I 118th CONGRESS 1st Session H. R. 5346 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.

1. Short title This Act may be cited as the Creating Schedule F in the Excepted Service Act . 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. 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. 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. 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.