[Federal Register Volume 73, Number 170 (Tuesday, September 2, 2008)]
[Proposed Rules]
[Pages 51248-51252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20273]

[[Page 51248]]



5 CFR Parts 410 and 412

RIN 3206-AK75

Training; Supervisory, Management, and Executive Development

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: [email protected]. 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 [email protected].

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:
    [cir] Agencies will have effective and cost-efficient training 
programs linked to agency strategic plans;
    [cir] 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:
    [cir] Revised Sec.  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;
    [cir] Revised Sec.  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;
    [cir] Delete current Sec.  410.203 and incorporate the information 
in that section into Sec.  410.201. Sec.  410.204 would be renumbered 
as Sec.  410.203.
    [cir] Delete current Sec.  410.701 (c) as extensions to report 
training data to OPM are no longer accepted. Sec.  410.701 (d) would be 
redesignated as Sec.  410.701 (c).
    [cir] Delete current subpart F and redesignate subpart G as subpart 
F, and renumber Sec.  410.701 as Sec.  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 
Sec.  412.103 would be revised and placed within the new subpart B as 
Sec.  412.201, current Sec.  412.104 would be revised and would be 
placed within the new subpart C as Sec.  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

    [cir] Revised Sec.  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;
    [cir] Revised Sec.  412.102(b)(3) would replace ``corporate 
perspective'' with ``broad agency and Governmentwide perspective,'' to 
more accurately reflect the intended goal.
    [cir] Current Sec.  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

[[Page 51249]]

programs provide development for future managers;
    [cir] Current Sec.  412.104(a)(2) would be deleted. The change 
would eliminate the exemption from Governmentwide recruitment for 
candidate development programs.

Subpart B--Succession Planning

    [cir] New Sec.  412.201 would specify requirements for agency 
management succession programs;
    [cir] Revised Sec.  412.202 would clarify that agency leadership 
development programs are part of the general workforce development 

Subpart C--Senior Executive Service Candidate Development Programs

    [cir] New Sec.  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;
    [cir] New Sec.  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 
    [cir] New Sec.  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 Sec.  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 
    [cir] New Sec.  412.302(a) defines the Executive Resources Board 
(ERB) oversight responsibilities in the SESCDP approval process;
    [cir] New Sec.  412.302(a)(1) clarifies competition must be under 
SES merit staffing procedures;
    [cir] New Sec.  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.
    [cir] New Sec.  412.302(d) would eliminate the references to 
``status programs'' (current Sec.  412.202) and ``non-status programs'' 
(current Sec.  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

    [cir] New Sec.  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 


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

    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 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.

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.  
    5. Remove Sec.  410.701(c) and redesignate Sec.  410.701(d) as 
Sec.  410.701(c).
    6. Remove subpart F and redesignate subpart G as subpart F, 
including redesignating Sec.  410.701 as Sec.  410.601.
    7. Revise part 412 to read as follows:

[[Page 51250]]


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 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.

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 to supervisor, manager, or executive consistent with the 
results of assessments of the agency's needs and the individual's 

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. 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 
    (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 
    (d) An agency covered by subchapter II of chapter 31 of title 5, 
United States

[[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 
    (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 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 Sec.  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 
    (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; 
    (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 Sec.  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 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 that agencies must 
follow the 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. 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

[[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 Sec.  351.502(b) of this chapter.

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) 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]