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###### Office of Personnel Management

          - 5 CFR Parts 410 and 412
          - RIN 3206-AK75

# AGENCY:

Office of Personnel Management.

# ACTION:

Proposed rule.

# SUMMARY:

The Office of Personnel Management proposes to amend its regulations to implement certain training and development requirements contained in the Federal Workforce Flexibility Act of 2004.

# DATES:

Comments must be received on or before November 3, 2008.

# ADDRESSES:

You may submit comments, identified by “RIN 3206-AK75,” by any of the following methods:
      -  Federal eRulemaking Portal: http://www.regulations.gov . Follow the instructions for submitting comments.                    
      -  Agency Web Site: http://www.opm.gov . Click on the “Regulations” icon at the bottom right of the Web page. Follow the instructions for submitting comments.                    
      -  E-mail: employ@opm.gov . Include “RIN 3206-AK75” in the subject line of the message.                    
      -  Fax:                          (202) 606-2329.                    
      -  Mail, Hand Deliver/Courier comments:                          Ms. Nancy Randa, Deputy Associate Director for the Center for Leadership, Executive Resources, and Policy Analysis, Room 6357, 1900 E Street, NW., Washington, DC 20415-9700.                    

# FOR FURTHER INFORMATION CONTACT:

                        Cheryl Dube by telephone at (202) 606-4063, by FAX at (202) 606-1637, or by e-mail at                         *cheryl.dube@opm.gov*.                    

# SUPPLEMENTARY INFORMATION:

On October 30, 2004, the President signed the Federal Workforce Flexibility Act of 2004 (Act), Public Law 108-411, into law. The Act makes several significant changes in the law governing the training and development of Federal employees, supervisors, managers, and executives. The first change requires each agency to evaluate, on a regular basis, its training programs and plans with respect to the accomplishment of its specific performance plans and strategic goals, and to modify its training plans and programs as needed to accomplish the agency's performance plans and strategic goals. Other changes to the regulation, not related to the Act, are made to better align with law the requirement for continued service agreements and the submission of training data. The second major change requires agencies to consult with the Office of Personnel Management (OPM) to establish comprehensive management succession programs designed to provide training to employees to develop managers for the agency. It also requires agencies, in consultation with OPM, to establish programs to provide training to managers regarding actions, options, and strategies a manager may use in relating to employees with unacceptable performance, mentoring employees, improving employee performance and productivity, and conducting employee performance appraisals. The Homeland Security Act of 2002, as codified at 5 U.S.C. 1103(c), established the Human Capital Assessment and Accountability Framework (HCAAF) and mandated OPM to design systems and set standards, including appropriate metrics, for assessing the management of human capital by Federal agencies. 5 U.S.C. 1103(c) also specifies OPM will develop standards for: (1) Aligning human capital strategies of agencies with the organization's missions, goals and objectives, (2) ensuring continuity of leadership through succession plans, and (3) holding managers and human resources officers accountable for efficient and effective human resources management. The following are the principal results sought by the proposed changes in regulations:

○ Agencies will have effective and cost-efficient training programs linked to agency strategic plans;

○ Managers will develop strategies to mentor others and to improve employee performance and productivity.

To provide guidance to agencies in accomplishing these results, we are proposing changes in the following parts of title 5 of the Code of Federal Regulations: Part 410 on “Training” and part 412 on “Executive, Management, and Supervisory Development.”

OPM is amending 5 CFR part 410, subpart B, to reflect new agency responsibilities for planning training so employee training and development will align with agency strategic plans. The revised subpart B also would cover agency responsibility for the evaluation of training, currently included under subpart F. The revised subpart C would better align language on continued service agreements with law. The revised subpart C would also remove the option to extend the date for agencies to report training data to OPM. The following are the major proposed changes:

○ Revised § 410.201(b) would make agency training program requirements more visible by listing those requirements and emphasizing the alignment of employee training and development with agency strategic plans;

○ Revised § 410.201(d) would include language more consistent with the Human Capital Assessment and Accountability Framework and consolidate references to Executive Order 11348, which provides for the further training of Government employees and requires agencies to review training programs no less often than annually;

○ Delete current § 410.203 and incorporate the information in that section into § 410.201. § 410.204 would be renumbered as § 410.203.

○ Delete current § 410.701 (c) as extensions to report training data to OPM are no longer accepted. § 410.701 (d) would be redesignated as § 410.701 (c).

○ Delete current subpart F and redesignate subpart G as subpart F, and renumber § 410.701 as § 410.601.

Part 412, “Executive, Management, and Supervisory Development,” requires some modification of its structure to incorporate the changes in law. Therefore, the current structure of two subparts (Subpart A—General Provisions, and Subpart B—Senior Executive Service Status and Nonstatus Candidate Development Programs) would be modified to three subparts (Subpart A— General Provisions, Subpart B— Succession Planning, and Subpart C— Executive Development). Specifically, current § 412.103 would be revised and placed within the new subpart B as § 412.201, current § 412.104 would be revised and would be placed within the new subpart C as § 412.301, and current subpart B would be revised and placed within the new subpart C. The following are the additional major proposed changes in part 412:

## Subpart A—General Provisions

○ Revised § 412.102(a), (b) and (b)(1) would make more succinct the references to the United States Code for easier reading, explain the leadership development continuum, and delete the reference to “mastery level” because the term implies development stops when in fact development should be ongoing;

○ Revised § 412.102(b)(3) would replace “corporate perspective” with “broad agency and Governmentwide perspective,” to more accurately reflect the intended goal.

                    ○ Current § 412.103(c)(2) and (c)(3) would be addressed in the new subpart on Succession Planning, consistent with the Act's requirement that succession                           ( print page 51249)                        programs provide development for future managers;                 

○ Current § 412.104(a)(2) would be deleted. The change would eliminate the exemption from Governmentwide recruitment for candidate development programs.

## Subpart B—Succession Planning

○ New § 412.201 would specify requirements for agency management succession programs;

○ Revised § 412.202 would clarify that agency leadership development programs are part of the general workforce development strategy;

## Subpart C—Senior Executive Service Candidate Development Programs

○ New § 412.301(a) would provide for an OPM-certified agency Senior Executive Service Candidate Development Program (SESCDP), certification of the Executive Core Qualifications (ECQs) of candidates by a Qualifications Review Board, and selection for the SES, without further competition;

○ New § 412.301(b) would require agencies to submit a policy describing their SESCDP program methodologies. It also would require them to obtain OPM approval for candidate development programs once every 5 years to ensure their alignment and strategic linkage with agency succession plans and would add a reference to multi-agency programs to address collaborative, Governmentwide executive development;

○ New § 412.301(c) would require agencies with CDPs approved under previous regulations to apply to OPM for re-approval under the new regulations in accordance with new § 412.301 (b). It also indicates all existing approvals expire within 2 years after publication of this regulation. SESCDPs in progress on the date the regulations become final may be completed and graduates of those programs may be submitted for QRB certification regardless of this expiration.

○ New § 412.302(a) defines the Executive Resources Board (ERB) oversight responsibilities in the SESCDP approval process;

○ New § 412.302(a)(1) clarifies competition must be under SES merit staffing procedures;

○ New § 412.302(b)(3) would modify the four-month developmental assignments to include at least one assignment of 90 continuous days outside the scope of the candidate's position of record and require the assignments to include roles at the executive level where the candidate is held responsible for achieving organizational or agency results during the developmental assignment. The purpose of the new provision is to enhance and broaden the candidate's experience, increase his or her knowledge, and maximize his or her understanding of the overall functioning of the agency, so the candidate is prepared for a range of agency positions at the SES level.

○ New § 412.302(d) would eliminate the references to “status programs” (current § 412.202) and “non-status programs” (current § 412.203). The new provisions will refer to two categories of “candidates”: 1) Individuals who hold a career or career-type appointment within the civil service; and 2) individuals who do not hold such an appointment, and will define conditions under which individuals in either category may participate in an SESCDP.

## Subpart D—Executive Development

○ New § 412.401 would add continuing development of current SES members as an ongoing requirement tied to the performance process through an Executive Development Plan (EDP). This section also provides for the developmental use of sabbaticals and long-term assignments outside the Federal sector, as provided by relevant legal authorities.

## Executive Order 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866.

## Regulatory Flexibility Act

I certify these regulations would not have a significant economic impact on a substantial number of small entities because they would apply only to Federal agencies and employees.

# List of Subjects in 5 CFR Parts 410 and 412

      - Education
      - Government employees

Office of Personnel Management.

Michael W. Hager,

Acting Director.

Accordingly, OPM is proposing to amend 5 CFR parts 410 and 412 as follows:

# PART 410—TRAINING

1. The authority citation for part 410 is revised to read as follows:

Authority:5 U.S.C. 1103(c), 4101,                             *et seq.*; E.O. 11348, 3 CFR, 1967 Comp., p. 275.                        

2. Revise the heading of subpart B to read as follows:

# Subpart B—Planning and Evaluating Training

3. Revise §§ 410.201 and 410.202 to read as follows:

§ 410.201 

Agency employee development plans and programs should be designed to build or support an agency workforce capable of achieving agency mission and performance goals and facilitating continuous improvement of employee and organizational performance. In developing strategies to train employees, heads of agencies or their designee(s), under section 4103 of title 5, United States Code and in Executive Order 11348, are required to:

(a) Establish, budget for, operate, maintain, and evaluate plans and programs for training agency employees by, in, and through Government or non-Government facilities, as appropriate;

(b) Establish policies governing employee training including a statement of the alignment of employee training and development with agency strategic plans, the assignment of responsibility to ensure the training goals are achieved, and the delegation of training approval authority to the lowest appropriate level;

(c) Establish priorities for training employees and allocate resources according to those priorities; and

(d) Develop and maintain plans and programs that:

(1) Identify mission-critical occupations and competencies;

(2) Identify workforce competency gaps;

(3) Include strategies for closing competency gaps; and

(4) Assess periodically, but not less often than annually, as required by section 303 of Executive Order 11348.

§ 410.202 

Agencies must evaluate their training programs annually to determine how well such plans and programs contribute to mission accomplishment and meet organizational performance goals.

4. Remove § 410.203 and redesignate § 410.204 as § 410.203.

5. Remove § 410.701(c) and redesignate § 410.701(d) as § 410.701(c).

6. Remove subpart F and redesignate subpart G as subpart F, including redesignating § 410.701 as § 410.601.

7. Revise part 412 to read as follows:

      ( print page 51250)    

# PART 412—SUPERVISORY, MANAGEMENT, AND EXECUTIVE DEVELOPMENT

        Subpart A—General Provisions412.101 
Coverage.
412.102 
Purpose.

        Subpart B—Succession Planning 412.201 
Management succession.
412.202 
Systematic training and development of supervisors, managers, and executives.

        Subpart C—Senior Executive Service Candidate Development Programs 412.301 
Obtaining approval to conduct a Senior Executive Service candidate development program (SESCDP).
412.302 
Criteria for a Senior Executive Service candidate development program (SESCDP).

        Subpart D—Executive Development 412.401 
Continuing executive development.

Authority:5 U.S.C. 1103 (c)(2)(C), 3396, 3397, 4101,                             *et seq*.                        

# Subpart A—General Provisions

§ 412.101 

This part applies to all incumbents of, and candidates for, supervisory, managerial, and executive positions in the General Schedule, the Senior Executive Service (SES), or equivalent pay systems also covered by part 410 of this chapter.

§ 412.102 

(a) This part implements for supervisors, managers, and executives the provisions of 5 U.S.C. chapter 41, related to training, and 5 U.S.C. 3396, related to the criteria for programs of systematic development of candidates for the SES and the continuing development of SES members.

(b) This part identifies a continuum of leadership development, starting with supervisory positions and proceeding through management and executive positions Governmentwide. For this reason, this part provides requirements by which agencies:

(1) Develop the competencies needed by supervisors, managers, and executives;

(2) Provide learning through continuing development and training in the context of succession planning; and

(3) Foster a broad agency and Governmentwide perspective to prepare individuals for advancement, thus supplying the agency and the Government with an adequate number of well prepared and qualified candidates to fill leadership positions.

# Subpart B—Succession Planning

§ 412.201 

The head of each agency, in consultation with OPM, must develop a comprehensive management succession program, based on the agency's workforce succession plans, to fill agency supervisory and managerial positions. These programs must be supported by employee training and development programs developed under 5 CFR 410.201 to prepare individuals for advancement, with a focus on both individual and agency performance and strengthening organizational capability, and to ensure an adequate number of well-prepared and qualified candidates for leadership positions. These programs must:

(a) Implement developmental training consistent with agency succession management plans;

(b) Provide continuing learning experiences throughout an individual's career, such as details, mentoring, coaching, learning groups, and projects. These experiences should provide broad knowledge and practical experience linked to OPM's Federal leadership competencies as well as agency-identified, mission-related competencies, and should be consistent with the agency's succession management plan; and

(c) Include program evaluations pursuant to 5 CFR 410.202.

§ 412.202 

All agencies must provide for the development of individuals in supervisory, managerial and executive positions, as well as individuals whom the agency identifies as potential candidates for those positions, based on the agencies' succession plans. Agencies also must issue written policies to ensure they:

(a) Design and implement leadership development programs integrated with the employee development plans, programs, and strategies required by 5 CFR 410.201, and that foster a broad agency and Governmentwide perspective;

(b) Provide training within one year of an employee's initial appointment to a supervisory position and follow up periodically, but at least once every three years, by providing each supervisor and manager additional training on the use of appropriate actions, options, and strategies to:

(1) Mentor employees;

(2) Improve employee performance and productivity;

(3) Conduct employee performance appraisals in accordance with agency appraisal systems; and

(4) Identify and assist employees with unacceptable performance.

(c) Provide training when individuals make critical career transitions to supervisor, manager, or executive consistent with the results of assessments of the agency's needs and the individual's potential.

# Subpart C—Senior Executive Service Candidate Development Programs

§ 412.301 

(a) An SESCDP is an OPM-approved training program designed to develop the executive qualifications of employees with strong executive potential. Successful completion of the program qualifies them for and authorizes their initial career appointment in the SES. An agency conducting an SESCDP may submit program graduates for Qualifications Review Board (QRB) review of their executive qualifications under 5 CFR 317.502. A program graduate certified by a QRB may receive an initial career appointment without further competition to any SES position for which he or she meets the professional and technical qualifications requirements.

(b) An agency covered by subchapter II of chapter 31 of title 5, United States Code, may apply to OPM to conduct an SESCDP alone or on behalf of a group of agencies. (In this subpart, the term “agency” refers to either a single agency or a group of agencies acting in partnership under this subpart.) Any agency developing an SESCDP must submit a policy document describing its program methodologies to OPM for formal approval before implementing the SESCDP. An agency must seek OPM approval every five years thereafter, and must also consult OPM before implementing a change substantially altering how the SESCDP complies with the requirements of this regulation. An agency implementing an SESCDP without first obtaining formal approval may not submit graduates of the program for QRB review.

(c) An agency that obtained OPM approval under previous regulations must apply for re-approval in accordance with requirements in paragraph (b) of this section and this subpart before initiating a new SESCDP. All existing approvals expire within 2 years after publication of this regulation.

                                (d) An agency covered by subchapter II of chapter 31 of title 5, United States                                       ( print page 51251)                                    Code, may authorize a major agency component employing senior executives to apply directly to OPM for approval to conduct an SESCDP. Such an application from a component must be accompanied by the agency's written endorsement. To obtain approval, the component must meet the SESCDP requirements of this subpart independent of agency involvement.                            

(e) As always, agencies should be mindful of merit principles in carrying out their functions under this subpart.

§ 412.302 

                                (a)                                 *Executive Resources Board requirements.*                                 An agency's Executive Resources Board (ERB) must oversee the SESCDP. The ERB ensures the development program lasts between 12 and 24 months and includes substantive developmental experiences that should equip a successful candidate to accomplish Federal Government missions as a senior executive. The agency ERB must oversee and be accountable for SESCDP recruitment, merit staffing, and assessment. The agency ERB must ensure the program follows SES merit staffing provisions in 5 CFR 317.501, subject to the condition explained in § 412.302(d)(1) of this part. The ERB also must oversee development, evaluation, progress in the program, and graduation of candidates, and for requesting Qualifications Review Board (QRB) certification of graduates where appropriate. The ERB submits for QRB review, within 90 days of graduation from the program. The ERB also must oversee the writing and implementation of a removal policy for program candidates who do not make adequate progress.                            

                                (b)                                 *Recruitment.*                                 Recruitment for the program is from all groups of qualified individuals within the civil service, or all groups of qualified individuals whether or not within the civil service. The number selected shall be consistent with the number of expected vacancies.                            

                                (c)                                 *Senior Executive Service candidate development program requirements.*                                 An SESCDP lasts between 12 and 24 months. To graduate, a candidate must accomplish the requirements between the beginning and ending dates of the program. Each individual participating in an SESCDP must have:                            

(1) A documented Senior Executive Service Development Plan (SESDP) based upon a competency-based needs determination and approved by the agency ERB. The components of the development plan must:

(i) Address the executive core qualifications (ECQs);

(ii) Address Federal Government leadership challenges crucial to the senior executive;

(iii) Provide increased knowledge and understanding of the overall functioning of the agency, so the participant is prepared for a range of positions and responsibilities;

(iv) Include interaction with a wide mix of senior Federal employees outside the candidate's department or agency to foster a Governmentwide perspective;

(v) Include interaction with senior non-Federal employees to increase experience of the broader context in which executives operate; and

(vi) Have Governmentwide or multi-agency applicability in the nature and scope of the training;

(2) A formal training experience lasting at least 80 hours that addresses the ECQs and their application to SES positions Governmentwide, explores Federal leadership challenges crucial to the senior executive, and has Governmentwide or multi-agency applicability;

(3) A developmental assignment of at least 4 months of full-time service to include at least one assignment of 90 continuous days in a position other than, and substantially different from, the candidate's position of record. The assignment must include executive level responsibility and differ from the candidate's current and past assignments in ways that broaden the candidate's experience, as well as challenge the candidate with respect to leadership competencies and the ECQs. Assignments need not be restricted to the agency, the Executive Branch, or the Federal Government, so long as they can be accomplished in compliance with applicable law and federal and agency specific ethics regulations. The candidate is held accountable for organizational or agency results achieved during the assignment. If the assignment is in a non-Federal organization, the ERB must provide for adequate documentation of the individual's actions and accomplishments and must determine that the assignment will contribute to development of the candidate's executive qualifications; and

(4) A mentor who is a member of the SES or is otherwise determined by the ERB to have the knowledge and capacity to advise the candidate, consistent with goals of the SESCDP. The mentor and the candidate are jointly responsible for a productive mentoring relationship; however, the agency must establish methods to assess these relationships and, if necessary, facilitate them or make appropriate changes in the interest of the candidate.

(d) An SESCDP is a training opportunity that OPM has determined to compete, with the condition noted in § 412.302(d)(1) of this part, under SES merit staffing procedures. Because SES merit staffing procedures require recruitment from among either all qualified persons or all qualified persons within the civil service, an agency must provide procedures under which all persons within one of these two possible areas of consideration may compete for and, if selected, participate in its SESCDP.

(1) An individual who does not currently hold a career or career-type civil service appointment may only participate in an SESCDP by means of a Schedule B appointment authorized by 5 CFR 213.3202(j) to a full-time position created for developmental purposes connected with the SESCDP. Exercising its authority under § 302.101(c)(6) of this chapter, OPM hereby exempts these full-time positions created for developmental purposes connected with the SESCDP from the appointment procedures of part 302 of this chapter. Competition for these appointments must be conducted pursuant to SES merit staffing procedures at § 317.501 of this chapter, except that agencies must follow the principle of veterans' preference as far as administratively feasible, in accordance with § 302.101(c) of this chapter. Candidates serving under this Schedule B appointment may not be used to fill an agency's regular positions on a continuing basis.

(2) An individual who currently holds a career or career-type appointment in the civil service must be selected through SES merit staffing procedures at § 317.501 of this chapter. Such an individual may be selected for and participate in an SESCDP in any agency while serving in his or her position of record. The individual may continue to participate in the SESCDP upon moving to other civil service positions under career or career-type appointment. An SESCDP competition does not satisfy the requirements of part 335 of this chapter and therefore does not provide an independent basis to appoint or promote a career or career-type appointee.

                                (3) A career or career-type appointee may participate in an SESCDP conducted by an agency other than his or her employing agency under such terms as are mutually agreeable and outlined in a Memorandum of Understanding (MOU) signed by both agencies involved. Terms of the MOU must be consistent with applicable                                       ( print page 51252)                                    provisions of 5 U.S.C. chapter 41 and a copy must be provided to OPM. Either agency may decline or discontinue a candidate's participation if such terms cannot be negotiated or are not fulfilled.                            

(4) Any candidate's participation in an SESCDP is at the discretion of the employing agency and subject to provisions established under 5 CFR 412.302(a) for removing a participant who does not make adequate progress in the program.

(5) For purposes of this paragraph, a “career-type” appointment means a career or career-conditional appointment or an appointment of equivalent tenure. An appointment of equivalent tenure is considered to be an appointment in the excepted service that is placed in Group I or Group II under § 351.502(b) of this chapter.

# Subpart D—Executive Development

§ 412.401 

(a) Each agency must establish a program or programs for the continuing development of its senior executives in accordance with 5 U.S.C 3396(a). Such agency programs must include preparation, implementation, and regular updating of an Executive Development Plan (EDP) for each senior executive. The EDPs will:

(1) Function as a detailed guide of developmental experiences to help SES members, through participation in short-term and longer term experiences, meet organizational needs for leadership, managerial improvement, and organizational results;

(2) Address enhancement of existing executive competencies and such other competencies as will strengthen the executive's performance;

(3) Focus primarily on work-related experiences;

(4) Outline developmental opportunities and assignments to allow the individual to develop a broader perspective in the agency as well as Governmentwide; and

(5) Be reviewed annually and revised as appropriate by an ERB or similar body designated by the agency to oversee executive development, using input from the performance evaluation cycle.

(b) Consistent with 5 U.S.C. 3396(d) and other applicable statutes, EDPs may provide for executive sabbaticals and other long-term assignments outside the Federal sector.

[FR Doc. E8-20273 Filed 8-29-08; 8:45 am]

BILLING CODE 6325-39-P