[Federal Register Volume 85, Number 207 (Monday, October 26, 2020)]
[Presidential Documents]
[Pages 67631-67635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23780]


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  Federal Register / Vol. 85, No. 207 / Monday, October 26, 2020 / 
Presidential Documents  

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 Title 3--
 The President

[[Page 67631]]

                Executive Order 13957 of October 21, 2020

                
Creating Schedule F in the Excepted Service

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, including sections 3301, 3302, and 7511 of 
                title 5, United States Code, it is hereby ordered as 
                follows:

                Section 1. Policy. 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.

                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.

                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.

                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.

                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.

                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.

                Pursuant to my authority under section 3302(1) of title 
                5, United States Code, I find that 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.

[[Page 67632]]

                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.

                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. 2. Definition. The phrase ``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 and includes all positions whose appointment 
                requires the assent of the White House Office of 
                Presidential Personnel.

                Sec. 3. Excepted Service. 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 section 4 of 
                this order.

                Sec. 4. Schedule F of the Excepted Service. (a) Civil 
                Service Rule VI is amended as follows:

(i) 5 CFR 6.2 is amended to read:

``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

[[Page 67633]]

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.''

(ii) 5 CFR 6.4 is amended to read:

``Except as required by statute, the Civil Service Rules and Regulations 
shall not apply to removals from positions listed in Schedules 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.''

                    (b) The Director of the Office of Personnel 
                Management (Director) shall:

(i) adopt such regulations as the Director determines may be necessary to 
implement this order, including, as appropriate, amendments to or 
rescissions of regulations that are inconsistent with, or that would impede 
the implementation of, this order, giving particular attention to 5 CFR, 
part 212, subpart D; 5 CFR, part 213, subparts A and C; and 5 CFR 302.101; 
and

(ii) provide guidance on conducting a swift, orderly transition from 
existing appointment processes to the Schedule F process established by 
this order.

                Sec. 5. Agency Actions. (a) Each head of an executive 
                agency (as defined in section 105 of title 5, United 
                States Code, but excluding the Government 
                Accountability Office) shall conduct, within 90 days of 
                the date of this order, a preliminary review of agency 
                positions covered by subchapter II of chapter 75 of 
                title 5, United States Code, and shall conduct a 
                complete review of such positions within 210 days of 
                the date of this order. Thereafter, each agency head 
                shall conduct a review of agency positions covered by 
                subchapter II of chapter 75 of title 5, United States 
                Code, on at least an annual basis. Following such 
                reviews each agency head shall:

(i) 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 within the 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. Any such petition shall 
include a written explanation documenting the basis for the agency head's 
determination that such position should be placed in Schedule F; and

(ii) 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. The agency head shall 
publish this determination in the Federal Register. Such positions shall be 
considered Schedule F positions for the purposes of agency actions under 
sections 5(d) and 6 of this order.

                    (b) The requirements set forth in subsection (a) of 
                this section shall apply to currently existing 
                positions and newly created positions.
                    (c) When conducting the review required by 
                subsection (a) of this section, 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 whose duties 
                include the following:

[[Page 67634]]

(i) 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 agency or agency component that 
primarily focuses on policy;

(ii) the supervision of attorneys;

(iii) substantial discretion to determine the manner in which the agency 
exercises functions committed to the agency by law;

(iv) 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 agency or agency component executive secretariat (or 
equivalent); or

(v) conducting, on the agency's behalf, collective bargaining negotiations 
under chapter 71 of title 5, United States Code.

                    (d) The Director shall promptly determine whether 
                to grant any petition under subsection (a) of this 
                section. 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 agency.
                    (e) 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.

                Sec. 6. Prohibited Personnel Practices Prohibited. 
                Agencies shall establish rules to prohibit the same 
                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. 7. General Provisions. (a) Nothing in this order 
                shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or 
the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget 
relating to budgetary, administrative, or legislative proposals.

                    (b) This order shall be implemented consistent with 
                applicable law and subject to the availability of 
                appropriations.
                    (c) This order is not intended to, and does not, 
                create any right or benefit, substantive or procedural, 
                enforceable at law or in equity by any party against 
                the United States, its departments, agencies, or 
                entities, its officers, employees, or agents, or any 
                other person.
                    (d) If any provision of this order, or the 
                application of any provision to any person or 
                circumstances, is held to be invalid, the remainder of 
                this order and the application of any of its other 
                provisions to any other persons or circumstances shall 
                not be affected thereby.

[[Page 67635]]

                    (e) Nothing in this order shall be construed to 
                limit or narrow the positions that are or may be listed 
                in Schedule C.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    October 21, 2020.

[FR Doc. 2020-23780
Filed 10-23-20; 8:45 am]
Billing code 3295-F1-P