Examining System and Programs for Specific Positions and Examinations (Miscellaneous), 75745-75752 [05-24286]
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Proposed Rules
Federal Register
Vol. 70, No. 244
Wednesday, December 21, 2005
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.
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Parts 337 and 930
RIN 3206–AK86
Examining System and Programs for
Specific Positions and Examinations
(Miscellaneous)
Office of Personnel
Management.
ACTION: Proposed rule.
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AGENCY:
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this chapter, update outdated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:
https://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
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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 § 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
§§ 930.203b, ‘‘Title of administrative
law judge,’’ and 930.212, ‘‘Rotation of
administrative law judges,’’ to § 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 § 930.201. Currently, the
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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 § 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 § 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 § 930.201, ‘‘Coverage,’’ to
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§ 930.203, ‘‘Cost of competitive
examination.’’ Paragraph (c) discusses
the financial responsibility for the
Administrative Law Judge Program. By
adding paragraph (c) to § 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 § 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
§ 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
§ 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 § 930.203 of this subpart. The
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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 § 930.203a,
‘‘Appointment,’’ as § 930.204,
‘‘Appointments and conditions of
employment.’’ We also propose to move
paragraphs (b), (c), and (e) of § 930.203a,
‘‘Appointment,’’ and §§ 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 § 930.208,
‘‘Restoration’’ from this regulation. Part
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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,
§ 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 § 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
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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
§ 930.210, ‘‘Pay’’ as section 930.205,
‘‘Administrative law judge pay system.’’
We propose to delete paragraphs (j)
through (m) of current § 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
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administrative law judge position at
level AL–3. Under § 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 § 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
§ 930.211 (as redesignated), or if agreed
upon by the administrative law judge
and with OPM’s approval.
We propose to redesignate the
existing § 930.211 as § 930.206,
‘‘Performance rating and awards,’’ and
to move paragraph (b) of existing
§ 930.210, ‘‘Pay,’’ to § 930.206. This
change consolidates the information on
performance rating and awards into one
section.
We propose to redesignate § 930.209
as § 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 § 930.213,
‘‘Use of administrative law judges on
detail from other agencies,’’ as
§ 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 § 930.216,
‘‘Temporary reemployment: senior
administrative law judges,’’ as
§ 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 § 930.208 (as redesignated).
We also are clarifying the employment
limitation for reemployed
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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 § 930.215,
‘‘Reduction in force,’’ as § 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 § 930.214,
‘‘Actions against administrative law
judges,’’ as § 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
930.201 ......................
930.201(a) .................
930.201(b) .................
930.201(c) .................
930.201(d) .................
930.201(e)(1) through
(9).
930.201(f)(1) and (2)
930.201(f)(2)(i) ...........
930.202 ......................
Administrative Law
Judge Position.
Agency .......................
Detail .........................
Removal ....................
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Old section
930.201.
930.201(a).
930.201(b).
930.203b.
New.
New.
New.
930.212.
930.202.
930.202(c).
930.202(a).
930.202(b).
930.202(d) (Removed).
930.202(e) (Removed).
930.202(f).
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DERIVATION TABLE FOR 5 CFR 930
SUBPART B—Continued
New section
Senior Administrative
Law Judge.
Superior Qualifications
930.203 ......................
930.204 ......................
930.204(a) .................
930.204(b) .................
930.204(c) .................
930.204(c)(1) .............
930.204(c)(2) .............
930.204(c)(3) .............
930.204(c)(4) .............
930.204(d) .................
930.204(e) .................
930.204(f) ..................
930.204(g) .................
930.204(h) .................
930.205 ......................
930.205(f)(2) ..............
930.205(i) ..................
930.206 ......................
930.206(a) .................
930.206(b) .................
930.207 ......................
930.208 ......................
930.209 ......................
930.210 ......................
930.211 ......................
Old section
930.216(a)(2).
930.210(g)(2).
930.201(c).
930.203a.
930.203a(a) and (b).
New.
930.203a(c).
930.203a(c)(1).
930.203a(c)(2).
930.203a(c)(3) (Revised).
930.203a(c)(4) (Revised).
930.203a(d) (Removed).
930.203a(e).
930.204 (Revised).
930.205 (Revised).
930.207 (Revised).
930.206 (Revised).
930.208 (Removed).
930.210.
930.210(g)(2).
New.
930.210(j) through
(m) (Removed).
New title.
930.211.
930.210(b).
930.209.
930.213.
930.216.
930.215.
930.214.
Executive Order 12866, Regulatory
Review
This proposed rule has been reviewed
by the Office of Management and
Budget in accordance with Executive
Order 12866.
Regulatory Flexibility Act
I certify that these regulations would
not have a significant economic impact
on a substantial number of small entities
(including small businesses, small
organizational units, and small
governmental jurisdictions) because
they would affect only some Federal
agencies and employees.
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 § 337.101(a) to read as
follows:
§ 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
Administrative practice and
procedure, Computer technology,
Government employees, Motor vehicles.
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List of Subjects in 5 CFR Parts 337 and
930
§ 930.201
U.S. Office of Personnel Management.
Linda M. Springer,
Director.
Accordingly, OPM is proposing to
amend 5 CFR parts 337 and 930 as
follows:
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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
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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 § 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
§ 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.
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(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
§ 930.205; and
(iii) Ensuring the independence of the
administrative law judge.
§ 930.202
Definitions.
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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 § 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.
§ 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
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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.
§ 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
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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.
§ 930.205
system.
Administrative law judge pay
(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
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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.
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The agency may offer a higher than
minimum rate to:
(i) An administrative law judge
applicant with superior qualifications
(as defined in § 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
§ 930.211 or if the administrative law
judge voluntarily consents in writing to
the reduction and with prior OPM
approval.
§ 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.
§ 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
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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.
§ 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.
§ 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 § 930.204(b); and
(3) Suitability requirements in 5 CFR
parts 5 and 731.
(c) Under the Senior Administrative
Law Judge Program, OPM authorizes
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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
§ 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.
§ 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.
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(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
§ 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
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75751
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.
§ 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
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(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
NUCLEAR REGULATORY
COMMISSION
10 CFR Part 35
[Docket No. PRM–35–18]
Peter G. Crane; Receipt of Petition for
Rulemaking
Nuclear Regulatory
Commission.
ACTION: Petition for rulemaking; Notice
of receipt.
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AGENCY:
SUMMARY: The Nuclear Regulatory
Commission (NRC) has received and
requests public comment on a petition
for rulemaking filed by Peter G. Crane
(petitioner). The petition has been
docketed by the NRC and has been
assigned Docket No. PRM–35–18. The
petitioner is requesting that the NRC
amend the regulation that governs
medical use of byproduct material
concerning release of individuals who
have been treated with radio
pharmaceuticals. The petitioner believes
that this regulation is defective on legal
and policy grounds. The petitioner
requests that the patient release rule be
partially revoked to not allow patients
to be released from radioactive isolation
with more than the equivalent of 30
millicuries of radioactive iodine I–131
in their bodies.
DATES: Submit comments by March 6,
2006. Comments received after this date
will be considered if it is practical to do
so, but assurance of consideration
cannot be given except as to comments
received on or before this date.
ADDRESSES: You may submit comments
by any one of the following methods.
Please include the following number
(PRM–35–18) in the subject line of your
comments. Comments on petitions
submitted in writing or in electronic
form will be made available for public
inspection. Because your comments will
not be edited to remove any identifying
or contact information, the NRC
cautions you against including personal
information such as social security
numbers and birth dates in your
submission.
Mail comments to: Secretary, U.S.
Nuclear Regulatory Commission,
Washington, DC 20555. Attention:
Rulemaking and Adjudications staff.
E-mail comments to: SECY@nrc.gov. If
you do not receive a reply e-mail
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confirming that we have received your
comments, contact us directly at (301)
415–1966. You may also submit
comments via the NRC’s rulemaking
Web site at https://ruleforum.llnl.gov.
Address comments about our
rulemaking Web site to Carol Gallagher,
(301) 415–5905; (e-mail cag@nrc.gov).
Comments can also be submitted via the
Federal eRulemaking Portal
http:www.regulations.gov.
Hand deliver comments to 11555
Rockville Pike, Rockville, Maryland,
between 7:30 a.m. and 4:15 p.m. on
Federal workdays.
Publicly available documents related
to this petition may be viewed
electronically on the public computers
located at the NRC Public Document
Room (PDR), O1 F21, One White Flint
North, 11555 Rockville Pike, Rockville,
Maryland. The PDR reproduction
contractor will copy documents for a
fee. Selected documents, including
comments, may be viewed and
downloaded electronically via the NRC
rulemaking Web site at https://
ruleforum.llnl.gov.
Publically available documents
created or received at the NRC after
November 1, 1999 are also available
electronically at the NRC’s Electronic
Reading Room at https://www.nrc.gov/
reading-rm/adams.html. From this
site, the public can gain entry into the
NRC’s Agencywide Documents Access
and Management System (ADAMS),
which provides text and image files of
NRC’s public documents. If you do not
have access to ADAMS or if there are
problems in accessing the documents
located in ADAMS, contact the NRC
PDR Reference staff at 1–800–397–4209,
301–415–4737 or by e-mail to
pdr@nrc.gov.
For a copy of the petition, write to
Michael T. Lesar, Chief, Rules and
Directives Branch, Division of
Administrative Services, Office of
Administration, U.S. Nuclear Regulatory
Commission, Washington, DC 20555–
0001.
FOR FURTHER INFORMATION CONTACT:
Michael T. Lesar, Office of
Administration, U.S. Nuclear Regulatory
Commission, Washington, DC 20555.
Telephone: 301–415–7163 or Toll-Free:
1–800–368–5642 or E-mail:
MTL@NRC.Gov.
SUPPLEMENTARY INFORMATION:
Background
The NRC has received a petition for
rulemaking dated September 2, 2005,
submitted by Peter G. Crane (petitioner)
entitled ‘‘Re: Petition for Partial
Revocation of the Patient Release
Criteria Rule.’’ The petitioner is an
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attorney who was formerly employed in
the NRC’s Office of the General Counsel
from 1975 until his retirement from the
NRC in 1999. The petitioner requests
that the NRC amend 10 CFR part 35,
‘‘Medical Use of Byproduct Material.’’
Specifically, the petitioner requests that
the 1997 amendment to 10 CFR 35.75,
‘‘Release of Individuals Containing
Radiopharmaceuticals or Permanent
Implants’’ (62 FR 4120; January 29, 1997
(Patient Release Criteria Rule), be
partially revoked.
The petitioner believes the Patient
Release Criteria Rule is defective on
both legal and policy grounds. The
petitioner recommends that 10 CFR
35.75 be amended to prohibit the release
of patients from radioactive isolation
with more than the equivalent of 30
millicuries of radioactive iodine-131 (I–
131) in their systems. The NRC has
determined that the petition meets the
threshold sufficiency requirements for a
petition for rulemaking under 10 CFR
2.802. The petition has been docketed as
PRM–35–18. The NRC is soliciting
public comment on the petition for
rulemaking.
Discussion of the Petition
The NRC amended its patient release
criteria in 10 CFR Part 35 in 1997 to
allow the release of patients from
licensee control who had been
administered unsealed by product
material if the total dose equivalent to
any other individual from exposure to
the released individual is not likely to
exceed 5 mSv. (0.5rem). Prior to that
time, NRC regulations required the
hospitalization of patients with the
equivalent of 30 millicuries or more of
radioactive iodine 131 (I–131) in their
systems, a dose which the petitioner
believes is consistent with the
International Basic Safety Standards on
radiation protection.
The petitioner objects to the release of
patients with more than the equivalent
of 30 millicuries of I–131 in their
systems. The petitioner clarifies that his
objection to the patient release criteria
rule is based on both legal and policy
grounds. On legal grounds, the
petitioner asserts that the 1997
rulemaking was ‘‘a sham’’ in that it was
‘‘legally tainted’’ by collusion between
the NRC staff and a petitioner.
Specifically, the petitioner asserts that a
former member of NRC’s Advisory
Committee on the Medical Uses of
Isotopes (ACMUI) who submitted a
petition for rulemaking in 1991
requesting the patient release criteria
rule, submitted the petition at the NRC
staff’s request with NRC staff assistance,
in violation of NRC regulations.
E:\FR\FM\21DEP1.SGM
21DEP1
]]>Agencies
[Federal Register Volume 70, Number 244 (Wednesday, December 21, 2005)]
[Proposed Rules]
[Pages 75745-75752]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-24286]
========================================================================
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.
========================================================================
Federal Register / Vol. 70, No. 244 / Wednesday, December 21, 2005 /
Proposed Rules
[[Page 75745]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 337 and 930
RIN 3206-AK86
Examining System and Programs for Specific Positions and
Examinations (Miscellaneous)
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is republishing the
proposed rule published on December 13, 2005, due to information that
was inadvertently omitted. The purpose of these regulations is to
revise the Administrative Law Judge Program. The purpose of these
revisions is to remove procedures that appear in other parts of this
chapter, update outdated information, and remove the internal examining
processes from the regulations. Additionally, these revisions describe
OPM and agency responsibilities concerning the Administrative Law Judge
Program. This proposed regulation continues the basic intent of making
administrative law judges independent in matters of tenure and
compensation.
DATES: Comments must be received on or before February 21, 2006.
ADDRESSES: Send, deliver, or fax written comments to: Mr. Mark Doboga,
Deputy Associate Director for Talent and Capacity Policy, U.S. Office
of Personnel Management, Room 6551, 1900 E Street NW., Washington, DC
20415-9700; e-mail: employ@opm.gov; fax: (202) 606-2329.
Comments may also be sent through the Federal eRulemaking Portal
at: https://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).
[[Page 75748]]
Senior Administrative Law Judge........... 930.216(a)(2).
Superior Qualifications................... 930.210(g)(2).
930.203................................... 930.201(c).
930.204................................... 930.203a.
930.204(a)................................ 930.203a(a) and (b).
930.204(b)................................ New.
930.204(c)................................ 930.203a(c).
930.204(c)(1)............................. 930.203a(c)(1).
930.204(c)(2)............................. 930.203a(c)(2).
930.204(c)(3)............................. 930.203a(c)(3) (Revised).
930.204(c)(4)............................. 930.203a(c)(4) (Revised).
930.203a(d) (Removed).
930.204(d)................................ 930.203a(e).
930.204(e)................................ 930.204 (Revised).
930.204(f)................................ 930.205 (Revised).
930.204(g)................................ 930.207 (Revised).
930.204(h)................................ 930.206 (Revised).
930.208 (Removed).
930.205................................... 930.210.
930.205(f)(2)............................. 930.210(g)(2).
930.205(i)................................ New.
930.210(j) through (m)
(Removed).
930.206................................... New title.
930.206(a)................................ 930.211.
930.206(b)................................ 930.210(b).
930.207................................... 930.209.
930.208................................... 930.213.
930.209................................... 930.216.
930.210................................... 930.215.
930.211................................... 930.214.
------------------------------------------------------------------------
Executive Order 12866, Regulatory Review
This proposed rule has been reviewed by the Office of Management
and Budget in accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that these regulations would not have a significant
economic impact on a substantial number of small entities (including
small businesses, small organizational units, and small governmental
jurisdictions) because they would affect only some Federal agencies and
employees.
List of Subjects in 5 CFR Parts 337 and 930
Administrative practice and procedure, Computer technology,
Government employees, Motor vehicles.
U.S. Office of Personnel Management.
Linda M. Springer,
Director.
Accordingly, OPM is proposing to amend 5 CFR parts 337 and 930 as
follows:
PART 337--EXAMINING SYSTEM
1. The authority citation for part 337 continues to read as
follows:
Authority: 5 U.S.C. 1104(a) (2), 1302, 2302, 3301, 3302, 3304,
3319, 5364, E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; 33 FR 12423,
Sept. 4, 1968; and 45 FR 18365, Mar. 21, 1980.
Subpart A--General Provisions
2. Revise Sec. 337.101(a) to read as follows:
Sec. 337.101 Rating applicants.
(a) OPM shall prescribe the relative weights to be given subjects
in an examination, and shall assign numerical ratings on a scale of
100. Except as otherwise provided in this chapter, each applicant who
meets the minimum requirements for entrance to an examination and is
rated 70 or more in the examination is eligible for appointment.
* * * * *
PART 930--PROGRAMS FOR SPECIFIC POSITIONS AND EXAMINATIONS
(MISCELLANEOUS)
3. Revise subpart B to read as follows:
Subpart B--Administrative Law Judge Program
Sec.
930.201 Coverage.
930.202 Definitions.
930.203 Cost of competitive examination.
930.204 Appointments and conditions of employment.
930.205 Administrative law judge pay system.
930.206 Performance rating and awards.
930.207 Details and assignments to other duties within the same
agency.
930.208 Administrative Law Judge Loan Program--detail to other
agencies.
930.209 Senior Administrative Law Judge Program.
930.210 Reduction in force.
930.211 Actions against administrative law judges.
Authority: 5 U.S.C. 1104(a)(2), 1302(a), 1305, 3105, 3323(b),
3344, 4301(2)(D), 5372, 7521, and E.O. 10577, 3 CFR, 1954-1958
Comp., p. 219.
Subpart B--Administrative Law Judge Program
Sec. 930.201 Coverage.
(a) This subpart applies to individuals appointed under 5 U.S.C.
3105 for proceedings required to be conducted in accordance with 5
U.S.C. 556 and 557 and to administrative law judge positions.
(b) Administrative law judge positions are in the competitive
service. Except as otherwise stated in this subpart, the rules and
regulations applicable to positions in the competitive service apply to
administrative law judge positions.
(c) The title ``administrative law judge'' is the official title
for an administrative law judge position. Each agency must use only
this title for personnel, budget, and fiscal purposes.
(d)The Director of OPM, or designee, shall prescribe the
examination methodology in the design of each administrative law judge
examination.
(e) OPM does not hire administrative law judges for other agencies
but has authority to:
(1) Recruit and examine applicants for administrative law judge
positions, including developing and administering the administrative
law judge examinations under 5 U.S.C. 1104(a)(2), except OPM is not
required to use the examination scoring process in 5 CFR 337.101(a);
(2) Assure that decisions concerning the appointment, pay, and
tenure of administrative law judges in Federal agencies are consistent
with applicable laws and regulations;
(3) Establish classification and qualification standards for
administrative law judge positions in Federal agencies;
(4) Approve noncompetitive personnel actions for administrative law
judges, including but not limited to promotions, transfers,
reinstatements, restorations, reassignments, and pay adjustments;
(5) Approve an intra-agency detail or assignment of an
administrative law judge to a non-administrative law judge position
that lasts more than 120 days or when an administrative law judge
cumulates a total of more than 120 days for more than one detail or
assignment within the preceding 12 months;
(6) Arrange the temporary detail (loan) of an administrative law
judge from one agency to another under the provisions of the
administrative law judge loan program in Sec. 930.208;
(7) Arrange temporary reemployment of retired administrative law
judges to meet changing agency workloads under the provisions of the
senior administrative law judge program in Sec. 930.209;
(8) Maintain and administer the administrative law judge priority
referral program; and
(9) Comply with 5 U.S.C. 1305 for purposes of sections 3105, 3344,
4301(2)(D) and 5372 of title 5 U.S.C. and the provisions of section
5335(a)(B) of 5 U.S.C. that relate to administrative law judges.
[[Page 75749]]
(f) An agency employing administrative law judges under 5 U.S.C.
3105 has:
(1) Authority to appoint as many administrative law judges as
necessary for proceedings conducted under 5 U.S.C. 556 and 557; and
(2) Responsibility for:
(i) Assigning an administrative law judge to cases in rotation so
far as is practicable;
(ii) Obtaining OPM's approval before making any promotion,
transfer, detail in excess of 120 days, reinstatement, reassignment, or
restoration appointments to an administrative law judge position,
employment of senior administrative law judges, or pay adjustments as
required under Sec. 930.205; and
(iii) Ensuring the independence of the administrative law judge.
Sec. 930.202 Definitions.
In this subpart:
Administrative law judge position means a position in which any
portion of the duties requires the appointment of an administrative law
judge under 5 U.S.C. 3105.
Agency has the same meaning given in 5 U.S.C. 551(1).
Detail means the temporary assignment of an administrative law
judge from one position to another administrative law judge position
without change in civil service or pay status.
Removal means the involuntary separation of an administrative law
judge from employment as an administrative law judge or employment with
an agency.
Senior administrative law judge means a retired administrative law
judge who is reemployed under a temporary appointment under 5 U.S.C.
3323(b)(2) and Sec. 930.209.
Superior qualifications means an appointment made at a rate above
the minimum rate based on such qualifications that may include, but are
not restricted to, experience practicing law before the hiring agency;
experience practicing before another forum in a field of law relevant
to the hiring agency; outstanding reputation among others in a field of
law relevant to the hiring agency; or special skills that will meet a
demonstrated need of the hiring agency.
Sec. 930.203 Cost of competitive examination.
Each agency employing administrative law judges must reimburse OPM
for the cost of developing, examining, and administering the
administrative law judge examinations. Each agency is charged a pro
rata share of the examination cost, based on the actual number of
administrative law judges the agency employs. OPM computes the cost of
the examination program on an annual basis and notifies the employing
agencies of their respective shares after the calculations are made.
Sec. 930.204 Appointments and conditions of employment.
(a) Appointment. An agency may appoint an individual to an
administrative law judge position only with prior approval of OPM,
except when it makes its selection from the list of eligibles provided
by OPM. An administrative law judge receives a career appointment and
is exempt from the probationary period requirements.
(b) Licensure. At the time of application and any new appointment
and while serving as an administrative law judge, the individual must
possess a professional license to practice law under the laws of a
State, the District of Columbia, the Commonwealth of Puerto Rico, or
any territorial court established under the United States Constitution.
Judicial status is acceptable in lieu of ``active'' status in States
that prohibit sitting judges from maintaining ``active'' status to
practice law. Being in ``good standing'' is also acceptable in lieu of
``active'' status in States where the licensing authority considers
``good standing'' as having a current license to practice law.
(c) Appointment of incumbents of newly classified administrative
law judge positions. An agency may give an incumbent employee an
administrative law judge career appointment if that employee is serving
in the position when it is classified as an administrative law judge
position on the basis of legislation, Executive order, or a decision of
a court and if:
(1) The employee has competitive status or is serving in an
excepted position under a permanent appointment;
(2) The employee is serving in an administrative law judge position
on the day the legislation, Executive order, or decision of the court
on which the classification of the position is based becomes effective;
(3) OPM receives a recommendation for the employee's appointment
from the agency concerned; and
(4) OPM determines the employee meets the qualification
requirements and has passed the current examination for an
administrative law judge position.
(d) Appointment of an employee of non-administrative law judge
positions. Except as provided for in paragraphs (a) and (c) of this
section, an agency may not appoint an employee who is serving in a
position other than an administrative law judge position to an
administrative law judge position.
(e) Promotion. (1) Except as otherwise stated in this subpart, 5
CFR part 335 applies in the promotion of administrative law judges.
(2) To reclassify an administrative law judge position at a higher
level, the agency must submit a request to OPM. When OPM approves the
higher level classification, OPM will direct the promotion of the
administrative law judge occupying the position prior to the
reclassification.
(f) Reassignment. Prior to OPM's approval, the agency must provide
a bona fide management reason for the reassignment.
(g) Reinstatement. An agency may reinstate a former administrative
law judge who has served under 5 U.S.C. 3105, meets the qualification
requirements, and has passed either the current or immediately
preceding administrative law judge examination.
(h) Transfer. An agency may not transfer an individual from one
administrative law judge position to another administrative law judge
position sooner than 1 year after the individual's last appointment,
unless the gaining and losing agencies agree to the transfer.
Sec. 930.205 Administrative law judge pay system.
(a) OPM assigns each administrative law judge position in one of
the three grades or levels of basic pay, AL-3, AL-2 or AL-1, of the
administrative law judge pay system established under 5 U.S.C. 5372 in
accordance with this section. Pay level AL-3 has six rates of basic
pay, A, B, C, D, E, and F.
(1) The rate of basic pay for AL-3, rate A, may not be less than 65
percent of the rate of basic pay for level IV of the Executive
Schedule. The rate of basic pay for AL-1 may not exceed the rate for
level IV of the Executive Schedule.
(2) The President determines the appropriate adjustment for each
level in the administrative law judge pay system, subject to paragraph
(a)(1) of this section. Such adjustments take effect on the first day
of the first pay period beginning on or after the first day of the
month in which adjustments in the General Schedule rates of basic pay
under 5 U.S.C. 5303 take effect.
(3) An agency must use the following procedures to convert an
administrative law judge's annual rate of basic pay to an hourly,
daily, weekly, or biweekly rate:
(i) To derive an hourly rate, divide the annual rate of pay by
2,087 and round
[[Page 75750]]
to the nearest cent, counting one-half cent and over as the next higher
cent.
(ii) To derive a daily rate, multiply the hourly rate by the number
of daily hours of service required by the administrative law judge's
basic daily tour of duty.
(iii) To derive a weekly or biweekly rate, multiply the hourly rate
by 40 or 80, respectively.
(b) Pay level AL-3 is the basic pay level for administrative law
judge positions filled through a competitive examination.
(c) Subject to OPM approval, agencies may establish administrative
law judge positions in pay levels AL-2 and AL-1. Administrative law
judge positions are placed at these levels when they involve
significant administrative and managerial responsibilities.
(d) Administrative law judges must serve at least 1 year in each AL
pay level, or in an equivalent or higher level in positions in the
Federal service, before advancing to the next higher level and may
advance only one level at a time.
(e) Except as provided in paragraph (f) of this section, upon
appointment to an administrative law judge position placed in level AL-
3, an administrative law judge is paid at the minimum rate A of AL-3.
He or she is automatically advanced successively to rates B, C, and D
of that level upon completion of 52 weeks of service in the next lower
rate, and to rates E and F of that level upon completion of 104 weeks
of service in the next lower rate. Time in a non-pay status is
generally creditable service when computing the 52-week period as long
as it does not exceed 2 weeks per year for each 52 weeks of service.
However, absence due to uniformed service or compensable injury is
fully creditable upon reemployment as provided in part 353 of this
chapter.
(f) Upon appointment to a position at AL-3, an administrative law
judge may be paid at the minimum rate A, unless the administrative law
judge is eligible for a higher rate B, C, D, E, or F because of prior
service or superior qualifications, as provided in paragraphs (f)(1)
and (f)(2) of this section.
(1) An agency may offer an administrative law judge applicant with
prior Federal service a higher than minimum rate up to the lowest rate
of basic pay that equals or exceeds the applicant's highest previous
Federal rate of basic pay, not to exceed the maximum rate F.
(2) With prior OPM approval, an agency may pay the rate of pay that
is next above the applicant's existing pay or earnings up to the
maximum rate F. The agency may offer a higher than minimum rate to:
(i) An administrative law judge applicant with superior
qualifications (as defined in Sec. 930.202) who is within reach for
appointment from an administrative law judge certificate of eligibles;
or
(ii) A former administrative law judge with superior qualifications
who is eligible for reinstatement.
(g) With prior OPM approval, an agency, on a one-time basis, may
advance an administrative law judge in an AL-3 position with added
administrative and managerial duties and responsibilities one rate
above the administrative law judge's current AL-3 pay rate, up to the
maximum rate F.
(h) Upon appointment to an administrative law judge position placed
at AL-2 or AL-1, an administrative law judge is paid at the established
rates for those levels.
(i) An employing agency may reduce the level or rate of basic pay
of an administrative law judge under Sec. 930.211 or if the
administrative law judge voluntarily consents in writing to the
reduction and with prior OPM approval.
Sec. 930.206 Performance rating and awards.
(a) An agency may not rate the job performance of an administrative
law judge.
(b) An agency may not grant any award or financial incentives under
5 U.S.C. 4502, 4503, or 4504 to an administrative law judge.
Sec. 930.207 Details and assignments to other duties within the same
agency.
(a) An agency may detail an administrative law judge from one
administrative law judge position to another administrative law judge
position within the same agency in accordance with 5 U.S.C. 3341.
(b) An agency may not detail an employee who is not an
administrative law judge to an administrative law judge position.
(c) An agency may assign an administrative law judge to perform
non-administrative law judge duties only when:
(1) The other duties are consistent with administrative law judge
duties and responsibilities;
(2) The assignment is to last no longer than 120 days; and
(3) The administrative law judge has not had a total of more than
120 days of such assignments or details within the preceding 12 months.
(d) OPM may authorize a waiver of paragraphs (c)(2) and (c)(3) of
this section if an agency shows that it is in the public interest to do
so. In determining whether a waiver is justified, OPM may consider, but
is not restricted to considering, such factors as unusual case load or
special expertise of the detailee.
Sec. 930.208 Administrative Law Judge Loan Program--detail to other
agencies.
(a) In accordance with 5 U.S.C. 3344, OPM administers an
Administrative Law Judge Loan Program that coordinates the loan/detail
of an administrative law judge from one agency to another. An agency
may request from OPM the services of an administrative law judge if the
agency is occasionally or temporarily insufficiently staffed with
administrative law judges, or an agency may loan the services of its
administrative law judges to other agencies if there is insufficient
work to fully occupy the administrative law judges' work schedule.
(b) An agency's request to OPM for the services of an
administrative law judge must:
(1) Identify and briefly describe the nature of the cases(s) to be
heard;
(2) Specify the legal authority for which the use of an
administrative law judge is required; and
(3) Demonstrate, as appropriate, that the agency has no
administrative law judge available to hear the case(s).
(c) The services of an administrative law judge under this program
are made from the starting date of the detail until the end of the
current fiscal year, but may be extended into the next fiscal year with
OPM's approval. Decisions for an extension are made by OPM on a case-
by-case basis.
(d) The agency requesting the services of an administrative law
judge under this program is responsible for reimbursing the agency that
employs the administrative law judge for the cost of the service.
Sec. 930.209 Senior Administrative Law Judge Program.
(a) OPM administers a Senior Administrative Law Judge Program in
accordance with 5 U.S.C. 3323(b)(2). The Senior Administrative Law
Judge Program is subject to the requirements and limitations in this
section.
(b) A senior administrative law judge must meet the:
(1) Annuitant requirements under 5 U.S.C. 3323;
(2) Professional license requirement in Sec. 930.204(b); and
(3) Suitability requirements in 5 CFR parts 5 and 731.
(c) Under the Senior Administrative Law Judge Program, OPM
authorizes
[[Page 75751]]
agencies that have temporary, irregular workload requirements for
conducting proceedings in accordance with 5 U.S.C. 556 and 557 to
temporarily reemploy administrative law judge annuitants. If OPM is
unable to identify an administrative law judge under Sec. 930.208 who
meets the agency's qualification requirements, OPM will approve the
agency's request.
(d) An agency wishing to temporarily reemploy an administrative law
judge must submit a written request to OPM. The request must:
(1) Identify the statutory authority under which the administrative
law judge is expected to conduct proceedings;
(2) Demonstrate the agency's temporary or irregular workload
requirements for conducting proceedings;
(3) Specify the tour of duty, location, period of time, or
particular cases(s) for the requested reemployment; and
(4) Describe any special qualifications the retired administrative
law judge possesses that are required of the position, such as
experience in a particular field, agency, or substantive area of law.
(e) OPM establishes the terms of the appointment for a senior
administrative law judge. The senior administrative law judge may be
reemployed either for a specified period not to exceed 1 year or for
such time as may be necessary for the senior administrative law judge
to conduct and complete the hearing and issue decisions for one or more
specified cases. Upon agency request, OPM may reduce or extend such
period of reemployment, as necessary, to coincide with changing
staffing requirements.
(f) A senior administrative law judge serves subject to the same
limitations as any other administrative law judge employed under this
subpart and 5 U.S.C. 3105.
(g) A senior law judge is paid the rate of basic pay for the pay
level at which the position has been classified. If the position is
classified at pay level AL-3, the senior administrative law judge is
paid the lowest rate of basic pay in AL-3 that equals or exceeds the
highest previous rate of basic pay attained by the individual as an
administrative law judge immediately before retirement, up to the
maximum rate F.
Sec. 930.210 Reduction in force.
(a) Retention preference regulations. Except as modified by this
section, the reduction in force regulations in part 351 of this chapter
apply to administrative law judges.
(b) Determination of retention standing. In determining retention
standing in a reduction in force, each agency lists its administrative
law judges by group and subgroups according to tenure of employment,
veterans' preference, and service date as outlined in part 351 of this
chapter. Because administrative law judges are not given performance
ratings (see Sec. 930.206), the provisions in part 351 of this chapter
referring to the effect of performance ratings on retention standing
are not applicable to administrative law judges.
(c) Placement assistance. (1) An administrative law judge who is
reached in an agency's reduction in force and receives a notification
of separation is eligible for placement assistance under the agency's
reemployment priority list established and maintained in accordance
with subpart B of part 330 of this chapter.
(2) An administrative law judge who is reached by an agency in a
reduction in force and who is notified of being separated, furloughed
for more than 30 days, or demoted, is entitled to have his or her name
placed on OPM's administrative law judge priority referral list for the
level in which last served and for all lower levels.
(i) To have his or her name placed on the OPM priority referral
list, a displaced administrative law judge must provide OPM with a
request for priority referral placement, a resume or equivalent, and a
copy of the reduction in force notice at any time after the receipt of
the specific reduction in force notice, but not later than 90 days
after the date of separation, furlough for more than 30 days, or
demotion.
(ii) Eligibility on the OPM priority referral list expires 2 years
after the effective date of the reduction in force action.
(iii) Referral and selection of administrative law judges are made
without regard to selective certification or special qualification
procedures.
(iv) Termination of eligibility on the OPM priority referral list
takes place when an administrative law judge submits a written request
to terminate eligibility, accepts a permanent full-time administrative
law judge position, or declines one full-time employment offer as an
administrative law judge at or above the level held when reached for
reduction in force at geographic locations previously indicated as
acceptable.
(3) With OPM's prior approval, when there is no administrative law
judge available on the agency's reemployment priority list, an agency
may fill a vacant administrative law judge position through any of the
following methods:
(i) OPM's administrative law judge priority referral list;
(ii) Reassignment from within the agency; or
(iii) Competitive examining, promotion, transfer, or reinstatement
procedures; provided that the proposed candidate possesses experience
and qualifications superior to an available displaced administrative
law judge(s) on OPM's priority referral list.
Sec. 930.211 Actions against administrative law judges.
(a) Procedures. An agency may remove, suspend, reduce in level,
reduce in pay, or furlough for 30 days or less an administrative law
judge only for good cause established and determined by the Merit
Systems Protection Board on the record and after opportunity for a
hearing before the Board as prescribed in 5 U.S.C. 7521 and 5 CFR part
1201. Procedures for adverse actions by agencies under part 752 of this
chapter do not apply to actions against administrative law judges.
(b) Status during removal proceedings. In exceptional cases when
there are circumstances in which the retention of an administrative law
judge in his or her position, pending adjudication of the existence of
good cause for his or her removal, is detrimental to the interests of
the Federal Government, the agency may:
(1) Assign the administrative law judge to duties consistent with
his or her normal duties in which these conditions would not exist;
(2) Place the administrative law judge on leave with his or her
consent;
(3) Carry the administrative law judge on annual leave, sick leave,
leave without pay, or absence without leave, as appropriate, if he or
she is voluntarily absent for reasons not originating with the agency;
or
(4) If the alternatives in paragraphs (b)(1) through (b)(3) of this
section are not available, the agency may consider placing the
administrative law judge in a paid non-duty or administrative leave
status.
(c) Exceptions from procedures. The procedures in paragraphs (a)
and (b) of this section do not apply:
(1) In making dismissals or taking other actions under 5 CFR parts
5 and 731;
(2) In making dismissals or other actions made by agencies in the
interest of national security under 5 U.S.C. 7532;
(3) To reduction in force actions taken by agencies under 5 U.S.C.
3502; or
[[Page 75752]]
(4) In any action initiated by the Office of Special Counsel under
5 U.S.C. 1215.
[FR Doc. 05-24286 Filed 12-16-05; 9:42 am]
BILLING CODE 6325-39-P
