[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]
Presidential Documents
Federal Register / Vol. 85, No. 207 / Monday, October 26, 2020 /
Presidential Documents
___________________________________________________________________
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.
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(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