[Federal Register Volume 74, Number 236 (Thursday, December 10, 2009)]
[Rules and Regulations]
[Pages 65383-65390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29480]

Rules and Regulations
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Federal Register / Vol. 74, No. 236 / Thursday, December 10, 2009 / 
Rules and Regulations

[[Page 65383]]


5 CFR Parts 410 and 412

RIN 3206-AK75

Training; Supervisory, Management, and Executive Development

AGENCY: Office of Personnel Management.

ACTION: Final rule.


SUMMARY: The Office of Personnel Management (OPM) is amending its 
regulations to implement certain training and development requirements 
contained in the Federal Workforce Flexibility Act of 2004 (Pub. L. 
108-411) and to make other revisions in OPM regulations. 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 modify its training plans and programs as needed to accomplish the 
agency's performance plans and strategic goals. Public Law 108-411 
requires agencies to consult with 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. Another change we are 
including, not related to the Act, is the removal of the extension for 
submitting training data. This change is the result of a policy 
decision by OPM as the extension request is no longer valid--requests 
were only granted up to December 2007.

DATES: Effective Date: December 10, 2009.

FOR FURTHER INFORMATION CONTACT: Cheryl Ndunguru at (202) 606-4063 or 
[email protected], or Julie Brill at (202) 606-5067 or 
[email protected].

SUPPLEMENTARY INFORMATION: OPM published proposed regulations to make 
changes in parts 410 and 412 on September 2, 2008 (73 FR 51248). We 
received comments from 12 agencies and 1 union. Many commenters were 
supportive of the changes, but there were substantial questions and 
comments about requirements for supervisory training, succession 
management, SES candidate development programs and executive 
development plans.


General Issues

    One commenter expressed concern about the ability to fully carry 
out the proposed requirements identified in parts 410 and 412 due to 
the lack of both financial and human resources. OPM understands the 
budgetary constraints some agencies are under, but the requirements are 
in law. OPM will work with agencies to help them reduce their costs of 
compliance to the extent possible.
    Another commenter suggested that additional regulations are 
necessary to comply with section 1103 of title 5, United States Code, 
because nothing within proposed parts 410 or 412 holds agency managers 
or human resources leaders accountable for effective human resources 
management. We disagree. Section 1304 of the Chief Human Capital 
Officers (CHCO) Act authorizes OPM to develop an assessment system, 
including standards and metrics, for agency human resources management. 
OPM published regulations at 5 CFR part 250, subpart B (73 FR 23012) on 
April 28, 2008, which set forth new OPM and agency responsibilities and 
requirements to enhance and improve the strategic management of the 
Federal Government's civilian workforce, as well as the planning and 
evaluation of agency efforts in that regard. Those regulations 
establish the framework for OPM's leadership in holding agencies 
accountable for efficient and effective human resources management in 
accordance with merit system principles.
    One commenter contended the proposed regulations go beyond the 
purpose and scope of the training provisions of the Federal Workforce 
Flexibility Act but did not specify in what way. The commenter 
suggested OPM convene a working group of agency training officials to 
determine the need for and benefits from any additional changes to 5 
CFR parts 410 and 412. In addition to requirements in the Workforce 
Flexibility Act, OPM has general regulatory authority over training. In 
exercising that authority, OPM has consulted with agencies on changes 
to the regulation outside those specified in the Workforce 
Flexibilities Act (but within OPM's general authority) prior to 
publishing the proposed regulations. We have incorporated that feedback 
into the regulation.
    One commenter observed the preamble to the proposed regulation 
indicates changes were made to subpart C of part 410 pertaining to 
Continued Service Agreements (CSAs), but the proposed rule does not 
include any changes. The commenter was correct--the statement in the 
preamble was an error. OPM did not propose any changes to subpart C. 
Another commenter indicated ``something is wrong with the wording in 
the third-to-last sentence'' of Sec.  412.302(a) but did not indicate 
what was wrong. Upon reviewing the language, we determined the sentence 
required clarification and changed the wording to read, ``The ERB also 
must oversee development, evaluation, progress in the program, and 
graduation of candidates, and submit for QRB review within 90 workdays 
of graduation those candidates determined by the ERB to possess the 
executive core qualifications.''

Part 410


    One commenter recommended proposed Sec.  410.201(d)(4) be set forth 
as a separate paragraph (e), and the language of this provision be 
revised because, as currently written, the language implies agencies 
will be required to conduct annual assessments of mission-critical 
occupations and

[[Page 65384]]

competencies, competency gaps and strategies to close competency gaps. 
The commenter believes this is a resource-intensive process that adds 
little value. Another commenter contended that while reviewing the 
overall curriculum on an annual basis is prudent, a full and thorough 
review of every program on a yearly basis would not be cost-effective. 
This commenter recommends changing this requirement to every 3 years. 
We believe Sec.  410.201(d)(4) simply makes explicit obligations 
already imposed under Executive Order 11348 to perform periodic reviews 
of the overall program, at least annually. Executive Order 11348 
requires every agency head to establish training programs in accordance 
with chapter 41 of Title 5 of the United States Code. Section 303 of 
E.O. 11348 requires that each agency head shall ``[r]eview 
periodically, but not less often than annually, the agency's program to 
identify training needed to bring about more effective performance at 
the least possible cost.'' The Federal Workforce Flexibility Act of 
2004 modified 5 U.S.C. 4103 to add a statutory requirement that the 
head of each agency regularly evaluate and modify training programs 
under chapter 41. Section 410.201(d)(4) of title 5, Code of Federal 
Regulations, references the plan or program an agency has established 
to identify the training needs within that agency, and requires an 
annual review, consistent with section 303 of E.O. 11348. The annual 
review is important, because it provides timely feedback on agency 
training programs and permits adjustments to meet changing agency 
mission and performance goals. The requirement of an annual review 
ensures that agencies take account of relevant developments and make 
timely adjustments. The requirement is also consistent with the 
requirement of the Human Capital Management Report as described in 5 
CFR 250.203. To ensure the meaning of Sec.  410.201(d)(4) is clear, we 
have added language to emphasize the annual assessment is of the 
overall agency talent management program.

Part 412

Succession Planning

    Multiple commenters expressed confusion about the meaning of ``in 
consultation with OPM'' in Sec.  412.201 which specifies that the head 
of each agency must develop a comprehensive management succession 
program. One commenter requested feedback on OPM's role in the approval 
process and on issuance of guidance related to succession management 
programs. Currently, OPM has the responsibility to review and provide 
feedback on agency succession management plans. OPM will use a variety 
of mechanisms, including the CHCO Council, the Human Resources 
Directors' Forum, and OPM's Human Capital Officers to assist agencies 
in developing plans and strategies to meet the requirements of 5 U.S.C. 
4121 and 5 CFR part 250 for implementing management succession 
programs. In addition, OPM has provided, and will continue to provide, 
guidance to agencies on succession management including OPM's April 
2009 A Guide to the Strategic Leadership Succession Management Model, 
available on the Chief Human Capital Officers Council Web site (http://www.chcoc.gov).
    One commenter objected to Sec.  412.201, arguing it includes strict 
requirements for succession planning that could potentially lead to 
pre-selection. We disagree that the regulatory requirements will 
encourage pre-selection and we emphasize that management succession 
programs must be administered in a manner consistent with the merit 
systems principles, which dictate fair and open competition for all 
Federal positions. We do not find this language includes strict 
requirements or differs from the requirements in the original 
legislation (i.e., the Federal Workforce Flexibility Act of 2004; Pub. 
L. 108-411). The law states each agency shall establish ``a 
comprehensive management succession program to provide training to 
employees to develop managers for the agency.'' Section 412.201 
explains agencies should ensure an adequate number of qualified 
candidates are developed for leadership positions and that the training 
and development programs should focus on building leadership capacity 
across the organization. OPM has modified the language of the 
regulation to emphasize these points.

Supervisory Training

    Two commenters objected to the requirement for follow-up training 
for supervisors. Both commenters objected because they believe that the 
topics enumerated are unnecessarily restrictive, and that agencies 
should be given greater flexibility and discretion in establishing 
appropriate timeframes and topics for conducting such training, in 
accordance with the agency's particular budgetary and workforce needs. 
One commenter supported the training requirement but objected to the 
specific topics. This commenter also suggested multiple training 
delivery methods be allowed. The specific training topics for 
supervisors are specified in the Federal Workforce Flexibility Act of 
2004, at 5 U.S.C. 4121(2), and the regulations were written to reflect 
the law. The effectiveness and efficiency of Government programs and 
services depend on well-trained managers. Mandatory supervisory 
training ensures managers receive training and will help develop 
effective managers who foster positive work environments that produce 
an efficient and responsive Government. Agencies have the discretion to 
offer training in addition to what is specified in the regulation based 
on individual needs. The proposed timeframe is reasonable and ensures 
managers receive appropriate training to supervise Federal employees. 
Lastly, the proposed regulation does not specify training delivery 
methods, thus leaving it to the discretion of the agency.
    One commenter objected to the wording ``individual's potential'' in 
Sec.  412.202(c), explaining that assessing an individual's potential 
in a valid manner is complex and administratively burdensome. This 
commenter recommends the language of proposed Sec.  412.202(c) be 
amended to strike the phrase ``* * * and the individual's potential''. 
Another commenter was not clear on the meanings of ``critical career 
transitions'', ``results of assessments of the agency's needs'', and 
``individual potential'' in Sec.  412.202(c). OPM has revised the 
language to (1) explain critical career transitions, and (2) clarify 
that training should be consistent with assessments of the agency's and 
the individual's needs. The intent of Sec.  412.202(c) is to convey the 
importance of ensuring employees moving into supervisory and managerial 
positions (critical career transitions) possess the skills and 
knowledge necessary to effectively manage people and carry out the work 
of the agency. Agencies can determine readiness by coupling an 
assessment of the agency's need and the individual's ability to meet 
those needs (individual's potential).

Senior Executive Service Candidate Development Programs (SESCDP)

    One commenter proposed language be added to Sec.  412.302 allowing 
agencies to use some leadership training taken within the year prior to 
commencing a CDP class as part of the required 80 hours of individual 
training. OPM declines to add this to the regulation. OPM has provided 
guidance about this issue, outlining acceptable training in a September 
2009 memorandum to Human Resources Directors.
    One commenter proposed the new regulations allow participants to 
use their position of record as a developmental assignment if it is new 

[[Page 65385]]

them and is outside the scope of their previous position. We disagree 
with this proposition. Allowing candidates to remain in their position 
of record for the developmental assignment does not go far enough in 
exposing potential executives to multiple points of view or in 
achieving the principal goal of the developmental assignment, which is 
to have the person gain a broader perspective of his/her agency and the 
Federal Government. To achieve a broader perspective requires 
experience in other areas of work and in various working relationships 
different from current and past assignments.
    One commenter contended OPM's proposed language requiring 
participants to submit certification packages within 90 days of program 
completion is unrealistic given the number of participants many 
agencies have in the program and the numerous internal agency review 
processes before packages are submitted to OPM. The commenter suggested 
the regulation be revised to state certification packages must be 
submitted within 120 days of program completion. In addition, one 
commenter suggested OPM should require the Executive Resources Board 
(ERB) to submit Criterion ``B'' cases (candidates who successfully 
complete all SES Candidate Development Program activities) within 90 
workdays, rather than 90 calendar days, to maintain consistency with 
submission requirements for Criterion ``A'' and ``C'' cases (those SES 
candidates, respectively, whose overall records demonstrate the 
knowledge, skills, and abilities needed to perform at the SES level, 
and whose professional/technical backgrounds make them particularly 
well-suited for the SES vacancy but who lack demonstrated experience in 
one or more of the Executive Core Qualifications). We agree with the 
commenters' recommendation for consistency and have revised Sec.  
412.302(a) accordingly. Revising the requirement to 90 workdays also 
meets the commenter's request to allow requests for certification to be 
within 120 days from graduation.
    Two commenters contended Sec.  412.302(b) should not require a one-
for-one linkage to expected SES vacancies. One commenter suggested 
that, from a succession planning perspective, this linkage is often 
inadequate. It is not our intent to make a one-to-one linkage, and we 
have modified this section to read, ``The number of expected SES 
vacancies must be considered as one factor in determining the number of 
selected candidates.'' Agencies should develop and select candidates 
based upon a realistic assessment of anticipated vacancies and staffing 
plans. This assessment should take into account the number of positions 
the agency is likely to fill by other avenues (e.g., reassignment, 
transfer or merit staffing).
    One commenter suggested the requirement in Sec.  412.302(b) to 
obtain approval from OPM to conduct an SES CDP should be streamlined 
and simple, honoring the guidelines agencies have set for their 
programs as long as they adhere to the minimum requirements as 
stipulated in the regulations. Approvals and re-approvals will be based 
upon a determination that the SESCDP meets requirements established in 
the regulations. OPM has provided, and will continue to provide, tools 
and guidance to help streamline the approval process and will continue 
to ensure the approval process is as efficient as possible.
    Two commenters believed the proposed requirements in Sec.  412.301 
regarding re-approval of an SESCDP places an unnecessary burden on 
agencies, and certain aspects of the proposed regulations overly limit 
agencies in their ability to design and implement an effective SESCDP. 
One commenter requested OPM consider consulting with agencies about 
SESCDPs and sharing best practices among agencies in lieu of adding re-
approval requirements to the regulation. Another commenter believed 
agencies should not have to seek re-approval unless significant changes 
are made to their program so the regulations should remain unchanged in 
this regard. Also, one commenter recommended we clarify in regulation 
that candidates' QRB certifications obtained within approved SESCDPs 
remain valid. We disagree with removing the re-approval requirement. 
Requiring OPM approval every 5 years ensures agency SESCDP alignment 
with succession plans and program currency and relevance. Agency 
changes in leadership and staff as well as new regulatory requirements 
also warrant a periodic program re-approval. Approvals and re-approvals 
will be based upon a determination that the SESCDP meets requirements 
established in the regulation. In addition, OPM currently and 
frequently consults with agencies on their SESCDPs and shares all 
information and best practices Governmentwide. Lastly, 5 CFR 317.502 
removes time limits from any previously approved QRB certifications so 
any certifications obtained within an OPM-approved SESCDP remain valid.
    One commenter objected to the omission of the third SES recruitment 
option for agencies to limit the recruitment pool to agency-wide only. 
This commenter believes an agency should have at least the option to 
limit recruitment to qualified individuals from within their own 
agency. We disagree. We removed the exception because OPM determined it 
is better to align the requirements for a CDP program with the 
requirements of 5 U.S.C. 3393, because successful completion of a CDP 
program and subsequent certification makes the candidate eligible for 
appointment to an SES position without further competition. Thus, 
requiring broad competition for entry into a CDP helps ensure 
excellence in the SES ranks.
    One commenter strongly objected to the omission of current Sec.  
412.104(b) language stating ``[i]n recruiting, the agency, consistent 
with the merit system principles in 5 U.S.C. 2301(b)(1) and (2), takes 
into consideration the goal of achieving a diversified workforce.'' 
This commenter believes omission of this language sends a message to 
agencies that equal opportunities are no longer an OPM priority. We 
have reconsidered and have decided to reinstate the language in Sec.  
    While commenters supported the overall 4-month developmental 
assignment, several commenters raised concerns about it including at 
least one assignment of 90 continuous days. One commenter questioned 
the need for this assignment and suggested the 4-month assignment be 
comprised of one 60-day and 2 other assignments. The commenter 
indicated that such a structure would be more feasible and effective. 
Some saw the 90 continuous day minimum requirement as excessive and/or 
too restrictive. These commenters felt it could discourage smaller 
agencies from conducting SESCDPs because candidates could not be spared 
for extended periods and/or the restriction hindered flexibility. 
Another commenter felt allowing a 30-day assignment is too short to 
ensure meaningful development, so the minimum requirement should be 60 
days. We disagree. OPM believes the 90-day requirement is necessary to 
ensure that candidates are exposed to executive level accountability 
and responsibility. These developmental assignments are meant to 
provide candidates the opportunity to influence peers and should be of 
sufficient length to bring about that result. However, agencies may 
supplement these requirements according to candidates' developmental 
    One commenter suggested that referring to the Executive Core 
Qualifications (ECQs) in Sec.  412.302(c)(2) limits potential executive 

[[Page 65386]]

programs that address the ECQs without specifically labeling them ECQs. 
The commenter recommended we reword the regulation to read ``executive 
leadership competencies'' instead of ECQs. We disagree. Nothing in this 
regulation requires executive education programs to label the 
competencies that are the subjects of their programs ECQs. Rather, the 
ECQs are clearly stated, and OPM explicitly defines the competencies 
needed to build a Federal corporate culture that strives for results, 
serves customers, and builds successful teams and coalitions within and 
outside the organization. The leadership competencies developed within 
any executive education programs can be easily linked to those 
identified within the ECQs, so reference to the ECQs in this section 
will remain.
    One commenter saw no benefit in requiring the SESCDP to last 
between 12 and 24 months. The commenter felt this requirement 
undermines desirable flexibility and suggested we delete 5 CFR 
412.302(a) and (c) from the final regulations. Two commenters also 
suggested the regulations allow for flexibilities for participants with 
extenuating circumstances preventing them from completing the program 
within 24 months. The program length should enable candidates to meet 
the overall requirements of the program to close developmental gaps. We 
agree flexibility should be allowed but believe less than 12 months is 
insufficient time to develop new strengths and close competency gaps. 
We have revised Sec.  412.302(a) to require an SES CDP to last a 
minimum of 12 months but removed the requirement to last no more than 
24 months.
    Two commenters questioned several references in 5 CFR 
412.302(c)(1)(iv) and (v). One commenter disagreed with the requirement 
the candidates must interact with a ``wide mix'' of senior Federal 
employees outside the agency and with ``senior non-Federal employees'' 
during the developmental program. This commenter suggests such 
components should be dictated in part by the needs and prior experience 
of the individual candidates. The other commenter asked if the intent 
is simply to interact throughout the program, not necessarily in a 
formal training environment. This commenter also requested ``wide mix'' 
be clarified with a specific percentage or by some other means. This 
requirement is intended to allow interaction between the candidates and 
other executives outside their own agency, and to increase candidates' 
experience in the broader context within which executives operate--not 
just within a formal training environment. Furthermore, the minimum 
standards are sufficiently broad so individual development plans can be 
tailored to meet each candidate's needs. OPM will not regulate a 
specific percentage or ratio to define ``wide mix'', but further 
guidance will be provided to agencies so they can determine whether or 
not their programs meet the requirement for broad interaction. Due to 
agency comments regarding interaction outside the candidate's 
department or agency, we have slightly revised Sec.  412.302(c) by 
clarifying the reference to interaction with senior non-Federal 
employees to say, ``Interaction with senior employees outside the 
candidate's department or agency to foster a broader perspective.''
    One commenter expressed confusion regarding Sec.  412.301(a) and 
questioned whether or not this paragraph provides for delegation of 
SESCDP implementation, certification of ECQs, and selection to the SES 
by the OPM-certified agency. This paragraph does not delegate QRB 
certification to agencies. A QRB established by OPM pursuant to 5 
U.S.C. 3393(c)(1) certifies attainment of ECQs and selection to the 
SES. A QRB must certify the ECQs of any SESCDP graduate to become 
eligible for noncompetitive initial career SES appointment.
    One commenter suggested OPM strengthen Sec.  412.301(a) to indicate 
successful completion of the SESCDP should be the sole basis for QRB 
certification of candidates and individual ECQ narratives should not be 
required. This commenter recommended OPM clarify, through regulation or 
guidance, the basic submission requirements for requesting QRB 
certification of a candidate who completes an SESCDP. We disagree with 
the recommendation that successful completion of the SESCDP be the sole 
basis for QRB certification. Successful completion of an SESCDP program 
and approval of graduates by the QRB is accomplished when the candidate 
demonstrates that he or she possesses all ECQs. Basic submission 
requirements for requesting QRB certification of a candidate who 
completes an SESCDP are currently prescribed through OPM guidance.
    In reference to Sec.  412.301(d), one commenter suggested agencies 
be allowed to establish programs covering only designated components 
and apply to OPM for approval on the components' behalf, rather than 
having components apply directly to OPM. We intended to increase an 
agency's options with this provision by allowing an agency to permit 
its component to innovate in this area without requiring a commitment 
of the agency's time and resources. We decline to narrow the options 
for components to come to OPM for approval.
    One commenter suggested agencies define their policies in the 
SESCDP approved by OPM rather than charging ERBs with overseeing the 
writing and implementation of the removal policy. ERBs are required by 
law (5 U.S.C. 3393(b)) to oversee SES selections and OPM believes, 
therefore, that it is good policy to involve ERBs in the agency SESCDP 
policies as well.
    One commenter supported the concept of the Senior Executive Service 
Development Plan (SESDP) but suggested OPM keep the standard 
terminology of Individual Development Plan (IDP). This commenter also 
expressed confusion surrounding the requirement that the SESDP address 
``Federal Government leadership challenges crucial to the senior 
executive.'' Agencies may refer to the development plan any way they 
choose as long as the plan addresses the components put forth in 
regulation. Nevertheless, we understand SESDP could cause confusion 
with other development plans and have reworded the regulation 
accordingly. In addition, ``Federal Government leadership challenges'' 
refers to those challenges an executive encounters, thus requiring them 
to demonstrate the ECQs.
    One commenter questioned whether or not the 80-hour formal training 
requires interagency participation. The purpose of the 80-hour formal 
training experience is to develop candidates' competencies in the ECQs. 
OPM has revised the language in Sec.  412.302(c)(2) to clarify the 
nature of the training must be interagency and/or multi-sector and 
outside the candidate's department or agency. The terms ``interagency'' 
and ``multi-sector'' include State, local, and foreign governments as 
well as private-sector and non-profit organizations.
    One commenter noted while executive-level responsibility in a 
developmental assignment would be appropriate in most instances, there 
may be candidates who have substantial executive-level experience but 
are limited to a single functional or program area. In these cases, 
instead of requiring an assignment to be at an executive-level, the 
commenter recommends OPM accept any assignment clearly outside of and 
different from the position of record as long as the assignment can be 
tied to the individual needs assessment and overall ECQs. While we 
agree there may be candidates who have some executive level experience 
in a single area, we disagree with the commenter's recommendation. Some 

[[Page 65387]]

experiences would not normally provide the depth and breadth of 
experience needed to enhance a candidate's executive qualifications. 
Requiring the developmental assignment to be at an executive level 
(even for those who have some executive level experience) will help 
achieve the goal of the developmental assignment--to have the candidate 
gain a broader and deeper perspective from the executive level on his/
her agency and the Federal Government.
    One commenter contended the requirement for a mentor is too broad 
to apply effectively. The commenter suggested the regulations focus on 
the basic requirement for candidates to have a mentor who is a member 
of the SES or is otherwise determined acceptable. The commenter noted 
in the past OPM has accepted mentors from outside of the Federal 
Government, and if that is still the practice, it should be specified 
in the regulations. The requirement for a mentor is worded broadly to 
allow greater flexibility in choosing the appropriate mentor to fit the 
candidate's needs. The mentor must be a member of the SES or someone 
the ERB believes has the knowledge and capacity to advise the 
candidate. This means the mentor can be from outside the Federal 
government. For the purposes of the program, the mentor would be able 
to help the candidate make connections, observe behaviors and outcomes, 
or who may get indirect feedback about the candidate's performance from 
    One commenter noted the regulations should indicate when the 
Memorandum of Understanding (MOU) must be submitted to OPM (e.g., at 
the time of the candidate's entry into SESCDP or when certification is 
requested). The commenter also asked for clarification of whether the 
MOU needs to comply with provisions for details in chapter 33 of title 
5, U.S. Code, and, if so, suggested this be specified. The MOU must be 
submitted after the candidate is selected and before the program 
begins. We have cited chapter 41 of title 5 because an SESCDP primarily 
and necessarily focuses on training and development, which must conform 
to the requirements of that chapter. Also, OPM will not add anything 
with respect to provisions for details in chapter 33 as agency counsels 
and budget officials are responsible for determining agency compliance 
with chapter 33 and other laws (e.g., the Economy Act).
    One commenter noted there is another definition of ``career-type'' 
dealing with conversions to SES appointment in Sec.  317.304, and OPM 
should consider conforming amendments to make the definitions 
consistent. We are aware of the career-type definition in Sec.  
317.304. It applies to SES conversion, a very different situation from 
the SESCDP recruitment context addressed in these regulations. We opted 
not to reference Sec.  317.304 in proposed part 412, subpart C, because 
that section does not specify how temporary, term and similar excepted 
service appointments relate to the definition of ``career-type''. 
Moreover, due to the SES conversion context Sec.  317.306 treats only a 
specific kind of temporary or term appointment (i.e., Limited Executive 
Assignments at GS-16, 17 and 18 in the former Executive Assignment 
System and excepted service appointments at comparable levels, rather 
than appointments at GS-15 and below). Agencies will need to address on 
a regular basis how to treat applicants with temporary, term and 
equivalent excepted service appointments at GS-15 and below. We 
therefore conclude the reference to 5 CFR 351.502(b) will be more 
helpful to agencies and have retained it in the final regulations 
without adding the additional reference.

Executive Development

    Several commenters questioned the need to mandate Executive 
Development Plans (EDPs). One commenter objects to the requirement in 
the belief that it imposes an undue administrative and financial burden 
on agencies. One commenter suggested if EDPs must be required, they 
should be mandated for probationers only; another commenter is not 
clear on whether the new EDP is required only for career SES members or 
whether non-career SES members are included. Another commenter did not 
support the provisions that specifically structure the nature of the 
EDP and program and indicated the focus for the development plan should 
be on developmental/enhancing experiences of a strategic nature and not 
be focused primarily on the current work of the SES. The requirement 
for the EDP is based on extensive Governmentwide research and feedback 
from various agencies on the increased need for continuing executive 
development of all executives (career and non-career) within the 
Federal Government. Continued learning can occur without a major strain 
on resources but through on-the-job experiences, details, relationship-
building, networking, peer learning, and formal and informal training 
opportunities. We agree with the suggestion the EDP not be based 
primarily on the current work of the SES member and have revised Sec.  
412.401(a)(3) accordingly.
    One commenter asked whether OPM would dictate the format and 
content of the EDP and what procedures would be put in place to 
ascertain these are being established. OPM has provided an EDP template 
for agencies to use as a tool. However, the format and content of the 
EDP is at the agency's discretion. Agencies must develop specific 
procedures and accountability measures to ensure that executives are 
continually being developed and EDPs are regularly updated and 

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.

John Berry,
Director, Office of Personnel Management.

Accordingly, OPM is amending 5 CFR parts 410 and 412 as follows:

PART 410[horbar]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 Sec. Sec.  410.201 and 410.202 to read as follows:

Sec.  410.201  Responsibilities of the head of an agency.

    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 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;

[[Page 65388]]

    (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, the 
overall agency talent management program to identify training needs 
within the agency as required by section 303 of Executive Order 11348.

Sec.  410.202  Responsibilities for evaluating training.

    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 Sec.  410.203 and redesignate Sec.  410.204 as Sec.  410.203.

5. In Sec.  410.701, remove paragraph (c) and redesignate paragraph (d) 
as paragraph (c).

6. Remove subpart F and redesignate subpart G, consisting of Sec.  
410.701, as subpart F, consisting of Sec.  410.601.

7. Revise part 412 to read as follows:


Subpart A--General Provisions
412.101 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

Sec.  412.101  Coverage.

    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.

Sec.  412.102  Purpose.

    (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 
    (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

Sec.  412.201  Management succession.

    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. The focus of the program should be to develop 
managers as well as strengthen 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 
employee'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.

Sec.  412.202  Systematic training and development of supervisors, 
managers, and executives.

    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 
    (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, for instance from non-supervisory to manager or from 
manager to executive. This training should be consistent with 
assessments of the agency's and the individual's needs.

Subpart C--Senior Executive Service Candidate Development Programs

Sec.  412.301  Obtaining approval to conduct a Senior Executive Service 
candidate development program (SESCDP).

    (a) An SESCDP is an OPM-approved training program designed to 
develop the executive qualifications of employees with strong executive 
potential to qualify them for and authorize 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

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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 
    (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) and this subpart before initiating a new SESCDP. All existing 
SESCDP approvals expire within 2 years after publication of this 
    (d) An agency covered by subchapter II of chapter 31 of title 5, 
United States 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 
    (e) As always, agencies should be mindful of merit principles in 
carrying out their functions under this subpart.

Sec.  412.302  Criteria for a Senior Executive Service candidate 
development program (SESCDP).

    (a) Executive Resources Board requirements. An agency's Executive 
Resources Board (ERB) must oversee the SESCDP. The ERB ensures the 
development program lasts a minimum of 12 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 Sec.  412.302(d)(1) of this part. 
The ERB also must oversee development, evaluation, progress in the 
program, and graduation of candidates, and submit for QRB review within 
90 workdays of graduation those candidates determined by the ERB to 
possess the executive core qualifications. The ERB must also oversee 
the writing and implementation of a removal policy for program 
candidates who do not make adequate progress.
    (b) Recruitment. In recruiting, the agency, consistent with the 
merit system principles in 5 U.S.C. 2301 (b)(1) and (2), takes into 
consideration the goal of achieving a diversified workforce. 
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 of expected SES 
vacancies must be considered as one factor in determining the number of 
selected candidates.
    (c) Senior Executive Service candidate development program 
requirements. An SESCDP lasts a minimum of 12 months. To graduate, a 
candidate must accomplish the requirements of the program established 
by his or her agency. Each individual participating in an SESCDP must 
    (1) A documented development plan 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 senior employees outside the 
candidate's department or agency to foster a broader perspective; and
    (v) Have Governmentwide or multi-agency applicability in the nature 
and scope of the training;
    (2) A formal interagency and/or multi-sector training experience 
lasting at least 80 hours that addresses the ECQs and their application 
to SES positions Governmentwide. The training experience must include 
interaction with senior employees outside the candidate's department or 
    (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 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 for which agencies must 
recruit consistent with merit system principles and paragraph (d)(1) of 
this section. An agency must provide procedures under which selections 
are made from among either all qualified persons or all qualified 
persons in the civil service. If selected, the individual participates 
in the agency's 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 Sec.  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 Sec.  317.501 of this chapter, except agencies must 
follow the

[[Page 65390]]

principle of veterans' preference as far as administratively feasible, 
in accordance with Sec.  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 Sec.  317.501 of this chapter. Subject to the 
approval of the agency in which the selectee is employed, 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, assuming the 
employing agency approves. 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 
    (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. The MOU should be 
submitted to OPM after the candidate is selected and before the program 
begins. Terms of the MOU must be consistent with applicable 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 (d), 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 section 351.502(b).

Subpart D--Executive Development

Sec.  412.401  Continuing executive development.

    (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) Outline developmental opportunities and assignments to allow 
the individual to develop a broader perspective in the agency as well 
as Governmentwide; and
    (4) 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. E9-29480 Filed 12-9-09; 8:45 am]