Creating Schedule F in the Excepted Service
| Citation | 85 FR 67631 |
| Record Number | 2020-23780 |
| Published date | 26 October 2020 |
| Section | Presidential Documents |
| Court | Executive Office Of The President |
Presidential Documents
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Federal Register
Vol. 85, No. 207
Monday, October 26, 2020
Title 3—
The President
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 profes-
sionals 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 tempera-
ment, acumen, impartiality, and sound judgment.
Due to these requirements, agencies should have a greater degree of appoint-
ment 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 employ-
ees 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 excep-
tion 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.
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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 per-
forming employees difficult. Only a quarter of Federal supervisors are con-
fident that they could remove a poor performer. Career employees in con-
fidential, 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 char-
acter 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 estab-
lished 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 re-
cently 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
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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-mak-
ing, or policy-advocating character not normally subject to change as a
result of a Presidential transition shall be listed in Schedule F. In appoint-
ing 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, deter-
mine which such positions are of a confidential, policy-determining, pol-
icy-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:
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(i) substantive participation in the advocacy for or development or formula-
tion of policy, especially:
(A) substantive participation in the development or drafting of regula-
tions 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 delib-
erations generally covered by deliberative process privilege and either:
(A) directly reporting to or regularly working with an individual ap-
pointed 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 atten-
tion 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.
THE WHITE HOUSE,
October 21, 2020.
[FR Doc. 2020–23780
Filed 10–23–20; 8:45 am]
Billing code 3295–F1–P
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