[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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