Training

SUMMARY: The Office of Personnel Management (OPM) is issuing interim

regulations governing Federal employee training. The regulations

implement provisions of the Federal Workforce Restructuring Act, dated

March 30, 1994 and provisions of the Federal Reports Elimination and

Sunset Act of 1995, dated December 21, 1995; incorporate former

provisionally retained FPM Letters; and reflect OPM's response to

agency requests to restructure 5 CFR part 410. The interim rules

provide agencies additional flexibility by implementing the National

Performance Review recommendations to reduce restrictions on training

and make it a more responsive management tool.

DATES: This interim rule becomes effective on May 13, 1996. Comments

must be received on or before June 12, 1996.

ADDRESSES: Send or deliver written comments to Allan D. Heuerman,

Associate Director, Human Resources Systems Service, Office of

Personnel Management, Room 7412, 1900 E Street, NW., Washington, DC,

20415-0001.

FOR FURTHER INFORMATION CONTACT:

Judith Lombard, 202-606-2431, FAX 202-606-2394.

SUPPLEMENTARY INFORMATION: These interim regulations affect the

training of Government employees. They incorporate (1) Public Law 103-

226 amendments to chapter 41 of title 5, United States Code; (2) Public

Law 104-66 amendments to chapter 41 of title 5, United States Code; (3)

former provisionally retained FMP Letters; and (4) flexibilities

requested by agencies. Decisions on what to include in the regulations

were based on whether the requirement or authority was necessary to

assure uniformity in training Federal employees and/or to protect

employee rights.

Amendments to the Government Employees Training Act

The September 1993 Report of the National Performance Review (NPR)

recommended (1) eliminating the distinction between Government and non-

Government training to make training more market driven and (2)

removing the restrictions on employee training to help develop a multi-

skilled workforce in the Federal Government. These recommendations were

included in Public Law 103-226 (Federal Workforce Restructuring Act of

1994) dated March 31, 1994, which amended 5 U.S.C. chapter 41 in the

following ways.

In 5 U.S.C. 4101, the definition of training expands from training

directly related to the performance of official duties to any training

that improves individual and organizational performance and assists an

agency in achieving its mission and performance goals.

5 U.S.C. 4103(a) requires the head of an agency to relate training

programs and plans to agency mission and performance goals and to

provide employees information about training selection and assignment

and applicable training limitations and restrictions.

5 U.S.C. 4103(b)(1) allows agencies to train employees for

placement in another agency when such training is in the interest of

the Government.

5 U.S.C. 4105 eliminates the distinction between ``Government'' and

``non-Government'' training, thereby allowing managers to take full

advantage of available training sources. Previously agencies had to use

Government training facilities where possible.

5 U.S.C. 4106 is deleted, thereby eliminating both service

requirements for non-Government training and restrictions on time-in-

training. Previously, an employee had to have 1 year of current,

continuous civilian service to be eligible for non-Government training.

Previously, an employee could spend only 1 year in training for every

10 years of Government service.

Section 2181(c) of Public Law 104-66 (Federal Reports Elimination

and Sunset Act of 1995), dated December 21, 1995, repealed section 4113

of title 5, United States Code, eliminating the requirements for

agencies to review the training needs of employees and to report their

training programs and plans to OPM at least once every 3 years.

These interim regulations revise 5 CFR part 410 to reflect the

changes in 5 U.S.C. chapter 41.

Former Provisionally Retained FPM Letters

One of the recommendations of the September 1993 Report of the

National Performance Review was that the Federal Personnel Manual (FPM)

should be ``sunset.'' The Director of OPM abolished the FPM on December

31, 1993. Two FPM Letters on training were provisionally retained

through December 31, 1994.

1. Training of Civilian Officials Appointed by the President

Provisionally retained FPM Letter 410-34, Training of Civilian

Officials Appointed by the President, delegated to the heads of

agencies the authority to designate Presidential appointees, other than

themselves, for training. The interim regulation puts this delegation

of authority into Sec. 410.302(b).

2. Conferences as Training Activities

Provisionally retained FPM Letter 410-35, Conferences as Training

Activities, implemented the February 10, 1993, Presidential memorandum

and OMB Bulletin 93-11 on ``Government Fiscal Responsibility and

Reducing Perquisites,'' and the Federal Travel Regulations on

``Conference Planning'' (41 CFR part 301-16). They require that

agencies exercise strict fiscal responsibility when selecting

conference sites to minimize costs and to keep employee attendance to a

minimum consistent with serving the public's interest. The interim

regulations put language into 5 CFR 410 to assist agencies in

determining if a conference is a training activity (Sec. 410.404). This

will reduce Government costs by limiting Federal employee attendance to

appropriate training conferences where participation fosters the

achievement of agency

[[Page 21948]]

missions while enhancing employees' professional growth.

Summary of Major Proposed Changes to Training Regulations

OPM also is revising its training regulations in other ways to

provide additional flexibilities, eliminate burdensome requirements,

and clarify ambiguous language. The following list summarizes the

substantive changes, including those discussed above.

Added Flexibilities and Reduced Requirements

1. The head of an agency has increased flexibility and authority in

planning, implementing and evaluating training to meet mission-related

needs. (Sec. 410.101(4), Sec. 410.201)

2. Each agency determines what constitutes its mission-related

training needs. (Sec. 410.101(4))

3. Each agency has increased flexibility for training employees for

placement in other agencies. (Sec. 410.308)

4. Each agency determines when continued service agreements will be

required. (Sec. 410.310)

5. Constraints on the use of non-Government training are

eliminated.

6. Limitations on training employees through non-Government

facilities are eliminated.

7. Limitations on subsistence payments for extended training

assignments are eliminated. (Sec. 410.403)

8. Annual reporting requirements are eliminated and other reporting

requirements are significantly reduced. (Sec. 410.701)

New Provisions

1. Authority to approve training of Presidential appointees is

delegated to heads of agencies. (Sec. 410.302(b))

2. Integrating employee training and development with agency

mission and performance goals is added and clarified. (Sec. 410.202)

3. Training related career transition assistance for displaced and

surplus employees is added and clarified. (Sec. 410.308(d))

4. Criteria for determining if a conference is a training activity

is added. (Sec. 410.404)

Waiver of Notice of Proposed Rulemaking

Pursuant to 5 U.S.C. 553(b)(3)(b), I find that good cause exists

for waiving the general notice of proposed rulemaking. The notice is

being waived and the regulation is being made effective in less than 30

days. Inconsistencies between the law and the currently published

regulations have caused confusion and led Federal managers, employees,

and training officials to operate under outdated, and unnecessary,

regulations. We find that delay in issuing updated regulations would be

contrary to public interest and to National Performance Review

recommendations.

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 Part 410

Education, Government employees.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, the Office of Personnel Management is revising 5 CFR

part 410 as follows:

PART 410--TRAINING

Subpart A--General Provisions

Sec.

410.101 Definitions.

Subpart B--Planning for Training

Sec.

410.201 Responsibilities of the head of an agency.

410.202 Integrating employee training and development with agency

strategic plans.

410.203 Assessing organizational, occupation, and individual needs.

410.204 Options for developing employees.

Subpart C--Establishing and Implementing Training Programs

Sec.

410.301 Scope and general conduct of training programs.

410.302 Responsibilities of the head of an agency.

410.303 Employee responsibilities.

410.304 Funding training programs.

410.305 Establihsing and using interagency training.

410.306 Selecting and assigning employees to training.

410.307 Training for promotion.

410.308 Training for placement in other agency positions, in other

agencies, or outside Government.

410.309 Training to obtain an academic degree.

410.310 Agreements to continue in service.

410.311 Computing time in training.

410.312 Records.

Subpart D--Paying for Training Expenses

Sec.

410.401 Determining necessary training expenses.

410.402 Paying premium pay.

410.403 Subsistence payments for extended training assignments.

410.404 Determining if a conference is a training activity.

410.405 Protection of Government interest.

410.406 Records of training expenses.

Subpart E--Accepting Contributions, Awards, and Payments From Non-

Government Organizations

Sec.

410.501 Scope.

410.502 Authority of the head of an agency.

410.503 Records.

Subpart F--Evaluating Training

Sec.

410.601 Responsibility of the head of an agency.

410.602 Records.

Subpart G--Reports

Sec.

410.701 Reports.

Authority: 5 U.S.C. 4101, et seq.; E.O. 11348, 3 CFR, 1967

Comp., p. 275.

Subpart A--General Provisions

Sec. 410.101 Definitions.

In this part:

(a) Agency, employee, Government facility, and non-Government

facility have the meanings given these terms in section 4101 of title

5, United States Code.

(b) Exceptions to organizations and employees covered by this

subpart include:

(1) Those named in section 4102 of title 5, United States Code, and

(2) The U.S. Postal Service and Postal Rate Commission and their

employees, as provided in Public Law 91-375, enacted August 12, 1970.

(c) Training has the meaning given to the term in section 4101 of

title 5, United States Code, and includes planned activities which

support and improve individual and organizational performance and

effectiveness, such as on-the-job training, career development

programs, professional development activities, or developmental

assignments.

(d) Mission-related training is training that supports agency

goals by improving organizational performance at any appropriate level

in the agency, as determined by the head of the agency. This includes

training that:

(1) Supports the agency's strategic plan and performance

objectives;

(2) Improves an employee's current job performance;

(3) Allows for expansion or enhancement of an employee's current

job;

(4) Enables an employee to perform needed or potentially needed

duties outside the current job at the same level of responsibility; or

(5) Meets organizational needs in response to human resource plans

and re-engineering, downsizing, restructuring, and program changes.

[[Page 21949]]

(e) Retraining means training and development provided to address

an individual's skills obsolescence in the current position and/or

training and development to prepare an individual for a different

occupation, in the same agency, in another Government agency, or in the

private sector.

(f) Continued service agreement has the meaning given to service

agreements in section 4108 of title 5, United States Code.

(g) Interagency training means training provided by one agency for

other agencies or shared by two or more agencies.

(h) State and local government have the meanings given to these

terms by section 4762 of title 42, United States Code.

Subpart B--Planning for Training

Sec. 410.201 Responsibilities of the head of an agency.

As stated in section 4103 of title 5, United States Code, and in

Executive Order 11348, the head of each agency shall:

(a) Establish, budget for, operate, maintain, and evaluate a

program or programs, and a plan or plans thereunder, for training

agency employees by, in, and through Government and non-Government

facilities;

(b) Determine policies governing employee training, including a

statement of broad purposes for agency training, the assignment of

responsibility for seeing that these purposes are achieved, and the

delegation of training approval authority to the lowest possible level;

and

(c) Establish priorities for training employees and provide for

funds and staff according to these priorities.

Sec. 410.202 Integrating employee training and development with agency

strategic plans.

(a) Agencies shall include training and development in agency

strategic planning to ensure that:

(1) Agency training strategies and activities contribute to mission

accomplishment; and

(2) Organizational performance goals are met.

(b) Agency human resource development programs and plans should:

(1) Improve employee and organizational performance; and

(2) Build and support an agency workforce capable of achieving

agency mission and performance goals.

Sec. 410.203 Assessing organizational, occupational, and individual

needs.

(a) Assessment. Executive Order 11348 specifies the responsibility

of heads of agencies to assess agency training needs.

(b) Method. The method an agency uses to conduct training needs

assessment shall meet the requirements of chapter 41 of title 5, United

States Code, Executive Order 11348, and this subpart.

Sec. 410.204 Options for developing employees.

Agencies may use a full range of options to meet their

organizational and employee development needs, including classroom

training, on-the-job training, technology-based training, satellite

training, employees' self-development activities, coaching, mentoring,

career development counseling, details, rotational assignments, cross

training, and developmental activities at retreats and conferences.

Subpart C--Establishing and Implementing Training Programs

Sec. 410.301 Scope and general conduct of training programs.

(a) Authority. The requirements for establishing training programs

and plans are found in section 4103(a) of title 5, United States Code,

and Executive Order 11348.

(b) Alignment with other human resource functions. Training

programs established by agencies under chapter 41 of title 5, United

States Code, should be integrated with other personnel management and

operating activities, to the maximum possible extent.

Sec. 410.302 Responsibilities of the head of an agency.

(a) Specific responsibilities. (1) The head of each agency shall

prescribe procedures to ensure that the selection of employees for

training is made without regard to political preference, race, color,

religion, national origin, sex, marital status, age, or handicapping

condition, and with proper regard for their privacy and constitutional

rights as provided by merit system principles set forth in 5 U.S.C.

2301(b)(2).

(2) The head of each agency shall prescribe procedures to ensure

that the training facility and curriculum are accessible to employees

with disabilities.

(3) The head of each agency shall not allow training in a facility

that discriminates in the admission or treatment of students.

(b)(1) Training of Presidential appointees. The Office of Personnel

Management delegates to the head of each agency authority to authorize

training for officials appointed by the President. In exercising this

authority, the head of an agency must ensure that the training is in

compliance with chapter 41 of title 5, United States Code, and with

this part. This authority may not be delegated to a subordinate.

(2) Records. When exercising this delegation of authority, the head

of an agency must maintain records that include:

(i) The name and position title of the official;

(ii) A description of the training, its location, vendor, cost, and

duration; and

(iii) A statement justifying the training and describing how the

official will apply it during his or her term of office.

(3) Review of delegation. Exercise of this authority is subject to

U.S. Office of Personnel Management review.

(c) Training for the head of an agency. Since self-review

constitutes a conflict of interest, heads of agencies must submit their

own requests for training to the U.S. Office of Personnel Management

for approval.

Sec. 410.303 Employee responsibilities.

Employees are responsible for self-development, for successfully

completing and applying authorized training, and for fulfilling

continued service agreements. In addition, they share with their

agencies the responsibility to identify training needed to improve

individual and organizational performance and identify methods to meet

those needs, effectively and efficiently.

Sec. 410.304 Funding training programs.

Section 4112 of title 5, United States Code, provides for agencies

paying the costs of their training programs and plans from applicable

appropriations or funds available. Training costs associated with

program accomplishment may be funded by appropriations applicable to

that program area. In addition, section 4109(a)(2) of title 5, United

States Code, provides authority for agencies and employees to share the

expenses of training.

Sec. 410.305 Establishing and using interagency training.

An agency may extend training programs developed for its employees

to employees of other agencies (and to employees of Federal

organizations excepted by section 4102 of title 5, United States Code)

when this would result in better training, improved service, or savings

to the Government.

[[Page 21950]]

Sec. 410.306 Selecting and assigning employees to training.

(a) Each agency shall establish criteria for the fair and equitable

selection and assignment of employees to training consistent with merit

system principles specified in 5 U.S.C. 2301(b) (1) and (2).

(b) Persons on Intergovernmental Personnel Act mobility assignments

may be assigned to training if that training is in the interest of the

Government.

(c) Under the provisions of Sec. 410.309(a) of this part, an agency

may pay all or part of the training expenses of students hired under

the Student Career Experience Program (see 5 CFR 213.3202(d)(10)).

Sec. 410.307 Training for promotion.

Under the authority of 5 U.S.C. 4103, and consistent with merit

system principles set forth in 5 U.S.C. 2301(b) (1) and (2), an agency

may provide training to career or career-conditional employees that in

certain instances may lead to promotion. An agency must follow its

competitive procedures under part 335 of this chapter when selecting a

career or career-conditional employee for training that permits

noncompetitive promotion after successful completion of the training.

Sec. 410.308 Training for placement in other agency positions, in

other agencies, or outside Government.

(a) Under the authority of 5 U.S.C. 4103 and 5 U.S.C. 5364, an

agency may train an employee to meet the qualification requirements of

another position in the agency if the new position is at or below the

grade the employee held before grade or pay retention.

(b) Under the authority of 5 U.S.C. 4103(b), and consistent with

merit system principles set forth in 5 U.S.C. 2301, an agency may train

an employee to meet the qualification requirements of a position in

another agency if the head of the agency determines that such training

would be in the interests of the Government.

(1) Before undertaking any training under this section, the head of

the agency shall obtain verification that there exists a reasonable

expectation of placement in another agency.

(2) When selecting an employee for training under this section, the

head of the agency shall consider:

(i) The extent to which the employee's current skills, knowledge,

and abilities may be utilized in the new position;

(ii) The employee's capability to learn skills and acquire

knowledge and abilities needed in the new position; and

(iii) The benefits to the Government which would result from

retaining the employee in the Federal service.

(c) Displaced or surplus employees as defined in 5 CFR 330.604 (b)

and (f) may be eligible for training or retraining for positions

outside Government through programs provided under 29 U.S.C. 1651, or

similar authorities. An agency may use its appropriated funds for

training displaced or surplus employees for positions outside

Government only when specifically authorized by legislation to do so.

(d) Under 5 CFR 330.602, agencies are required to establish career

transition assistance plans (CTAP) to provide career transition

services to displaced and surplus employees.

(1) Under the authority of 5 U.S.C. 4109, an agency may:

(i) Train employees in the use of the CTAP services;

(ii) Provide vocational and career assessment and counseling

services;

(iii) Train employees in job search skills, techniques, and

strategies; and

(iv) Pay for training related expenses as provided in 5 U.S.C.

4109(a)(2).

(2) Agency CTAP's will include plans for retraining displaced or

surplus employees covered by this part.

Sec. 410.309 Training to obtain an academic degree.

(a) Prohibition. (1) Under 5 U.S.C. 4107(a), an agency may not

authorize training for an employee to obtain an academic degree, except

for shortage occupations as defined in Sec. 410.309(b).

(2) An agency may assign employees to academic training on a

course-by-course basis. If, in the accomplishment of this training, an

employee receives an academic degree, the degree is an incidental by-

product of the training.

(b) Degree training to relieve recruitment and retention problems.

(1) An agency may authorize academic degree training if the training:

(i) Is necessary to assist in recruiting or retaining employees in

occupations in which the agency has or anticipates a shortage of

qualified personnel, especially in occupations which it has determined

involve skills critical to its mission, and

(ii) Meets the conditions of this section.

(2) In reviewing the need to provide training under this section,

an agency shall give appropriate consideration to any special salary

rate, student loan repayment, retention allowance, or other monetary

inducement authorized by law already provided or being provided which

contributes to the alleviation of the staffing problem in the

occupation targeted by that training.

(3) In exercising the authority in this section, an agency shall,

consistent with the merit system principles set forth in 5 U.S.C.

2301(b) (1) and (2), take into consideration the need to maintain a

balanced workforce in which women and members of racial and ethnic

minority groups are appropriately represented in the agency.

(4) The authority in this section shall not be exercised on behalf

of any employee occupying, or seeking to qualify for appointment to,

any position which is excepted from the competitive service because of

its confidential, policy-determining, policy-making, or policy-

advocating character.

(5) An agency's policies established under Sec. 410.201 of this

part shall cover decisions to authorize training under this section, to

ensure that:

(i) The determination to pay for degree training is made at a

sufficiently high level so as to protect the Government's interest; and

(ii) The authority is used to address the agency's recruitment and

retention problems expeditiously through appropriate delegations of

authority.

(c) Determining recruitment and retention problems. For the

purposes of this section, a recruitment or retention problem exists if

the criteria for a recruitment bonus under 5 CFR Sec. 575.104(c)(2) or

for a retention allowance under 5 CFR Sec. 575.305(c)(3) applies.

(1) Recruitment problem. Before determining that an agency has or

anticipates a problem in the recruitment of qualified personnel for a

particular position, an agency shall make a reasonable recruitment

effort, including factors in 5 CFR Sec. 575.104(c)(2). In making a

reasonable recruitment effort, an agency will consider the following:

(i) For a position in the competitive service, the results of

requests for referral of eligibles from the appropriate competitive

examination. For a position in the excepted service, the agency's

objectives and staffing procedures.

(ii) Contacts with State Employment Service office(s) serving the

locality concerned.

(iii) Contacts with academic institutions, technical and

professional organizations, and other organizations likely to produce

qualified candidates for the position, including women's and minority-

group organizations.

(iv) The possibility of relieving the shortage through broader

publicity and recruitment.

(v) The availability of qualified candidates within the agency's

current work force.

[[Page 21951]]

(vi) The possibility of relieving the shortage through job

engineering or training of current employees.

(2) Retention problem. Before determining that an agency has or

anticipates a problem in the retention of qualified personnel in a

particular occupation, an agency shall consider the factors in 5 CFR

Sec. 575.305(c)(3) and:

(i) The ease with which an agency could replace the employee with

someone of comparable background;

(ii) The current and projected vacancy rates in the occupation;

(iii) The rate of turnover in the occupation; and

(iv) Technological changes affecting the occupation and long-range

predictions affecting staffing for the occupation.

(d) Assessing continuing problems. A reassessment of a

``continuing'' recruitment or retention problem shall be made

periodically.

(e) Authorizing training. (1) An agency may authorize full or part-

time training to address a recruitment problem if--

(i) The training qualifies an employee for a shortage position

identified under paragraph (c)(1) of this section; and

(ii) The agency expects to place the employee in the shortage

position after the training.

(2) Training may be authorized under this section for the purpose

of retaining an employee in a shortage occupation identified under

paragraph(c)(2) of this section, if it involves a course of study

selected mainly or its potential contribution to effective performance

in that occupation.

(3) Agencies shall select employees for academic degree training

according to competitive procedures as specified in Sec. 410.307.

(f) Monitoring training. An Agency shall assess the contribution of

training assignments under this section to resolving recruitment or

retention problems in its shortage occupations.

(g) Documentation. (1) In exercising the authority in this section,

an agency shall retain for a reasonable period:

(i) A record of employees assigned to training under this section

and

(ii) A record of findings that the recruitment or retention problem

is a continuing one.

(2) As a separate record, the servicing personnel office shall keep

the following information for each employee assigned to training under

this section:

(i) Nature and justification for the shortage determination;

(ii) Kind of training (e.g., career experience program, continuing

professional and technical education, retraining for occupational

change); a description of the field of study; and the nature of any

degree pursued under the training program; and

(iii) A written continued service agreement, if required.

Sec. 410.310 Agreements to continue in service.

(a) Authority. Continued service agreements are provided for in

section 4108 of title 5, United States Code. Agencies have the

authority to determine when such agreements will be required.

(b) Requirements. (1) The Head of the agency shall establish

written procedures which cover the minimum requirements for continued

service agreements. These requirements shall include procedures the

agency considers necessary to protect the Government's interest should

the employee fail to successfully complete training.

(2) An employee selected for training subject to an agency

continued service agreement must sign an agreement to continue in

service after training prior to starting the training. The period of

service will equal three times the length of the training.

(c) Failure to fulfill agreements. With a signed agreement, the

agency has a right to recover training costs, except for pay or other

compensation, if the employee voluntarily separates from Government

service. The agency shall provide procedures to enable the employee to

obtain a reconsideration of the recovery amount or to appeal for a

waiver of the agency's right to recover.

Sec. 410.311 Computing time in training.

For the purpose of chapter 41 of title 5, United States Code, and

this subpart:

(a) An employee on an 8-hour day work schedule assigned to training

is counted as being in training for the same number of hours he or she

is in pay status during the training assignment. If the employee is not

in pay status during the training, the employee is counted as being in

training for the number of hours he or she is granted leave without pay

for the purpose of the training.

(b) For any employee on an alternative work schedule, the agency is

responsible for determining the number of hours the employees is in pay

status during the training assignment. If the employee is not in pay

status during the training, the employee is counted as being in

training for the number of hours he or she is granted leave without pay

for the purpose of the training.

(c) An employee on a 8-hour or an alternative work schedule

assigned to training on less than a full-time basis is counted as being

in training for the number of hours he or she spends in class, in

formal computer-based training, in satellite training, in formal self-

study programs, or with the training instructor, unless a different

method is determined by the agency.

Sec. 410.312 Records.

Agencies shall keep a record of training events authorized for each

employee under this subpart.

Subpart D--Paying for Training Expenses

Sec. 410.401 Determining necessary training expenses.

(a) The head of an agency determines which expenses constitute

necessary training expenses under section 4109 of title 5, United

States Code.

(b) An agency may pay, or reimburse an employee, for necessary

expenses incurred in connection with approved training as provided in

section 4109(a)(2) of title 5, United States Code. Necessary training

expenses do not include an employee's pay or other compensation.

Sec. 410.402 Paying premium pay.

(a) Prohibitions. Except as provided by paragraph (b) of this

section, an agency may not use its funds, appropriated or otherwise

available, to pay premium pay to an employee engaged in training by, in

or through Government or non-government facilities.

(b) Exceptions. The following are excepted from the provision in

paragraph (a) of this section prohibiting the payment of premium pay:

(1) Continuation of premium pay. An employee given training during

a period of duty for which he or she is already receiving premium pay

for overtime, night, holiday, or Sunday work shall continue to receive

that premium pay. This exception does not apply to an employee assigned

to full-time training at institutions of higher learning.

(2) Training at night. An employee given training at night because

situations that he or she must learn to handle occur only at night

shall be paid night pay.

(3) Cost savings. An employee given training on overtime, on a

holiday, or on a Sunday because the costs of the training, premium pay

included, are less than the costs of the same training confined to

regular work hours shall be paid the applicable premium pay.

(4) Availability pay. An agency shall continue to pay availability

pay during agency-sanctioned training to a criminal investigator who is

eligible for it under

[[Page 21952]]

5 U.S.C. 5545(a) and implementing regulations. Agencies may, at their

discretion, provide availability pay to investigators during periods of

initial, basic training. (See 5 CFR Sec. 550.185 (b) and (c).)

(5) Standby and administratively uncontrollable duty. An agency may

continue to pay annual premium pay for regularly scheduled standby duty

or administratively uncontrollable overtime work, during periods of

temporary assignment for training as provided by 5 CFR Sec. 550.162(c).

(6) Agency exemption. An employee given training during a period

not otherwise covered by a provision of this paragraph may be paid

premium pay when the employing agency has been granted an exception to

paragraph (a) of this section by the U.S. Office of Personnel

Management.

(c) An employee who is excepted under paragraph (b) of this section

is eligible to receive premium pay in accordance with the applicable

pay authorities.

(d) Overtime pay under the Fair Labor Standards Act (FLSA). (1)

Time spent in training or preparing for training outside regular

working hours shall be considered hours of work for the purpose of

computing FLSA overtime if an agency requires the training to bring

performance up to a fully successful, or equivalent, level or to

provide knowledge or skills to perform new duties and responsibilities

in the employee's current position. (Also see 5 CFR Sec. 551.423.)

(2) The requirement of paragraph (d)(1) of this section does not

pertain to training or preparing for training to:

(i) Improve a nonexempt employee's performance in his or her

current position above a fully successful, or equivalent, level,

provided such training is undertaken with the knowledge that the

employee's performance or continued retention in his or her current

position will not be adversely affected by nonenrollment in the

training program; or

(ii) Provide a nonexempt employee with additional knowledge or

skills for reassignment to another position or advancement to a higher

grade. This includes any developmental training, even if such training

is directed by the agency.

Sec. 410.403 Subsistence payments for extended training assignments.

An agency has the authority to pay all or part (if agreed to by the

employee) of actual subsistence expenses of an employee assigned to

training at a temporary duty station lasting more than 30 calendar

days. The agreed rate of payment shall be applicable from the 1st day

of the assignment. An agency may adjust an agreed rate of payment when

circumstances so justify, provided the employee agrees to any decrease.

If the fees paid to the training institution include lodging or meal

costs, an appropriate reduction shall be made from any standardized

subsistence payments.

Sec. 410.404 Determining if a conference is a training activity.

Agencies may sponsor an employee's attendance at a conference as a

developmental assignment under section 4110 of title 5, United States

Code, when--

(a) The content of the conference is germane to improving

individual and/or organizational performance, and

(b) Developmental benefits will be derived through the employee's

attendance.

Sec. 410.405 Protection of Government interest.

The head of an agency shall establish such procedures as he or she

considers necessary to protect the Government's interest when employees

fail to complete, or to successfully complete, training for which the

agency pays the expenses.

Sec. 410.406 Records of training expenses.

An agency shall maintain records of payments made for travel,

tuition and fees, and other necessary training expenses.

Subpart E--Accepting Contributions, Awards, and Payments From Non-

Government Organizations

Sec. 410.501 Scope.

(a) Section 4111 of title 5, United States Code, describes

conditions for employee acceptance of contributions, awards, and

payments made in connection with non-Government sponsored training or

meetings which an employee attends while on duty or when the agency

pays the training or meeting attendance expenses, in whole or in part.

(b) This subpart does not limit the authority of an agency head to

establish procedures on the acceptance of contributions, awards, and

payments in connection with any training and meetings that are outside

the scope of this subpart in accordance with laws and regulations

governing Government ethics and governing acceptance of travel

reimbursements from non-Federal sources.

Sec. 410.502 Authority of the head of an agency.

(a) In writing, the head of an agency may authorize an agency

employee to accept a contribution or award (in cash or in kind)

incident to training or to accept payment (in cash or in kind) of

travel, subsistence, and other expenses incident to attendance at

meetings if

(1) The conditions specified in section 4111 of title 5, United

States Code, are met; and

(2) In the judgment of the agency head, the following two

conditions are met:

(i) The contribution, award, or payment is not a reward for

services to the organization prior to the training or meeting; and

(ii) Acceptance of the contribution, award, or payment:

(A) Would not reflect unfavorably on the employee's ability to

carry out official duties in a fair and objective manner;

(B) Would not compromise the honesty and integrity of Government

programs or of Government employees and their official actions or

decisions;

(C) Would be compatible with the Ethics in Government Act of 1978,

as amended; and

(D) Would otherwise be proper and ethical for the employee

concerned given the circumstances of the particular case.

(b) Delegation of authority. An agency head may delegate authority

to authorize the acceptance of contributions, awards, and payments

under this section. The designated official must ensure that--

(1) The policies of the agency head are reflected in each decision;

and

(2) The circumstances of each case are fully evaluated under

conditions set forth in Sec. 410.502(a).

(c) Acceptance of contributions, awards, and payments. An employee

may accept a contribution, award, or payment (whether made in cash or

in kind) that falls within the scope of this section only when he or

she has specific written authorization.

(d) When more than one non-Government organization participates in

making a single contribution, award, or payment, the ``organization''

referred to in this subsection is the one that:

(1) selects the recipient; and

(2) administers the funds from which the contribution, award, or

payment is made.

Sec. 410.503 Records.

An agency shall maintain, in such form and manner as the agency

head considers appropriate, the following records in connection with

each

[[Page 21953]]

contribution, award, or payment made and accepted under authority of

this section: The recipient's name; the organization's name; the amount

and nature of the contribution, award, or payment and the purpose for

which it is to be used; and a copy of the written authorization

required by Sec. 410.502(a).

Subpart F--Evaluating Training

Sec. 410.601 Responsibility of the head of an agency.

Under provisions of chapter 41 of title 5, United States Code, and

Executive Order 11348, the agency head shall evaluate training to

determine how well it meets short and long-range program needs by

occupations, organizations, or other appropriate groups. The agency

head may conduct the evaluation in the manner and frequency he or she

considers appropriate.

Sec. 410.602 Records.

An agency head shall keep records of these evaluations as he or she

considers appropriate.

Subpart G--Reports

Sec. 410.701 Reports.

Each agency shall maintain records of its training plans,

expenditures and activities and report its plans, expenditures and

activities to the Office of Personnel Management and at such times and

in such form as the Office prescribes.

[FR Doc. 96-11863 Filed 5-10-96; 8:45 am]

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