[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5346 Introduced in House (IH)]
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118th CONGRESS
1st Session
H. R. 5346
To establish Schedule F in the excepted service, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 5, 2023
Mr. James introduced the following bill; which was referred to the
Committee on Oversight and Accountability
_______________________________________________________________________
A BILL
To establish Schedule F in the excepted service, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Creating Schedule F in the Excepted
Service Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) To effectively carry out the broad array of activities
assigned to the executive branch under law, the President and
his appointees must rely on men and women in the Federal
service employed in positions of a confidential, policy-
determining, policy-making, or policy-advocating character.
Faithful execution of the law requires that the President have
appropriate management oversight regarding this select cadre of
professionals.
(2) The Federal Government benefits from career
professionals in positions that are not normally subject to
change as a result of a Presidential transition but who
discharge significant duties and exercise significant
discretion in formulating and implementing executive branch
policy and programs under the laws of the United States. The
heads of executive departments and agencies (agencies) and the
American people also entrust these career professionals with
non-public information that must be kept confidential.
(3) With the exception of attorneys in the Federal service
who are appointed pursuant to schedule A of the excepted
service and members of the Senior Executive Service,
appointments to these positions are generally made through the
competitive service. Given the importance of the functions they
discharge, employees in such positions must display appropriate
temperament, acumen, impartiality, and sound judgment.
(4) Due to these requirements, agencies should have a
greater degree of appointment flexibility with respect to these
employees than is afforded by the existing competitive service
process.
(5) Further, effective performance management of employees
in confidential, policy-determining, policy-making, or policy-
advocating positions is of the utmost importance.
Unfortunately, the Government's current performance management
is inadequate, as recognized by Federal workers themselves. For
instance, the 2016 Merit Principles Survey reveals that less
than a quarter of Federal employees believe their agency
addresses poor performers effectively.
(6) Separating employees who cannot or will not meet
required performance standards is important, and it is
particularly important with regard to employees in
confidential, policy-determining, policy-making, or policy-
advocating positions. High performance by such employees can
meaningfully enhance agency operations, while poor performance
can significantly hinder them. Senior agency officials report
that poor performance by career employees in policy-relevant
positions has resulted in long delays and substandard-quality
work for important agency projects, such as drafting and
issuing regulations.
(7) Conditions of good administration make necessary an
exception to the competitive hiring rules and examinations for
career positions in the Federal service of a confidential,
policy-determining, policy-making, or policy-advocating
character. These conditions include the need to provide agency
heads with additional flexibility to assess prospective
appointees without the limitations imposed by competitive
service selection procedures. Placing these positions in the
excepted service will mitigate undue limitations on their
selection. This action will also give agencies greater ability
and discretion to assess critical qualities in applicants to
fill these positions, such as work ethic, judgment, and ability
to meet the particular needs of the agency. These are all
qualities individuals should have before wielding the authority
inherent in their prospective positions, and agencies should be
able to assess candidates without proceeding through
complicated and elaborate competitive service processes or
rating procedures that do not necessarily reflect their
particular needs.
(8) Conditions of good administration similarly make
necessary excepting such positions from the adverse action
procedures set forth in chapter 75 of title 5, United States
Code. Chapter 75 of title 5, United States Code, requires
agencies to comply with extensive procedures before taking
adverse action against an employee. These requirements can make
removing poorly performing employees difficult. Only a quarter
of Federal supervisors are confident that they could remove a
poor performer. Career employees in confidential, policy-
determining, policy-making, and policy-advocating positions
wield significant influence over Government operations and
effectiveness. Agencies need the flexibility to expeditiously
remove poorly performing employees from these positions without
facing extensive delays or litigation.
SEC. 3. SCHEDULE F OF THE EXCEPTED SERVICE.
(a) In General.--Appointments of individuals to positions of a
confidential, policy-determining, policy-making, or policy-advocating
character that are not normally subject to change as a result of a
Presidential transition shall be made under schedule F of the excepted
service, as established by subsection (b).
(b) Regulations.--The Director of the Office of Personnel
Management shall--
(1) amend section 6.2 of title 5, Code of Federal
Regulations, to read as follows:
``OPM shall list positions that it excepts from the competitive
service in Schedules A, B, C, D, E, and F, which schedules shall
constitute parts of this rule, as follows:
``Schedule A. Positions other than those of a confidential or
policy-determining character for which it is not practicable to examine
shall be listed in Schedule A.
``Schedule B. Positions other than those of a confidential or
policy-determining character for which it is not practicable to hold a
competitive examination shall be listed in Schedule B. Appointments to
these positions shall be subject to such noncompetitive examination as
may be prescribed by OPM.
``Schedule C. Positions of a confidential or policy-determining
character normally subject to change as a result of a Presidential
transition shall be listed in Schedule C.
``Schedule D. Positions other than those of a confidential or
policy-determining character for which the competitive service
requirements make impracticable the adequate recruitment of sufficient
numbers of students attending qualifying educational institutions or
individuals who have recently completed qualifying educational
programs. These positions, which are temporarily placed in the excepted
service to enable more effective recruitment from all segments of
society by using means of recruiting and assessing candidates that
diverge from the rules generally applicable to the competitive service,
shall be listed in Schedule D.
``Schedule E. Position of administrative law judge appointed under
5 U.S.C. 3105. Conditions of good administration warrant that the
position of administrative law judge be placed in the excepted service
and that appointment to this position not be subject to the
requirements of 5 CFR, part 302, including examination and rating
requirements, though each agency shall follow the principle of veteran
preference as far as administratively feasible.
``Schedule F. Positions of a confidential, policy-determining,
policy-making, or policy-advocating character not normally subject to
change as a result of a Presidential transition shall be listed in
Schedule F. In appointing an individual to a position in Schedule F,
each agency shall follow the principle of veteran preference as far as
administratively feasible'';
(2) amend section 6.4 of title 5, Code of Federal
Regulations, to read as follows:
``Except as required by statute, the Civil Service Rules and
Regulations shall not apply to removals from positions listed in
Schedule A, C, D, E, or F, or from positions excepted from the
competitive service by statute. The Civil Service Rules and Regulations
shall apply to removals from positions listed in Schedule B of persons
who have competitive status.'';
(3) adopt such regulations as the Director determines may
be necessary to implement this title, including, as
appropriate, amendments to or rescissions of regulations that
are inconsistent with, or that would impede the implementation
of, this title, giving particular attention to--
(A) section 302.101 of title 5, Code of Federal
Regulations;
(B) subpart D of part 212 of such title; and
(C) subparts A and C of part 213 of such title; and
(4) provide guidance on conducting a swift, orderly
transition from the existing appointment processes to the
schedule F process established by this title.
SEC. 4. EXECUTIVE AGENCY ACTIONS.
(a) Review.--
(1) In general.--Each Executive agency head shall conduct,
not later than 90 days after the date of enactment of this Act,
a preliminary review of the positions in the Executive agency
that are covered by subchapter II of chapter 75 of title 5,
United States Code, and shall conduct a complete review of the
positions in the agency not later than 210 days after the date
of enactment of this Act. Thereafter, each agency head shall
conduct a review of such positions that are covered by
subchapter II of chapter 75 of title 5, United States Code, on
at least an annual basis.
(2) Petitions.--
(A) In general.--Following a review under paragraph
(1), each agency head shall, for positions not excepted
from the competitive service by statute, petition the
Director to place in schedule F any such competitive
service, schedule A, schedule B, or schedule D
positions in the Executive agency that the agency head
determines to be of a confidential, policy-determining,
policy-making, or policy-advocating character and that
are not normally subject to change as a result of a
Presidential transition.
(B) Petition explanation.--Any petition submitted
under subparagraph (A) shall include a written
explanation documenting the basis for the agency head's
determination that such position should be placed in
schedule F.
(3) Determinations.--
(A) In general.--Following a review under paragraph
(1), each agency head shall, for positions excepted
from the competitive service by statute, determine
which such positions are of a confidential, policy-
determining, policy-making, or policy-advocating
character and are not normally subject to change as a
result of a Presidential transition.
(B) Determination effect.--A position which the
agency head determines under subparagraph (A) to be of
a confidential, policy-determining, policy-making, or
policy-advocating character and not normally subject to
change as a result of a Presidential transition shall
be considered a schedule F position for the purposes of
Executive agency actions under subsections (d) and (f).
(C) Publication.--An agency head shall publish each
determination made under subparagraph (A) in the
Federal Register.
(b) Applicability.--The requirements set forth in subsection (a)
shall apply to currently existing positions and newly created
positions.
(c) Additional Consideration.--When conducting the review required
by subsection (a), each agency head should give particular
consideration to the appropriateness of either petitioning the Director
to place in schedule F or including in the determination published in
the Federal Register, as applicable, positions of which the duties
include any of the following:
(1) Substantive participation in the advocacy for or
development or formulation of policy, especially--
(A) substantive participation in the development or
drafting of regulations and guidance; or
(B) substantive policy-related work in an Executive
agency or Executive agency component that primarily
focuses on policy.
(2) The supervision of attorneys.
(3) Substantial discretion to determine the manner in which
the Executive agency exercises functions committed to the
agency by law.
(4) Viewing, circulating, or otherwise working with
proposed regulations, guidance, Executive orders, or other non-
public policy proposals or deliberations generally covered by
deliberative process privilege and either--
(A) directly reporting to or regularly working with
an individual appointed by either the President or an
agency head who is paid at a rate not less than that
earned by employees at Grade 13 of the General
Schedule; or
(B) working in the Executive agency or Executive
agency component executive secretariat (or equivalent).
(5) Conducting, on the Executive agency's behalf,
collective bargaining negotiations under chapter 71 of title 5,
United States Code.
(d) Petition Decision.--The Director shall promptly determine
whether to grant any petition under subsection (a). Not later than
December 31 of each year, the Director shall report to the President,
through the Director of the Office of Management and Budget and the
Assistant to the President for Domestic Policy, concerning the number
of petitions granted and denied for that year for each Executive
agency.
(e) Collective Bargaining Exclusions.--Each agency head shall, as
necessary and appropriate, expeditiously petition the Federal Labor
Relations Authority to determine whether any schedule F position must
be excluded from a collective bargaining unit under section 7112(b) of
title 5, United States Code, paying particular attention to the
question of whether incumbents in such positions are required or
authorized to formulate, determine, or influence the policies of the
agency.
(f) Prohibited Personnel Practices.--Agency heads shall establish
rules to prohibit the personnel practices prohibited by section 2302(b)
of title 5, United States Code, with respect to any employee or
applicant for employment in schedule F of the excepted service.
SEC. 5. DEFINITIONS.
In this Act:
(1) Agency head.--The term ``agency head'' means the head
of an Executive agency.
(2) Director.--The term ``Director'' means the Director of
the Office of Personnel Management.
(3) Executive agency.--The term ``Executive agency'' has
the meaning given such term in section 105 of title 5, United
States Code, but excluding the Government Accountability
Office.
(4) Normally subject to change as a result of a
presidential transition.--The term ``normally subject to change
as a result of a Presidential transition'' refers to positions
whose occupants are, as a matter of practice, expected to
resign upon a Presidential transition, including all positions
whose appointment requires the assent of the White House Office
of Presidential Personnel.
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