidates from outside 
the agency for the higher-level position.
    (4) The agency's request for OPM to approve the action under Sec.  
930.201(e)(3) must document that the agency head approved the 
promotion.
    (h) Reclassification. To reclassify an administrative law judge 
position at a higher level, the agency must submit a request to OPM. If 
OPM approves the higher level classification, OPM will direct the 
promotion of the administrative law judge occupying the position prior 
to the reclassification.
    (i) Reassignment. (1) The agency's request for OPM to approve the 
action under Sec.  930.201(e)(3) must document a bona fide management 
reason for the reassignment.
    (2) Where a reassignment would involve a significant position 
change, such as reassignment to a different bureau within the same 
department, or a reassignment to perform a significantly different kind 
of work, the agency's request for OPM to approve the action under Sec.  
930.201(e)(3) must document that the agency head approved the 
reassignment.
    (j) Appointment of a former administrative law judge. An agency 
head may appoint a former administrative law judge under excepted 
service Schedule E authority at Sec.  213.3501 of this chapter who was 
originally appointed pursuant to 5 U.S.C. 3105 and who meets the 
licensure requirement in paragraph (b) of this section and any agency-
specific requirements established under paragraph (c)(2) of this 
section.
    (k) Movement between agencies. (1) An agency head may appoint under 
excepted service Schedule E authority at Sec.  213.3501 of this chapter 
an administrative law judge employed by another agency, subject to the 
administrative law judge pay provisions at Sec.  930.205, who meets any 
agency-specific requirements established under paragraph (c)(2) of this 
section. Incumbent administrative law judges are not subject to the 
licensure requirement in paragraph (b) of this section when moving to 
another agency.
    (2) When an administrative law judge serving in a competitive 
service position is selected for an excepted appointment at another 
agency, the hiring agency must:
    (i) Inform the employee that, because the position is in the 
excepted service, it may not be filled by a competitive service 
appointment, and that acceptance of the proposed appointment will take 
him/her out of the competitive service; and
    (ii) Obtain from the employee a written statement that he/she 
understands he/she is leaving the competitive service voluntarily to 
accept an appointment in the excepted service.
    (l) Recruitment. Agencies must recruit and announce vacancies for 
administrative law judge positions in a manner to attract a sufficient 
pool of qualified applicants, consistent with the merit system 
principles.
    (m) Conformity. Agency actions under this section must be 
consistent with Sec.  930.201(f).
0
13. Amend Sec.  930.205 by adding a sentence to the beginning of 
paragraph (a), and by revising paragraphs (b) and (f)(2) to read as 
follows:


Sec.  930.205  Administrative law judge pay system.

    (a) The administrative law judge pay system, administered by OPM, 
applies to both competitive service and excepted service administrative 
law judges. * * *

[[Page 59216]]

    (b) Pay level AL-3 is the basic pay level for administrative law 
judge positions filled at the entry level in the competitive and 
excepted services.
* * * * *
    (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 meets the licensure 
requirement in Sec.  930.204(b) and any agency-specific requirements 
established under Sec.  930.204(c)(2); or
    (ii) A former administrative law judge with superior qualifications 
who is eligible for appointment under Schedule E and meets the 
licensure requirement in Sec.  930.204(b) and any agency-specific 
requirements established under Sec.  930.204(c)(2).
* * * * *
0
14. Revise Sec.  930.206 to read as follows:


Sec.  930.206  Performance rating, awards, and incentives.

    (a) An agency may not rate the job performance of an administrative 
law judge in the competitive or excepted service.
    (b) An agency may not grant any monetary or honorary award, 
incentive, or similar payment under 5 U.S.C. 4502, 4503, 4504, 4505, 
4505a, 5379, 5753, or 5754, or under any other similar authority to an 
administrative law judge in the competitive or excepted service.
0
15. In Sec.  930.207, revise paragraph (a) to read as follows:


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. All 
details that will last more than 120 days, and details exceeding more 
than a total of 120 days in a 12-month period, require OPM approval 
regardless of whether the administrative law judges are in the 
competitive or excepted service.
* * * * *
0
16. In Sec.  930.208, revise paragraph (a) and add paragraphs (e) and 
(f) to read as follows:


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 whether in the competitive or excepted 
service 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.
* * * * *
    (e) The department or agency that employs the administrative law 
judge to be loaned must furnish OPM with documentation that the 
administrative law judge's appointment was originally made, approved, 
or later ratified, by the head of the employing agency.
    (f) Upon accepting the services of a loaned administrative law 
judge, the department or agency must, as soon as practicable, furnish 
OPM with documentation that the head of the receiving agency has made, 
approved, or ratified, the loan of the administrative law judge.
0
17. Amend Sec.  930.209 by revising paragraphs (b)(2), (c), (d)(3) and 
(4), and adding paragraphs (d)(5) and (h) to read as follows:


Sec.  930.209  Senior Administrative Law Judge Program.

* * * * *
    (b) * * *
    (2) The licensure, qualification, and vetting requirements 
prescribed under Sec.  930.204(b) through (d); and
* * * * *
    (c) Under the Senior Administrative Law Judge Program, OPM 
authorizes 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 
under Schedule E, Sec.  213.3501, of this chapter. 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) * * *
    (3) Specify the tour of duty, location, period of time, or 
particular cases(s) for the requested reemployment;
    (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; 
and
    (5) Document that the appointment will be made or approved by the 
agency head.
* * * * *
    (h) Senior administrative law judges appointed prior to July 10, 
2018, remain in the competitive service for the duration of their 
appointment, including any extension periods authorized by OPM.
0
18. Amend Sec.  930.210 by revising paragraphs (a) and (c) to read as 
follows:


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 in the competitive and excepted 
services.
* * * * *
    (c) Placement assistance. (1) An administrative law judge in the 
competitive service who is reached in an agency's reduction in force 
and receives a notification of separation or is furloughed for more 
than 30 days is eligible for placement assistance for any position in 
the competitive service to which qualified under the agency's 
reemployment priority list (RPL) established and maintained in 
accordance with subpart B of part 330 of this chapter, as well as the 
agency's administrative law judge priority reemployment list 
established under paragraph (c)(3) of this section.
    (2) An administrative law judge in the excepted service who is 
reached in an agency's reduction in force and receives a notification 
of separation or is furloughed for more than 30 days is eligible for 
placement assistance under the agency's administrative law judge 
priority reemployment list established and maintained in accordance 
with paragraph (c)(3) of this section.
    (3) An agency must establish an administrative law judge priority 
reemployment list whenever an administrative law judge, in the 
competitive or excepted service, has been furloughed for more than 30 
days or separated from a continuing appointment without delinquency or 
misconduct, and applies for reemployment.
    (i) Candidates are entered on the priority reemployment list in the 
geographic areas where they were separated unless the agency elects to 
provide broader consideration.
    (ii) Candidates remain on the list for two (2) years unless the 
agency elects to provide a longer period of eligibility.
    (iii) Termination of eligibility on the agency's priority 
reemployment list takes place when an administrative law

[[Page 59217]]

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 the geographic 
location where he or she was separated unless the agency elects to 
provide broader consideration.
    (4) An agency must consider administrative law judges on its 
priority reemployment list before it may use other selection methods, 
except as described in this paragraph (c)(4). When a qualified 
administrative law judge is available on the priority reemployment 
list, the agency may appoint an individual who is not on the priority 
reemployment list, or who has lower standing on that list, only when 
the agency can demonstrate that the individual possesses experience and 
qualifications superior to any other available displaced administrative 
law judge on the agency's priority reemployment list.
    (5) A former administrative law judge selected from the priority 
reemployment list is appointed under Schedule E in the excepted service 
regardless of whether the administrative law judge served previously in 
the competitive service.
0
19. Amend Sec.  930.211 by revising paragraphs (b)(4) and (c) as 
follows:


Sec.  930.211  Actions against administrative law judges.

* * * * *
    (b) * * *
    (4) If the alternatives in paragraphs (b)(1) through (3) of this 
section are not available, the agency may consider placing the 
administrative law judge in administrative leave, or, when regulations 
implementing the Administrative Leave Act of 2016, section 1138 of 
Public Law 114-328, have been finalized and become effective, in notice 
leave, investigative leave, or administrative leave status, as 
appropriate.
    (c) Exceptions from procedures. The procedures in paragraphs (a) 
and (b) of this section do not apply:
    (1) In making dismissals or other actions made by agencies in the 
interest of national security under 5 U.S.C. 7532;
    (2) To reduction in force actions taken by agencies under 5 U.S.C. 
3502; or
    (3) In any action initiated by the Office of Special Counsel under 
5 U.S.C. 1215.

[FR Doc. 2020-17684 Filed 9-18-20; 8:45 am]
BILLING CODE 6325-39-P