This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

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new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

12947 

Vol. 72, No. 53 

Tuesday, March 20, 2007 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Parts 337 and 930 

RIN 3206–AK86 

Examining System and Programs for 

Specific Positions and Examinations 

(Miscellaneous) 

AGENCY: Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The Office of Personnel 

Management (OPM) is issuing final 

regulations to revise the Administrative 

Law Judge Program. The purpose of 

these revisions is to remove procedures 

that appear in other parts of this 

chapter, update outdated information, 

and remove the internal examining 

processes from the regulations. 

Additionally, these revisions describe 

OPM and agency responsibilities 

concerning the Administrative Law 

Judge Program. These regulations 

continue the basic intent of making 

administrative law judges independent 

in matters of appointment, tenure and 

compensation. 

DATES: This rule is effective April 19, 

2007. 

FOR FURTHER INFORMATION CONTACT: 

Linda Watson by telephone at (202) 

606–0830; by fax at (202) 606–2329; by 

TTY at (202) 418–3134; or by e-mail at 

linda.watson@opm.gov. 

SUPPLEMENTARY INFORMATION: On 

December 13, 2005, the Office of 

Personnel Management (OPM) 

published a proposed rule at 70 FR 

73646, to revise the Administrative Law 

Judge Program. On December 21, 2005, 

OPM republished the proposed rule at 

70 FR 75745 due to information that 

was inadvertently omitted. 

The administrative law judge function 

was established by the Administrative 

Procedure Act (APA) (Act of June 11, 

1946, 60 Stat. 237, as amended), which 

is codified, in relevant part, in title 5, 

United States Code (U.S.C.), at sections 

556, 557, 1305, 3105, 3344, 4301(2)(D), 

5372, and 7521. Administrative law 

judges preside in formal proceedings 

requiring a decision on the record after 

the opportunity for a hearing. The APA 

requires that this function be carried out 

in an impartial manner. To ensure 

objectivity of administrative law judges 

and to insulate them from improper 

pressure, the law made these positions 

independent of the employing agencies 

in matters of appointment, tenure, and 

compensation. 

The goal of these revised regulations 

is to streamline the existing 

administrative law judge regulations as 

prescribed in title 5, Code of Federal 

Regulations (CFR), part 930, subpart B. 

The proposed regulations remove 

redundant procedures and outdated 

information, clarify bar membership 

requirements, and provide for the 

administrative law judge examination 

process to be established in a manner 

similar to other OPM competitive 

examinations. 

During the comment period, OPM 

received written comments from six 

Federal agencies; five professional 

organizations; the exclusive bargaining 

representative of administrative law 

judges serving at the Social Security 

Administration (SSA) and the 

Department of Health and Human 

Services (HHS); and seventeen 

individuals. Based on these comments, 

OPM adopts several suggestions and 

clarifies areas where there appeared to 

be some confusion and 

misunderstanding. OPM is addressing 

the comments according to topics 

identified. 

OPM’s Authority To Administer the 

Administrative Law Judge Program 

OPM’s authority to administer the 

employment of administrative law 

judges (formerly called hearing 

examiners) was created by the APA. 

Text in section 11(1st) of the APA (5 

U.S.C. 1010(1st)) stated that agencies 

must appoint ‘‘qualified and 

competent’’ administrative law judges. 

Although former section 1010(1st) was 

replaced by 5 U.S.C. 3105 when title 5 

was enacted into positive law in 1966, 

the amendment was not substantive, 

and the requirement that administrative 

law judges be qualified and competent 

continued to apply. See Pub. L. 89–554, 

sec. 7(a), 80 Stat. 631 (the purpose of 

sections 1–6 of the 1966 Act, codifying 

title 5, was ‘‘to restate, without 

substantive change, the laws replaced 

by those sections on the effective date 

of this Act [Sept. 6, 1966]’’); H.R. Rep. 

No. 89–901, at 36 (1965) (replacement of 

5 U.S.C. 1010(1st) with 5 U.S.C. 3105 

did not effect a substantive 

amendment); S. Rep. No. 89–1380, at 55 

(1966) (same). The APA’s legislative 

history, commenting on this 

requirement, states that the Civil Service 

Commission, OPM’s forerunner, must 

‘‘fix appropriate qualifications’’ for 

administrative law judges and that the 

agencies must ‘‘seek fit persons.’’ See S. 

Rep. No. 79–572 (1945), reprinted in 

Administrative Procedure Act, 

Legislative History, 79th Congress, 

1944–46, S. Doc. No. 79–248, at 187, 215 

(1946); H.R. Rep. No. 79–1980 (1946), 

reprinted in S. Doc. No. 79–248, at 235, 

280. 

The President has the authority to set 

standards for individuals entering into 

the Federal civil service in the executive 

branch, and to prescribe rules for 

competitive examinations. 5 U.S.C. 

3301, 3304; see also Hampton v. Mow 

Sun Wong, 426 U.S. 88, 115 n.47 (1976); 

Am. Fed’n of Govt. Employees v. 

Hoffman, 543 F.2d 930, 938 (D.C. Cir. 

1976). The President delegated his 

authority to the Director of OPM 

through Executive Order 10577, Rule II, 

codified as amended in 5 CFR 2.1(a). 

Mow Sun Wong, 426 U.S. at 111; Am. 

Fed’n, 543 F.2d at 938. See also 5 U.S.C. 

1104(a)(1), reflecting the President’s 

authority to delegate the authority for 

competitive examinations to the 

Director of OPM. Additionally, Congress 

required OPM to prescribe regulations 

for competitive service examinations, 

including the administrative law judge 

examination. 5 U.S.C. 1302. See also 

Mow Sun Wong, 426 U.S. at 115 n.47. 

Under the preceding authorities, OPM is 

responsible for regulating and 

conducting competitive examinations 

for administrative law judges, and for 

establishing qualification standards for 

administrative law judge candidates and 

incumbents that promote the efficiency 

of the competitive service. 

Discussion of Comments 

Many commenters challenge OPM’s 

authority to modify the administrative 

law judge program. These commenters 


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claim that Congress established the 

administrative law judge position under 

the APA and only Congress can make 

the types of changes OPM is proposing. 

As noted above, we have identified 

authorities under which OPM 

administers the administrative law 

judge program. 

Two commenters claim that OPM 

does not have the authority to approve 

non-competitive personnel actions for 

administrative law judges, including but 

not limited to promotions, transfers, 

reinstatements, restorations, 

reassignments, and pay adjustments and 

that by doing so, OPM violates 5 U.S.C. 

7521. OPM’s authority to approve 

movement of administrative law judges 

such as promotions, reassignments, 

transfers, reinstatements, restorations, 

and pay adjustments is prescribed in the 

existing regulations in §§ 930.204 

through 930.210. These regulations are 

authorized by 5 U.S.C. 1305, which 

states that OPM may investigate and 

regulate to give effect to the provisions 

applicable to administrative law judges 

in 5 U.S.C. 3105, 3344, 4301, and 5372. 

OPM has not changed the procedures 

for approving non-competitive 

personnel actions, which ensure that 

such actions are consistent with the 

statutes cited above. 

An agency suggests OPM consider 

giving agencies the authority to 

promote, transfer, and detail 

administrative law judges in excess of 

120 days without obtaining OPM’s 

approval. The agency is concerned 

about being able to bring back a specific 

judge with the in-depth knowledge of a 

case after he or she has separated from 

the agency. OPM is not adopting this 

suggestion. OPM is responsible for 

ensuring the independence of 

administrative law judges, and OPM 

believes it can best discharge this 

obligation if it continues to approve 

these requests. Accordingly, as 

prescribed in 5 CFR part 930, subpart B, 

OPM will continue to require agencies 

to obtain OPM’s approval for noncompetitive actions such as promotions, 

reassignments, transfers, reinstatements, 

restorations, pay adjustments, and 

details in excess of 120 days. OPM also 

will continue to work with agencies to 

fill their vacant administrative law 

judge positions with qualified 

administrative law judges as promptly 

as possible. 

One commenter recognizes that OPM 

has the authority to administer the 

administrative law judge program; 

however, the commenter asserts that 

OPM does not have the authority to redelegate to agencies the authority to 

assign an administrative law judge to 

cases in rotation so far as practicable 

and to ensure the independence of the 

administrative law judge. Under the 

APA, OPM and the employing agencies 

have responsibilities related to 

administrative law judges. Although 

OPM also has the authority, pursuant to 

5 U.S.C. § 1305, to issue regulations 

concerning the requirement in 5 U.S.C. 

3105, the employing agency’s obligation 

to assign its administrative law judges to 

cases in rotation, insofar as practicable, 

arises directly under the applicable 

statute, 5 U.S.C. 3105, not pursuant to 

any re-delegation from OPM. The 

language with which the commenter 

took issue was meant to be descriptive 

rather than prescriptive. OPM is 

revising § 930.201(e) and (f) to clarify 

this point. 

Professional License Requirement 

Background 

Under the APA, administrative law 

judges preside in formal proceedings 

requiring a decision on the record after 

an opportunity for a hearing. 

Administrative law judges must be held 

to a high standard of conduct so that the 

integrity and independence of the 

administrative judiciary is preserved. 

OPM has a longstanding policy that an 

administrative law judge applicant or 

incumbent must have an active bar 

membership or a current license to 

practice law (i.e., must be both licensed 

and authorized to practice law). The 

purpose of a professional license is to 

ensure that administrative law judges, 

like attorneys, remain subject to a code 

of professional responsibility. These 

ethical requirements cannot be waived. 

Under the current ‘‘OPM Examination 

Announcement No. 318, as amended, 

Opportunities in the Federal 

Government as an Administrative Law 

Judge,’’ if an applicant wishes to apply 

for an administrative law judge position 

the applicant must possess a total of 7 

years of experience as an attorney and 

must be duly licensed and authorized to 

practice law under the laws of a State, 

the District of Columbia, the 

Commonwealth of Puerto Rico, or any 

territorial court established under the 

United States Constitution. Applicants 

must continue to be licensed and 

authorized to practice law throughout 

the selection process, including any 

period on the standing register of 

eligibles. At the time of appointment, 

the newly appointed administrative law 

judge is required to be duly licensed 

and authorized to practice law. Once 

appointed, the administrative law judge 

is expected to maintain the qualifying 

requirement for a professional license to 

practice law while serving as an 

administrative law judge in the Federal 

competitive service. Additionally, if a 

retired administrative law judge wishes 

to return to Federal Service as a senior 

administrative law judge the retired 

judge must be duly licensed and 

authorized to practice law. 

OPM is authorized to establish 

standards for competitive service 

applicants that will best promote the 

efficiency of the service. The 

requirement for administrative law 

judge applicants and incumbents to be 

both licensed and authorized to practice 

law was professionally developed, is 

supported by a job analysis, and is 

rationally related to performance in the 

position to be filled. 

The bar license requirement is based 

on the results of three job analyses of 

the administrative law judge occupation 

conducted by OPM’s Personnel 

Research Psychologists in 1990, 1999, 

and 2002. The job analyses were based 

on administrative law judge subject 

matter expert input, and developed and 

conducted in accordance with the 

Uniform Guidelines on Employee 

Selection Procedures. 

The results of these studies show that 

Integrity/Honesty is fundamental for 

performing the duties of an 

administrative law judge. In particular, 

the 2002 study documents the 

usefulness and job-relatedness of 

requiring, as minimum qualifications, 

bar membership and seven (7) years of 

certain qualifying experience. 

Accordingly, OPM has determined to 

adhere to its long-standing position that 

an administrative law judge applicant 

must demonstrate he or she is an active 

member or has judicial status that 

authorizes the practice of law and 

requires adherence to his or her State’s 

or jurisdiction’s ethical requirements. 

In meeting OPM’s goal to establish the 

administrative law judge examination 

process in a manner similar to other 

OPM competitive examinations, the 

requirement that a bar membership 

applies to both applicants and 

employees is in accordance with all 

other OPM qualification standards for 

the competitive service. Failure at any 

time (applicant or incumbent) to meet a 

minimum qualification requirement 

means the individual is not qualified to 

perform the duties of the position. 

In addition, the requirement for 

administrative law judge applicants and 

incumbents to be both licensed and 

authorized to practice law is historically 

grounded. The Federal Circuit has 

found that a qualification requirement’s 

long-standing role in administrative law 

judge selection is an important factor in 

evaluating the standard’s rationality. 

See Meeker v. Merit Sys. Protection Bd., 

319 F.3d 1368, 1378 (Fed. Cir. 2003), 


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affirming minimum qualification 

requirement of seven years of relevant 

legal experience, and noting ‘‘the 

important role that experience has 

always played in the selection of ALJs’’. 

At the time the APA was approved, 

most of the agencies and departments 

recommended to the Civil Service 

Commission, OPM’s forerunner, that a 

law degree and bar membership be 

required of candidates for 

administrative law judge positions. In 

subsequent years, a report by the 

Committee on Hearing Officers of the 

President’s Conference on 

Administrative Procedure contained 

recommendations that in addition to 

legal experience, a law degree and bar 

membership be required of all 

candidates. In the early 1960’s, 

following the recommendations by the 

President’s Administrative Conference, 

the Civil Service Commission 

established an Advisory Committee to 

review the entire program. Based on 

previous recommendations that bar 

membership be required and the nature 

of the work, the Advisory Committee 

made a similar recommendation 

indicating that the requirement would 

help ensure that candidates possessed 

the degree of expertise to perform 

satisfactorily in the job. The Civil 

Service Commission adopted the 

recommendation concerning bar 

membership and it has been a standard 

in the Program since 1964. 

Minimum qualification requirements 

do not disappear after an individual is 

appointed as an administrative law 

judge. As described in the following 

discussion of comments, a standard for 

career-entry promotes the efficiency of 

the competitive service only if it applies 

continuously to applicants and 

incumbents alike. 

Discussion of Comments 

OPM received comments opposing 

the license requirement for incumbent 

administrative law judges. A few 

commenters claim that the license 

requirement is a new qualification 

requirement; therefore, the public must 

be given an opportunity to comment on 

it. As discussed above, the license 

requirement is not a new requirement 

and the Federal Register notice 

proposing these regulations is correct in 

stating that OPM was clarifying bar 

membership. 

The first category of comments states 

that OPM exceeded its authority under 

authorizing statutes. This is incorrect. 

The President has the power to establish 

qualifications and conditions of 

employment in the competitive service 

under 5 U.S.C. 3301 and 3304, and has 

delegated this standard-setting authority 

to OPM under Executive Order 10577, 

Rule II, codified as amended in 5 CFR 

2.1(a). See also 5 U.S.C. 1104(a)(1). OPM 

is required by 5 U.S.C. 1302 to 

promulgate regulations for competitive 

service examinations implementing 

Rule II. The Supreme Court and the 

District of Columbia Circuit have ruled 

that where OPM promulgates a standard 

under 5 U.S.C. 3301 and 5 CFR 2.1(a), 

OPM requires no further statutory or 

executive authority for its action. See 

Mow Sun Wong, 426 U.S. at 113 

(holding that where OPM promulgates a 

standard under 5 U.S.C. 3301 and Rule 

II, it ‘‘may either retain or modify the 

* * * requirement without further 

authorization from Congress or the 

President’’); Hoffman, 543 F.2d at 941 

n.17 (same). It is nonetheless notable 

that Congress also expressed its specific 

intent in the legislative history of 

section 11 of the APA that OPM be 

responsible for fixing standards to 

ensure that qualified and competent 

administrative law judges are 

appointed. 

Several commenters state that while 

OPM has the statutory authority to 

establish qualifications for 

administrative law judge applicants and 

appointees, including ‘‘active’’ bar 

membership requirements, OPM’s 

authority does not extend to incumbent 

administrative law judges. Under 

controlling District of Columbia Circuit 

case law, OPM’s authority under 5 

U.S.C. 3301 and 5 CFR 2.1(a) extends to 

establishing ongoing ‘‘conditions of 

employment for civil servants in the 

executive branch,’’ not just appointment 

qualifications. Hoffman, 543 F.2d at 

938. A standard for career entry 

promotes the efficiency of the 

competitive service only if it applies 

continuously to applicants and 

incumbents alike. 

According to a second category of 

comments, even if OPM has the 

authority to impose a license 

requirement, its implementation is too 

broad and not rationally related to 

OPM’s goals. These commenters assert 

that the representative licensing 

jurisdictions allow incumbent judges to 

take an inactive, judicial, or retired 

status on grounds that they are not 

actively engaged in the practice of law, 

so there is no rational basis for OPM to 

require ‘‘active’’ bar status or a current 

license to practice law. Some 

commenters assert that inactive, 

judicial, or retired status would 

continue to subject the incumbent to 

appropriate State bar disciplinary 

oversight while exempting them from 

potentially burdensome fees, continuing 

legal education requirements, and 

reexamination requirements. One 

commenter asserts that by taking 

judicial status in lieu of ‘‘active’’ status, 

an administrative law judge 

appropriately remains subject to 

discipline under State codes of judicial 

conduct, even if the administrative law 

judge is no longer subject to rules of 

professional responsibility applicable to 

practicing attorneys. Another 

commenter asserts, conversely, that 

administrative law judges should be 

allowed to maintain an inactive status 

specifically so that they will not be 

subject to disciplinary oversight by State 

licensing authorities. Two commenters 

recommend that if the ‘‘active’’ bar 

membership or current license 

requirement is adopted, it should be 

phased in to allow all incumbent 

administrative law judges time to come 

into compliance because of the potential 

financial burden associated with a 

change in bar status in some 

jurisdictions. 

We disagree with these comments and 

recommendations because application 

of the ‘‘active’’ bar membership or 

current license requirement to both 

applicant and incumbent administrative 

law judges promotes the efficiency of 

the competitive service. Moreover, as it 

is not a new requirement, a transition 

period is not needed. 

According to a third category of 

comments, the license requirement will 

cause administrative law judges to 

violate State law. Several commenters 

state that requiring incumbent 

administrative law judges to maintain a 

current license to practice law may 

cause administrative law judges to 

violate a provision of the Model Code of 

Judicial Conduct that bars judges from 

the practice of law. This argument is 

misplaced. Canon 4G of the Model Code 

and related Commentary, when 

incorporated in the law of the relevant 

licensing jurisdiction, prohibits a judge 

only from practicing law ‘‘in a 

representative capacity,’’ and does not 

prohibit, or in any way restrict, a judge 

from maintaining a current license to 

practice law. In addition, the final 

regulations accommodate State law by 

allowing an administrative law judge to 

take judicial status where he or she is 

prohibited by State law from taking 

‘‘active’’ status. 

A fourth category of comments raises 

a concern that the regulations subject 

administrative law judges to 

overlapping ethics and license 

requirements. The commenters state a 

concern that if incumbent 

administrative law judges are required 

to maintain ‘‘active’’ bar membership or 

a current license to practice law, they 

may, under 28 U.S.C. 530B(a), be subject 

to both the rules of professional 


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12950 Federal Register / Vol. 72, No. 53 / Tuesday, March 20, 2007 / Rules and Regulations 

responsibility applicable to attorneys 

practicing in the jurisdiction where the 

administrative law judge conducts 

proceedings, and the rules of 

professional responsibility of the 

jurisdiction where the administrative 

law judge is licensed. Pursuant to 28 

U.S.C. 530B(c) and the Department of 

Justice’s implementing regulations in 28 

CFR 77.2(a), 28 U.S.C. 530B(a) applies 

only to certain Department of Justice 

and Independent Counsel officials, and 

plainly does not apply to any 

administrative law judge performing a 

function under 5 U.S.C. 3105. 

A fifth category of comments states 

that the license requirement violates 

Federalism principles. Two commenters 

assert that requiring incumbent 

administrative law judges to maintain a 

current license to practice law 

constitutes a Federal infringement on 

the States’ regulation of the legal 

profession. OPM does not assert in these 

regulations the authority to preempt 

State laws governing the licensing of 

attorneys. Rather, OPM’s regulations 

establish a minimum qualification 

requirement for an administrative law 

judge position in the Federal 

competitive service that incorporates 

relevant State license requirements. In 

fact, OPM’s regulations avoid conflict 

with State license requirements by 

allowing administrative law judges to 

take a judicial status where State law 

prohibits an ‘‘active’’ status. 

One commenter asserts that requiring 

incumbent administrative law judges to 

maintain a current license to practice 

law in essence gives OPM the authority 

to make licensing determinations 

currently made by the States. OPM is 

not asserting or exercising any authority 

to license the legal profession in these 

regulations. 

Certain commenters express a concern 

that by requiring administrative law 

judges to maintain an ‘‘active’’ bar 

membership or license to practice law, 

OPM is defining administrative law 

judges as persons engaged in the 

practice of law while performing their 

official duties. This interpretation is not 

OPM’s position and it is not supported 

by the text of these regulations. 

A sixth category of comments states 

that the license requirement will allow 

collateral attacks on administrative 

proceedings and actions against 

administrative law judges. Specifically, 

an agency is concerned that an 

incumbent administrative law judge’s 

failure to meet the license requirement 

would encourage a disappointed litigant 

to collaterally attack the administrative 

proceedings over which the 

administrative law judge presides, and 

could subject the presiding 

administrative law judge to State bar 

complaints related to official 

adjudicative duties, even though under 

Supreme Court case law, administrative 

law judges are immune from lawsuits 

related to the performance of their 

official duties. This comment is 

addressed to the commenter’s 

perception of litigation risk associated 

with including this longstanding 

requirement in the revised regulations, 

rather than the merits or 

appropriateness of the requirement per 

se. Accordingly, OPM has disregarded 

this comment. 

A seventh category of comments 

asserts that the requirement for ‘‘active’’

bar membership or a current license to 

practice law has a retroactive legal 

effect. OPM disagrees. As OPM has 

repeatedly stated, these regulations 

clarify an existing requirement. They 

have prospective legal effect, consistent 

with 5 U.S.C. 551(4) and Bowen v. 

Georgetown Univ. Hosp., 488 U.S. 204, 

208 (1988). 

The final category of comments 

asserts that the license requirement is 

unconstitutional. Specifically, a 

commenter asserts that requiring an 

incumbent administrative law judge to 

maintain an ‘‘active’’ bar membership or 

current license to practice law 

potentially violates the 5th Amendment. 

OPM disagrees. The license requirement 

does not effect a deprivation of life, 

liberty, or property without due process 

of law. Further, this requirement does 

not raise an equal protection concern 

because it does not constitute a 

classification adversely affecting a 

category of regulated persons without a 

rational basis. 

OPM has considered all the comments 

submitted by individuals, professional 

organizations, agencies, and the 

exclusive bargaining representative for 

administrative law judges at SSA and 

HHS. OPM has not received any 

compelling argument to change its 

policy on the professional license 

requirement for administrative law 

judges. As we have stated previously, 

this is not a new requirement but a 

clarification of a longstanding OPM 

policy that an administrative law judge 

must have an ‘‘active’’ bar membership 

or current license to practice law. The 

license requirement is a qualification 

requirement, in addition to the 

requirement for 7 years of attorney 

experience, which must be maintained 

for successful performance as an 

administrative law judge. It is an ongoing permanent requirement for any 

individual serving in an administrative 

law judge position. 

Consequently, to ensure that the 

professional license requirement is 

maintained, OPM is incorporating the 

professional license requirement in 

§ 930.204(b) of these regulations and as 

a Condition of Employment in the 

Qualification Standard for 

Administrative Law Judges, which 

applies to both applicants and 

incumbents. OPM will also incorporate 

the requirement in the new 

administrative law judge vacancy 

announcement. The final rule expressly 

reaffirms OPM’s longstanding 

requirement that an administrative law 

judge possess a professional license to 

practice law and be authorized to 

practice law. The requirement attaches 

at the time of application. If the 

applicant is determined to be eligible, 

the requirement continues to apply 

while the applicant is on the 

administrative law judge competitive 

register and at the time of appointment. 

Following appointment, the 

requirement continues to apply for as 

long as the appointee continues to serve 

as an administrative law judge. The 

requirement would also apply at the 

time of application to serve and while 

serving as a senior administrative law 

judge. 

OPM has provided two alternatives in 

lieu of ‘‘active’’ status, that is, ‘‘judicial’’

and ‘‘good standing’’ status. Judicial 

status is acceptable in States that 

prohibit sitting judges from maintaining 

an ‘‘active’’ status to practice law. Being 

in ‘‘good standing’’ is also acceptable in 

lieu of ‘‘active’’ status in States where 

the licensing authority construes ‘‘good 

standing’’ to mean having a current 

license to practice law. 

Elimination of the Administrative Law 

Judge Examination Process 

Background 

A lengthy description of the 

administrative law judge examination 

and its procedures is contained in the 

existing § 930.203. The method by 

which examinations are conducted and 

administered, however, is subject to 

periodic changes. For that reason, OPM 

has decided to remove from the 

regulations the detailed language 

describing the internal examining 

process and procedures, such as the 

language concerning periodic open 

competition, minimum qualifications, 

supplemental qualifications, 

participation in examination 

procedures, and final rating. OPM has 

concluded, based upon its experience 

and expertise, that a better vehicle for 

addressing this type of information is 

the vacancy announcement, as 

prescribed in 5 U.S.C. 3330 and 5 CFR 

part 330, and as required in all other 


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Federal Register / Vol. 72, No. 53 / Tuesday, March 20, 2007 / Rules and Regulations 12951 

competitive service vacancy 

announcements. 

Sections 1104, 1302, 3301, and 3304 

of title 5, U.S.C., authorize OPM to 

develop and administer the 

administrative law judge competitive 

examination. To maintain the relevance 

and validity of the examination, OPM 

has periodically conducted 

occupational studies of the 

administrative law judge occupation to 

revise and update elements of the 

administrative law judge examination. 

The administrative law judge 

examination should be allowed to 

evolve based on new technology and 

advances in the state of the art of 

examination methodology. In order to 

fulfill its responsibility to develop the 

administrative law judge examination in 

the optimal manner, OPM should be in 

a position to incorporate these advances 

promptly, without having to amend its 

regulations. Information on the 

examination process will be included in 

the new vacancy announcement for 

administrative law judge positions. The 

revised regulations, therefore, do not 

include detailed information about the 

examination and related processes. 

Since 1963, 5 CFR 337.101(a) has 

prescribed a general process for scoring 

competitive examinations, while 

§ 930.203 has prescribed a specialized 

process for scoring administrative law 

judge examinations, separate from the 

default process in § 337.101(a). Prior to 

1987, the administrative law judge 

scoring process was codified in 

§ 930.203(a), and § 337.101(a) contained 

a cross-reference to § 930.203(a). In 1987 

and 1991, however, OPM amended 

§ 930.203 to describe the examination 

process in additional paragraphs of that 

section, but OPM did not make a 

conforming amendment to the crossreference in § 337.101(a). Because the 

cross-reference in § 337.101(a) has been 

out-of-date for several years, and 

because the revised regulations do not 

include a detailed description of the 

examination scoring process, we are 

replacing the cross-reference with a 

more general statement that § 337.101(a) 

applies ‘‘except as otherwise provided 

in this chapter.’’ Section 930.201(e)(1) of 

the revised regulations, in turn, states 

that the use of the examination scoring 

process published in § 337.101(a) is not 

required in scoring the administrative 

law judge examination, consistent with 

OPM’s and the Civil Service 

Commission’s regulatory policy, since 

1963, of excepting the administrative 

law judge examination process from the 

requirements of § 337.101(a). 

Discussion of Comments 

Several commenters oppose the 

removal of the detailed description of 

the administrative law judge internal 

examination process and procedures 

from the regulations and incorporating 

the information in an administrative law 

judge vacancy announcement. The 

commenters assert that this action will 

weaken the administrative law judge 

rating and selection process to the 

detriment of the American public; may 

not provide uniformity of treatment or 

adequate opportunity for public review 

and comment, particularly where 

criteria may vary from notice to notice; 

and will be changeable at will without 

notice and comment by the public. The 

commenters suggest that OPM continue 

incorporating the examination process 

in the regulations to ensure public 

confidence, and that OPM publish any 

changes to the examination process for 

public comment, so that such changes 

can be fully evaluated. 

OPM’s course of action, in laying out 

the detailed description of the 

examination process and procedures in 

the new vacancy announcement, is 

consistent with OPM’s practice for other 

competitive examinations. There has 

never been any suggestion, in the 

statutes governing the appointment of 

administrative law judges, that the 

examination process and procedures 

were required to be encompassed in 

regulations. The examination process 

and procedures information described 

in the existing regulations are also 

described in the current ‘‘OPM 

Examination Announcement No. 318, as 

amended, Opportunities in the Federal 

Government as an Administrative Law 

Judge.’’ Any significant changes to the 

administrative law judge examination or 

examination process will be publicly 

announced in the vacancy 

announcement. In addition, OPM is 

developing a stand-alone administrative 

law judge qualification standard that 

will be described and supplemented in 

the new administrative law judge 

vacancy announcement. OPM, therefore, 

is not adopting the suggestion to retain 

the descriptive language of the 

examination process and procedures in 

the regulations. 

Several commenters express concern 

that OPM is eliminating the 

administrative law judge examination. 

OPM is not eliminating the 

administrative law judge examination; 

in fact, OPM is developing a new 

administrative law judge examination. 

One commenter identifies several 

factors that the commenter believes are 

a prerequisite to being an excellent 

candidate for an administrative law 

judge position such as decision-making, 

developing evidence, and assessing 

credibility. The commenter requests that 

OPM consider these factors in the 

examination process for selecting 

effective administrative law judge 

candidates. The commenter’s suggestion 

for specific criteria to be used for rating 

candidates in future administrative law 

judge examinations is outside the scope 

of this rulemaking and will not, 

therefore, be considered in the context 

of revising these regulations. 

Two commenters express a concern 

related to the conforming revision. The 

first comment by an agency suggests 

that the change to 5 CFR 337.101(a) is 

in conflict with § 930.201(e)(1). OPM 

disagrees. Section 337.101(a) prescribes 

a scoring process while allowing 

alternatives. Section 930.201(e)(1) gives 

OPM the option to use this scoring 

process or an alternative, depending on 

the examining methodology used to 

develop the administrative law judge 

competitive examination. The second 

commenter did not clearly state an 

objection to the revision and we 

therefore do not address it. 

Elimination of OPM Examination 

Announcement No. 318, as Amended 

Background 

The revised regulations remove any 

reference to ‘‘OPM Examination 

Announcement No. 318, as Amended, 

Opportunities in the Federal 

Government as an Administrative Law 

Judge’’ (Announcement). The 

Announcement is a vacancy 

announcement issued in 1993 and 

amended in 1996 to recruit individuals 

for administrative law judge positions in 

the Federal competitive service. It 

describes the duties of an administrative 

law judge, the rating process, qualifying 

education and experience requirements, 

the rating appeal process, and general 

information for the applicant. The 

Announcement is similar to other 

vacancy announcements used to recruit 

individuals for positions into the 

Federal Government, except that it was 

incorporated by reference in the existing 

regulations. In the existing regulations, 

the Announcement is referenced to the 

extent that it addresses meeting the 

examination or qualification 

requirements for an administrative law 

judge position. 

Discussion of Comments 

Several commenters oppose the 

removal of the reference to the 

Announcement from the regulations. 

The commenters claim OPM is 

removing the administrative law judge 

qualification requirements, omitting 


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qualifying military experience, and 

eliminating the administrative law judge 

examination. These commenters suggest 

OPM retain the Announcement in the 

regulations. 

There appears to be a 

misunderstanding among commenters 

that by eliminating the Announcement 

from the regulations, OPM is 

eliminating the qualification 

requirements for administrative law 

judges. To the contrary, § 930.201(e)(3) 

of the revised regulations specifically 

authorizes OPM to issue a qualification 

standard for administrative law judges. 

The regulations also prescribe a 

qualification requirement for ‘‘active’’

bar membership or a current license to 

practice law. OPM has separately posted 

for comment, on its Web site, a standalone qualification standard prescribing 

the proposed minimum qualification 

requirements for administrative law 

judge positions, including the bar 

license requirement. When the 

qualification requirement is finalized, it 

will again be posted on OPM’s Web site, 

consistent with OPM’s practice in 

publishing other qualification 

standards. The new administrative law 

judge vacancy announcement will 

describe the minimum qualification 

requirements for administrative law 

judge positions and provide 

supplemental information, as needed. 

OPM received a consolidated 

comment submission from the 

Departments of the Army, Air Force, 

and Navy; Headquarters, U.S. Marine 

Corps; and the Department of Homeland 

Security, U.S. Coast Guard, expressing 

concern that OPM omitted language to 

allow military experience as qualifying 

for an administrative law judge position. 

It was not OPM’s intent, in drafting its 

proposed qualification standard, to 

eliminate military experience as 

qualifying experience for an 

administrative law judge position. In 

order to make this principle more clear, 

OPM is adopting the military services’

comments to the extent necessary to 

reflect differences in terminology 

between military and civilian legal 

practice. For additional information, 

OPM has published on its Web site 

guidance on how to credit military 

experience, at http://www.opm.gov/ 

qualifications, and on veterans’

preference, at http://www.opm.gov/ 

veterans. 

Definition of Superior Qualifications 

OPM proposed to revise the definition 

of ‘‘superior qualifications’’ which is 

covered in the existing § 930.210(g)(2). 

The definition of ‘‘superior 

qualifications’’ is redesignated to 

§ 930.202 in the final regulations. 

Discussion of Comments 

Several commenters oppose the 

proposed expanded definition for 

‘‘superior qualifications.’’ The 

commenters state that OPM’s proposal 

to add the phrase ‘‘special skills that 

will meet a demonstrated need of the 

hiring agency’’ is equivalent to selective 

certification criteria and suggest OPM 

remove the phrase from the definition. 

OPM is adopting the suggestion and is 

removing this phrase from the superior 

qualifications definition. 

Definition of Removal 

OPM proposed to revise the definition 

of ‘‘removal’’ for clarity. 

Discussion of Comments 

Two commenters claim the proposed 

definition of ‘‘removal’’ violates 5 U.S.C. 

7521 because it excludes the phrase 

‘‘involuntary reassignment, demotion, 

or promotion to a position other than 

that of an administrative law judge.’’

The commenters suggest that OPM 

retain the existing definition for 

‘‘removal.’’ OPM does not object to 

keeping the existing definition for 

‘‘removal’’ and is adopting the 

suggestion. 

Administrative Law Judge Pay System 

OPM proposed to add a new 

paragraph (i) to § 930.205 to clarify that 

an agency may reduce the level or rate 

of basic pay of an administrative law 

judge for good cause after the Merit 

Systems Protection Board (MSPB) 

orders the action, as provided in 

§ 930.211, or to reduce the level of basic 

pay of an administrative law judge if 

agreed upon by the administrative law 

judge with OPM’s prior approval. The 

reason for the proposal is that OPM 

periodically receives requests from 

agencies to reduce an administrative 

law judge’s level of basic pay, based on 

the administrative law judge’s voluntary 

request for personal reasons (e.g., the 

desire for a position of less 

responsibility). These requests are 

thoroughly documented by the agency 

prior to OPM’s approval. 

Discussion of Comments 

Two commenters oppose OPM’s 

proposed revisions of § 930.205(i), 

asserting that the revisions violate 5 

U.S.C. 7521, Actions against 

administrative law judges. The 

commenters suggest that the revisions 

would allow an agency to negotiate a 

settlement agreement with the 

administrative law judge prior to an 

MSPB ‘‘good cause’’ hearing which may 

result in a voluntary request for a 

reduction in pay from the 

administrative law judge. OPM did not 

intend such a result in proposing this 

revision. OPM’s regulations governing 

administrative law judges do not 

address settlement agreements. 

In response to the comments, OPM is 

revising the proposed language to 

distinguish with greater precision 

between a reduction in an 

administrative law judge’s level or rate 

of basic pay following a disciplinary 

proceeding, governed by §§ 930.205(i) 

and 930.211, and a reduction in an 

administrative law judge’s level of basic 

pay based on a voluntary request for 

personal reasons. OPM is adding a new 

paragraph (j) to § 930.205 to describe a 

reduction in pay based on a voluntary 

request for personal reasons. 

Priority Referral List 

OPM proposed revising 

§ 930.215(c)(5) of the existing 

regulations, redesignated as 

§ 930.210(c)(3), in order to emphasize a 

hiring flexibility that allows an agency, 

with OPM’s approval, to fill its 

administrative law judge positions by 

reassigning administrative law judges 

within its workforce, in lieu of selecting 

a displaced administrative law judge on 

OPM’s priority referral list. The intent of 

this revision was to emphasize that an 

agency does have the option of selecting 

an administrative law judge from other 

than the OPM priority referral list. 

Discussion of Comments 

Three commenters oppose the 

proposed revisions of § 930.210(c)(3). 

The commenters state that the revisions 

will permit an agency to circumvent the 

use of the OPM priority referral list by 

intra-agency reassignment of 

administrative law judges or 

appointment of an administrative law 

judge from an OPM certificate of 

eligibles; that it will allow an agency to 

bypass an adversely affected 

administrative law judge who has very 

few opportunities for reappointment, 

yet who is qualified for appointment at 

all agencies and in any administrative 

law judge position at any agency; and 

that by removing the phrase 

‘‘extraordinary circumstances’’ from the 

existing regulations, the proposed 

regulations might not allow adequate 

oversight. After reviewing these 

comments, OPM is not implementing 

the proposed hiring flexibility. The 

existing provision will be restored, 

except for clarifying language 

specifically explaining that OPM has the 

authority ‘‘under extraordinary 

circumstances’’ to allow an agency to 

fill a vacant position through 

competitive examining, promotion, 

transfer, reassignment, or reinstatement 

procedures instead of selecting a 


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displaced administrative law judge from 

OPM’s priority referral list. 

One commenter suggests that OPM 

allow administrative law judges on 

OPM’s priority referral list to have two 

opportunities for declining an offer of 

full-time employment as an 

administrative law judge before the 

administrative law judge’s eligibility on 

the OPM priority referral list terminates. 

OPM disagrees with this commenter and 

is not adopting the suggestion. With the 

limited number of administrative law 

judge positions open at any given time 

and the infrequency of vacancies, OPM 

does not believe it is appropriate for a 

displaced administrative law judge to 

have more than one opportunity to 

decline an offer of full-time employment 

as an administrative law judge at the 

pay level held at the time of reduction 

in force and in the geographical location 

indicated as acceptable. OPM will 

continue its long-standing practice of 

allowing only one full-time employment 

offer declination before an 

administrative law judge is terminated 

from OPM’s priority referral list. 

Suitability 

OPM has published suitability 

regulations in 5 CFR part 731 and in the 

existing administrative law judge 

regulations in §§ 930.214(c) and 

930.216(f). The revised regulations 

clarify the suitability requirements. The 

revised provisions appear in 

§§ 930.204(a), 930.209(b)(3) and 

930.211(c)(1). 

Discussion of Comments 

Two commenters state that the 

suitability language in the revised 

§ 930.211(c)(1) is a new requirement and 

object to it. The commenters imply that 

suitability actions against administrative 

law judge applicants and incumbents 

are not consistent with 5 U.S.C. 7521, 

governing adverse actions. OPM 

disagrees. Administrative law judge 

applicants, appointees, and employees, 

like other competitive service 

applicants, appointees, and employees, 

are subject to suitability investigations 

and determinations. The adverse action 

provisions in 5 U.S.C. 7521, and the 

suitability provisions in 5 CFR parts 2, 

5, and 731 apply independently to 

administrative law judges. The 

suitability requirement is not new and 

the text of §§ 930.204(a), 930.209(b)(3) 

and 930.211(c)(1) include only 

clarifying changes. 

Performance and Incentive Awards 

The existing regulations state, at 

§ 930.210(b), ‘‘An agency may not grant 

a monetary and honorary award under 

5 U.S.C. 4503 for superior 

accomplishment by an administrative 

law judge in the performance of 

adjudicatory functions.’’ OPM removed 

the phrase ‘‘in the performance of 

adjudicatory functions’’ in redesignated 

§ 930.206(b), and added references to 5 

U.S.C. 4502 and 4504. 

Discussion of Comments 

One commenter claims OPM made a 

substantial change to the regulations on 

the granting of any award or financial 

incentives to an administrative law 

judge. The commenter insists that by 

eliminating the phrase ‘‘in the 

performance of adjudicatory functions,’’

OPM strips all possibility of any awards 

or financial incentives for an 

administrative law judge, even if the 

administrative law judge performs 

executive and management functions in 

an exemplary manner, devises an 

innovative administrative technique, or 

makes a suggestion outside the duties of 

an administrative law judge that saves 

an agency thousands of dollars. The 

commenter claims this is discriminatory 

and, therefore, urges OPM to retain the 

existing language. 

Under the APA, OPM has the 

responsibility to ensure the 

independence of an administrative law 

judge in matters of appointment, tenure, 

and compensation, as well as to ensure 

independent judgments from 

administrative law judges. See 5 U.S.C. 

1305 (authorizing OPM to regulate and 

investigate agencies to give effect to 5 

U.S.C. 3105, 3344, 4301(2)(D), and 

5372); Ramspeck v. Fed. Trial 

Examiners Conf., 345 U.S. 128, 139–142 

(1953). An award or discretionary 

financial incentive of any kind poses an 

unacceptable risk of interfering with an 

administrative law judge’s judicial 

independence, and could have the 

additional effect of circumventing the 

legal prohibition against performance 

appraisals. See 5 U.S.C. 4301(2)(D), 

§ 930.211 of OPM’s existing regulations, 

and § 930.206(a) of the final regulations 

published with this notice. By removing 

the phrase ‘‘in the performance of 

adjudicatory functions’’ from the 

regulations and adding specific 

references to 5 U.S.C. 4502 and 4504 to 

the regulations, OPM is clarifying that 

monetary or honorary awards or 

financial incentives of any kind, 

whether granted under Chapter 45 or 

other authority, are prohibited. OPM is 

not adopting the commenter’s 

suggestion, and is adding clarifying 

language to state that honorary, as well 

as monetary awards and incentives are 

prohibited. 

OPM received two opposing views on 

the issue of pay for performance for 

administrative law judges. OPM did not 

consider either view since the existing 

law does not permit administrative law 

judges to be rated on performance. 

General Comments 

One commenter suggests that all 

Federal administrative judges become 

administrative law judges for 

consistency and for the best interest of 

the public. This recommendation is 

both contrary to the requirements of the 

APA and outside the scope of these 

regulations, and cannot be considered. 

OPM received several comments 

requesting the reestablishment of an 

Office of Administrative Law Judges 

within OPM. This comment cannot be 

considered, as it concerns OPM’s 

internal management and organization, 

a matter outside the scope of these 

regulations. 

Derivative Table Comparing New 

Section Numbers in Part 930, Subpart 

B With Current Section Numbers. 

The following derivation table has 

been prepared to make it easier for 

readers to compare OPM’s new rule in 

part 930, subpart B, with the current 

regulations. 

DERIVATION TABLE FOR 5 CFR 930 

SUBPART B 

New section Current section 

930.201 ...................... 930.201. 

930.201(a) ................. 930.201(a). 

930.201(b) ................. 930.201(b). 

930.201(c) ................. 930.203b. 

930.201(d) ................. New. 

930.201(e)(1) through 

(11).

New. 

930.201(f)(1) through 

(4).

New. 

930.201(f)(2) .............. 930.212. 

930.202 ...................... 930.202. 

Administrative Law 

Judge Position.

930.202(c). 

Agency ....................... 930.202(a). 

Detail ......................... 930.202(b). 

930.202(d) (Removed). 

930.202(e) (Removed). 

Removal .................... 930.202(f). 

Senior Administrative 

Law Judge.

930.216(a)(2). 

Superior Qualifications 930.210(g)(2). 

930.203 ...................... 930.201(c). 

930.204 ...................... 930.203a. 

930.204(a) ................. 930.203a(a) and (b). 

930.204(b) ................. New. 

930.204(c) ................. 930.203a(c). 

930.204(c)(1) ............. 930.203a(c)(1). 

930.204(c)(2) ............. 930.203a(c)(2). 

930.204(c)(3) ............. 930.203a(c)(3) (Revised). 

930.204(c)(4) ............. 930.203a(c)(4) (Revised). 

930.203a(d) (Removed). 

930.204(d) ................. 930.203a(e). 


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DERIVATION TABLE FOR 5 CFR 930 

SUBPART B—Continued 

New section Current section 

930.204(e) ................. 930.204 (Revised). 

930.204(f) .................. 930.205 (Revised). 

930.204(g) ................. 930.207 (Revised). 

930.204(h) ................. 930.206 (Revised). 

930.208 (Removed). 

930.204(i) .................. New. 

930.205 ...................... 930.210. 

930.205(f)(2) .............. 930.210(g)(2). 

930.205(i) .................. New. 

930.205(j) .................. New. 

930.210(j) through 

(m) (Removed). 

930.206 ...................... New title. 

930.206(a) ................. 930.211. 

930.206(b) ................. 930.210(b). 

930.207 ...................... 930.209. 

930.208 ...................... 930.213. 

930.209 ...................... 930.216. 

930.210 ...................... 930.215. 

930.211 ...................... 930.214. 

Executive Order 12866, Regulatory 

Review 

This proposed rule has been reviewed 

by the Office of Management and 

Budget in accordance with Executive 

Order 12866. 

Regulatory Flexibility Act 

I certify that these regulations would 

not have a significant economic impact 

on a substantial number of small entities 

(including small businesses, small 

organizational units, and small 

governmental jurisdictions) because 

they would affect only some Federal 

agencies and employees. 

List of Subjects in 5 CFR Parts 337 and 

930 

Administrative practice and 

procedure, Computer technology, 

Government employees, Motor vehicles. 

U.S. Office of Personnel Management. 

Linda M. Springer, 

Director. 

■ Accordingly, OPM is amending 5 CFR 

parts 337 and 930 as follows: 

PART 337—EXAMINING SYSTEM 

■ 1. The authority citation for part 337 

is revised to read as follows: 

Authority: 5 U.S.C. 1104(a), 1302, 2302, 

3301, 3302, 3304, 3319, 5364; E.O. 10577, 3 

CFR 1954–1958 Comp., p. 218; 33 FR 12423, 

Sept. 4, 1968; and 45 FR 18365, Mar. 21, 

1980; 116 Stat. 2135, 2290; and 117 Stat 

1392, 1665. 

Subpart A—General Provisions 

■ 2. Revise § 337.101 paragraph (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), 1302(a), 1305, 

3105, 3301, 3304, 3323(b), 3344, 4301(2)(D), 

5372, 7521, and E.O. 10577, 3 CFR, 1954–

1958 Comp., p. 219. 

Subpart B—Administrative Law Judge 

Program 

§ 930.201 Coverage. 

(a) This subpart applies to individuals 

appointed under 5 U.S.C. 3105 for 

proceedings required to be conducted in 

accordance with 5 U.S.C. 556 and 557 

and to administrative law judge 

positions. 

(b) Administrative law judge positions 

are in the competitive service. Except as 

otherwise stated in this subpart, the 

rules and regulations applicable to 

positions in the competitive service 

apply to administrative law judge 

positions. 

(c) The title ‘‘administrative law 

judge’’ is the official title for an 

administrative law judge position. Each 

agency must use only this title for 

personnel, budget, and fiscal purposes. 

(d) The Director of OPM, or designee, 

shall prescribe the examination 

methodology in the design of each 

administrative law judge examination. 

(e) OPM does not hire administrative 

law judges for other agencies but has the 

authority to: 

(1) Recruit and examine applicants for 

administrative law judge positions, 

including developing and administering 

the administrative law judge 

examinations under 5 U.S.C. 3301, 

3304, 1104(a), and 1302, and Executive 

Order 10577, as amended, except OPM 

is not required to use the examination 

scoring process in 5 CFR 337.101(a); 

(2) Assure that decisions concerning 

the appointment, pay, and tenure of 

administrative law judges in Federal 

agencies are consistent with applicable 

laws and regulations; 

(3) Establish classification and 

qualification standards for 

administrative law judge positions; 

(4) Approve noncompetitive 

personnel actions for administrative law 

judges, including but not limited to 

promotions, transfers, reinstatements, 

restorations, and reassignments; 

(5) Approve personnel actions related 

to pay for administrative law judges 

under § 930.205(c), (f)(2), (g), and (j); 

(6) Approve an intra-agency detail or 

assignment of an administrative law 

judge to a non-administrative law judge 

position that lasts more than 120 days 

or when an administrative law judge 

cumulates a total of more than 120 days 

for more than one detail or assignment 

within the preceding 12 months; 

(7) Arrange the temporary detail 

(loan) of an administrative law judge 

from one agency to another under the 

provisions of the administrative law 

judge loan program in § 930.208; 

(8) Arrange temporary reemployment 

of retired administrative law judges to 

meet changing agency workloads under 

the provisions of the Senior 

Administrative Law Judge Program in 

§ 930.209; 

(9) Maintain and administer the 

administrative law judge priority 

referral program under § 930.210(c); 

(10) Promulgate regulations for 

purposes of sections 3105, 3344, 

4301(2)(D) and 5372 of title 5, U.S.C.; 

and 

(11) Ensure the independence of the 

administrative law judge. 

(f) An agency employing 

administrative law judges under 5 

U.S.C. 3105 has: 

(1) The authority to appoint as many 

administrative law judges as necessary 

for proceedings conducted under 5 

U.S.C. 556 and 557; 

(2) The authority to assign an 

administrative law judge to cases in 

rotation so far as is practicable; 

(3) The responsibility to ensure the 

independence of the administrative law 

judge; and 


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(4) The responsibility to obtain OPM’s 

approval before taking any of the 

personnel actions described in 

paragraphs (e)(4) through (8) of this 

section. 

§ 930.202 Definitions. 

In this subpart: 

Administrative law judge position 

means a position in which any portion 

of the duties requires the appointment 

of an administrative law judge under 5 

U.S.C. 3105. 

Agency has the same meaning given 

in 5 U.S.C. 551(1). 

Detail means the temporary 

assignment of an administrative law 

judge from one administrative law judge 

position to another administrative law 

judge position without change in civil 

service or pay status. 

Removal means discharge of an 

administrative law judge from the 

position of an administrative law judge 

or involuntary reassignment, demotion, 

or promotion to a position other than 

that of an administrative law judge. 

Senior administrative law judge 

means a retired administrative law 

judge who is reemployed under a 

temporary appointment under 5 U.S.C. 

3323(b)(2) and § 930.209 of this chapter. 

Superior qualifications means an 

appointment made at a rate above the 

minimum rate based on such 

qualifications as experience practicing 

law before the hiring agency; experience 

practicing before another forum in a 

field of law relevant to the hiring 

agency; or an outstanding reputation 

among others in a field of law relevant 

to the hiring agency. 

§ 930.203 Cost of competitive examination. 

Each agency employing 

administrative law judges must 

reimburse OPM for the cost of 

developing and administering the 

administrative law judge examination. 

Each agency is charged a pro rata share 

of the examination cost, based on the 

actual number of administrative law 

judges the agency employs. OPM 

computes the cost of the examination 

program on an annual basis and notifies 

the employing agencies of their 

respective shares after the calculations 

are made. 

§ 930.204 Appointments and conditions of 

employment. 

(a) Appointment. An agency may 

appoint an individual to an 

administrative law judge position only 

with prior approval of OPM, except 

when it makes its selection from the list 

of eligibles provided by OPM. An 

administrative law judge receives a 

career appointment and is exempt from 

the probationary period requirements 

under part 315 of this chapter. An 

administrative law judge appointment is 

subject to investigation, and an 

administrative law judge is subject to 

the suitability requirements in part 731 

of this chapter. 

(b) Licensure. At the time of 

application and any new appointment 

and while serving as an administrative 

law judge, the individual must possess 

a professional license to practice law 

and be authorized to practice law under 

the laws of a State, the District of 

Columbia, the Commonwealth of Puerto 

Rico, or any territorial court established 

under the United States Constitution. 

Judicial status is acceptable in lieu of 

‘‘active’’ status in States that prohibit 

sitting judges from maintaining ‘‘active’’

status to practice law. Being in ‘‘good 

standing’’ is also acceptable in lieu of 

‘‘active’’ status in States where the 

licensing authority considers ‘‘good 

standing’’ as having a current license to 

practice law. 

(c) Appointment of incumbents of 

newly classified administrative law 

judge positions. An agency may give an 

incumbent employee an administrative 

law judge career appointment if that 

employee is serving in the position 

when it is classified as an 

administrative law judge position on the 

basis of legislation, Executive order, or 

a decision of a court and if: 

(1) The employee has competitive 

status or is serving in an excepted 

position under a permanent 

appointment; 

(2) The employee is serving in an 

administrative law judge position on the 

day the legislation, Executive order, or 

decision of the court on which the 

classification of the position is based 

becomes effective; 

(3) OPM receives a recommendation 

for the employee’s appointment from 

the agency concerned; and 

(4) OPM determines the employee 

meets the qualification requirements 

and has passed the current examination 

for an administrative law judge position. 

(d) Appointment of an employee from 

a non-administrative law judge position. 

Except as provided in paragraphs (a) 

and (c) of this section, an agency may 

not appoint an employee who is serving 

in a position other than an 

administrative law judge position to an 

administrative law judge position. 

(e) Promotion. (1) Except as otherwise 

stated in this paragraph, 5 CFR part 335 

applies in the promotion of 

administrative law judges. 

(2) To reclassify an administrative law 

judge position at a higher level, the 

agency must submit a request to OPM. 

When OPM approves the higher level 

classification, OPM will direct the 

promotion of the administrative law 

judge occupying the position prior to 

the reclassification. 

(f) Reassignment. Prior to OPM’s 

approval, the agency must provide a 

bona fide management reason for the 

reassignment. 

(g) Reinstatement. An agency may 

reinstate a former administrative law 

judge who served under 5 U.S.C. 3105, 

passed an OPM administrative law 

judge competitive examination, and 

meets the professional license 

requirement in paragraph (b) of this 

section. 

(h) Transfer. An agency may not 

transfer an individual from one 

administrative law judge position to 

another administrative law judge 

position within 1 year after the 

individual’s last appointment, unless 

the gaining and losing agencies agree to 

the transfer. 

(i) Conformity. Actions under this 

section must be consistent with 

§ 930.201(f). 

§ 930.205 Administrative law judge pay 

system. 

(a) OPM assigns each administrative 

law judge position to one of the three 

levels of basic pay, AL–3, AL–2 or AL–

1 of the administrative law judge pay 

system established under 5 U.S.C. 5372 

in accordance with this section. Pay 

level AL–3 has six rates of basic pay, A, 

B, C, D, E, and F. 

(1) The rate of basic pay for AL–3, rate 

A, may not be less than 65 percent of 

the rate of basic pay for level IV of the 

Executive Schedule. The rate of basic 

pay for AL–1 may not exceed the rate 

for level IV of the Executive Schedule. 

(2) The President determines the 

appropriate adjustment for each level in 

the administrative law judge pay 

system, subject to paragraph (a)(1) of 

this section. Such adjustments take 

effect on the 1st day of the first pay 

period beginning on or after the first day 

of the month in which adjustments in 

the General Schedule rates of basic pay 

under 5 U.S.C. 5303 take effect. 

(3) An agency must use the following 

procedures to convert an administrative 

law judge’s annual rate of basic pay to 

an hourly, daily, weekly, or biweekly 

rate: 

(i) To derive an hourly rate, divide the 

annual rate of pay by 2,087 and round 

to the nearest cent, counting one-half 

cent and over as the next higher cent. 

(ii) To derive a daily rate, multiply the 

hourly rate by the number of daily hours 

of service required by the administrative 

law judge’s basic daily tour of duty. 


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(iii) To derive a weekly or biweekly 

rate, multiply the hourly rate by 40 or 

80, respectively. 

(b) Pay level AL–3 is the basic pay 

level for administrative law judge 

positions filled through a competitive 

examination. 

(c) Subject to OPM approval, agencies 

may establish administrative law judge 

positions in pay levels AL–2 and AL–1. 

Administrative law judge positions are 

placed at these levels when they involve 

significant administrative and 

managerial responsibilities. 

(d) Administrative law judges must 

serve at least 1 year in each AL pay 

level, or in an equivalent or higher level 

in positions in the Federal service, 

before advancing to the next higher 

level and may advance only one level at 

a time. 

(e) Except as provided in paragraph (f) 

of this section, upon appointment to an 

administrative law judge position and 

placement in level AL–3, an 

administrative law judge is paid at the 

minimum rate A of AL–3. He or she is 

automatically advanced successively to 

rates B, C, and D of that level upon 

completion of 52 weeks of service in the 

next lower rate, and to rates E and F of 

that level upon completion of 104 weeks 

of service in the next lower rate. Time 

in a non-pay status is generally 

creditable service when computing the 

52-or 104-week period as long as it does 

not exceed 2 weeks per year for each 52 

weeks of service. However, absence due 

to uniformed service or compensable 

injury is fully creditable upon 

reemployment as provided in part 353 

of this chapter. 

(f) Upon appointment to a position at 

AL–3, an administrative law judge may 

be paid at the minimum rate A, unless 

the administrative law judge is eligible 

for the higher rate B, C, D, E, or F 

because of prior service or superior 

qualifications, as provided in 

paragraphs (f)(1) and (f)(2) of this 

section. 

(1) An agency may offer an 

administrative law judge applicant with 

prior Federal service a higher than 

minimum rate up to the lowest rate of 

basic pay that equals or exceeds the 

applicant’s highest previous Federal rate 

of basic pay, not to exceed the 

maximum rate F. 

(2) With prior OPM approval, an 

agency may pay the rate of pay that is 

next above the applicant’s existing pay 

or earnings up to the maximum rate F. 

The agency may offer a higher than 

minimum rate to: 

(i) An administrative law judge 

applicant with superior qualifications 

(as defined in § 930.202) who is within 

reach for appointment from an 

administrative law judge certificate of 

eligibles; or 

(ii) A former administrative law judge 

with superior qualifications who is 

eligible for reinstatement. 

(g) With prior OPM approval, an 

agency, on a one-time basis, may 

advance an administrative law judge in 

an AL–3 position with added 

administrative and managerial duties 

and responsibilities one rate above the 

administrative law judge’s current AL–

3 pay rate, up to the maximum rate F. 

(h) Upon appointment to an 

administrative law judge position 

placed at AL–2 or AL–1, an 

administrative law judge is paid at the 

established rate for the level. 

(i) An employing agency may reduce 

the level or rate of basic pay of an 

administrative law judge under 

§ 930.211. 

(j) With prior OPM approval, an 

employing agency may reduce the level 

of basic pay of an administrative law 

judge if the administrative law judge 

submits to the employing agency a 

written request for a voluntary 

reduction due to personal reasons. 

§ 930.206 Performance rating and awards. 

(a) An agency may not rate the job 

performance of an administrative law 

judge. 

(b) An agency may not grant any 

monetary or honorary award or 

incentive under 5 U.S.C. 4502, 4503, or 

4504, or under any other authority, to an 

administrative law judge. 

§ 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. 

§ 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) Investigations and suitability 

requirements in part 731 of this chapter. 

(c) Under the Senior Administrative 

Law Judge Program, OPM authorizes 

agencies that have temporary, irregular 


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Federal Register / Vol. 72, No. 53 / Tuesday, March 20, 2007 / Rules and Regulations 12957 

workload requirements for conducting 

proceedings in accordance with 5 U.S.C. 

556 and 557 to temporarily reemploy 

administrative law judge annuitants. If 

OPM is unable to identify an 

administrative law judge under 

§ 930.208 who meets the agency’s 

qualification requirements, OPM will 

approve the agency’s request. 

(d) An agency wishing to temporarily 

reemploy an administrative law judge 

must submit a written request to OPM. 

The request must: 

(1) Identify the statutory authority 

under which the administrative law 

judge is expected to conduct 

proceedings; 

(2) Demonstrate the agency’s 

temporary or irregular workload 

requirements for conducting 

proceedings; 

(3) Specify the tour of duty, location, 

period of time, or particular cases(s) for 

the requested reemployment; and 

(4) Describe any special qualifications 

the retired administrative law judge 

possesses that are required of the 

position, such as experience in a 

particular field, agency, or substantive 

area of law. 

(e) OPM establishes the terms of the 

appointment for a senior administrative 

law judge. The senior administrative 

law judge may be reemployed either for 

a specified period not to exceed 1 year 

or for such time as may be necessary for 

the senior administrative law judge to 

conduct and complete the hearing and 

issue decisions for one or more 

specified cases. Upon agency request, 

OPM may reduce or extend such period 

of reemployment, as necessary, to 

coincide with changing staffing 

requirements. 

(f) A senior administrative law judge 

serves subject to the same limitations as 

any other administrative law judge 

employed under this subpart and 5 

U.S.C. 3105. 

(g) A senior administrative law judge 

is paid the rate of basic pay for the pay 

level at which the position has been 

classified. If the position is classified at 

pay level AL–3, the senior 

administrative law judge is paid the 

lowest rate of basic pay in AL–3 that 

equals or exceeds the highest previous 

rate of basic pay attained by the 

individual as an administrative law 

judge immediately before retirement, up 

to the maximum rate F. 

§ 930.210 Reduction in force. 

(a) Retention preference regulations. 

Except as modified by this section, the 

reduction in force regulations in part 

351 of this chapter apply to 

administrative law judges. 

(b) Determination of retention 

standing. In determining retention 

standing in a reduction in force, each 

agency lists its administrative law 

judges by group and subgroup according 

to tenure of employment, veterans’

preference, and service date as outlined 

in part 351 of this chapter. Because 

administrative law judges are not given 

performance ratings (see § 930.206), the 

provisions in part 351 of this chapter 

referring to the effect of performance 

ratings on retention standing are not 

applicable to administrative law judges. 

(c) Placement assistance. (1) An 

administrative law judge who is reached 

in an agency’s reduction in force and 

receives a notification of separation is 

eligible for placement assistance under 

the agency’s reemployment priority list 

established and maintained in 

accordance with subpart B of part 330 

of this chapter. 

(2) An administrative law judge who 

is reached by an agency in a reduction 

in force and who is notified of being 

separated, furloughed for more than 30 

days, or demoted, is entitled to have his 

or her name placed on OPM’s 

administrative law judge priority 

referral list for the level in which last 

served and for all lower levels. 

(i) To have his or her name placed on 

the OPM priority referral list, a 

displaced administrative law judge must 

provide OPM with a request for priority 

referral placement, a resume or 

equivalent, a list of acceptable 

geographical locations, and a copy of 

the reduction in force notice at any time 

after the receipt of the specific reduction 

in force notice, but not later than 90 

days after the date of separation, 

furlough for more than 30 days, or 

demotion. 

(ii) Eligibility on the OPM priority 

referral list expires 2 years after the 

effective date of the reduction in force 

action. 

(iii) Referral and selection of 

administrative law judges are made 

without regard to selective certification 

or special qualification procedures. 

(iv) Termination of eligibility on the 

OPM priority referral list takes place 

when an administrative law judge 

submits a written request to terminate 

eligibility, accepts a permanent full-time 

administrative law judge position, or 

declines one full-time employment offer 

as an administrative law judge at or 

above the level held when reached for 

reduction in force at geographic 

locations indicated as acceptable under 

paragraph (c)(2)(i) of this section. 

(3) When there is no administrative 

law judge available on the agency’s 

reemployment priority list, an agency 

may fill a vacant administrative law 

judge position only from OPM’s priority 

referral list, unless the agency obtains 

prior approval from OPM to fill the 

vacant position through competitive 

examining, promotion, transfer, 

reassignment, or reinstatement 

procedures. OPM will grant such 

approvals only under extraordinary 

circumstances. The agency must 

demonstrate that the potential 

administrative law judge candidate 

possesses experience and qualifications 

superior to any available displaced 

administrative law judge on OPM’s 

priority referral list. 

§ 930.211 Actions against administrative 

law judges. 

(a) Procedures. An agency may 

remove, suspend, reduce in level, 

reduce in pay, or furlough for 30 days 

or less an administrative law judge only 

for good cause established and 

determined by the Merit Systems 

Protection Board on the record and after 

opportunity for a hearing before the 

Board as prescribed in 5 U.S.C. 7521 

and 5 CFR part 1201. Procedures for 

adverse actions by agencies under part 

752 of this chapter do not apply to 

actions against administrative law 

judges. 

(b) Status during removal 

proceedings. In exceptional cases when 

there are circumstances in which the 

retention of an administrative law judge 

in his or her position, pending 

adjudication of the existence of good 

cause for his or her removal, is 

detrimental to the interests of the 

Federal Government, the agency may: 

(1) Assign the administrative law 

judge to duties consistent with his or 

her normal duties in which these 

circumstances would not exist; 

(2) Place the administrative law judge 

on leave with his or her consent; 

(3) Carry the administrative law judge 

on annual leave, sick leave, leave 

without pay, or absence without leave, 

as appropriate, if he or she is voluntarily 

absent for reasons not originating with 

the agency; or 

(4) If the alternatives in paragraphs 

(b)(1) through (b)(3) of this section are 

not available, the agency may consider 

placing the administrative law judge in 

a paid non-duty or administrative leave 

status. 

(c) Exceptions from procedures. The 

procedures in paragraphs (a) and (b) of 

this section do not apply: 

(1) In making dismissals or taking 

other actions under 5 CFR part 731; 

(2) In making dismissals or other 

actions made by agencies in the interest 

of national security under 5 U.S.C. 7532; 

(3) To reduction in force actions taken 

by agencies under 5 U.S.C. 3502; or 


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12958 Federal Register / Vol. 72, No. 53 / Tuesday, March 20, 2007 / Rules and Regulations 

1Section 301 of the Act defines ‘‘fleet’’ as ‘‘a 

group of 20 or more light-duty motor vehicles, used 

primarily in a metropolitan statistical area or 

consolidated metropolitan statistical area, as 

established by the Bureau of the Census, with a 

1980 population of more than 250,000, that are 

centrally fueled or capable of being centrally fueled 

and are owned, operated, leased, or otherwise 

controlled by a governmental entity or other person 

who owns, operates, leases, or otherwise controls 

50 or more such vehicles, by any person who 

controls such person, by any person controlled by 

such person, and by any person under common 

control with such person, except that such term 

does not include—

(A) motor vehicles held for lease or rental to the 

general public; 

(B) motor vehicles held for sale by motor vehicle 

dealers, including demonstration motor vehicles; 

(C) motor vehicles used for motor vehicle 

manufacturer product evaluations or tests; 

(D) law enforcement motor vehicles; 

(E) emergency motor vehicles; 

(F) motor vehicles acquired and used for military 

purposes that the Secretary of Defense has certified 

to the Secretary must be exempt for national 

security reasons; 

(G) nonroad vehicles, including farm and 

construction motor vehicles; or 

(H) motor vehicles which under normal 

operations are garaged at personal residences at 

night[.] 

(4) In any action initiated by the 

Office of Special Counsel under 5 U.S.C. 

1215. 

[FR Doc. E7–4959 Filed 3–19–07; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF ENERGY 

Office of Energy Efficiency and 

Renewable Energy 

10 CFR Part 490 

RIN 1904–AB66 

Alternative Fuel Transportation 

Program; Alternative Compliance 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: The Department of Energy 

(DOE) today publishes a final rule to 

implement section 514 of the Energy 

Policy Act of 1992, as amended by 

section 703 of the Energy Policy Act of 

2005, which allows States and 

alternative fuel providers to petition for 

a waiver of the alternative fueled 

vehicle (AFV) acquisition requirements. 

Today’s final rule requires that for a 

State or alternative fuel provider to be 

granted a waiver, the State entity or 

alternative fuel provider must request a 

waiver to demonstrate that in lieu of 

complying with the applicable AFV 

acquisition requirement for a model 

year, it will take other actions to reduce 

its annual petroleum motor fuel 

consumption by an amount equal to 100 

percent alternative fuel use in all of the 

fleet’s AFVs, including AFVs that the 

State entity or alternative fuel provider 

would have been required to acquire if 

there was no waiver. 

DATES: Effective Date: The final rule is 

effective April 19, 2007. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Linda Bluestein, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, FreedomCAR and 

Vehicle Technologies Program, Mailstop 

EE–2G, Room 5F–034, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121; (202) 586–

6116 or linda.bluestein@ee.doe.gov, or 

Mr. Chris Calamita, U.S. Department of 

Energy, Office of General Counsel, GC–

72, Room 6B–256, 1000 Independence 

Avenue, SW., Washington, DC 20585–

0121; (202) 586–9507 or 

Christopher.calamita@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction and Background 

II. Public Comments 

III. Discussion of the Final Rule 

A. Eligibility for alternative compliance 

waiver 

B. Petroleum reduction calculation 

1. Cumulative inventory 

2. Calculation procedure 

C. Eligible reductions in petroleum 

consumption 

1. Light-duty vehicles 

2. Medium- and heavy-duty vehicles 

3. Nonroad vehicles 

4. Rollover of excess petroleum reduction 

D. Waiver applications 

E. Application deadlines 

F. Use of credits 

G. Reporting requirement 

H. Sanctions for violations 

I. Exemptions 

J. Record retention 

K. Other comments 

IV. Regulatory Review 

A. Executive Order 12866 

B. National Environmental Policy Act 

C. Regulatory Flexibility Act 

D. Paperwork Reduction Act 

E. Unfunded Mandates Reform Act of 1995 

F. Treasury and General Government 

Appropriations Act, 1999 

G. Executive Order 13132 

H. Executive Order 12988 

I. Treasury and General Government 

Appropriations Act, 2001 

J. Executive Order 13211 

K. Congressional Notification 

V. Approval by the Office of the Secretary 

I. Introduction and Background 

Title V of the Energy Policy Act of 

1992 (Pub. L. 102–486; the Act) 

established requirements for covered 

alternative fuel providers (‘‘covered 

persons’’) and States to acquire set 

percentages of AFVs. (42 U.S.C. 

13251(a) and 13257(o)) As of 1999, 90 

percent of light-duty motor vehicles 

acquired by a covered person must be 

AFVs. As of 2000, 75 percent of lightduty motor vehicles acquired for a State 

fleet 1 must be AFVs. Section 508 

provides for the use of credits in 

complying with the AFV requirements. 

(42 U.S.C. 13258) Title V also provides 

for an exemption process from the AFV 

requirements. (42 U.S.C. 13251(a)(5) and 

13257(i)) As directed by the Act, DOE 

issued regulations, 10 CFR part 490—

Alternative Fuel Transportation 

Program, to implement the AFV 

provisions. (61 FR 10622; March 14, 

1996). 

On August 8, 2005, the Energy Policy 

Act of 2005, (Pub. L. 109–58; EPACT 

2005) was signed into law. In part, 

EPACT 2005 provides additional 

flexibility for States and covered 

persons subject to AFV acquisition 

requirements under 10 CFR part 490. 

Specifically, section 703 of EPACT 2005 

adds an alternative compliance program 

(entitled ‘‘Alternative Compliance’’) 

under section 514 of title V of the Act. 

(42 U.S.C. 13263a) Section 514 

authorizes DOE to grant to covered 

persons and States a waiver from the 

AFV acquisition requirements under 

section 501 (42 U.S.C. 13251) and 

section 507(o) (42 U.S.C. 13257(o)), 

respectively. The statute provides that 

any State or covered person may apply 

for an alternative compliance waiver, 

and that DOE must grant the waiver if 

the State or covered person 

demonstrates that its fleet will reduce 

annual petroleum consumption by an 

amount equal to the amount of 

petroleum it would reduce if the fleet’s 

cumulative inventory of AFVs operated 

100 percent of the time on alternative 

fuel (42 U.S.C. 13263a(a) and (b)). 

(Under the AFV requirements, States are 

not required to operate AFVs on 

alternative fuel and covered persons are 

required to operate their AFVs on 

alternative fuel only when it is 

available. (42 U.S.C. 13251(a)(4)) In 

addition, the State or covered person 

requesting a waiver must be in 

compliance with all applicable vehicle 

emission standards established by the 

Environmental Protection Agency under 

the Clean Air Act. 

On June 23, 2006, DOE issued a notice 

of proposed rulemaking (NOPR) to 

establish procedures for the submission 

of, and action on, applications for 

alternative compliance waivers 

submitted by States and covered 

persons subject to AFV acquisition 

requirements under part 490, 71 FR 

36034, June 23, 2006. In the NOPR, DOE 

proposed to add a new subpart I to part 

490, which would include provisions 


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