[Federal Register Volume 61, Number 172 (Wednesday, September 4, 1996)]
[Rules and Regulations]
[Pages 46531-46534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22366]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 61, No. 172 / Wednesday, September 4, 1996 /
Rules and Regulations
[[Page 46531]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 317 and 412
RIN 3602-AF96
Executive, Management, and Supervisory Development
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations to eliminate the 3-year limitation on the validity of
Qualifications Review Board (QRB) certification for appointment to the
Senior Executive Service (SES). The Office is also revising its
regulations governing executive and management development. The
coverage has been expanded to include supervisory development. The
revised regulations present broad program criteria on the systematic
development of executives, managers, supervisors, and candidates for
these positions. They also establish minimum requirements for formal
SES candidate development programs. The revisions are intended to
promote training and development activities which foster a corporate
perspective of Government within the Federal executive cadre.
EFFECTIVE DATE: October 4, 1996.
FOR FURTHER INFORMATION CONTACT:
Constance Maravell at 202-606-1832.
SUPPLEMENTARY INFORMATION: OPM published proposed regulations to make
changes in parts 317 and 412 on December 11, 1995 (60 FR 63454). We
received comments from 7 agencies, 1 individual, and the Senior
Executives Association (SEA). Most comments were supportive of the
changes. There were some reservations about requirements for SES
candidate development programs.
Part 317--Employment in the Senior Executive Service
The proposed regulations included a change in 5 CFR 317.501(c)(5)
which would have allowed Executive Resources Boards to refer to the
selecting official all candidates as best qualified when there were
less than 10 applicants for a position. This was proposed in response
to a recommendation from the Executive Resources Management Group's
(ERMG) Staffing Work Group, with the goal of simplifying and
streamlining the merit staffing process. However, we recognize that
such a provision presents difficulties in the context of other
requirements of 5 CFR 317.501(c), calling for the ``relative ranking of
the candidates'' and requiring selection ``from among the candidates
identified as best qualified.'' Two agencies as well as the Senior
Executives Association raised concerns relating to the interpretation
and application of the proposed revision. In evaluating the proposal
and the subsequent comments, we placed primary emphasis on the language
of the merit principle requiring selection and advancement ``solely on
the basis of relative ability, knowledge, and skills * * * '' (5 U.S.C.
2301(b)(1)). In light of these considerations, the proposals has been
deleted from the final regulation.
Another recommendation put forward by the ERMG's Staffing Work
Group involves a larger role for agencies in the management of the QRB
process. Two agencies commenting on these proposed regulations
recommended that the QRB process be delegated to agencies or,
alternatively, eliminated entirely. Our research of the legislative
history of the Civil Service Reform Act indicates that Congressional
intent in legislating Qualifications Review Boards was to assure an
independent review of executive qualifications outside the selecting
agency. This is incompatible with full delegation of the QRB process to
agencies. We currently have an interagency advisory group reviewing the
function and operations of the QRBs as they are presently conducted. If
we conclude that the QRB process does not ``add value'' to the
selection of Federal executives, we will recommend appropriate changes,
including revisions to the statute if necessary.
Part 412--Executive, Management, and Supervisory Development
One agency raised a question about sabbaticals, which are spelled
out in statute (5 U.S.C. 3396(c)) and which are not covered in this
final rule. The question concerned whether agencies would have complete
authority for deciding the merits of requests for sabbaticals. Agencies
have always had complete decision-making authority regarding the use of
sabbaticals. Agencies should continue to report the use of sabbaticals
to OPM, including submission of appropriate documentation (currently
OPM Form 1390, Executive Personnel Transaction).
One agency suggested including the role of ``team leader'' in the
supervisory, managerial, and executive continuum. At this time the role
of the team leader is still evolving and may vary widely, depending on
the type of team or the specific agency. There is no prohibition
barring an agency from setting whatever training policies it deems
appropriate for the training of teams and team leaders. However, we are
not broadening the scope of part 412 to incorporate such a requirement
for all agencies.
Another agency asked for verification of its assumption that a
person who leaves the Government and has been certified as qualified
for the SES by a QRB retains that certification. Since the
certification has no time limit, this is a correct assumption. The
individual could use that certification to return to the Government and
receive a noncompetitive appointment to the SES, provided that he or
she had competed Governmentwide to enter the Candidate Development
Program (CDP).
One agency commented that agencies should be encouraged to train
their managerial corps as needed to meet their program needs rather
than being required to provide managerial training generally. The
regulations require that training and development programs be
consistent with an agency's strategic plan. We would like to emphasize
the importance of training for enhancing organizational achievement.
Training and development play a critical role in assuring high quality
customer service, information management, and improved management
skills. This is widely recognized in the private sector as well as in
Government. Furthermore, the requirements for managerial
[[Page 46532]]
development are flexible enough to allow agencies to comply within the
limits of their financial resources.
Section 412.104 Formal Candidate Development Programs for SES
Positions
OPM believes that formal SES Candidate Development Programs (CDPs)
provide an excellent vehicle for creating and reinforcing a corporate
perspective within the SES. The idea of a ``corporate SES'' originated
with the Civil Service Reform Act of 1978 and was reinforced by the
National Performance Review (NPR) in 1994. One agency asked us to
clarify the concept of corporate SES perspective; another questioned
whether it was a valid objective. We believe that a corporate SES ( a
Governmentwide executive service with shared values, a common identity,
and a certain fundamental uniformity in personnel systems) contributes
to stronger Government, and we will continue our efforts to promote a
corporate SES culture in our policies and programs.
The essence of a corporate SES is shared values. These values must
transcend a commitment to agency mission; they must extend beyond an
executive's individual profession and aspirations. The SES values must
respect and embrace the dynamics of American democracy, an approach to
governance that provides a continuing vehicle for change. The NPR
report on the SES captures the original vision of the SES:
to serve the twin objectives of change and continuity: On one hand
helping the top officials of a new administration to steer their
agencies in the direction set by the newly elected President; on the
other hand carrying forward the institutional memory of government
and maintaining high standards of public service.
We believe that this vision is still valid, and we believe that
balancing continuity and change is the fundamental responsibility of
the Senior Executive. Inherent in this responsibility is respect for
both merit and diversity, both the dignity and importance of the
individual and the richness and wisdom that diversity of individuals
brings to organizations and societies.
Two agencies commented in favor of adding a provision to establish
a cadre of ``precertified'' managers in order to expedite the filling
of executive positions. The ERMG's Staffing Work Group has recommended
that OPM examine ways to allow agencies to precertify the
qualifications of executive candidates outside of the candidate
development process. We are currently considering the feasibility of
possible options for implementing such a recommendation. We recognize
that even experienced managers, who would otherwise meet the
requirements for SES appointment, can benefit from the training and
development provided through a formal CDP. However, given the
limitations of formal training budgets, the CDP is not a cost-effective
vehicle for certifying executive qualifications obtained outside a
formal program.
One agency advocated substituting a general statement of purpose
for formal candidate development programs, in place of the specific
program requirements at Sec. 412.104(e), saying that such
specifications are ``unnecessary and rigid.'' Another agency took
exception to the requirement specifying the aggregate length of
developmental assignment(s) outside the candidate's position of record.
We do not find these requirements to be unnecessary, and it is not our
intention to be rigid in their application or interpretation. In all
cases except where competition for entry into the CDP is restricted to
agency employees, QRB certification based on successful completion of
an OPM-approved executive development program makes an individual
eligible Governmentwide for noncompetitive appointment to the SES.
Therefore, to support development of a corporate perspective in
Government, there is a Governmentwide interest in assuring that a
minimum level of training and development is shared by successful DCP
participants. The regulations allow a great deal of flexibility in
choosing the formal interagency training experience, and the 4 months
of developmental assignments can be accomplished through a series of
shorter assignments. Furthermore, OPM will work with agencies to
develop program plans that are tailored to specific agency needs and
circumstances, and we will permit individual participants to have
development plans which deviate from their agencies' approved program
plans, provided these deviations are approved by OPM in advance. We
absolutely agree with the comment that developmental assignments should
be ``tailored to the individual developmental needs of each
candidate.''
At the same time, some work experiences would not normally provide
the depth and breadth of experience needed to enhance a candidate's
executive qualifications. For example, one agency asked if a candidate
could stay in his/her current position and have extra duties added to
that position. This does not go far enough to achieve the principal
goal of the developmental assignment, which is to have the person gain
a broader perspective on his/her agency and the Federal Government. To
achieve this requires experience in other lines of work and/or in
different working relationships within the organization, or in
different organizations. Adding duties to an existing position does not
accomplish that purpose.
One agency commented that not all candidates have equivalent
backgrounds and, therefore, that development should be based on
individual requirements needed to reach a set level of expected job
performance. As we have previously indicated, we agree that development
plans should be tailored to the individual needs of each candidate. The
regulations require that each candidate have a development plan
prepared from a competency-based needs assessment. The minimum
standards are sufficiently broad so that individual development plans
can be tailored to meet each candidate's needs.
Another agency requested that OPM not restrict formal training to
``interagency sources.'' In fact, the regulations do not restrict
formal training to any particular source or sources. The regulations
allow agencies to choose any source, including nongovernmental, for the
required training experience, which must be Governmentwide or multi-
agency in its nature and scope. The purpose of this requirement is to
expose potential executives to multiple points of view and foster a
corporate perspective.
One agency questioned the necessity of requiring OPM approval of
agency programs prior to announcement for the first time under the new
regulations. We believe these regulations are a significant departure
from the superseded regulations, such that prior OPM review and
approval will contribute to the development of agency programs that
both meet minimum regulatory standards and are tailored to individual
agency needs. We encourage agencies to meet with us early in the
development of their programs so that the concerns of all parties can
be surfaced and adequately addressed. By engaging in such discussion
before agencies' programs are announced for the first time, we can
minimize problems which might arise as individual candidates are
submitted for QRB certification.
The Senior Executives Association (SEA) commented on the
requirement that agencies' recruitment efforts comply with statutory
merit principles (1) and (2) and also take ``into consideration the
goal of achieving a
[[Page 46533]]
diversified workforce'' (412.104(b)). SEA believes ``To provide
additional emphasis will create an appearance that preferential
treatment for some is the desired, but unclearly stated, goal.'' In
Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995), the Supreme
Court ruled that all Federal programs which use race-based decision-
making are subject to strict judicial scrutiny. However, the provision
in question speaks to the recruiting process and not to the selection
process. In a Department of Justice memorandum to General Counsels
providing guidance on the Adarand decision (February 29, 1996),
agencies were advised:
Adarand does not apply, however, to actions in which race is not
used as a basis for making employment decisions about individuals.
For example, action to increase minority applications for employment
is not subject to Adarand. Outreach and recruitment efforts * * *
which merely seek to expand the pool of qualified applicants
generally would not be subject to strict scrutiny under Adarand.
Our purpose in highlighting the value of achieving a diversified
workforce is not to influence selections or other employment decisions
but to articulate the principle that members of all groups should have
an opportunity for consideration.
The SEA suggested that we list in the regulations the 22 generic
competencies identified in the Leadership Effectiveness Framework to
assist potential candidates in assessing their qualifications for SES
positions. For purposes of assessing an individual's executive
qualifications, these 22 competencies are grouped into five ``executive
core qualification:'' strategic vision, human resources management,
program development and evaluation, resource planning and management,
and organizational representation and liaison. It is against these five
core qualifications that individuals are evaluated by Qualifications
Review Boards to determine ``demonstrated executive experience'' and/or
``likelihood of executive success,'' as required by 5 U.S.C. 3393. OPM
has already published guidance which describes the five core
qualifications and provides additional information on how to present a
candidate's executive qualifications for consideration by a QRB.
Operational Issues
One agency raised a number of operational issues, such as the
appropriate organizational level for seeking OPM approval of agency
programs and the lowest organizational level appropriate for seeking
exceptions to Governmentwise recruitment under section 412.104(a)(2).
We plan to discuss these and other procedural questions with all stake
holders and issue operational guidance at the time the regulations
become final.
Regulatory Flexibility Act
I certify that these regulations will not have significant economic
impact on a substantial number of small entities because they affect
only federal employees and agencies.
List of Subjects in 5 CFR Parts 317 and 412
Government employees.
James B. King,
Director, Office of Personnel Management.
Accordingly, the Office of Personnel Management is amending 5 CFR
parts 317 and 412 as follows:
PART 317--EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE
1. The authority citation for part 317 continues to read as
follows:
Authority: 5 U.S.C. 3392, 3393, 3393a, 3395, 3395, 3397, 3593,
and 3595.
2. In subpart E, Sec. 317.502, paragraph (c) is revised to read as
follows:
Subpart E--Career Appointments
Sec. 317.502 Qualifications Review Board certification.
* * * * *
(c) Qualifications Review Board certification of executive
qualifications just be based on demonstrated executive experience;
successful completion of an OPM-approved candidate development program;
or possession of special or unique qualities that indicate a likelihood
of executive success. Any existing time limit on a previously approved
certification is removed.
* * * * *
PART 412--EXECUTIVE, MANAGEMENT, AND SUPERVISORY DEVELOPMENT
3. Part 412 is revised to read as follows:
Subpart A--General Provisions
Sec.
412.101 Coverage.
412.102 Purpose.
412.103 Criteria for programs for the systematic training and
development of executives, managers, supervisors, and candidates.
412.104 Formal candidate development programs for Senior Executive
Service positions.
Subpart B--Senior Executive Service Status and Nonstatus Candidate
Development Programs
412.201 Purpose.
412.202 ``Status'' programs.
412.203 ``Non-status'' programs.
Authority: 5 U.S.C. 3397, 4101, et seq.
Subpart A--General Provisions
Sec. 412.101 Coverage.
This subpart applies to all incumbents of or candidates for
supervisory, managerial, and executive positions in the General
Schedule, the Senior Executive Service (SES), or equivalent pay systems
who are also covered by part 410 of this chapter.
Sec. 412.102 Purpose
(a) This subpart implements for supervisors, managers, and
executives the provisions of chapter 41 of title 5 of the United States
Code related to training and section 3396 of title 5 related to the
criteria for programs of systematic development of candidates for the
SES and the continuing development of SES members.
(b) The subpart identifies a continuum of preparation starting with
supervisory positions and proceeding through management and executive
positions Governmentwide. For this reason, the subpart establishes a
comprehensive system that is intended to:
(1) Provide the competencies needed by supervisors, managers, and
executives to perform their current functions at the mastery level of
proficiency; and
(2) Provide learning through development and training in the
context of succession planning and corporate 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 supervisory, managerial, and executive positions
Governmentwide.
Sec. 412.103 Criteria for programs for the systematic training and
development of executives, managers, supervisors, and candidates.
Each agency must provide for the initial and continuing development
of individuals in executive, managerial, and supervisory positions, and
candidates for those positions. The agency must issue a written policy
to assure that their development programs:
(a) Are designed as part of the agency's strategic plan and foster
a corporate perspective.
(b) Make assignments to training and development consistent with
the merit
[[Page 46534]]
system principles set forth in 5 U.S.C. 2301(b) (1) and (2).
(c) Provide for:
(1) Initial training as an individual makes critical career
transitions to become a new supervisor, a new manager, or a new
executive consistent with the results of needs assessments;
(2) Continuing learning experiences, both short- and long-term,
throughout an individual's career in order for the individual to
achieve the mastery level of proficiency for his or her current
management level and position; and
(3) Systematic development of candidates for advancement to a
higher management level. Formal candidate development programs leading
to noncompetitive placement eligibility represent one, but not the
only, type of systematic development.
Sec. 412.104 Formal candidate development programs for Senior
Executive Service positions.
Formal SES candidate development programs permit the certification
of the executive qualifications of graduates by a Qualifications Review
Board under the criterion of 5 U.S.C. 3393(c)(2)(B) and selection for
the SES without further competition. The agency must have a written
policy describing how the program will operate. The agency must obtain
OPM approval of the program before it is conducted for the first time
under these regulations and whenever there are substantive changes to
the program. Agency programs must meet the following criteria.
(a) Recruitment.
(1) 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.
(2) Agencies may request an exception to the provision in paragraph
(a) of this section if they can show that during the 5-year period
prior to the announcement of a program they have made at least 15% of
their career SES appointments from sources outside the agency.
Notwithstanding this exception recruitment must be competitive and be
announced at least agencywide. Graduates of these programs who have
been certified by a QRB must then compete Governmentwide for entry to
the SES, but do not have to obtain a second QRB certification before
appointment.
(b) 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.
(c) All candidates are selected through SES merit staffing
procedures. The number selected shall be consistent with the number of
expected vacancies.
(d) Each candidate has an SES development plan covering the period
of the program. The plan is prepared from a competency-based needs
determination. It is approved by the Executive Resources Board.
(e) The minimum program requirements, unless an exception is
obtained in advance of the beginning of the candidate's program, for an
SES development plan are as follows:
(1) There is a formal training experience that addresses the
executive core qualifications and their application to SES positions
Governmentwide. The training experience must include interaction with a
wide mix of Federal employees outside the candidate's department or
agency to foster a corporate perspective but may include managers from
the private sector and state and local governments. The nature and
scope of the training must have Governmentwide or multi-agency
applicability. If formal interagency training is used to meet this
requirement, it must total at least 80 hours. If an interagency work
experience is used, it must be of significantly longer duration than 80
hours.
(2) There are developmental assignments that total at least 4
months of full-time service outside the candidate's position of record.
The purpose of the assignments is to broaden the candidate's experience
and/or increase knowledge of the overall functioning of the agency so
that the candidate is prepared for a range of agency positions.
(3) There is a member of the Senior Executive Service as a mentor.
(f) Each candidate's performance in the program is evaluated
periodically, and there is a written policy for discontinuing a
candidate's participation in the program. A candidate can be
discontinued or may withdraw from the program without prejudice to his
or her ability to apply directly for SES positions.
(g) Each candidate has a documented starting and finishing date in
the program.
Subpart B--Senior Executive Service Status and Nonstatus Candidate
Development Programs
Sec. 412.201 Purpose.
Section 3393 of title 5, United States Code, requires that career
appointees to the SES be recruited either from all groups of qualified
individuals within the civil service, or from all groups of qualified
individuals whether or not within the civil service. This subpart sets
forth regulations establishing two types of SES candidate development
programs, ``status'' and ``non-status.''
Sec. 412.202 ``Status'' programs.
Only employee serving under career appointments, or under career-
type appointments as defined in Sec. 317.304(a)(2) of this chapter, may
participate in ``status'' candidate development programs.
Sec. 412.203 ``Non-status'' programs.
(a) Eligibility. Candidates are from outside Government and/or from
among employees serving on other than career or career-type
appointments within the civil service.
(b) Requirements.
(1) Candidates must be appointed using the Schedule B authority
authorized by Sec. 213.3202(j) of this chapter. The appointment may not
exceed or be extended beyond 3 years.
(2) Assignments must be to a full-time position created for
developmental purposes connected with the SES candidate development
program. Candidates serving under Schedule B appointment may not be
used to fill an agency's regular positions on a continuing basis.
(3) Schedule B appointments must be made in the same manner as
merit staffing requirements prescribed for the SES, except that each
agency shall follow the principle of veteran preference as far as
administratively feasible. Positions filled through this authority are
excluded under Sec. 302.101(c)(6) of this chapter from the appointment
procedures of part 302.
[FR Doc. 96-22366 Filed 9-3-96; 8:45 am]
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