(2) The appointment in the agency of the career appointee's most immediate supervisor who

(i) Is a noncareer appointee; and

(ii) Has the authority to remove the career appointee.

(b) This restriction does not apply to a disciplinary action initiated before the appointment of a new agency head or the appointment of the career appointee's most immediate noncareer supervisor.

§ 359.405 Appeals: Removal during probation.

(a) An action taken under § 359.401 or § 359.402 is not appealable to the Merit Systems Protection Board under 5 U.S.C. 7701.

(b) A violation of the restrictions in § 359.403 is a prohibited personnel practice within the meaning of 5 U.S.C. 2302. An allegation of such violation may be submitted by the appointee to the Special Counsel of the Merit Systems Protection Board.

Subpart E-Removal of Career Appointees for Less Than Fully Successful Executive Performance

§ 359.501 Removai: Causes: Less than fully successful executive performance.

(a) Employees covered. This section covers:

(1) Any career appointee who has completed the probationary period in the Senior Executive Service; and

(2) Any career appointee who is not required to serve a probationary period in the Senior Executive Service.

(b) Evaluation of executive performance. The agency shall appraise the performance of each career appointee in accordance with a performance appraisal system established by the agency under subchapter II of chapter 43 of title 5, United States Code.

(c) Optional removal from the Senior Executive Service. The agency may remove a career appointee from the Senior Executive Service after the appointee has been given one unsatisfactory rating under the agency's performance appraisal system.

(d) Mandatory removal from the Senior Executive Service. The agency shall remove a career appointee from the Senior Executive Service after:

(1) The appointee has been given two annual summary ratings of unsatisfactory under the agency's performance appraisal system within five consecutive years; or

(2) The appointee has been given two annual summary ratings of lessthan-fully-successful under the agency's performance appraisal system within three consecutive years.

§ 359.502

Removal: Procedures: Less than fully successful executive performance. (a) Notice. The agency shall notify the career appointee in writing at least 30 calendar days before the effective date of the action. The notice shall advise the appointee of—

(1) The basis for the action;

(2) The appointee's placement rights under § 359.702 and the position to which the appointee will be assigned;

(3) The appointee's right to request an informal hearing from the Merit Systems Protection Board;

(4) The effective date of the removal action; and

(5) When applicable, the appointee's eligibility for immediate retirement under 5 U.S.C. 8336(h).

(b) Informal hearing. (1) A career appointee being removed from the Senior Executive Service under this section shall, at least 15 days before the effective date of the removal, be entitled, upon request, to an informal hearing before an official designated

by the Merit Systems Protection Board. The appointee shall submit the request for an informal hearing to the Merit Systems Protection Board. This request may be made at any time after the appointee has received the notice described in paragraph (a) of this section, but no later than 15 days before the effective date of action. The informal hearing shall be conducted in accordance with the regulations and procedures established by the Merit Systems Protection Board.

(2) Neither the granting nor the conduct of this informal hearing shall provide a basis for appeal to the Merit Systems Protection Board under 5 U.S.C. 7701. The removal action need not be delayed as a result of the granting of such informal hearing.

tees, limited term appointees, and noncareer appointees.

(b) Authority. The agency may remove an appointee subject to this section at any time.

(c) Notice. The agency shall notify the appointee in writing prior to the effective date of the removal.

(d) Placement rights. An appointee covered by this section is not entitled to the placement rights provided for career appointees by 5 U.S.C. 3594.

(e) Appeals. Actions taken under this section are not appealable to the Merit Systems Protection Board under 5 U.S.C. 7701.

(a) Coverage. This section covers career appointees

(1) Who are removed from the Senior Executive Service during probation for reasons other than misconduct, neglect of duty or malfeasance; and

(2) Who at the time of appointment to the Senior Executive Service held a career or career-conditional appointment (or an appointment of equivalent tenure, as determined by the Office).

(b) Placement. (1) An appointee covered by this section is entitled to be placed in a civil service position (other than a Senior Executive Service position) in any agency which is—

(i) A continuing position at GS-15 or above, or equivalent;

(ii) of tenure equivalent to that of the appointment held at the time of appointment to the Senior Executive Service; and

(iii) A position for which the appointee meets the qualifications requirements.

(2) The agency taking the removal action shall be responsible for placing the appointee in an appropriate position within the agency, or for arranging a transfer to an appropriate position in another agency, in which case, the transfer must be mutually acceptable to the appointee and the gaining agency.

(c) Restriction. Placement of an appointee under this section shall not

cause the separation or reduction in grade of any other employee.

(d) Pay. A career appointee placed under this section shall be entitled to receive basic pay at the highest of:

(1) The rate of basic pay in effect for the position in which he or she is being placed;

(2) The rate of basic pay currently in effect for the position which the appointee held in the civil service immediately before being appointed to the Senior Executive Service; or

(3) The rate of basic pay in effect for the appointee immediately before his or her removal from the Senior Executive Service.

§ 359.702 Placement rights: Removal for less than fully successful executive performance.

(a) Coverage. This section covers career appointees

(1) Who have completed the required probationary period under the Senior Executive Service or who are not required to serve a probationary period; and

(2) Who are removed from the Senior Executive Service for less than fully successful executive perform

ance.

(b) Placement. (1) An appointee covered by this section is entitled to be placed in a civil service position (other than a Senior Executive Service position) in any agency which is—

(i) A continuing position at GS-15 or above, or equivalent; and

(ii) A position for which the appointee meets the qualifications requirements.

(2) In addition, an appointee covered by this section who at the time of appointment to the Senior Executive Service held a career or career-conditional appointment (or an appointment of equivalent tenure, as determined by the Office) is entitled to be placed in a position of tenure equivalent to that of the appointment held at the time of appointment to the Senior Executive Service. This requirement does not apply

(i) If the agency taking the removal action does not have positions of equivalent tenure; and/or

(ii) If the appointee is willing to accept a position having a different tenure.

(3) The agency taking the removal action shall be responsible for placing the appointee in an appropriate position within the agency, or for arranging a transfer to an appropriate position in another agency, in which case, the transfer must be mutually acceptable to the appointee and the gaining agency.

(c) Restriction. Placement of an appointee under this section shall not cause the separation or reduction in grade of any other employee.

(d) Pay. A career appointee placed under this section shall be entitled to receive basic pay at the highest of:

(1) The rate of basic pay in effect for the position in which he or she is being placed;

(2) The rate of basic pay currently in effect for the position which the ap pointee held in the civil service immediately before being appointed to the Senior Executive Service; or

(3) The rate of basic pay in effect for the appointee immediately before his or her removal from the Senior Executive Service.

Sec.

410.502 Selection of non-Government facil

ities for training. 410.503 General prohibitions, training through non-Government facilities. 410.504 Prohibition of training through non-Government facilities advocating overthrow of the Government by force or violence.

410.505 Continuous civilian service. 410.506 Waiver of limitations on training of employees through non-Government facilities.

410.507 Computing time in training through non-Government facilities. 410.508 Agreements to continue in service. 410.509 Failure to fulfill agreements to continue in service.

410.510 Exceptions to the constraints on the usage of non-Government training.

(a) "Government," "agency," "employee," "training," "Government facility," and "non-Government facility" have the meanings given to these terms by section 4101 of title 5, United States Code.

(b) "Training by, in, or through Government facilities" means training that is conducted (1) by civilian or military personnel of the Government acting in their official capacities, and (2) on property owned or substantially controlled by the Government. All other training is "training by, in, or through non-Government facilities."

(c) "Interagency training" means training provided by one agency for other agencies or shared by two or more agencies.

(d) "State" and "local government" have the meanings given to these terms by section 4762 of title 42, United States Code.

[33 FR 16431, Nov. 9, 1968; 34 FR 2479, Feb. 21, 1969, as amended at 36 FR 13201, July 16, 1971]

Subpart B-Determining Training Needs

§ 410.201 Review of training needs.

(a) In conducting the reviews of training needs required by section 4113 of title 5, United States Code, and by Executive Order 11348, an agency shall consider periodically, but not less often than annually:

(1) Its program to identify training needed to bring about more effective performance at the least possible cost;

(2) Training needs of individual employees as related to the program objectives of the agency; and

(3) Its short- and long-range program needs by occupations, organizations, or other appropriate groups.

(b) Reviews shall be conducted in such manner as the agency finds best to meet the requirements of chapter 41 of title 5, United States Code, Executive Order 11348, and this part, and to provide sound bases for planning the training to be provided thereunder.

Subpart C-Establishing Training Programs

§ 410.301 Scope and general conduct of training programs.

(a) The head of an agency shall determine the policies which are to govern the training of employees of the agency. These policies shall be set forth in writing and include a statement of the broad purposes for which training will be given and of the assignment of responsibilities for seeing that these purposes are achieved.

(b) The head of an agency also shall take such administrative action as is necessary to assure that:

(1) Plans and programs are developed to meet the short- and longrange training needs of the agency;

(2) Priorities are established for the training programs of the agency;

(3) Provision is made for the use of funds and staff hours in accordance with established priorities, for the training programs of the agency;

(4) Employee self-development is fostered through a work environment in which self-development is encouraged, self-study materials are reasonably available, and self-initiated improvement in performance is recognized; and

(5) Information with respect to the general conduct of the training program of the agency is available to enable the Office, the President, and Congress to discharge their respective responsibilities under chapter 41 of title 5, United States Code.

(c) Training programs established by the agencies under chapter 41 of title 5, United States Code, to the maximum extent feasible:

(1) Be based on short- or long-range needs, existing or reasonably foreseeable;

(2) Meet as many of these needs as possible, priority considered;

(3) Use work assignment flexibility to provide experience to promote employee growth for the purpose of increasing the quality and quantity of work produced; and

(4) Be integrated with other personnel management and operating activities.

(d) As provided in subsection (b) of section 4103 of title 5, United States Code, an agency may train any employee of the agency to prepare the employee for placement in another agency when the following conditions are met:

(1) The head of the agency must determine that the employee will otherwise be separated under conditions which would entitle the employee to severance pay under section 5595 of title 5, United States Code;

(2) Before undertaking any training under this section, the head of the agency shall obtain verification from the Office that there exists a reasonable expectation of placement in another agency;

(3) In selecting an employee for training under this section, the head of the agency shall consider:

(i) The extent to which the current skills, knowledge, and abilities of the employee 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.

(5 U.S.C. 4103)

[44 FR 44814, July 31, 1979]

§ 410.302 Selection and assignment of trainees.

(a) The head of an agency shall establish procedures to assure eligible employees reasonable opportunity for consideration in selection for training which is to result in promotion. Merit promotion programs established under § 335.103 of this chapter shall be followed in selecting career or career-conditional employees for training that is given primarily to prepare trainees for advancement and that is required for promotion.

(b) With respect to selection and assignment of employees to training by, in, and through non-Government facilities, the head of an agency shall provide that:

(1) Authority to authorize this training of more than 40 hours' duration be held at a sufficiently high administra