[Federal Register: December 21, 2005 (Volume 70, Number 244)]
[Proposed Rules]
[Page 75745-75752]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de05-18]
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Proposed Rules
Federal Register
________________________________________________________________________
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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[[Page 75745]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 337 and 930
RIN 3206-AK86
Examining System and Programs for Specific Positions and
Examinations (Miscellaneous)
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) is republishing the
proposed rule published on December 13, 2005, due to information that
was inadvertently omitted. The purpose of these regulations is to
revise the Administrative Law Judge Program. The purpose of these
revisions is to remove procedures that appear in other parts of this
chapter, update outdated information, and remove the internal examining
processes from the regulations. Additionally, these revisions describe
OPM and agency responsibilities concerning the Administrative Law Judge
Program. This proposed regulation continues the basic intent of making
administrative law judges independent in matters of tenure and
compensation.
DATES: Comments must be received on or before February 21, 2006.
ADDRESSES: Send, deliver, or fax written comments to: Mr. Mark Doboga,
Deputy Associate Director for Talent and Capacity Policy, U.S. Office
of Personnel Management, Room 6551, 1900 E Street NW., Washington, DC
20415-9700; e-mail: employ@opm.gov; fax: (202) 606-2329.
Comments may also be sent through the Federal eRulemaking Portal
at: http://www.regulations.gov. All submissions received through the
Portal must include the agency name and docket number or Regulation
Identifier Number (RIN) for this rulemaking.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Watson by telephone at (202)
606-0830; by fax at (202) 606-2329; by TTY at (202) 418-3134; or by e-
mail at linda.watson@opm.gov.
SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is
republishing the proposed rule published on December 13, 2005, (70 FR
73646) due to information that was inadvertently omitted. The
administrative law judge function was established by the Administrative
Procedure Act (APA) (Act of June 11, 1946, 60 Stat. 237, as amended)
and codified in title 5, United States Code (U.S.C.), sections 556,
557, 1305, 3105, 3344, 4301(2)(D), 5372, and 7521. Administrative law
judges preside at formal hearings and make or recommend decisions on
the basis of the record. The APA requires that this function be carried
out in an impartial manner. To assure objectivity of administrative law
judges and to insulate them from improper pressure, the law made these
positions independent of the employing agencies in matters of tenure
and compensation.
The goal of this revision is to streamline the current
administrative law judge regulations as prescribed in 5 CFR part 930,
subpart B. Therefore, OPM is proposing a substantive rewrite of the
administrative law judge regulations to eliminate procedures that
appear in other parts of this chapter, remove the internal examination
process, and remove obsolete instructions for implementing the current
pay system authorized by the Federal Employees Pay Comparability Act of
1990; to add clarifying language; to include OPM and agency
responsibilities under the program; to emphasize components of the
Administrative Law Judge Program; to organize information into new
sections for emphasis and clarity; and to revise the language to
improve readability.
We propose in Sec. 930.201, ``Coverage,'' to clarify that
administrative law judge positions are in the competitive service, and
competitive examining procedures apply. In addition, we propose to move
Sec. Sec. 930.203b, ``Title of administrative law judge,'' and
930.212, ``Rotation of administrative law judges,'' to Sec. 930.201
because this information applies to the general coverage of the
Administrative Law Judge Program.
We also propose to add the authorities and responsibilities of OPM
and agencies that employ administrative law judges in Sec. 930.201.
Currently, the regulations do not identify these authorities and
responsibilities. Although OPM does not employ administrative law
judges for the Federal Government, OPM does administer the
Administrative Law Judge Program. In Sec. 930.201, we describe OPM's
authority and responsibility, according to the APA, as assuring that
administrative law judges are independent in matters of appointment,
pay, and tenure.
Proposed Sec. 930.201(e)(3) states that OPM has the authority to
establish classification and qualification standards for administrative
law judge positions. OPM's authority to establish classification
standards for administrative law judge positions is 5 U.S.C.
5372(b)(2). Section 104 of Public Law 101-509 removed administrative
law judge positions from coverage under 5 U.S.C. 5104 and amended 5
U.S.C. 5372(b)(2) to authorize OPM to classify administrative law judge
positions outside the General Schedule. Under 5 U.S.C. 1305, OPM may
use its rulemaking authority to implement this classification authority
for administrative law judge positions.
OPM's authority to establish administrative law judge
qualifications as an adjunct to competitive examination is Civil
Service Rule II, 5 CFR 2.1(a), which authorizes OPM ``to establish
standards with respect to citizenship, age, education, training and
experience, suitability, and physical and mental fitness, and for
residence or other requirements which applicants must meet to be
admitted to or rated in examinations.''
The legislative history of 5 U.S.C. 3105, formerly section 11 (1st
sentence) of the APA, governing administrative law judge appointments,
confirms the clear intent of Congress to give OPM the authority to
establish qualification standards for administrative law judges as an
adjunct to competitive examination. OPM may utilize its rulemaking
authority in 5 U.S.C. 1305 to authorize qualification standards for
administrative law judges.
An agency employing administrative law judges is responsible for
appointing as many administrative law judges as needed and to assign
cases to administrative law judges on a rotational basis so far as
practicable.
We propose to move paragraph (c) of the current Sec. 930.201,
``Coverage,'' to
[[Page 75746]]
Sec. 930.203, ``Cost of competitive examination.'' Paragraph (c)
discusses the financial responsibility for the Administrative Law Judge
Program. By adding paragraph (c) to Sec. 930.203, we are highlighting
agencies' responsibility for the cost of the examination. Currently,
under 5 U.S.C. 1104(a)(2), agencies employing administrative law judges
are required to reimburse OPM for its examining services. Reimbursement
is currently based on the agency's relative number of administrative
law judge positions as of March 31 of the preceding fiscal year. To
ensure an accurate count of administrative law judges, we also propose
to change the time period from March 31 of the preceding fiscal year to
the current fiscal year. The cost is calculated by OPM and each
employing agency is notified of its share.
We propose to remove the definition of ``Promotion'' from Sec.
930.202, ``Definitions.'' This term uses a common definition throughout
the Federal Government and is defined in 5 CFR part 210.102(b)(11).
Standardizing definitions of common terms ensures their consistent
application. We propose to add and define two significant terms to the
regulations and clarify their specific use in this subpart: senior
administrative law judge and superior qualifications.
We propose to change the title of Sec. 930.203, ``Examination,''
to ``Cost of competitive examination.'' OPM has great discretion to
design and administer competitive examinations (See 5 U.S.C. 1104,
1302, 3301, 3304.) OPM must be able to incorporate advances in the
state of the art of examination methodology in the design of each
administrative law judge examination. Consequently, OPM proposes to
remove the examination scoring process currently published in section
930.203, and to state in Sec. 930.201(e)(1) that use of the
examination scoring process published in 5 CFR 337.101(a) is not
required in scoring administrative law judge examinations. OPM is
proposing a conforming revision in part 337. The current examination
covered by OPM Examination Announcement No. 318 is closed and will be
replaced by a new administrative law judge examination; therefore, we
propose to remove all references to Announcement No. 318 from this
subpart. When the new examination is available, OPM will announce the
examinations as prescribed in 5 U.S.C. 3330.
A lengthy description of the administrative law judge examination
and its procedures is contained in the existing Sec. 930.203 of this
subpart. The method by which examinations are conducted and
administered is subject to periodic changes; therefore, removing these
procedures from the regulations will provide OPM with the flexibility
to adopt such changes, as appropriate. We propose to remove the
detailed language describing internal examining and program processes
and procedures from the regulations, such as the language concerning
periodic open competition, minimum qualifications, supplemental
qualifications, participation in examination procedures, final rating,
preparation of certificates, and appeal of rating. The appropriate
mechanism to address this type of information is the vacancy
announcement. This information is prescribed in 5 U.S.C. 3330 and 5 CFR
300.104(b), 330.102(b) and 330.707, and is required in all vacancy
announcements. As appropriate, OPM will continue to work with employing
agencies to review the Administrative Law Judge Program for
effectiveness and efficiency consistent with statutory requirements.
We propose to redesignate Sec. 930.203a, ``Appointment,'' as Sec.
930.204, ``Appointments and conditions of employment.'' We also propose
to move paragraphs (b), (c), and (e) of Sec. 930.203a,
``Appointment,'' and Sec. Sec. 930.204, ``Promotion,'' 930.205,
``Reassignment,'' 930.206, ``Transfer,'' and 930.207,
``Reinstatement,'' to section 930.204. The purpose is to highlight the
prohibition of a probationary period for administrative law judges and
to consolidate the various types of appointments under one section.
With the consolidation, we propose to remove the internal examining
processes and procedures involved in appointing an individual to an
administrative law judge position; revise the language to clarify that
agencies must obtain OPM's approval before making any promotion,
transfer, reinstatement, reassignment, pay adjustments or senior
administrative law judge appointments to an administrative law judge
position; and include information related to the type of appointment
and tenure group. Because provisions of the Ramspeck Act formerly
codified at 5 U.S.C. 3304(c) were repealed by Public Law 104-65 on
December 19, 1997, we are removing paragraph (d) of section 930.203a
which involves the appointment of legislative and judicial employees to
an administrative law judge position. These individuals now must
compete with other outside candidates and meet the qualification and
examination requirements for an administrative law judge position.
We propose to remove Sec. 930.208, ``Restoration'' from this
regulation. Part 353 of title 5, Code of Federal Regulations, governs
the restoration of an employee to duty after military service or
recovering from compensable injury, also applies to restoration to an
administrative law judge position.
Currently, the administrative law judge regulations contain two
terms, ``absolute status'' and ``career absolute appointment,'' that
are not defined in either the United States Code or Code of Federal
Regulations. We propose to remove these terms from the regulations and
replace them with terms used in the competitive service, ``competitive
status'' and ``career appointment.'' To be a career employee in the
competitive service, an employee must serve 3 years of substantially
continuous creditable service and is subject to a 1-year probationary
period. However, Sec. 315.201(c), ``Exceptions from service
requirement,'' includes an exception from the 3-year service
requirement when an appointment to a position is required by law to be
filled on a permanent basis. The APA provides administrative law judges
protection from improper influences and ensures independence when
carrying out their duties by conferring competitive status at the time
of appointment. Therefore, the requirements for probationary and
career-conditional periods do not apply to administrative law judges.
An administrative law judge appointment confers competitive status,
places the employee in tenure group I, and does not require a
probationary period.
Currently Sec. 930.203a(c)(3), ``Appointment of incumbents of
newly classified administrative law judge positions,'' addresses the
appointment of employees whose positions are classified as an
administrative law judge position on the basis of legislation,
Executive order, or decision of the court. An agency has 6 months after
the classification to recommend to OPM the appointment of an
administrative law judge. We propose to delete the 6-month requirement
and rely on the terms of the legislation, Executive order, or court
decision for any time frames for appointments. Paragraph (c)(4) of the
current regulations states that in an emergency situation OPM may
authorize a conditional appointment of an employee to an administrative
law judge position pending final decision on the employee's eligibility
for career appointment. We propose to delete this provision because it
is inconsistent with the intent of the APA that administrative law
judges serve without condition.
The function of an administrative law judge is to prepare for and
preside at formal hearings in accordance with the
[[Page 75747]]
APA. Administrative law judges must be held to a high standard of
conduct so that the integrity and independence of the administrative
judiciary can be maintained. Similar to the attorneys employed by the
Federal Government who are required to maintain an ``active'' status to
practice law, administrative law judges are expected to meet
professional licensing requirements as attorneys. Presently, an
applicant who wishes to be an administrative law judge must have been
duly licensed and authorized to practice law as an attorney under the
laws of a State, the District of Columbia, the Commonwealth of Puerto
Rico, or any territorial court established under the United States
Constitution. We propose to clarify that a professional license
requirement continues as a condition of employment for any individual
serving as an administrative law judge. A professional license to
practice law is required while serving as an administrative law judge.
This requirement applies to eligibles on the Administrative Law Judge
register, incumbent administrative law judges, former administrative
law judges applying for reinstatement or reemployment, and retired
administrative law judges applying under the Senior Administrative Law
Judge Program. An administrative law judge must maintain an ``active''
status to practice law under the laws of a State, the District of
Columbia, the Commonwealth of Puerto Rico, or any territorial court
established under the United States Constitution. In lieu of
maintaining an ``active'' status to practice law, judicial status is
acceptable in States that prohibit sitting judges from maintaining
``active'' status to practice law. Being in ``good standing'' is also
acceptable in lieu of ``active'' status in States where the licensing
authority considers ``good standing'' as having a current license to
practice law.
For clarity, we propose to redesignate Sec. 930.210, ``Pay'' as
section 930.205, ``Administrative law judge pay system.''
We propose to delete paragraphs (j) through (m) of current Sec.
930.210, which contain instructions for converting GS employees to the
administrative law judge pay system on the first day of the first pay
period beginning on or after February 10, 1991. Because all
administrative law judges have been converted to the current pay
system, these paragraphs are obsolete.
Currently, with OPM approval, an agency may pay a higher minimum
rate to a candidate with superior qualifications who is appointed from
an OPM certificate of eligibles to an administrative law judge position
at level AL-3. Under Sec. 930.205(f)(2), we propose to expand coverage
under this authority to include an administrative law judge applicant
with superior qualifications as well as a former administrative law
judge with superior qualifications who is eligible for reinstatement.
We propose to add a new paragraph (i) to Sec. 930.205 (as
redesignated) to clarify that an agency may reduce the pay level or
rate of basic pay of an administrative law judge for good cause either
after the Merit Systems Protection Board orders the action, as provided
in Sec. 930.211 (as redesignated), or if agreed upon by the
administrative law judge and with OPM's approval.
We propose to redesignate the existing Sec. 930.211 as Sec.
930.206, ``Performance rating and awards,'' and to move paragraph (b)
of existing Sec. 930.210, ``Pay,'' to Sec. 930.206. This change
consolidates the information on performance rating and awards into one
section.
We propose to redesignate Sec. 930.209 as Sec. 930.207, and to
change its title from ``Detail and assignment to other duties'' to
``Details and assignments to other duties within the same agency.'' The
new title emphasizes the movement of an administrative law judge within
the agency.
We propose to redesignate Sec. 930.213, ``Use of administrative
law judges on detail from other agencies,'' as Sec. 930.208,
``Administrative law judge loan program--detail to other agencies.''
The title change echoes the term commonly used by the administrative
law judge community for the process of detailing administrative law
judges to other agencies. We also propose to clarify OPM's current
practice of detailing an administrative law judge for a period within
the current fiscal year with the possibility of an extension into the
next fiscal year. OPM approves extensions on a case-by-case basis.
Section 930.208 gives agencies the flexibility to meet unusual work
circumstances requiring an administrative law judge to stay beyond the
initial 1-year period.
We propose to redesignate Sec. 930.216, ``Temporary reemployment:
senior administrative law judges,'' as Sec. 930.209, ``Senior
administrative law judge program,'' to echo the term commonly used by
the administrative law judge community for the process of employing
retired administrative law judges. The title distinguishes this program
from the loan program described in Sec. 930.208 (as redesignated). We
also are clarifying the employment limitation for reemployed
administrative law judges to be either a specified period not to exceed
1 year or such periods as may be necessary to conduct and complete the
hearing of one or more specified cases.
We propose to redesignate Sec. 930.215, ``Reduction in force,'' as
Sec. 930.210. At the present time, agencies are allowed to fill vacant
positions only through the OPM priority referral list. We propose to
add a hiring flexibility allowing agencies to fill their vacant
administrative law judge positions by reassigning administrative law
judges within their workforce. This flexibility allows agencies to
manage their administrative law judge workforce by providing the
flexibility to make reassignments within their agency and will assure
that adversely affected administrative law judges retain priority when
the agency seeks to fill from outside its workforce. OPM will continue
to retain the authority to grant exceptions to the order of selection.
We propose to redesignate Sec. 930.214, ``Actions against
administrative law judges,'' as Sec. 930.211. We also propose to
revise this section to improve clarity and readability. This section
continues to recognize that administrative law judge applicants and
appointees, like other applicants and appointees to the competitive
service, are subject to suitability investigations and determinations.
Derivative Table Comparing New Section Numbers in Part 930, Subpart B
With Old Section Numbers.
To assist readers in comparing OPM's proposed rule to 5 CFR part
930, subpart B with the regulation as it is currently published, we
have prepared the following derivation table.
Derivation Table for 5 CFR 930 Subpart B
------------------------------------------------------------------------
New section Old section
------------------------------------------------------------------------
930.201................................... 930.201.
930.201(a)................................ 930.201(a).
930.201(b)................................ 930.201(b).
930.201(c)................................ 930.203b.
930.201(d)................................ New.
930.201(e)(1) through (9)................. New.
930.201(f)(1) and (2)..................... New.
930.201(f)(2)(i).......................... 930.212.
930.202................................... 930.202.
Administrative Law Judge Position......... 930.202(c).
Agency.................................... 930.202(a).
Detail.................................... 930.202(b).
930.202(d) (Removed).
930.202(e) (Removed).
Removal................................... 930.202(f).
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Senior Administrative Law Judge........... 930.216(a)(2).
Superior Qualifications................... 930.210(g)(2).
930.203................................... 930.201(c).
930.204................................... 930.203a.
930.204(a)................................ 930.203a(a) and (b).
930.204(b)................................ New.
930.204(c)................................ 930.203a(c).
930.204(c)(1)............................. 930.203a(c)(1).
930.204(c)(2)............................. 930.203a(c)(2).
930.204(c)(3)............................. 930.203a(c)(3) (Revised).
930.204(c)(4)............................. 930.203a(c)(4) (Revised).
930.203a(d) (Removed).
930.204(d)................................ 930.203a(e).
930.204(e)................................ 930.204 (Revised).
930.204(f)................................ 930.205 (Revised).
930.204(g)................................ 930.207 (Revised).
930.204(h)................................ 930.206 (Revised).
930.208 (Removed).
930.205................................... 930.210.
930.205(f)(2)............................. 930.210(g)(2).
930.205(i)................................ New.
930.210(j) through (m)
(Removed).
930.206................................... New title.
930.206(a)................................ 930.211.
930.206(b)................................ 930.210(b).
930.207................................... 930.209.
930.208................................... 930.213.
930.209................................... 930.216.
930.210................................... 930.215.
930.211................................... 930.214.
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Executive Order 12866, Regulatory Review
This proposed rule has been reviewed by the Office of Management
and Budget in accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that these regulations would not have a significant
economic impact on a substantial number of small entities (including
small businesses, small organizational units, and small governmental
jurisdictions) because they would affect only some Federal agencies and
employees.
List of Subjects in 5 CFR Parts 337 and 930
Administrative practice and procedure, Computer technology,
Government employees, Motor vehicles.
U.S. Office of Personnel Management.
Linda M. Springer,
Director.
Accordingly, OPM is proposing to amend 5 CFR parts 337 and 930 as
follows:
PART 337--EXAMINING SYSTEM
1. The authority citation for part 337 continues to read as
follows:
Authority: 5 U.S.C. 1104(a) (2), 1302, 2302, 3301, 3302, 3304,
3319, 5364, E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; 33 FR 12423,
Sept. 4, 1968; and 45 FR 18365, Mar. 21, 1980.
Subpart A--General Provisions
2. Revise Sec. 337.101(a) to read as follows:
Sec. 337.101 Rating applicants.
(a) OPM shall prescribe the relative weights to be given subjects
in an examination, and shall assign numerical ratings on a scale of
100. Except as otherwise provided in this chapter, each applicant who
meets the minimum requirements for entrance to an examination and is
rated 70 or more in the examination is eligible for appointment.
* * * * *
PART 930--PROGRAMS FOR SPECIFIC POSITIONS AND EXAMINATIONS
(MISCELLANEOUS)
3. Revise subpart B to read as follows:
Subpart B--Administrative Law Judge Program
Sec.
930.201 Coverage.
930.202 Definitions.
930.203 Cost of competitive examination.
930.204 Appointments and conditions of employment.
930.205 Administrative law judge pay system.
930.206 Performance rating and awards.
930.207 Details and assignments to other duties within the same
agency.
930.208 Administrative Law Judge Loan Program--detail to other
agencies.
930.209 Senior Administrative Law Judge Program.
930.210 Reduction in force.
930.211 Actions against administrative law judges.
Authority: 5 U.S.C. 1104(a)(2), 1302(a), 1305, 3105, 3323(b),
3344, 4301(2)(D), 5372, 7521, and E.O. 10577, 3 CFR, 1954-1958
Comp., p. 219.
Subpart B--Administrative Law Judge Program
Sec. 930.201 Coverage.
(a) This subpart applies to individuals appointed under 5 U.S.C.
3105 for proceedings required to be conducted in accordance with 5
U.S.C. 556 and 557 and to administrative law judge positions.
(b) Administrative law judge positions are in the competitive
service. Except as otherwise stated in this subpart, the rules and
regulations applicable to positions in the competitive service apply to
administrative law judge positions.
(c) The title ``administrative law judge'' is the official title
for an administrative law judge position. Each agency must use only
this title for personnel, budget, and fiscal purposes.
(d)The Director of OPM, or designee, shall prescribe the
examination methodology in the design of each administrative law judge
examination.
(e) OPM does not hire administrative law judges for other agencies
but has authority to:
(1) Recruit and examine applicants for administrative law judge
positions, including developing and administering the administrative
law judge examinations under 5 U.S.C. 1104(a)(2), except OPM is not
required to use the examination scoring process in 5 CFR 337.101(a);
(2) Assure that decisions concerning the appointment, pay, and
tenure of administrative law judges in Federal agencies are consistent
with applicable laws and regulations;
(3) Establish classification and qualification standards for
administrative law judge positions in Federal agencies;
(4) Approve noncompetitive personnel actions for administrative law
judges, including but not limited to promotions, transfers,
reinstatements, restorations, reassignments, and pay adjustments;
(5) Approve an intra-agency detail or assignment of an
administrative law judge to a non-administrative law judge position
that lasts more than 120 days or when an administrative law judge
cumulates a total of more than 120 days for more than one detail or
assignment within the preceding 12 months;
(6) Arrange the temporary detail (loan) of an administrative law
judge from one agency to another under the provisions of the
administrative law judge loan program in Sec. 930.208;
(7) Arrange temporary reemployment of retired administrative law
judges to meet changing agency workloads under the provisions of the
senior administrative law judge program in Sec. 930.209;
(8) Maintain and administer the administrative law judge priority
referral program; and
(9) Comply with 5 U.S.C. 1305 for purposes of sections 3105, 3344,
4301(2)(D) and 5372 of title 5 U.S.C. and the provisions of section
5335(a)(B) of 5 U.S.C. that relate to administrative law judges.
[[Page 75749]]
(f) An agency employing administrative law judges under 5 U.S.C.
3105 has:
(1) Authority to appoint as many administrative law judges as
necessary for proceedings conducted under 5 U.S.C. 556 and 557; and
(2) Responsibility for:
(i) Assigning an administrative law judge to cases in rotation so
far as is practicable;
(ii) Obtaining OPM's approval before making any promotion,
transfer, detail in excess of 120 days, reinstatement, reassignment, or
restoration appointments to an administrative law judge position,
employment of senior administrative law judges, or pay adjustments as
required under Sec. 930.205; and
(iii) Ensuring the independence of the administrative law judge.
Sec. 930.202 Definitions.
In this subpart:
Administrative law judge position means a position in which any
portion of the duties requires the appointment of an administrative law
judge under 5 U.S.C. 3105.
Agency has the same meaning given in 5 U.S.C. 551(1).
Detail means the temporary assignment of an administrative law
judge from one position to another administrative law judge position
without change in civil service or pay status.
Removal means the involuntary separation of an administrative law
judge from employment as an administrative law judge or employment with
an agency.
Senior administrative law judge means a retired administrative law
judge who is reemployed under a temporary appointment under 5 U.S.C.
3323(b)(2) and Sec. 930.209.
Superior qualifications means an appointment made at a rate above
the minimum rate based on such qualifications that may include, but are
not restricted to, experience practicing law before the hiring agency;
experience practicing before another forum in a field of law relevant
to the hiring agency; outstanding reputation among others in a field of
law relevant to the hiring agency; or special skills that will meet a
demonstrated need of the hiring agency.
Sec. 930.203 Cost of competitive examination.
Each agency employing administrative law judges must reimburse OPM
for the cost of developing, examining, and administering the
administrative law judge examinations. Each agency is charged a pro
rata share of the examination cost, based on the actual number of
administrative law judges the agency employs. OPM computes the cost of
the examination program on an annual basis and notifies the employing
agencies of their respective shares after the calculations are made.
Sec. 930.204 Appointments and conditions of employment.
(a) Appointment. An agency may appoint an individual to an
administrative law judge position only with prior approval of OPM,
except when it makes its selection from the list of eligibles provided
by OPM. An administrative law judge receives a career appointment and
is exempt from the probationary period requirements.
(b) Licensure. At the time of application and any new appointment
and while serving as an administrative law judge, the individual must
possess a professional license to practice law under the laws of a
State, the District of Columbia, the Commonwealth of Puerto Rico, or
any territorial court established under the United States Constitution.
Judicial status is acceptable in lieu of ``active'' status in States
that prohibit sitting judges from maintaining ``active'' status to
practice law. Being in ``good standing'' is also acceptable in lieu of
``active'' status in States where the licensing authority considers
``good standing'' as having a current license to practice law.
(c) Appointment of incumbents of newly classified administrative
law judge positions. An agency may give an incumbent employee an
administrative law judge career appointment if that employee is serving
in the position when it is classified as an administrative law judge
position on the basis of legislation, Executive order, or a decision of
a court and if:
(1) The employee has competitive status or is serving in an
excepted position under a permanent appointment;
(2) The employee is serving in an administrative law judge position
on the day the legislation, Executive order, or decision of the court
on which the classification of the position is based becomes effective;
(3) OPM receives a recommendation for the employee's appointment
from the agency concerned; and
(4) OPM determines the employee meets the qualification
requirements and has passed the current examination for an
administrative law judge position.
(d) Appointment of an employee of non-administrative law judge
positions. Except as provided for in paragraphs (a) and (c) of this
section, an agency may not appoint an employee who is serving in a
position other than an administrative law judge position to an
administrative law judge position.
(e) Promotion. (1) Except as otherwise stated in this subpart, 5
CFR part 335 applies in the promotion of administrative law judges.
(2) To reclassify an administrative law judge position at a higher
level, the agency must submit a request to OPM. When OPM approves the
higher level classification, OPM will direct the promotion of the
administrative law judge occupying the position prior to the
reclassification.
(f) Reassignment. Prior to OPM's approval, the agency must provide
a bona fide management reason for the reassignment.
(g) Reinstatement. An agency may reinstate a former administrative
law judge who has served under 5 U.S.C. 3105, meets the qualification
requirements, and has passed either the current or immediately
preceding administrative law judge examination.
(h) Transfer. An agency may not transfer an individual from one
administrative law judge position to another administrative law judge
position sooner than 1 year after the individual's last appointment,
unless the gaining and losing agencies agree to the transfer.
Sec. 930.205 Administrative law judge pay system.
(a) OPM assigns each administrative law judge position in one of
the three grades or levels of basic pay, AL-3, AL-2 or AL-1, of the
administrative law judge pay system established under 5 U.S.C. 5372 in
accordance with this section. Pay level AL-3 has six rates of basic
pay, A, B, C, D, E, and F.
(1) The rate of basic pay for AL-3, rate A, may not be less than 65
percent of the rate of basic pay for level IV of the Executive
Schedule. The rate of basic pay for AL-1 may not exceed the rate for
level IV of the Executive Schedule.
(2) The President determines the appropriate adjustment for each
level in the administrative law judge pay system, subject to paragraph
(a)(1) of this section. Such adjustments take effect on the first day
of the first pay period beginning on or after the first day of the
month in which adjustments in the General Schedule rates of basic pay
under 5 U.S.C. 5303 take effect.
(3) An agency must use the following procedures to convert an
administrative law judge's annual rate of basic pay to an hourly,
daily, weekly, or biweekly rate:
(i) To derive an hourly rate, divide the annual rate of pay by
2,087 and round
[[Page 75750]]
to the nearest cent, counting one-half cent and over as the next higher
cent.
(ii) To derive a daily rate, multiply the hourly rate by the number
of daily hours of service required by the administrative law judge's
basic daily tour of duty.
(iii) To derive a weekly or biweekly rate, multiply the hourly rate
by 40 or 80, respectively.
(b) Pay level AL-3 is the basic pay level for administrative law
judge positions filled through a competitive examination.
(c) Subject to OPM approval, agencies may establish administrative
law judge positions in pay levels AL-2 and AL-1. Administrative law
judge positions are placed at these levels when they involve
significant administrative and managerial responsibilities.
(d) Administrative law judges must serve at least 1 year in each AL
pay level, or in an equivalent or higher level in positions in the
Federal service, before advancing to the next higher level and may
advance only one level at a time.
(e) Except as provided in paragraph (f) of this section, upon
appointment to an administrative law judge position placed in level AL-
3, an administrative law judge is paid at the minimum rate A of AL-3.
He or she is automatically advanced successively to rates B, C, and D
of that level upon completion of 52 weeks of service in the next lower
rate, and to rates E and F of that level upon completion of 104 weeks
of service in the next lower rate. Time in a non-pay status is
generally creditable service when computing the 52-week period as long
as it does not exceed 2 weeks per year for each 52 weeks of service.
However, absence due to uniformed service or compensable injury is
fully creditable upon reemployment as provided in part 353 of this
chapter.
(f) Upon appointment to a position at AL-3, an administrative law
judge may be paid at the minimum rate A, unless the administrative law
judge is eligible for a higher rate B, C, D, E, or F because of prior
service or superior qualifications, as provided in paragraphs (f)(1)
and (f)(2) of this section.
(1) An agency may offer an administrative law judge applicant with
prior Federal service a higher than minimum rate up to the lowest rate
of basic pay that equals or exceeds the applicant's highest previous
Federal rate of basic pay, not to exceed the maximum rate F.
(2) With prior OPM approval, an agency may pay the rate of pay that
is next above the applicant's existing pay or earnings up to the
maximum rate F. The agency may offer a higher than minimum rate to:
(i) An administrative law judge applicant with superior
qualifications (as defined in Sec. 930.202) who is within reach for
appointment from an administrative law judge certificate of eligibles;
or
(ii) A former administrative law judge with superior qualifications
who is eligible for reinstatement.
(g) With prior OPM approval, an agency, on a one-time basis, may
advance an administrative law judge in an AL-3 position with added
administrative and managerial duties and responsibilities one rate
above the administrative law judge's current AL-3 pay rate, up to the
maximum rate F.
(h) Upon appointment to an administrative law judge position placed
at AL-2 or AL-1, an administrative law judge is paid at the established
rates for those levels.
(i) An employing agency may reduce the level or rate of basic pay
of an administrative law judge under Sec. 930.211 or if the
administrative law judge voluntarily consents in writing to the
reduction and with prior OPM approval.
Sec. 930.206 Performance rating and awards.
(a) An agency may not rate the job performance of an administrative
law judge.
(b) An agency may not grant any award or financial incentives under
5 U.S.C. 4502, 4503, or 4504 to an administrative law judge.
Sec. 930.207 Details and assignments to other duties within the same
agency.
(a) An agency may detail an administrative law judge from one
administrative law judge position to another administrative law judge
position within the same agency in accordance with 5 U.S.C. 3341.
(b) An agency may not detail an employee who is not an
administrative law judge to an administrative law judge position.
(c) An agency may assign an administrative law judge to perform
non-administrative law judge duties only when:
(1) The other duties are consistent with administrative law judge
duties and responsibilities;
(2) The assignment is to last no longer than 120 days; and
(3) The administrative law judge has not had a total of more than
120 days of such assignments or details within the preceding 12 months.
(d) OPM may authorize a waiver of paragraphs (c)(2) and (c)(3) of
this section if an agency shows that it is in the public interest to do
so. In determining whether a waiver is justified, OPM may consider, but
is not restricted to considering, such factors as unusual case load or
special expertise of the detailee.
Sec. 930.208 Administrative Law Judge Loan Program--detail to other
agencies.
(a) In accordance with 5 U.S.C. 3344, OPM administers an
Administrative Law Judge Loan Program that coordinates the loan/detail
of an administrative law judge from one agency to another. An agency
may request from OPM the services of an administrative law judge if the
agency is occasionally or temporarily insufficiently staffed with
administrative law judges, or an agency may loan the services of its
administrative law judges to other agencies if there is insufficient
work to fully occupy the administrative law judges' work schedule.
(b) An agency's request to OPM for the services of an
administrative law judge must:
(1) Identify and briefly describe the nature of the cases(s) to be
heard;
(2) Specify the legal authority for which the use of an
administrative law judge is required; and
(3) Demonstrate, as appropriate, that the agency has no
administrative law judge available to hear the case(s).
(c) The services of an administrative law judge under this program
are made from the starting date of the detail until the end of the
current fiscal year, but may be extended into the next fiscal year with
OPM's approval. Decisions for an extension are made by OPM on a case-
by-case basis.
(d) The agency requesting the services of an administrative law
judge under this program is responsible for reimbursing the agency that
employs the administrative law judge for the cost of the service.
Sec. 930.209 Senior Administrative Law Judge Program.
(a) OPM administers a Senior Administrative Law Judge Program in
accordance with 5 U.S.C. 3323(b)(2). The Senior Administrative Law
Judge Program is subject to the requirements and limitations in this
section.
(b) A senior administrative law judge must meet the:
(1) Annuitant requirements under 5 U.S.C. 3323;
(2) Professional license requirement in Sec. 930.204(b); and
(3) Suitability requirements in 5 CFR parts 5 and 731.
(c) Under the Senior Administrative Law Judge Program, OPM
authorizes
[[Page 75751]]
agencies that have temporary, irregular workload requirements for
conducting proceedings in accordance with 5 U.S.C. 556 and 557 to
temporarily reemploy administrative law judge annuitants. If OPM is
unable to identify an administrative law judge under Sec. 930.208 who
meets the agency's qualification requirements, OPM will approve the
agency's request.
(d) An agency wishing to temporarily reemploy an administrative law
judge must submit a written request to OPM. The request must:
(1) Identify the statutory authority under which the administrative
law judge is expected to conduct proceedings;
(2) Demonstrate the agency's temporary or irregular workload
requirements for conducting proceedings;
(3) Specify the tour of duty, location, period of time, or
particular cases(s) for the requested reemployment; and
(4) Describe any special qualifications the retired administrative
law judge possesses that are required of the position, such as
experience in a particular field, agency, or substantive area of law.
(e) OPM establishes the terms of the appointment for a senior
administrative law judge. The senior administrative law judge may be
reemployed either for a specified period not to exceed 1 year or for
such time as may be necessary for the senior administrative law judge
to conduct and complete the hearing and issue decisions for one or more
specified cases. Upon agency request, OPM may reduce or extend such
period of reemployment, as necessary, to coincide with changing
staffing requirements.
(f) A senior administrative law judge serves subject to the same
limitations as any other administrative law judge employed under this
subpart and 5 U.S.C. 3105.
(g) A senior law judge is paid the rate of basic pay for the pay
level at which the position has been classified. If the position is
classified at pay level AL-3, the senior administrative law judge is
paid the lowest rate of basic pay in AL-3 that equals or exceeds the
highest previous rate of basic pay attained by the individual as an
administrative law judge immediately before retirement, up to the
maximum rate F.
Sec. 930.210 Reduction in force.
(a) Retention preference regulations. Except as modified by this
section, the reduction in force regulations in part 351 of this chapter
apply to administrative law judges.
(b) Determination of retention standing. In determining retention
standing in a reduction in force, each agency lists its administrative
law judges by group and subgroups according to tenure of employment,
veterans' preference, and service date as outlined in part 351 of this
chapter. Because administrative law judges are not given performance
ratings (see Sec. 930.206), the provisions in part 351 of this chapter
referring to the effect of performance ratings on retention standing
are not applicable to administrative law judges.
(c) Placement assistance. (1) An administrative law judge who is
reached in an agency's reduction in force and receives a notification
of separation is eligible for placement assistance under the agency's
reemployment priority list established and maintained in accordance
with subpart B of part 330 of this chapter.
(2) An administrative law judge who is reached by an agency in a
reduction in force and who is notified of being separated, furloughed
for more than 30 days, or demoted, is entitled to have his or her name
placed on OPM's administrative law judge priority referral list for the
level in which last served and for all lower levels.
(i) To have his or her name placed on the OPM priority referral
list, a displaced administrative law judge must provide OPM with a
request for priority referral placement, a resume or equivalent, and a
copy of the reduction in force notice at any time after the receipt of
the specific reduction in force notice, but not later than 90 days
after the date of separation, furlough for more than 30 days, or
demotion.
(ii) Eligibility on the OPM priority referral list expires 2 years
after the effective date of the reduction in force action.
(iii) Referral and selection of administrative law judges are made
without regard to selective certification or special qualification
procedures.
(iv) Termination of eligibility on the OPM priority referral list
takes place when an administrative law judge submits a written request
to terminate eligibility, accepts a permanent full-time administrative
law judge position, or declines one full-time employment offer as an
administrative law judge at or above the level held when reached for
reduction in force at geographic locations previously indicated as
acceptable.
(3) With OPM's prior approval, when there is no administrative law
judge available on the agency's reemployment priority list, an agency
may fill a vacant administrative law judge position through any of the
following methods:
(i) OPM's administrative law judge priority referral list;
(ii) Reassignment from within the agency; or
(iii) Competitive examining, promotion, transfer, or reinstatement
procedures; provided that the proposed candidate possesses experience
and qualifications superior to an available displaced administrative
law judge(s) on OPM's priority referral list.
Sec. 930.211 Actions against administrative law judges.
(a) Procedures. An agency may remove, suspend, reduce in level,
reduce in pay, or furlough for 30 days or less an administrative law
judge only for good cause established and determined by the Merit
Systems Protection Board on the record and after opportunity for a
hearing before the Board as prescribed in 5 U.S.C. 7521 and 5 CFR part
1201. Procedures for adverse actions by agencies under part 752 of this
chapter do not apply to actions against administrative law judges.
(b) Status during removal proceedings. In exceptional cases when
there are circumstances in which the retention of an administrative law
judge in his or her position, pending adjudication of the existence of
good cause for his or her removal, is detrimental to the interests of
the Federal Government, the agency may:
(1) Assign the administrative law judge to duties consistent with
his or her normal duties in which these conditions would not exist;
(2) Place the administrative law judge on leave with his or her
consent;
(3) Carry the administrative law judge on annual leave, sick leave,
leave without pay, or absence without leave, as appropriate, if he or
she is voluntarily absent for reasons not originating with the agency;
or
(4) If the alternatives in paragraphs (b)(1) through (b)(3) of this
section are not available, the agency may consider placing the
administrative law judge in a paid non-duty or administrative leave
status.
(c) Exceptions from procedures. The procedures in paragraphs (a)
and (b) of this section do not apply:
(1) In making dismissals or taking other actions under 5 CFR parts
5 and 731;
(2) In making dismissals or other actions made by agencies in the
interest of national security under 5 U.S.C. 7532;
(3) To reduction in force actions taken by agencies under 5 U.S.C.
3502; or
[[Page 75752]]
(4) In any action initiated by the Office of Special Counsel under
5 U.S.C. 1215.
[FR Doc. 05-24286 Filed 12-16-05; 9:42 am]
BILLING CODE 6325-39-P