I 
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 Representa-
tives 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 posi-
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tions of a confidential, policy-determining, policy- 
making, or policy-advocating character. Faithful exe-
cution of the law requires that the President have 
appropriate management oversight regarding this se-
lect cadre of professionals. 
(2) The Federal Government benefits from ca-
reer professionals in positions that are not normally 
subject to change as a result of a Presidential tran-
sition but who discharge significant duties and exer-
cise significant discretion in formulating and imple-
menting executive branch policy and programs under 
the laws of the United States. The heads of execu-
tive departments and agencies (agencies) and the 
American people also entrust these career profes-
sionals with non-public information that must be 
kept confidential. 
(3) With the exception of attorneys in the Fed-
eral 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 dis-
charge, employees in such positions must display ap-
propriate temperament, acumen, impartiality, and 
sound judgment. 
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(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, pol-
icy-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 in-
stance, 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 impor-
tant, and it is particularly important with regard to 
employees in confidential, policy-determining, policy- 
making, or policy-advocating positions. High per-
formance by such employees can meaningfully en-
hance 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. 
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(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 ap-
pointees without the limitations imposed by competi-
tive service selection procedures. Placing these posi-
tions in the excepted service will mitigate undue lim-
itations on their selection. This action will also give 
agencies greater ability and discretion to assess crit-
ical 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 com-
petitive 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, 
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United States Code, requires agencies to comply 
with extensive procedures before taking adverse ac-
tion against an employee. These requirements can 
make removing poorly performing employees dif-
ficult. Only a quarter of Federal supervisors are con-
fident that they could remove a poor performer. Ca-
reer employees in confidential, policy-determining, 
policy-making, and policy-advocating positions wield 
significant influence over Government operations 
and effectiveness. Agencies need the flexibility to ex-
peditiously 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-mak-
ing, 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 Fed-
eral Regulations, to read as follows: 
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‘‘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 fol-
lows: 
‘‘Schedule A. Positions other than those of a con-
fidential 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 con-
fidential or policy-determining character for which it is not 
practicable to hold a competitive examination shall be list-
ed 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-de-
termining 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 con-
fidential or policy-determining character for which the 
competitive service requirements make impracticable the 
adequate recruitment of sufficient numbers of students at-
tending qualifying educational institutions or individuals 
who have recently completed qualifying educational pro-
grams. 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 
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and assessing candidates that diverge from the rules gen-
erally applicable to the competitive service, shall be listed 
in Schedule D. 
‘‘Schedule E. Position of administrative law judge ap-
pointed under 5 U.S.C. 3105. Conditions of good adminis-
tration warrant that the position of administrative law 
judge be placed in the excepted service and that appoint-
ment to this position not be subject to the requirements 
of 5 CFR, part 302, including examination and rating re-
quirements, though each agency shall follow the principle 
of veteran preference as far as administratively feasible. 
‘‘Schedule F. Positions of a confidential, policy-deter-
mining, 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 admin-
istratively feasible’’; 
(2) amend section 6.4 of title 5, Code of Fed-
eral 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 ex-
cepted from the competitive service by statute. The Civil 
Service Rules and Regulations shall apply to removals 
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from positions listed in Schedule B of persons who have 
competitive status.’’; 
(3) adopt such regulations as the Director de-
termines may be necessary to implement this title, 
including, as appropriate, amendments to or rescis-
sions 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, or-
derly transition from the existing appointment proc-
esses 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 
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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 po-
sitions that are covered by subchapter II of chapter 
75 of title 5, United States Code, on at least an an-
nual 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-deter-
mining, 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 peti-
tion 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.— 
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(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 posi-
tions are of a confidential, policy-determining, 
policy-making, or policy-advocating character 
and are not normally subject to change as a re-
sult of a Presidential transition. 
(B) DETERMINATION EFFECT.—A position 
which the agency head determines under sub-
paragraph (A) to be of a confidential, policy-de-
termining, 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 pur-
poses of Executive agency actions under sub-
sections (d) and (f). 
(C) PUBLICATION.—An agency head shall 
publish each determination made under sub-
paragraph (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 
con-
ducting the review required by subsection (a), each agency 
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head should give particular consideration to the appro-
priateness 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, espe-
cially— 
(A) substantive participation in the devel-
opment or drafting of regulations and guidance; 
or 
(B) substantive policy-related work in an 
Executive agency or Executive agency compo-
nent 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 or-
ders, or other non-public policy proposals or delib-
erations generally covered by deliberative process 
privilege and either— 
(A) directly reporting to or regularly work-
ing with an individual appointed by either the 
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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 secre-
tariat (or equivalent). 
(5) Conducting, on the Executive agency’s be-
half, 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 Di-
rector 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, expedi-
tiously petition the Federal Labor Relations Authority to 
determine whether any schedule F position must be ex-
cluded 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 
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positions are required or authorized to formulate, deter-
mine, or influence the policies of the agency. 
(f) PROHIBITED PERSONNEL PRACTICES.—Agency 
heads shall establish rules to prohibit the personnel prac-
tices 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 RE-
SULT OF A PRESIDENTIAL TRANSITION.—The term 
‘‘normally subject to change as a result of a Presi-
dential transition’’ refers to positions whose occu-
pants are, as a matter of practice, expected to resign 
upon a Presidential transition, including all positions 
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whose appointment requires the assent of the White 
House Office of Presidential Personnel. 
Æ 
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