Federal Workforce Accountability and Modernization Act

I 116TH CONGRESS 2D SESSION H. R. 8711 To amend title 5, United States Code, to codify Executive Order 13957 entitled ‘‘Executive Order on Creating Schedule F In The Excepted Service’’, and for other purposes. IN THE HOUSE OF REPRESENTATIVES OCTOBER 30, 2020 Mr. KELLER introduced the following bill; which was referred to the Committee on Oversight and Reform A BILL To amend title 5, United States Code, to codify Executive Order 13957 entitled ‘‘Executive Order on Creating Schedule F In The Excepted Service’’, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Federal Workforce Ac- 4 countability and Modernization Act’’. 5 VerDate Sep 11 2014 18:17 Nov 18, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8711.IH H8711 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 8711 IH SEC. 2. ESTABLISHING SCHEDULE F OF THE EXCEPTED 1 SERVICE. 2 (a) IN GENERAL.—Subchapter I of chapter 33 of title 3 5, United States Codes, is amended by adding at the end 4 the following: 5 ‘‘§ 3330f. Schedule F of the excepted service 6 ‘‘(a) There is established in the excepted service a 7 Schedule F consisting of any position that is of a confiden- 8 tial, policy-determining, policy-making, or policy-advo- 9 cating character and that is not normally subject to 10 change as a result of a Presidential transition. 11 ‘‘(b) Not later than 210 days after the date of enact- 12 ment of this section, and annually thereafter, the head of 13 each Executive agency shall review each position at the 14 agency covered by subchapter II of chapter 75. 15 ‘‘(c) Following any review under subsection (b), the 16 head shall— 17 ‘‘(1) with respect to positions not excepted from 18 the competitive service by statute, petition the Direc- 19 tor of the Office of Personnel Management to place 20 in Schedule F any competitive service or excepted 21 service position under schedule A, B, or D positions 22 within the agency that the head determines to be of 23 a confidential, policy-determining, policy-making, or 24 policy-advocating character and that are not nor- 25 VerDate Sep 11 2014 18:17 Nov 18, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8711.IH H8711 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 8711 IH mally subject to change as a result of a Presidential 1 transition; and 2 ‘‘(2) for positions excepted from the competitive 3 service by statute, determine which such positions 4 are of a confidential, policy-determining, policy-mak- 5 ing, or policy-advocating character and are not nor- 6 mally subject to change as a result of a Presidential 7 transition. 8 ‘‘(d) Any petition under subsection (c)(1) shall in- 9 clude a written explanation for the basis for the agency 10 head’s determination that such position should be placed 11 in Schedule F, and the agency head shall publish such de- 12 termination in the Federal Register. 13 ‘‘(e) When conducting the review required by sub- 14 section (b), each agency head should consider the appro- 15 priateness of either petitioning the Director to place in 16 Schedule F or including in the determination published 17 in the Federal Register, as applicable, positions whose du- 18 ties include any of the following: 19 ‘‘(1) Substantive participation in the advocacy 20 for or development or formulation of policy, espe- 21 cially— 22 ‘‘(A) substantive participation in the devel- 23 opment or drafting of regulations and guidance; 24 or 25 VerDate Sep 11 2014 18:17 Nov 18, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8711.IH H8711 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 8711 IH ‘‘(B) substantive policy-related work in an 1 agency or agency component that primarily fo- 2 cuses on policy. 3 ‘‘(2) The supervision of attorneys. 4 ‘‘(3) Substantial discretion to determine the 5 manner in which the Executive agency exercises 6 functions committed to the agency by law. 7 ‘‘(4) Viewing, circulating, or otherwise working 8 with proposed regulations, guidance, executive or- 9 ders, or other non-public policy proposals or delib- 10 erations generally covered by deliberative process 11 privilege and either— 12 ‘‘(A) directly reporting to, or regularly 13 working with, an individual appointed by the 14 President or an Executive agency head who is 15 paid at a rate not less than that earned by em- 16 ployees at GS–13 of the General Schedule; or 17 ‘‘(B) working in the agency or agency com- 18 ponent executive secretariat (or equivalent). 19 ‘‘(5) Conducting, on the Executive agency’s be- 20 half, collective bargaining negotiations under chapter 21 71. 22 ‘‘(f) The Director shall determine whether to grant 23 any petition under subsection (c) to place a position in 24 Schedule F. Not later than December 31 of each year, 25 VerDate Sep 11 2014 18:17 Nov 18, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8711.IH H8711 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 8711 IH the Director shall report to the President, through the Di- 1 rector of the Office of Management and Budget and the 2 Assistant to the President for Domestic Policy, concerning 3 the number of petitions granted and denied for that year 4 for each Executive agency. 5 ‘‘(g) Each Executive agency head shall, as necessary 6 and appropriate, expeditiously petition the Federal Labor 7 Relations Authority to determine whether any Schedule F 8 position must be excluded from a collective bargaining unit 9 under section 7112(b), paying particular attention to the 10 question of whether incumbents in such positions are re- 11 quired or authorized to formulate, determine, or influence 12 the policies of the agency. 13 ‘‘(h) In appointing an individual to a position in 14 Schedule F, each Executive agency shall follow the prin- 15 ciple of veteran preference as far as administratively fea- 16 sible. 17 ‘‘(i) Each Executive agency shall establish rules to 18 prohibit the same personnel practices prohibited by section 19 2302(b) with respect to any employee or applicant for em- 20 ployment in Schedule F of the excepted service. 21 ‘‘(j) The Director of the Office of Personnel Manage- 22 ment may prescribe such regulations as are necessary to 23 carry out this section. 24 ‘‘(k) In this section— 25 VerDate Sep 11 2014 18:17 Nov 18, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8711.IH H8711 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 8711 IH ‘‘(1) the term ‘Director’ means the Director of 1 the Office of Personnel Management; and 2 ‘‘(2) the term ‘Executive agency’ has the mean- 3 ing given that term in section 105, but does not in- 4 clude the Government Accountability Office.’’. 5 (b) CLERICAL AMENDMENT.—The table of sections 6 of subchapter I of chapter 33 of title 5, United States 7 Codes, is amended by adding after the item relating to 8 section 3330e the following: 9 ‘‘3330f. Schedule F of the excepted service.’’. Æ VerDate Sep 11 2014 18:17 Nov 18, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6301 E:\BILLS\H8711.IH H8711 pamtmann on DSKBC07HB2PROD with BILLS