Unknown. Final rule

8,010 words·~36 min read·/register/2015/09/25/2015-24405

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2015-09-25.xml --- 80 186 Friday, September 25, 2015 Contents Agricultural Marketing Agricultural Marketing Service RULES Sorghum Promotion, Research, and Information Program, 57698-57699 2015-24223 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See Commodity Credit Corporation See Federal Crop Insurance Corporation See Forest Service Animal Animal and Plant Health Inspection Service PROPOSED RULES Changes to Requirements for Field Testing Regulated Genetically Engineered Wheat, 57741 2015-24553 Army Army Department NOTICES Exclusive Patent License Approvals:

Applied Materials, Austin, TX, 57794 2015-24267 Meetings: Army Education Advisory Subcommittee, 57793-57794 2015-24269 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57793 2015-24341 Centers Disease Centers for Disease Control and Prevention NOTICES Requests for Nominations: Candidates to Serve as Members of the Community Preventive Services Task Force, 57820-57821 2015-24470 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 57821-57822, 57826-57827 2015-24471 2015-24474 Application for Continued Approval of its Rural Health Accreditation Program: American Association of Accreditation of Ambulatory Surgery Facilities, 57822-57824 2015-24356 Approval as an Accrediting Organization for Diabetes Self-Management Training Programs: American Diabetes Association, 57825-57826 2015-24358 Medicare and Medicaid Programs: Continued Approval of the American Association of Diabetes Educators as an Accrediting Organization for Diabetes Self-Management Training Programs, 57824-57825 2015-24357 Medicare Program:

Medicare Appeals; Adjustment to the Amount in Controversy Threshold Amounts for Calendar Year 2016, 57827-57828 2015-24359 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57828-57829 2015-24293 Coast Guard Coast Guard RULES Drawbridge Operations: Hood Canal, Port Gamble, WA, 57722 2015-24363 Rancocas Creek, Centerton, NJ, 57720-57721 2015-24333 Special Local Regulations: Temporary Change for Recurring Marine Event in the Fifth Coast Guard District, 57717-57720 2015-24323 NOTICES Charter Renewals:

Cook Inlet Regional Citizen's Advisory Council, 57834-57835 2015-24335 Letter of Recommendation for Washington State Ferries Liquefied Natural Gas Conversion; Seattle, WA, 57835-57837 2015-24337 Commerce Commerce Department See Foreign-Trade Zones Board See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List;

Additions and Deletions, 2015-24387 57792-57793 2015-24388 Committee Implementation Committee for the Implementation of Textile Agreements NOTICES Limitations of Duty-and Quota-Free Imports of Apparel Articles Assembled in Beneficiary Sub-Saharan African Countries from Regional and Third-Country Fabric, 57791-57792 2015-24399 Commodity Credit Commodity Credit Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57783 2015-24394 Community Living Administration Community Living Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: OAA Title III-E Evaluation, 57829-57830 2015-24444 Defense Department Defense Department See Army Department See Engineers Corps NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2015-24396 57795 2015-24404 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: TEACH Grant-Study of Institutional Practices and Grant Recipient Outcomes and Experiences, 57796-57797 2015-24326 Energy Department Energy Department See Energy Information Administration See Federal Energy Regulatory Commission Energy Information Energy Information Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 57797-57799 2015-24417 2015-24422 Engineers Engineers Corps NOTICES Final Integrated Feasibility Reports: Los Angeles River Ecosystem Restoration Study, City of Los Angeles, Los Angeles County, CA, 57795-57796 2015-24273 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Florida; Combs Oil Company Variance, 57727-57729 2015-24325 Georgia; Removal of Stage II Gasoline Vapor Recovery Program, 57729-57730 2015-24186 Mississippi;

Miscellaneous Changes, 57730-57732 2015-24324 New Hampshire; Nonattainment New Source Review and Prevention of Significant Deterioration Program, 57722-57725 2015-23176 Revisions to the California State Implementation Plan, Monterey Bay Unified Air Pollution Control District, Ventura County Air Pollution Control District, 57725-57727 2015-24106 Approval and Promulgation of State Plans for Designated Facilities and Pollutants: MO; Control of Mercury Emissions from Electric Generating Units, 57732-57734 2015-24339 Water Quality Standards Regulatory Revisions;

Correction, 57734 2015-24314 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Revisions to the California State Implementation Plan, Monterey Bay Unified Air Pollution Control District, Ventura County Air Pollution Control District, 57766 2015-24104 Approval and Promulgation of State Plans for Designated Facilities and Pollutants: MO; Control of Mercury Emissions from Electric Generating Units, 57767 2015-24336 Hazardous Waste Generator Improvements, 57918-58012 2015-23166 Management Standards for Hazardous Waste Pharmaceuticals, 58014-58092 2015-23167 NOTICES Environmental Impact Statements;

Availability, etc.; Weekly Receipts, 57807-57808 2015-24455 Meetings: Environmental Modeling, 57808-57809 2015-24550 Pesticide Registration: Draft Human Health and Ecological Risk Assessments for Sulfonylureas and Certain Other Pesticides, 57812-57816 2015-24452 Recommendations for Specifications, Environmental Performance Standards, and Ecolabels for Federal Procurement, 57809-57811 2015-24456 Test Data under the Toxic Substances Control Act, 57811-57812 2015-24450 Farm Credit System Insurance Farm Credit System Insurance Corporation NOTICES Meetings:

Farm Credit System Insurance Corporation Board, 57816 2015-24476 Federal Aviation Federal Aviation Administration RULES Amendment of Class E Airspace: Mackall AAF, NC, 57699-57700 2015-24152 Establishment of Class E Airspace: Poplarville-Pearl River County Airport, MS, 57700-57701 2015-24153 Federal Contract Tower Safety Action Program and Air Traffic Safety Action Program: Engineers and Architects, Staff Support Specialists, Aviation Technical System Specialists, and Flight Procedures Team, 57701-57703 2015-24438 PROPOSED RULES Airworthiness Directives:

Airbus Helicopters (previously Eurocopter France), 57742-57744 2015-24251 Alpha Aviation Concept Limited Airplanes, 57753-57755 2015-24149 Sikorsky Aircraft Corporation (Sikorsky) Helicopters, 57751-57753 2015-24148 The Boeing Company Airplanes, 57744-57751 2015-24344 Establishment of Class E Airspace: International Falls, MN, 57755 2015-24159 Federal Communications Federal Communications Commission PROPOSED RULES Technology Transitions, Policies and Rules Governing Retirement of Copper Loops by Incumbent Local Exchange Carriers and Special Access for Price Cap Local Exchange Carriers, 57768-57782 2015-23623 NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 57816-57817 2015-24347 Federal Crop Federal Crop Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57783-57784 2015-24413 Federal Emergency Federal Emergency Management Agency RULES Suspension of Community Eligibility, 57734-57737 2015-24433 PROPOSED RULES Flood Elevation Determinations: Butler County, PA (All Jurisdictions); Withdrawal, 57767 2015-24418 Mercer County, NJ (All Jurisdictions);

Withdrawal, 57767-57768 2015-24421 NOTICES Emergency Declarations: Washington; Amendment No. 1, 57838 2015-24410 Final Flood Hazard Determinations; Correction, 57841-57842 2015-24411 Flood Hazard Determinations, 57837-57840 2015-24402 2015-24407 Major Disaster Declarations: Kentucky; Amendment No. 2, 57840-57841 2015-24430 Louisiana; Amendment No. 2, 57838-57839 2015-24428 Privacy Act; Computer Matching Agreement, 57902-57906 2015-24477 Proposed Flood Hazard Determinations, 57842-57843 2015-24409 Proposed Flood Hazard Determinations:

Polk County, MN and Incorporated Areas, 57840 2015-24426 Federal Energy Federal Energy Regulatory Commission RULES Disturbance Monitoring and Reporting Requirements Reliability Standard, 57704-57709 2015-24278 NOTICES Applications: Steve Patton, 57803-57804 2015-24376 Combined Filings, 57802-57804 2015-24370 2015-24371 Continued Project Operation Authorizations: Alabama Power Co., 57803 2015-24382 Environmental Assessments; Availability, etc.: PacifiCorp, 57800-57801 2015-24381 Exempt Wholesale Generator or Foreign Utility Company Status:

Panda Liberty LLC, Panda Patriot LLC, Panda Stonewall LLC, et al., 57801-57802 2015-24377 Exemption Transfers: Cascade Clean Energy, Inc. to Kingdom Energy Products, 57805 2015-24383 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Carousel Wind Farm, LLC, 57799-57800 2015-24378 Green Mountain Storage, LLC, 57801 2015-24379 Meyersdale Storage, LLC, 57807 2015-24380 Institution of Section 206 Proceeding and Refund Effective Dates: RC Cape May Holdings, LLC, 57799 2015-24372 Meetings:

Northeast Energy Direct Pipeline Project; Tennessee Gas Pipeline Company, LLC, 57806-57807 2015-24384 Petitions for Declaratory Orders: ETP Crude, LLC, 57806 2015-24373 Preliminary Determinations of Qualifying Conduit Hydropower Facilities: Cheyenne, WY, 57804-57805 2015-24375 Records Governing Off-the-Record Communications, 57805-57806 2015-24374 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 57817-57818 2015-24369 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 57817 2015-24469 Federal Trade Federal Trade Commission NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 57818-57820 2015-24350 Fish Fish and Wildlife Service RULES Migratory Bird Hunting: Late Seasons and Bag and Possession Limits for Certain Migratory Game Birds, 58166-58194 2015-24166 Regulations on Certain Federal Indian Reservations and Ceded Lands for the 2015-16 Late Season, 58158-58163 2015-24162 Food and Drug Food and Drug Administration PROPOSED RULES Clarification of When Products Made or Derived From Tobacco Are Regulated as Drugs, Devices, or Combination Products;

Regulations Regarding Intended Uses, 57756-57765 2015-24313 Foreign Trade Foreign-Trade Zones Board NOTICES Production Activities: Foreign-Trade Zone 122; Corpus Christi, TX, 57785 2015-24447 Foreign-Trade Zone 230; Piedmont Triad Area, NC, 57785 2015-24451 Foreign-Trade Zone 33; Pittsburgh, PA, 57785-57786 2015-24453 Forest Forest Service NOTICES Meetings: Yavapai Resource Advisory Committee, 57784-57785 2015-24385 Health and Human Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Children and Families Administration See Community Living Administration See Food and Drug Administration See Health Resources and Services Administration See National Institutes of Health Health Resources Health Resources and Services Administration NOTICES Bright Futures Pediatric Implementation Cooperative Agreement, 57830-57832 2015-24393 2015-24395 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Mark-to-Market Program; Requirements for Community-Based Non-Profit Organizations and Public Agencies, 57848 2015-24429 Federal Property Suitable as Facilities to Assist the Homeless, 57843-57848 2015-24200 Indian Affairs Indian Affairs Bureau NOTICES Land Acquisitions: Mashpee Wampanoag Tribe, 57848-57862 2015-24360 Industry Industry and Security Bureau NOTICES Meetings: Emerging Technology and Research Advisory Committee, 57787 2015-24390 Materials Processing Equipment Technical Advisory Committee, 57786 2015-24389 Technical Advisory Committee, 57786-57787 2015-24365 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau See Ocean Energy Management Bureau Internal Revenue Internal Revenue Service RULES Reliance Standards for Making Good Faith Determinations, 57709-57717 2015-24346 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews:

Certain Oil Country Tubular Goods from the People's Republic of China; Court Decision Not in Harmony with Final Results of Administrative Review, 57789-57790 2015-24327 Investigations; Determinations, Modifications, and Rulings, etc.: Silicomanganese from Australia, 57787-57789 2015-24449 Justice Department Justice Department See Justice Programs Office NOTICES Proposed Consent Decrees under the Clean Air Act, 57873-57874 2015-24401 Justice Programs Justice Programs Office NOTICES Meetings:

Federal Advisory Committee on Juvenile Justice, 57874 2015-24427 Labor Department Labor Department See Occupational Safety and Health Administration NOTICES Establishing a Minimum Wage for Contractors, Notice of Rate Change in Effect as of January 1, 2016; Correction, 57874-57876 2015-24412 United States-Peru Trade Promotion Agreement: Determination Regarding Review of Submission #2015-01, 57877-57878 2015-24414 Land Land Management Bureau NOTICES Environmental Impact Statements;

Availability, etc.: California Desert Conservation Area Plan, West Mojave Planning Area, Inyo, Kern, Los Angeles and San Bernardino Counties, 57862 2015-24437 Legal Legal Services Corporation NOTICES Meetings; Sunshine Act, 57879-57881 2015-24563 NASA National Aeronautics and Space Administration NOTICES Meetings: NASA Advisory Council; Science Committee; Astrophysics Subcommittee, 57881-57882 2015-24297 National Credit National Credit Union Administration NOTICES Meetings; Sunshine Act, 57882 2015-24600 National Highway National Highway Traffic Safety Administration NOTICES Petitions for Decisions of Inconsequential Noncompliance:

PACCAR, Inc., 57911-57912 2015-24454 National Institute National Institutes of Health NOTICES Approvals of Start-Up Exclusive Evaluation Option License Agreements: Development of Diagnostic Tests and Kits for Detection of Pathological Angiogenesis in Cancer, 57832-57833 2015-24331 Meetings: Center for Scientific Review, 57833-57834 2015-24320 National Cancer Institute, 57834 2015-24321 National Institute on Aging, 57832 2015-24322 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries Off West Coast States:

Modifications of the West Coast Commercial and Recreational Salmon Fisheries; Inseason Actions #30 Through #36, 57738-57740 2015-24442 Magnuson-Stevens Act Provisions: Fishery Management Council Freedom of Information Act Requests, 57737-57738 2015-24364 NOTICES Meetings: Fisheries of the South Atlantic; South Atlantic Fishery Management Council, 57790 2015-24435 Western Pacific Fishery Management Council, 57790-57791 2015-24436 National Science National Science Foundation NOTICES Permits under the Antarctic Conservation Act, 57882-57883 2015-24308 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Final Safety Analysis Reports, Emergency Preparedness Documents, and Fire Protection Documents, 57884-57885 2015-24301 Guidance:

Chilled Water System, 57883-57884 2015-24306 Integrated Safety Analysis Standards for Acute Uranium Exposure of Workers, 57885-57886 2015-24315 License Amendment Applications: Northern States Power Co.—Minnesota; Prairie Island Nuclear Generating Plant, Units 1 and 2, 57885 2015-24311 Occupational Safety Health Adm Occupational Safety and Health Administration PROPOSED RULES Clarification of Employer's Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness;

Extension of Comment Period, 57765-57766 2015-24319 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Lead in General Industry Standard, 57878-57879 2015-24345 Ocean Energy Management Ocean Energy Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Outer Continental Shelf, Alaska Region, Beaufort Sea Planning Area, Liberty Development and Production Plan, 57873 2015-24391 Wind Lease Sales: Atlantic Wind Lease Sale 5 for Commercial Leasing for Wind Power on the Outer Continental Shelf Offshore New Jersey, 57862-57872 2015-24392 Pension Benefit Pension Benefit Guaranty Corporation RULES Multiemployer Plans;

Electronic Filing Requirements; Correction, 57717 2015-24343 Personnel Personnel Management Office RULES Managing Senior Executive Performance, 57693-57698 2015-24405 Overtime Pay for Border Patrol Agents, 58094-58121 2015-24199 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certification of Qualifying District of Columbia, 57887-57888 2015-24425 Reinstatement of Disability Annuity Previously Terminated Because of Restoration to Earning Capacity, 57886-57887 2015-24420 Rollover Election, Rollover Information, and Special Tax Notice Regarding Rollovers, 57888 2015-24419 Meetings:

Federal Salary Council, 57887 2015-24416 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Delayed Applications, 57913-57914 2015-23368 Special Permit Applications: Hazardous Materials, 57912-57913 2015-23369 Hazardous Materials; Modifications, 57914-57915 2015-23364 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 57888-57890 2015-24294 2015-24295 2015-24299 2015-24303 Postal Service Postal Service NOTICES Product Changes: Parcel Select Negotiated Service Agreement, 57891 2015-24351 Priority Mail Negotiated Service Agreement, 2015-24352 57890-57891 2015-24353 2015-24354 Securities Securities and Exchange Commission RULES Removal of Certain References to Credit Ratings and Amendment to the Issuer Diversification Requirement in the Money Market Fund Rule, 58124-58155 2015-24015 NOTICES Applications:

General Electric Co.and GE Capital International Funding Co., 57891-57893 2015-24445 Principal Exchange-Traded Funds, et al., 57893-57901 2015-24446 Meetings; Sunshine Act, 57901-57902 2015-24547 Small Business Small Business Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57906-57907 2015-24366 Disaster Declarations: Kentucky, 57906 2015-24502 West Virginia; Amendment 1, 57907 2015-24498 Privacy Act; Computer Matching Agreement, 57902-57906 2015-24477 Surrender of License of Small Business Investment Company, 2015-24367 57906 2015-24368 Social Social Security Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 57907-57910 2015-24302 State Department State Department NOTICES Culturally Significant Objects Imported for Exhibition Determinations: Delacroix's Influence; The Rise of Modern Art from Cezanne to van Gogh, 57910 2015-24613 Culturally Significant Objects Imported for Exhibition: Frank Stella--A Retrospective, 57910-57911 2015-24457 Sotatsu--Making Waves, 57910 2015-24460 Transportation Department Transportation Department See Federal Aviation Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration NOTICES Meetings:

Global Positioning System Adjacent Band Compatibility Assessment Workshop IV, 57915 2015-24415 Treasury Treasury Department See Internal Revenue Service Separate Parts In This Issue Part II Environmental Protection Agency, 57918-58012 2015-23166 Part III Environmental Protection Agency, 58014-58092 2015-23167 Part IV Personnel Management Office, 58094-58121 2015-24199 Part V Securities and Exchange Commission, 58124-58155 2015-24015 Part VI Interior Department, Fish and Wildlife Service, 58158-58163 2015-24162 Part VII Interior Department, Fish and Wildlife Service, 58166-58194 2015-24166 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 80 186 Friday, September 25, 2015 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Parts 430 and 534 RIN 3206-AM48 Managing Senior Executive Performance AGENCY: U.S. Office of Personnel Management. ACTION: Final rule.

SUMMARY: The Office of Personnel Management

(OPM)is amending subpart C of part 430 of title 5, Code of Federal Regulations, to help agencies design performance appraisal systems for senior executives that support a consistent approach for managing senior executive performance, incorporate current OPM policies, and reorganize information for ease of reading. We are also amending part 534 to make technical corrections to the regulation on pay for senior level and scientific and professional positions. DATES: Effective October 26, 2015. FOR FURTHER INFORMATION CONTACT: Nikki Johnson by telephone at

(202)606-8046 or by email at *nikki.johnson@opm.gov* . SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management

(OPM)issued proposed regulations and requested comments on December 10, 2014 (79 FR 73239). OPM received comments from one Federal agency, a private association for career federal executives (“the Association”), and one individual. We reviewed the public comments, considered them, and decided upon any revisions we concluded were appropriate in light of that consideration. We have summarized the comments below and also indicate how we disposed of them in the final regulations. In addition to specific substantive comments, we received general comments about the proposed regulations as well as information contained in the supplementary information. For example, the Association supports the concept of a consistent appraisal approach and recognizes the additional clarification provided for the definitions of performance standards and performance requirements as being particularly helpful. Furthermore, the Association recommends ensuring a consistent framework to promote transparency for SES performance management by limiting agency flexibility. The Association suggests OPM direct agencies to leverage and tailor the critical elements, based on the executive core qualifications (ECQ), to secure the desired flexibility instead of permitting flexibility regarding the implementation of a Governmentwide system. In response, OPM notes that 5 U.S.C. 4312(a), one of the statutory provisions governing performance appraisals for the SES, specifically states: “Each agency shall, in accordance with standards established by OPM, develop one or more performance appraisal systems. . . .” Therefore, we are regulating concepts of good performance management by providing system standards for agencies to use in designing their SES performance management systems. In addition, the basic SES performance management system incorporates these system standards and is available for agencies to adopt and adapt, still allowing agencies limited flexibility in system design. The Association also recommends OPM codify the SES and Performance Management Office to ensure that office can provide oversight and guidance on SES performance management, as well as serve as a resource for agencies. OPM already has sufficient statutory (5 U.S.C. 4312(c)(1) and

(3)and 4315) and regulatory authority (5 CFR subpart C being finalized here and including § 430.314) to fulfill its obligations, with or without a separate office bearing this title, and OPM does not believe it is prudent to bind future directors to any particular organizational scheme. In addition, it is already clear that OPM is committed to providing agencies guidance and support in designing and implementing their performance management systems. An agency has concerns that the use of the word “rare” in the example of a performance standard in the supplementary information describing Level 5 performance might be interpreted as imposing a quota or limitation on the number of executives who can receive a Level 5 rating. OPM did not intend “rare, high quality performance” to be a quantitative descriptor, as a quota would be proscribed under 5 U.S.C. 4312(b)(2). Nor did OPM intend to imply that Level 5 performance was merely “high level” as all standards for executives should anticipate high level work and be designed to encourage excellence in performance. Rather, OPM intended to convey that, qualitatively, the standards for a Level 5 (“An outstanding level”) rating should be clearly differentiated from and exceed the standards set for Level 4 performance (“An exceeds fully successful level”). We received four comments on planning and appraising performance. First, the Association suggests the proposed regulations would be strengthened by a discussion of how Technical Qualifications

(TQs)could be incorporated, when applicable, in appraising performance. OPM believes that the use of OPM-validated executive competencies can provide the proper balance between leadership qualifications and actual executive results, are the most appropriate basis for appraising executive performance, and would allow for incorporating TQs. We have removed specific reference to the ECQs, and clarified that standards for performance management systems should use critical elements based on OPM-validated executive competencies accordingly. Also, the Association recommends the regulations establish appropriate timelines for communicating performance plans and ratings. It also recommends the communication of appraisals, including ratings that have been increased, sustained, or lowered, be provided in writing. OPM agrees with making this an explicit requirement and we have revised § 430.308 to ensure agencies establish timelines for communicating performance plans, conducting appraisals, and assigning and communicating annual summary ratings. In addition, we have revised § 430.306(b) regarding performance plans and § 430.309(e)(4) regarding the annual summary rating to ensure they are communicated to the executive in writing in a timely manner. In addition, the Association expresses concerns over the manner in which customer and employee perspectives will be collected and assessed and how those assessments will affect the performance appraisal of executives. The Association wants senior executives to be made aware of the assessment methods, and believes those methods must ensure a senior executive is assessed on things within the individual's control. OPM has included Governmentwide performance requirements for employee perspective into the Leading People critical element of the basic SES appraisal system executive performance plan template and for customer perspective in the Building Coalitions critical element. Beyond that, agencies are responsible for developing additional agency-specific requirements. In doing so, agencies should be clear on how the requirements will be measured and make executives aware of those assessment methods. They must make sure that such requirements are within the area of responsibility and control of the executive. We have clarified the language in several places in the regulation to include this concept. Finally, an individual recommends OPM should consider providing a broader authority to develop alternative review procedures to cover other cases where it might be difficult or impossible to accommodate higher level review within the agency. For example, what would happen when the only person who can provide higher level review is also the final rater. The individual also questions the meaning of agency head in the proposed § 430.309(e)(2)(iii) and suggests OPM should provide a definition of agency for clarity and consistency. We have revised § 430.309(e)(2) to provide a broader authority for agencies to develop alternative review procedures when it is difficult or impossible to accommodate higher level review within the agency. We have also clarified that the review should be made by an official at a higher level who did not participate in determining the executive's initial summary rating. In other words, someone at a higher level who can provide an objective review who was not directly involved in the initial summary rating may serve as a higher-level official for this purpose. For example, a reviewing official may not provide a higher-level review because of their involvement in the process. It is not OPM's intention for agencies to exclude individuals with knowledge of the executive's performance from providing input. We also have revised § 430.303 to add a definition for agency. Lastly, we received two comments on the oversight official. An agency suggests clarification of the responsibilities of the oversight official. It questions whether the responsibilities of the oversight official could be shared between two positions, such as one individual issuing performance appraisal guidelines and overseeing the performance management system and another individual issuing the organizational assessments. These regulations address the responsibilities of the oversight official with regard to providing oversight of the performance management system and issuing performance appraisal guidelines and do not make the oversight official responsible for organizational assessments. Therefore, it is up to the agency whether two separate positions have the responsibilities of these two functions. The Association recommends the oversight official also oversee adherence to timelines for communicating performance plans and ratings, as well as ensure agency leaders and political appointees are meeting their responsibilities and obligations in support of implementation of the SES performance management system. We have revised § 430.308 to ensure agencies establish timelines for completing and communicating performance plans and ratings, and are continuing to provide agencies the flexibility to determine which official(s) will oversee adherence to these timelines and the proper exercise of upper management responsibilities regarding performance management. In the interest of clarifying the regulatory content, OPM is making a few additional changes. Wherever we refer to written communications, we include the ability to accomplish these through the use of automated systems. In § 430.305(a)(7), we have revised the order of the wording to conform with the other entries in paragraph (a). In § 430.308(d)(3), we include language to clarify that guidelines must be issued before completion of the initial summary ratings. In § 430.310(b), we clarify that appraisal information from details and such must be provided to the executive. Pay for Senior Level and Scientific and Professional Positions On March 5, 2014, OPM published final regulations (79 FR 12353) on pay for senior level and scientific and professional positions to implement Section 2 of the Senior Professional Performance Act of 2008 (Pub. L. 110-372, October 8, 2008). We find that paragraphs (c)(1)(ii) and (c)(1)(iii) of 5 CFR 534.505 of these regulations contain erroneous cross-references that we are correcting. We also are revising the salary rates used in the example to reflect the most current rates at the time of publication of this correction. Regulatory Flexibility Act I certify that these regulations will not have a significant economic impact on a substantial number of small entities, because they will apply only to Federal agencies and employees. E.O. 12866, Regulatory Review This rule has not been reviewed by the Office of Management and Budget in accordance with E.O. 12866. List of Subjects in 5 CFR Parts 430 Government employees. U.S. Office of Personnel Management. Beth F. Cobert, Acting Director. Accordingly, OPM is amending 5 CFR parts 430 and 534 as follows: PART 430—PERFORMANCE MANAGEMENT 1. The authority citation for part 430 continues to read as follows: Authority: 5 U.S.C. chapter 43 and 5307(d). 2. Revise subpart C to read as follows: Subpart C—Managing Senior Executive Performance Sec. 430.301 General. 430.302 Coverage. 430.303 Definitions. 430.304 SES performance management systems. 430.305 System standards for SES performance management systems. 430.306 Planning and communicating performance. 430.307 Monitoring performance. 430.308 Appraising performance. 430.309 Rating performance. 430.310 Details and job changes. 430.311 Performance Review Boards (PRBs). 430.312 Using performance results. 430.313 Training and evaluation. 430.314 OPM review of agency systems. Subpart C—Managing Senior Executive Performance § 430.301 General.

(a)*Statutory authority.* Chapter 43 of title 5, United States Code, provides for the establishment of Senior Executive Service

(SES)performance appraisal systems and appraisal of senior executive performance. This subpart prescribes regulations for managing SES performance to implement the statutory provisions at 5 U.S.C. 4311-4315.

(b)*Purpose.* In order to improve the overall performance of Government, agencies must establish performance management systems that hold senior executives accountable (within their assigned areas of responsibility and control) for their individual performance and for organizational performance by—

(1)Encouraging excellence in senior executive performance;

(2)Aligning executive performance plans with the results-oriented goals required by the Government Performance and Results Act Modernization Act of 2010 (GPRAMA) or other strategic planning initiatives;

(3)Setting and communicating individual and organizational goals and expectations that clearly fall within the executive's area of responsibility and control;

(4)Reporting on the success of meeting organizational goals (including any factors that may have impacted success);

(5)Systematically appraising senior executive performance using measures that balance organizational results with customer and employee perspectives, and other perspectives as appropriate; and

(6)Using performance appraisals as a basis for pay, awards, development, retention, removal, and other personnel decisions.

(c)*Savings provision.* Agencies without OPM approval to use the basic SES appraisal system issued by U.S. Office of Personnel Management

(OPM)and the Office of Management and Budget on January 4, 2012, must design, obtain OPM approval for, and implement systems conforming to the requirements of this subpart no later than one year after October 26, 2015. No provision of this subpart will affect any administrative proceedings related to any action initiated under a provision of this chapter before October 26, 2015. § 430.302 Coverage. This subpart applies to—

(a)All senior executives covered by subchapter II of chapter 31 of title 5, United States Code; and

(b)Agencies as defined in § 430.303. § 430.303 Definitions. In this subpart— *Agency* means an agency as that term is defined in 5 U.S.C. 3132(a)(1) and an Office of Inspector General, which is a separate agency for all provisions of the Senior Executive Service under the Inspector General Act of 1978 (5 U.S.C. App 6(d)). *Annual summary rating* means the overall rating level that an appointing authority assigns at the end of the appraisal period after considering

(1)the initial summary rating,

(2)any input from the executive or a higher level review, and

(3)the applicable Performance Review Board's recommendations. This is the official final rating for the appraisal period. *Appointing authority* means the department or agency head, or other official with authority to make appointments in the Senior Executive Service (SES). *Appraisal period* means the established period of time for which a senior executive's performance will be appraised and rated. *Critical element* means a key component of an executive's work that contributes to organizational goals and results and is so important that unsatisfactory performance of the element would make the executive's overall job performance unsatisfactory. *Initial summary rating* means an overall rating level the supervisor derives, from appraising the senior executive's performance during the appraisal period in relation to the critical elements and performance standards and requirements, and forwards to the Performance Review Board. *Oversight official* means the agency head or the individual specifically designated by the agency head who provides oversight of the performance management system and issues performance appraisal guidelines. *Performance* means the accomplishment of the work described in the senior executive's performance plan. *Performance appraisal* means the review and evaluation of a senior executive's performance against critical elements and performance standards and requirements. *Performance management system* means the framework of policies and practices that an agency establishes under subchapter II of chapter 43 of title 5, United States Code, subpart A, and this subpart for planning, monitoring, developing, evaluating, and rewarding both individual and organizational performance and for using resulting performance information in making personnel decisions. *Performance requirement* means a description of what a senior executive must accomplish, or the competencies demonstrated, for a critical element. A performance requirement establishes the criteria to be met to be rated at a specific level of performance and generally includes quality, quantity, timeliness, cost savings, manner of performance, or other factors. *Performance standard* means a normative description of a single level of performance within five such described levels of performance ranging from unsatisfactory performance to outstanding performance. Performance standards provide the benchmarks for developing performance requirements against which actual performance will be assessed. *Progress review* means a review of the senior executive's progress in meeting the performance requirements. A progress review is not a performance rating. *Senior executive performance plan* means the written critical elements and performance requirements against which performance will be evaluated during the appraisal period by applying the established performance standards. The plan includes all critical elements, performance standards, and performance requirements, including any specific goals, targets, or other measures established for the senior executive. *Strategic planning initiatives* means agency strategic plans as required by the GPRA Modernization Act of 2010, annual performance plans, organizational work plans, and other related initiatives. *System standards* means the OPM-established requirements for performance management systems. § 430.304 SES performance management systems.

(a)To encourage excellence in senior executive performance, each agency must develop and administer one or more performance management systems for its senior executives in accordance with the system standards established in § 430.305.

(b)Performance management systems must provide for—

(1)Identifying executives covered by the system;

(2)Monitoring progress in accomplishing critical elements and performance requirements and conducting progress reviews at least once during the appraisal period, including informing executives on how well they are performing;

(3)Establishing an official performance appraisal period for which an annual summary rating must be prepared;

(4)Establishing a minimum appraisal period of at least 90 days;

(5)Ending the appraisal period at any time after the minimum appraisal period is completed, but only if the agency determines there is an adequate basis on which to appraise and rate the senior executive's performance and the shortened appraisal period promotes effectiveness; and

(6)Establishing criteria and procedures to address performance of senior executives who are on detail, temporarily reassigned, or transferred as described at § 430.312(c)(1), and for other special circumstances established by the agency. § 430.305 System standards for SES performance management systems.

(a)Each agency performance management system must incorporate the following system standards:

(1)Use critical elements based on OPM-validated executive competencies to evaluate executive leadership and results, including the quality of the executive's performance;

(2)Align performance requirements with agency mission and strategic planning initiatives;

(3)Define performance standards for each of the summary rating performance levels, which also may be used for the individual elements or performance requirements being appraised;

(4)Appraise each senior executive's performance at least annually against performance requirements based on established performance standards and other measures;

(5)Derive an annual summary rating through a mathematical method that ensures executives' performance aligns with level descriptors contained in performance standards that clearly differentiate levels above fully successful, while prohibiting a forced distribution of rating levels for senior executives;

(6)Establish five summary performance levels as follows:

(i)An outstanding level;

(ii)An exceeds fully successful level;

(iii)A fully successful level;

(iv)A minimally satisfactory level; and

(v)An unsatisfactory level;

(7)Include equivalency statements in the system description for agency-specific terms for the five summary performance levels aligning them with the five performance levels required in § 430.305(a)(6); and

(8)Use performance appraisals as a basis to adjust pay, reward, retain, and develop senior executives or make other personnel decisions, including removals as specified in § 430.312.

(b)An agency may develop its own performance management system for senior executives in accordance with the requirements of this section.

(c)OPM may establish, and refine as needed, a basic performance management system incorporating all requirements of this section, which agencies may adopt, with limited adaptation, for performance management of its senior executives. § 430.306 Planning and communicating performance.

(a)Each senior executive must have a performance plan that describes the individual and organizational expectations for the appraisal period that clearly fall within the senior executive's area of responsibility and control.

(b)Supervisors must develop performance plans in consultation with senior executives and communicate the plans to them in writing, including through the use of automated systems, on or before the beginning of the appraisal period.

(c)A senior executive performance plan must include—

(1)*Critical elements.* Critical elements must reflect individual performance results or competencies as well as organizational performance priorities within each executive's respective area of responsibility and control, and be based on OPM-validated executive competencies.

(2)*Performance standards.* Performance plans must include the performance standards describing each level of performance at which a senior executive's performance can be appraised. Performance standards describe the general expectations that must be met to be rated at each level of performance and provide the benchmarks for developing performance requirements.

(3)*Performance requirements.* At a minimum, performance requirements must describe expected accomplishments or demonstrated competencies for fully successful performance by the executive. An agency may establish performance requirements associated with other levels of performance as well. These performance requirements must align with agency mission and strategic planning initiatives. Performance requirements must contain measures of the quality, quantity, timeliness, cost savings, or manner of performance, as appropriate, expected for the applicable level of performance.

(d)Agencies may require a review of senior executive performance plans at the beginning of the appraisal period to ensure consistency of agency-specific performance requirements. Such reviews may be performed by the Performance Review Board

(PRB)or another body of the agency's choosing. § 430.307 Monitoring performance. Supervisors must monitor each senior executive's performance throughout the appraisal period and hold at least one progress review. At a minimum, supervisors must inform senior executives during the progress review about how well they are performing with regard to their performance plan. Supervisors must provide advice and assistance to senior executives on how to improve their performance. Supervisors and senior executives may also discuss available development opportunities for the senior executive. § 430.308 Appraising performance.

(a)Agencies must establish appropriate timelines for communicating performance plans, conducting appraisals, and assigning and communicating annual summary ratings.

(b)At least annually, agencies must appraise each senior executive's performance in writing, including through the use of automated systems, and assign an annual summary rating at the end of the appraisal period.

(c)Agencies must appraise a senior executive's performance on the critical elements and performance requirements in the senior executive's performance plan.

(d)Agencies must base appraisals of senior executive performance on both individual and organizational performance as it applies to the senior executive's area of responsibility and control, taking into account factors such as—

(1)Results achieved in accordance with agency mission and strategic planning initiatives;

(2)Overall quality of performance rendered by the executive,

(3)Performance appraisal guidelines that must be based upon assessments of the agency's performance and are provided by the oversight official to senior executives, rating and reviewing officials, PRB members, and appointing authorities at the conclusion of the appraisal period and before completion of the initial summary ratings;

(4)Customer perspectives;

(5)Employee perspectives;

(6)The effectiveness, productivity, and performance results of the employees for whom the senior executive is responsible;

(7)Leadership effectiveness in promoting diversity, inclusion and engagement as set forth, in part, under section 7201 of title 5, United States Code; and

(8)Compliance with the merit system principles set forth under section 2301 of title 5, United States Code. § 430.309 Rating performance.

(a)When rating senior executive performance, each agency must—

(1)Comply with the requirements of this section, and

(2)Establish a PRB as described at § 430.311.

(b)Each performance management system must provide that an appraisal and rating for a career appointee's performance may not be made within 120 days after the beginning of a new President's term.

(c)When an agency cannot prepare an annual summary rating at the end of the appraisal period because the senior executive has not completed the minimum appraisal period or for other reasons, the agency must extend the executive's appraisal period. Once the appropriate conditions are met, the agency will then prepare the annual summary rating.

(d)Senior executive performance appraisals and ratings are not appealable.

(e)Procedures for rating senior executives must provide for the following:

(1)*Initial summary rating.* The supervisor must develop an initial summary rating of the senior executive's performance, in writing, including through the use of automated systems, and share that rating with the senior executive. The senior executive may respond in writing.

(2)*Higher-level review (HLR).* A senior executive may ask for a higher-level official to review the initial summary rating before the rating is given to the PRB. The agency must provide each senior executive an opportunity for review of the initial summary rating by an employee, or (with the consent of the senior executive) a commissioned officer in the uniformed services on active duty in the agency, in a higher level in the agency.

(i)A single review by an official at a higher level who did not participate in determining the executive's initial summary rating will satisfy this requirement. An official providing HLR may not change the initial summary rating but may recommend a different rating to the PRB. HLR may be provided by an official who is at a higher level in the agency than the appointing authority who will approve the final rating under paragraph (e)(4) of this section.

(ii)When an agency cannot provide review by a higher-level official for an executive who receives an initial summary rating from the agency head because no such official exists in the agency, the agency must offer an alternative review as it determines appropriate, except that the review may not be provided by a member of the PRB or an official who participated in determining the initial summary rating.

(iii)If a senior executive declines review by agency-designated higher-level officials, the agency may offer an alternative review but it not obligated to do so. The agency must document the executive's declination of the HLR opportunity provided by the agency before offering an alternative review.

(iv)Copies of findings and recommendations of the HLR official or the official performing an alternative review under paragraph (e)(2)(ii) through

(iii)of this section must be given to the senior executive, the supervisor, and the PRB.

(3)*PRB review.* The PRB must receive and review the initial summary rating, the senior executive's response to the initial rating if made, and findings and recommendations of any HLR or any alternative review under paragraph (e)(2) of this section before making recommendations to the appointing authority, as provided in § 430.311.

(4)*Annual summary rating.* The appointing authority must assign the annual summary rating of the senior executive's performance after considering the applicable PRB's recommendations. This rating is the official final rating for the appraisal period and must be communicated to the executive in writing, including through the use of automated systems, in accordance with the timelines developed under § 430.308(a).

(5)*Shortened appraisal periods.* The procedures of this section apply whenever an agency terminates an appraisal period under § 430.304(b)(5). § 430.310 Details and job changes.

(a)When a senior executive is detailed or temporarily reassigned for 120 days or longer, the gaining organization must set performance goals and requirements for the detail or temporary assignment. The gaining organization must appraise the senior executive's performance in writing, including through the use of automated systems, and this appraisal must be considered when deriving the initial summary rating.

(b)When a senior executive is reassigned or transferred to another agency after completing the minimum appraisal period, the supervisor must appraise the executive's performance in writing, including through the use of automated systems, before the executive leaves and provide this information to the executive.

(c)The most recent annual summary rating and any subsequent appraisals must be transferred to the gaining agency or organization. The gaining supervisor must consider the rating and appraisals when deriving the initial summary rating at the end of the appraisal period. § 430.311 Performance Review Boards (PRBs). Each agency must establish one or more PRBs to make recommendations to the appointing authority on the performance of its senior executives.

(a)*Membership.*

(1)Each PRB must have three or more members who are appointed by the agency head, or by another official or group acting on behalf of the agency head. Agency heads are encouraged to consider diversity and inclusion in establishing their PRBs.

(2)PRB members must be appointed in a way that assures consistency, stability, and objectivity in SES performance appraisal.

(3)When appraising a career appointee's performance or recommending a career appointee for a performance-based pay adjustment or performance award, more than one-half of the PRB's members must be SES career appointees.

(4)The agency must publish notice of PRB appointments in the **Federal Register** before service begins.

(b)*Functions.*

(1)Each PRB must consider agency performance as communicated by the oversight official through the performance appraisal guidelines when reviewing and evaluating the initial summary rating, any senior executive's response, and any higher-level official's findings and recommendations on the initial summary rating or the results of an alternative review. The PRB may conduct any further review needed to make its recommendations. The PRB may not review an initial summary rating to which the executive has not been given the opportunity to respond in writing, including through the use of automated systems.

(2)The PRB must make a written recommendation, including through the use of automated systems, to the appointing authority about each senior executive's annual summary rating, performance-based pay adjustment, and performance award.

(3)PRB members may not take part in any PRB deliberations involving their own appraisals, performance-based pay adjustments, and performance awards. § 430.312 Using performance results.

(a)Agencies must use performance appraisals as a basis for adjusting pay, granting awards, retaining senior executives, and making other personnel decisions. Performance appraisals also will be a factor in assessing a senior executive's continuing development needs.

(b)Agencies are required to provide appropriate incentives and recognition (including pay adjustments and performance awards under part 534, subpart D) for excellence in performance.

(c)A career executive may be removed from the SES for performance reasons, subject to the provisions of part 359, subpart E, as follows:

(1)An executive who receives an unsatisfactory annual summary rating must be reassigned or transferred within the SES, or removed from the SES;

(2)An executive who receives two unsatisfactory annual summary ratings in any 5-year period must be removed from the SES; and

(3)An executive who receives less than a fully successful annual summary rating twice in any 3-year period must be removed from the SES. § 430.313 Training and evaluation.

(a)To assure effective implementation of agency performance management systems, agencies must provide appropriate information and training to agency leadership, supervisors, and senior executives on performance management, including planning and appraising performance.

(b)Agencies must periodically evaluate the effectiveness of their performance management system(s) and implement improvements as needed. Evaluations must provide for both assessment of effectiveness and compliance with relevant laws, OPM regulations, and OPM performance management policy.

(c)Agencies must maintain all performance-related records for no fewer than 5 years from the date the annual summary rating is issued, as required in 5 CFR 293.404(b)(1). § 430.314 OPM review of agency systems.

(a)Agencies must submit proposed SES performance management systems to OPM for approval. Agency systems must address the system standards and requirements specified in this subpart.

(b)OPM will review agency systems for compliance with the requirements of law, OPM regulations, and OPM performance management policy, including the system standards specified at § 430.305.

(c)If OPM finds that an agency system does not meet the requirements and intent of subchapter II of chapter 43 of title 5, United States Code, or of this subpart, OPM will identify the requirements that were not met and direct the agency to take corrective action, and the agency must comply. PART 534—PAY UNDER OTHER SYSTEMS 3. The authority citation for part 534 continues to read as follows: Authority: 5 U.S.C. 1104, 3161(d), 5307, 5351, 5352, 5353, 5376, 5382, 5383, 5384, 5385, 5541, 5550a, sec. 1125 of the National Defense Authorization Act for FY 2004, Pub. L. 108-136, 117 Stat. 1638 (5 U.S.C. 5304, 5382, 5383, 7302; 18 U.S.C. 207); and sec. 2 of Pub. L. 110-372, 122 Stat. 4043 (5 U.S.C. 5304, 5307, 5376). 4. In § 534.505, revise paragraph (c)(1) to read as follows: § 534.505 Written Procedures.

(c)* * *

(1)Any pay-setting action under § 534.506 or any pay increase under § 534.507 that results in a rate of basic pay that is within the highest 10 percent of the applicable rate range under § 534.504. A rate of basic pay equal to or above the amount derived using the following rules is considered to be within the highest 10 percent of the applicable pay range (in 2015, $177,166 or above if the applicable system is certified, or $164,026 or above if the applicable system is not certified or performance appraisal does not apply):

(i)Subtract the minimum rate of basic pay from the maximum rate of basic pay for the applicable rate range under § 534.504 (in 2015, $183,300−$121,956 = $61,344 if the applicable system is certified, or $168,700−$121,956 = $46,744 if the applicable system is not certified or performance appraisal does not apply);

(ii)Multiply the amount derived in paragraph (c)(1)(i) of this section by 0.10 (in 2015, $61,344 − 0.10 = $6,134 if the applicable system is certified, or $46,744 − 0.10 = $4,674 if the applicable system is not certified or performance appraisal does not apply); and

(iii)Subtract the amount derived in paragraph (c)(1)(ii) of this section from the maximum rate of basic pay applicable under § 534.504 (in 2015, $183,300−$6,134 = $177,166 if the applicable system is certified, or $168,700−$4,674 = $164,026 if the applicable system is not certified or performance appraisal does not apply); [FR Doc. 2015-24405 Filed 9-24-15; 8:45 am]

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