Improving Performance, Accountability and Responsiveness in the Civil Service

An alternative to this rulemaking is to not issue a regulation while increasing training for managers and supervisors in how to use the procedures under chapters 43 and 75. OPM has concluded this is not a viable option. Prior attempts to address the management challenges created by adverse action procedures and appeals through better use of the existing framework have failed. MSPB research shows that only two- fifths of Federal supervisors are confident they could remove an employee for serious misconduct, and just one quarter are confident they could remove an employee for poor performance.\497\ Neither OPM nor the President believe that additional training or greater management support would be sufficient to effectively address agencies' difficulty in holding employees accountable, when necessary, for underperformance or misconduct.

\497\ Remedying Unacceptable Employee Performance at 6, 15.

Furthermore, OPM is statutorily tasked with executing, administering, and enforcing the civil service rules and regulations of the President.\498\ E.O. 13957 amended the civil service rules to create Schedule Policy/Career. Declining to help the President execute this directive would be a dereliction of OPM's statutory duty.

\498\ 5 U.S.C. 1103(a)(5).

Relatedly, E.O. 14171 rendered several provisions of the 2024 final rule inoperative and without effect. Subpart F of part 302 and Sec. 210.102(b)(3) and (b)(4) of title 5, Code of Federal Regulations, no longer reflect the operative legal standards governing the Federal workforce. As OPM explained in the 2023 notice of proposed rulemaking for the prior rule, retaining out-of-date information in regulations can confuse agencies, managers, and employees and produce unintended outcomes. Human resources specialists or managers may inadvertently rely on these particular regulations.\499\

\499\ 88 FR 63879.

For example, employees moved into Schedule Policy/Career who review OPM's Sec. 210.102 definitions could be given the mistaken impression that they have been converted into political appointees because those regulations state policy-influencing positions are only political appointments. However, E.O. 13957, as amended, provides that employees in Schedule Policy/Career remain career appointees who can expect to keep their jobs across changes of administration as long as they perform effectively. OPM also considered implementing E.O. 13957, as amended, but permitting incumbent employees who are reclassified or moved into Schedule Policy/Career to retain adverse action procedures and appeals. This would functionally make Schedule Policy/Career effective only for new hires, not existing employees, and would entirely sidestep concerns about impairing employee property interests in their jobs. OPM nonetheless concluded that this approach would not satisfy policy or legal concerns.

As a matter of policy, applying Schedule Policy/Career prospectively would negate most of the benefits of the rule during this presidential administration. The heightened accountability would apply only to new employees, who are a minority of the policy-influencing workforce. Most employees in policy-influencing positions would retain the adverse action procedures and appeals that substantially reduce their accountability to the President. Moreover, the most senior and experienced policy-influencing employees would remain exempt. These are the employees most important to cover under the rule, as poor performance or misconduct in the course of their duties has the largest impact on agency operations. E.O. 13957, as amended, also requires agencies to include existing positions in their reviews.\500\ It would frustrate the purposes of the order to allow employees moved into Schedule Policy/Career to remain covered by chapter 75 procedures.

\500\ E.O. 13957, sec. 5(b).

OPM also considered, based off the suggestion of Commenter 13578, implementing E.O. 13957, as amended, but offering individuals occupying positions converted to Schedule Policy/Career Voluntary Early Retirement (VERA) or Voluntary Separation Incentives (VSIP). VERA/VSIP are authorized in situations where an agency is undergoing substantial restructuring, reshaping, downsizing, transfer of function, or organization,\501\ or where employees are in surplus positions or have skills that are no longer needed in the workforce.\502\ Neither of these situations are applicable here, where employees are occupying positions that are converted to Schedule Policy/Career--not eliminated. As such, this suggested alternative is not viable. Such VERA or VSIP offers could also foster the sort of retention problems that other commenters warned against. OPM believes employees in positions transferred to Schedule Policy/Career are doing important work and OPM does not want to encourage their departure.

\501\ 5 U.S.C. 8336(d)(2)(D), 8414(b)(1)(B).

\502\ See 5 U.S.C. 3521-3523; 5 CFR 576.101.

As a matter of law, OPM has, as previously discussed, concluded that the 2024 rulemaking's additions to part 752, subpart D exceeded its statutory authority. Section 7511(b)(2) of 5 U.S.C. categorically excludes from chapter 75 procedures excepted service employees in policy-influencing positions. As explained in the proposed rule, nothing in the CSRA or elsewhere in title 5 provides for incumbents in such positions to retain adverse action procedures and appeals. Congress drafted section 7511(b)(2) to categorically apply to all excepted service positions that an appropriate authority has determined are policy-influencing. Unlike other provisions in section 7511(b), the (b)(2) exception for policy-influencing positions applies without regard to the personal status or history of the employee encumbering the position.\503\ OPM cannot by regulation extend adverse action procedures to positions statutorily excluded from coverage. Even if OPM

wanted to extend adverse action procedures and appeals to employees moved into Schedule Policy/Career, it lacks statutory authority to do so. Retaining the subpart D amendments that purport to provide such adverse action procedures is thus not legally viable.

\503\ For example, 5 U.S.C. 7511(b)(4) excludes reemployed annuitants from chapter 75's coverage.

In the 2024 rulemaking, OPM concluded that implementing Schedule F would adversely affect agency recruitment and retention efforts. As discussed above, OPM has reconsidered those concerns and finds them unpersuasive. They were predicated on the assumption that the policy- influencing exception to chapter 75 would be used to resurrect the spoils system and convert large numbers of career positions to short- term political appointments. E.O. 13957, as amended, provides that Schedule Policy/Career positions remain career appointments, filled using civil service merit hiring procedures, and forbids agencies from filling them based on political contributions or affiliation. Schedule Policy/Career maintains merit-based competitive hiring procedures, the original purpose of the Pendleton Act, while providing for expeditious removal of poorly performing employees. The Congressional Budget Office's analysis that most Federal employees place a relatively low value on the availability of adverse action appeals reinforces OPM's conclusion that the rule would create minimal recruitment and retention issues. Accordingly, OPM concludes that Schedule Policy/Career will not incur the costs it previously expected of Schedule F.

Agencies, if they have not done so already, must also update their internal policies and procedures to ensure compliance with E.O. 13957, as amended, and the amendments it made to the civil service rules. OPM is conforming its regulations to the operative legal requirements. This will not impose additional costs on agencies. However, agencies will be required to update their internal policies and procedures to conform to the regulatory amendments this rule makes to parts 432 and 752. Since these revisions rescind existing regulatory requirements to follow adverse action procedures and appeals, the rule will not increase agency compliance costs beyond updating internal procedures. In addition, this rulemaking will relieve agencies of any litigation costs that would have arisen under the amendments made by the April 2024 final rule. The rule will affect the operations of more than 80 Federal agencies, ranging from cabinet-level departments to small independent agencies. The cost analysis to update policies and procedures assumes an average salary rate of Federal employees performing work at the 2025 rate for a GS-14, step 5, from the Washington, DC, locality pay table ($161,486 annual locality rate and $77.38 hourly locality rate). As in the 2024 rulemaking, OPM assumes the total dollar value of labor, which includes wages, and OPM estimates that the cost to comply with updating policies and procedures in the first year would require an average of 40 hours of work by employees with an average hourly cost of $154.76 per hour. Upon effectuation of the final rule, this may result in first-year estimated costs of about $6,200 per agency, and about $495,000 government-wide. There are ongoing costs associated with routinely reviewing and updating internal policies and procedures, but these costs will be incurred with or without the changes made here.

OPM estimates that approximately 50,000 positions will be moved or transferred into Schedule Policy/Career, about two percent of the Federal civilian workforce. The President may move a greater or smaller number of positions, but OPM believes this is a reasonable preliminary estimate. Of those positions moved into Schedule Policy/Career, OPM estimates 45,000 will be filled by incumbent employees and 5,000 will be vacant and filled by new hires.\504\

\504\ E.O. 14171 directly exempts newly filled Schedule Policy/ Career positions from chapter 75 procedures, so the changes to part 752 authorizing incumbent employees moved into a policy-influencing position to retain coverage under that part will not affect new hires filling such positions.

OPM estimates that the 45,000 incumbent employees whose positions are moved into Schedule Policy/Career will incur some costs associated with these changes in the first year following publication of this rule. These employees will need to familiarize themselves with the changes in their rights and responsibilities due to their shift to Schedule Policy/Career. Once they have familiarized themselves with these changes, they may reconsider their approach to various work assignments, for example to improve performance, and some may consider seeking alternative employment. Consistent with historical data, OPM estimates 7.3% of employees at the Senior Level and General Schedule 14 and 15 grade levels will voluntarily leave their positions for positions internal and external to the Federal Government.\505\ OPM also estimates these 45,000 employees will spend an average of four hours total familiarizing themselves with these changes and determining the best course of action to respond to these changes. OPM assumes that these employees have average salary equivalent to Federal employees at GS-14, step 5 in the Washington, DC locality. This assumption is based on the nature, scope, and type of duties described in E.O. 13957, as amended.\506\ As above, this implies hourly costs of $154.76. This implies total first year costs along these lines of approximately $27.9 million. OPM estimates that new hires will incur no additional costs

related to changes made in this rulemaking.

\505\ See Off. of Pers. Mgmt., FedScope, Separations Trend FY 2015-FY 2024, https://www.fedscope.opm.gov/. This figure represents a weighted average across all three levels of positions. The unweighted average would be 8.2%. OPM limited its focus on these three levels as these populations will likely see the greatest number of positions placed in Schedule Policy/Career. However, OPM acknowledges that employees at lower grade levels may also be impacted.

\506\ Section 5(c) of E.O. 13957.

Commenter 35379 and others expressed skepticism regarding OPM's estimate that approximately 50,000 employees will be transferred into Schedule Policy/Career. Several commenters expressed suspicions that the real number of Policy/Career employees would be in the hundreds of thousands. Some commenters relied on the short-lived implementation efforts of Schedule F before its repeal by President Biden. Commenters noted that OPM authorized the Office of Management and Budget's submission which would have placed 416 of its 610 employees, about two thirds, into Schedule F. However, the Office of Management and Budget, a component of the Executive Office of the President almost uniquely devoted to the fulfillment of the President's policy mission, is not the normal case for an executive branch agency. In the short time between E.O. 13957 and the repeal of Schedule F, six agencies expressed to OPM that they would move no employees into Schedule F, and one agency requested that OPM place five positions (containing a total of five employees) out of a total workforce of 234 into Schedule F.\507\ Thus, roughly half the agencies which responded to the call to submit petitions to OPM regarding Schedule F indicated either that they did not intend to place anyone into Schedule F or that they intended to do so for a comparatively trivial proportion of their overall workforce, consistent with OPM's estimate that a small proportion of the civil service would be moved into Schedule Policy/Career. Contrary to commenters' fears, the evidence under prior Schedule F does not support the suspicion that a large proportion of the Federal workforce, numbering hundreds of thousands of employees, will be placed into Schedule Policy/Career.

\507\ See 2022 GAO report, at 16, 18-19.

Further, under both former Schedule F and current Schedule Policy/ Career, agencies must submit their requests to place positions into the Schedule with OPM, which has an oversight function to, amongst other things, prevent overinclusion into the Schedule. The President, after reviewing OPM's recommendations, will transfer positions into Schedule Policy/Career by executive order, exercising an additional layer of oversight as compared to even former Schedule F. Both OPM and the White House have discretion to act if agencies attempt to overclassify. Commenters' reliance on statements made by individuals who are now Trump Administration officials as private citizens do not reflect OPM's official position, are not binding on OPM, and cannot be used to override OPM's estimates.

Excepting incumbent employees from chapter 43 and 75 procedures and MSPB appeals will reduce agency expenses during separations. Currently, approximately one-quarter of one percent of tenured Federal employees are dismissed for performance or conduct annually. Applying that percentage to the 45,000 incumbents estimated to be moved into Schedule Policy/Career implies that, in the absence of the rulemaking, agencies will be expected to separate 112 such employees annually.

OPM assumes that the exemption from chapter 75 will reduce the time agency supervisors and senior human resources staff must spend on each separation, prior to any administrative appeals, by a collective 600 hours, or 67,200 hours across all separations. OPM expects that supervisors will continue to document the basis for separations, but less time will be needed to prepare such documentation because supervisors will no longer have to comply with Ward/Stone due process requirements, which will no longer be needed to support an appeal in which the burden of proof lies with the agency.\508\

\508\ See Ward v. U.S. Postal Serv., 634 F.3d 1274 (Fed. Cir. 2011); Stone v. Federal Deposit Ins. Corp., 179 F.3d 1368 (Fed. Cir. 1999).

This cost analysis assumes an average salary rate of Federal supervisors and senior HR personnel performing this work at the 2025 rate for a GS-15, step 5, from the Washington, DC, locality pay table ($189,950 annual locality rate and $91.02 hourly locality rate). OPM again assumes the total value of labor is 200 percent of the hourly wage rate, for a total average hourly cost of $182.04. This implies total annual agency savings of $12.2 million.

OPM further assumes that one-quarter of those separations would have otherwise resulted in initial MSPB appeals, or 28 appeals in total. OPM assumes supervisors and other senior agency HR personnel would spend 120 hours preparing evidence, providing testimony, and otherwise preparing for each such appeal, and agency attorneys would spend a further 100 hours reviewing evidence, preparing submissions, and arguing each appeal. OPM assumes initial MSPB decisions will be decided by MSPB AJs who are also paid at the GS-15, step 5 level, and they will spend 20 hours conducting each hearing and preparing their decision. This cost analysis again assumes an average hourly cost of $182.04 for supervisors and HR personnel, and the same labor cost for MSPB administrative judges. The attorneys are assumed to be GS-14, step 5 employees receiving Washington, DC locality pay ($161,486 annual locality rate and $77.38 hourly locality rate). With the total value of labor at 200 percent of hourly pay, the hourly cost of an attorney is $154.76 per hour. This implies that agencies save $33,000 for each MSPB appeal forgone, for a total of $0.9 million in annual savings government-wide.

Thus, having these separations proceed through Schedule Policy/ Career procedures instead of chapter 43 or 75 would be expected to save agencies approximately $13.2 million annually.\509\ This figure excludes the cost of appeals to the full MSPB and potentially Federal court. As another consideration with respect to potential litigation, OPM notes that the number of Equal Employment Opportunity (EEO) complaints may increase as employees placed under Schedule Policy/ Career will no longer be able to file initial appeals with the MSPB. Employees may turn to EEO as another avenue to contest agency actions. Consequently, some of the savings might not be realized. However, we do not have data on the potential number of EEO complaints, and it would be speculative to assign a cost.\510\ OPM also views the risk of adverse outcomes from EEO complaints as low as agencies are properly incentivized to make appropriate recommendations to the President for reclassifying a position to Schedule Policy/Career. The authority to place positions into Schedule Policy/Career rests with the President who is not subject to Federal employment anti-discrimination laws.\511\ And while complainants may attempt to impute liability on employing agencies for carrying out the President's orders, OPM views the risk of an adverse outcome resulting from this as minimal. Likewise, OPM also views the risk from adverse outcomes resulting from

agencies taking appropriate personnel actions and otherwise complying, or failing to do so, with Federal anti-discrimination laws as low. Agencies are appropriately incentivized and directed under E.O. 13957 not to treat Schedule Policy/Career in violation of PPPs including discrimination based on protected characteristics such as religion, disability, color, and others.

\509\ For purposes of E.O. 14192 accounting, these benefits are considered cost savings.

\510\ Please note that, with regard to PPPs, there will not be an increase in complaints to the Office of Special Counsel because Schedule Policy/Career positions are excluded from 5 U.S.C. 2302(a)(2)(B)(i).

\511\ Trump v. United States, 603 U.S. 593, 611 (2024) (quoting Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (“the President must be absolutely immune from damages liability for acts within the outer perimeter of his official responsibility) (internal quotations omitted).

OPM thus estimates that these reforms would produce $27.9 million in one-time first year costs, against $13.2 million in annual savings. Over a 10-year period, this represents considerable savings. However, OPM expects that there will be significant additional benefits from this final rule that are harder to quantify. Commenter 32359 notes research showing that underperforming employees reduce their work unit's productivity by 30 percent. Facilitating the removal of poor performers in senior policy-influencing roles could thus have a large impact on agency operations. However, because agency productivity generally cannot be measured in terms of economic output the way private employment can, it is difficult to economically quantify the scope of these benefits.

Nonetheless, OPM anticipates that EEO complaints often cost less than MSPB appeals because, with the exception of failure to accommodate claims, employees have the burden of proof before the EEOC. Further, unlike the MSPB, the EEOC has summary judgment. Accordingly, agencies would avoid the costs associated with hearings in a percentage of EEO cases. Increased accountability would also be expected to incentivize employees, where applicable, to improve problematic performance and conduct. This would produce large gains in agency efficiency, but OPM does not have a reasonable basis for estimating the magnitude of these gains and thus cannot quantify them across agencies. Similarly, higher employee performance and greater adherence to nonpartisan norms would be expected to reduce the costs associated with waste and lost efficiency. A final benefit of this rule is that it will align OPM regulations with the operative legal standards. This will promote greater agency and employee understanding of the procedures governing the civil service. OPM consequently expects that the rule will have substantial net benefits, even though most of those benefits are difficult to quantify.

One commenter took issue with OPM's cost estimates. Commenter 4558 asserted that OPM's refusal to disclose cost impact models violates the Administrative Procedure Act under Chamber of Commerce. This assertion is unavailing. Under the Administrative Procedure Act, there is no cost impact on the general public or on persons who are appointed to or converted to Schedule Policy/Career. Nevertheless, the costs and benefits explained in this section of the rule show a significant internal savings for Government agencies in addressing adverse personnel decisions under Schedule Policy/Career.

If any of the provisions of this rule as finalized are held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, it shall be severable from its respective section(s) and shall not affect the remainder thereof or the application of the provision to other persons not similarly situated or to other dissimilar circumstances. In enforcing civil service protections and merit system principles, OPM will comply with all applicable legal requirements.

Commenter 8203 expressed the concern that the components of the present rulemaking are so deeply connected that, should any part of the rulemaking be invalidated, courts may be forced to invalidate the entire rulemaking, notwithstanding the severability clause.\512\ As a general rule, courts will respect the severability clause in an agency's regulation.\513\ Courts will respect a severability clause if “the remainder of the regulation could function sensibly without the stricken provisions.” \514\ Courts “adhere to the text of a severability clause in the absence of extraordinary circumstances.” \515\ In other words, a severability clause will be respected if any coherent regulatory purpose remains after the offending portions of the regulation are invalidated.

\512\ For the severability clause, see 90 FR 17221.

\513\ See, e.g., Am. Fuel & Petrochemical Mfrs. v. Env't Prot. Agency, 3 F.4th 373, 384 (D.C. Cir. 2021) (“Severability depends on the issuing agency's intent. . . .”) (cleaned up); Texas v. United States, 126 F.4th 392 (5th Cir. 2025).

\514\ Texas, 126 F.4th at 419 (cleaned up).

\515\ Id. (cleaned up).

The Fifth Circuit's decision in Texas v. United States evidences the lengths that courts will go to in order to preserve the non- defective portions of a regulation in light of a severability clause and a partial invalidation. There, the court found invalid DHS regulations concerning the Deferred Action for Childhood Arrivals (DACA) program. The district court found the Biden-era regulations invalid as in contravention of the Immigration and Nationality Act to the extent that certain benefits provided to DACA recipients were in violation of statute. However, the Fifth Circuit reversed the district court's refusal to respect the severability clause (and, as a consequence, the district court's reversal of the entire rulemaking). The Fifth Circuit found that, even if the benefits provided to DACA recipients were legally invalid, the policy of forbearance from removal action contained in the regulatory scheme provided a sufficient purpose for respecting them as valid. Since these provisions could be preserved and rationally defended after severing the unlawful portions, the severability clause was given effect.

OPM cannot fully anticipate either future challenges to this rulemaking or the judicial resolution to those challenges. For the reasons previously discussed OPM believes the rule is lawful and should be upheld in full. OPM declines to comment in detail concerning whether any portion of the present rulemaking would survive as severable should any of the present regulatory changes be deemed invalid. However, while much of the present rulemaking is intended to advance the creation of Schedule Policy/Career, other portions, such as the repeal of subpart F of part 302, are legally and analytically distinct. OPM thus reiterates that it intends for the severability clause in the present rulemaking to be effectuated if possible.

0 6. Revise Sec. 213.101 to read as follows:

Sec. 213.101 Definitions.

(a) In this chapter:

(1) Excepted service has the meaning given that term by section 2103 of title 5, United States Code, and includes all positions in the Executive Branch of the Federal Government which are specifically excepted from the competitive service by or pursuant to statute, by the President, or by the Office of Personnel Management, and which are not in the Senior Executive Service. An employee encumbering an excepted position is in the excepted service, irrespective of whether the employee possesses competitive status.

(2) Excepted position means a position in the excepted service.

(b) In this part:

(1) Career position means a position that is not a noncareer position.

(2) Noncareer position means a position associated with an appointment that carries no expectation of continued employment beyond the Presidential administration during which the appointment occurred and whose occupant is normally, as a matter of practice, expected to resign upon a Presidential transition. This phrase encompasses all positions whose appointments involve preclearance by the White House Office of Presidential Personnel.

0 7. Amend Sec. 213.102 by revising the section heading and adding paragraph (d) to read as follows:

Sec. 213.102 Identification of positions in Schedule A, B, C, D, or Policy/Career.

* * * * *

(d) The President may directly place positions in Schedule Policy/ Career.

0 8. Revise Sec. 213.103 to read as follows:

Sec. 213.103 Publication of excepted appointing authorities in Schedules A, B, C, D, and Policy/Career.

(a) Schedule A, B, C, D, and Policy/Career appointing authorities available for use by all agencies will be published as regulations in the Federal Register and the Code of Federal Regulations.

(b) Establishment and revocation of Schedule A, B, C, and Policy/ Career appointing authorities applicable to a single agency shall be published monthly in the Notices section of the Federal Register.

(c) A consolidated listing of all Schedule A, B, C, and Policy/ Career authorities current as of June 30 of each year, with assigned authority numbers,

shall be published annually as a notice in the Federal Register.

0 9. Revise and republish Sec. 213.104 to read as follows:

Sec. 213.104 Special provisions for temporary, time-limited, intermittent, or seasonal appointments in Schedule A, B, C, D, or Policy/Career.

(a) When OPM specifies that appointments under a particular Schedule A, B, C, D, or Policy/Career authority must be temporary, intermittent, or seasonal, or when agencies elect to make temporary, intermittent, or seasonal appointments in Schedule A, B, C, D, or Policy/Career, those terms have the following meaning:

(1) Temporary appointments, unless otherwise specified in a particular Schedule A, B, C, D, or Policy/Career exception, are made for a specified period not to exceed 1 year and are subject to the time limits in paragraph (b) of this section. Time-limited appointments made for more than 1 year are not considered to be temporary appointments and are not subject to the time limits.

(2) Intermittent positions are positions in which work recurs at sporadic or irregular intervals so that an employee's tour of duty cannot be scheduled in advance of the administrative workweek.

(3) Seasonal positions involve annually recurring periods of employment lasting less than 12 months each year.

(b) Temporary appointments, as defined in paragraph (a)(1) of this section, are subject to the following limits:

(1) Service limits. Agencies may make temporary appointments for a period not to exceed 1 year, unless the applicable Schedule A, B, C, D, or Policy/Career authority specifies a shorter period. Except as provided in paragraph (b)(3) of this section, agencies may extend temporary appointments for no more than 1 additional year (24 months of total service). Appointment to a successor position (i.e., a position that replaces and absorbs the original position) is considered to be an extension of the original appointment. Appointment to a position involving the same basic duties, in the same major subdivision of the agency, and in the same local commuting area, is also considered to be an extension of the original appointment.

(2) Restrictions on refilling positions under temporary appointments. Except as provided in paragraph (b)(3) of this section, an agency may not fill any position (or its successor) by a temporary appointment in Schedule A, B, C, D, or Policy/Career if that position had previously been filled by temporary appointment(s) in either the competitive or excepted service for an aggregate of 2 years, or 24 months, within the preceding 3-year period. This limitation does not apply to programs established to provide for systematic exchange between a Federal agency and non-Federal organizations.

(3) Exceptions to the general limits. The service limits and restrictions on refilling positions set out in this section do not apply when:

(i) Positions involve intermittent or seasonal work, and employment in the same or a successor position under one or more appointing authorities totals less than 6 months (1,040 hours), excluding overtime, in a service year. The service year is the calendar year that begins on the date of the employee's initial appointment in the agency. Should employment in a position filled under this exception total 6 months or more in any service year, the general limits set out in this section will apply to subsequent extension or reappointment unless OPM approves continued exception under this section. An individual may be employed for training for up to 120 days following initial appointment and up to 2 weeks a year thereafter without regard to the service year limitation.

(ii) Positions are filled under an authority established for the purpose of enabling the appointees to continue or enhance their education, or to meet academic or professional qualification requirements. These include the authorities set out in Sec. 213.3102(r) and (s) and Sec. 213.3402(a), (b), and (c), and authorities granted to individual agencies for use in connection with internship, fellowship, residency, or student programs.

(iii) OPM approves extension of specific temporary appointments beyond 2 years (24 months total service) when necessitated by major reorganizations or base closings or other rare and unusual circumstances. Requests based on major reorganization, base closing, restructuring, or other unusual circumstances that apply agencywide must be made by an official at the headquarters level of the Department or agency. Requests involving extension of appointments to a specific position or project based on other unusual circumstances may be submitted by the employing office to the appropriate OPM service center.

0 12. Add Sec. 213.3601 below the undesignated heading SCHEDULE POLICY/ CAREER.

Sec. 213.3601 Career positions of a confidential, policy-determining, policy-making, or policy-advocating character.

(a) As authorized by the President, agencies may make appointments under this section to career positions of a confidential, policy- determining, policy-making, or policy-advocating character that are not in the Senior Executive Service. Positions filled under this authority are excepted from the competitive service and constitute Schedule Policy/Career. For positions covered by this section, OPM will assign a number from 213.3602 through 213.3699, or other appropriate number, to be used by the appointing agency in recording appointments made under this section.

(b) Except as provided in paragraph (c) of this section, agencies must make appointments to positions in Schedule Policy/Career of the excepted service in the same manner as to positions in the competitive service, to include:

(1) Public notification of job opportunities;

(2) Applicant evaluation based on valid, job-related assessments; and

(3) Selections of highly qualified individuals based on merit.

(c) Agencies must make appointments to positions in Schedule Policy/Career of the excepted service that, but for their

placement in Schedule Policy/Career, would be listed in another excepted service schedule pursuant to the rules applicable to such positions in the corresponding schedule.

(d) In making appointments under paragraphs (b) and (c) of this section, agencies must follow the principles of veterans' preference as far as administratively feasible based on the rating, ranking, and selection processes used for making appointments. Except as otherwise authorized in part 302 of this chapter, where numerical ratings are used in the evaluation and referral of candidates, agencies shall follow the regulations related to veterans' preference in part 302 and subpart A of part 337 of this chapter, as applicable. When category rating is used, agencies shall follow the procedures related to veterans' preference in subpart C of part 337 of this chapter. Where another process is used, veteran status must be considered a positive factor.

(e) Employees in or applicants for Schedule Policy/Career positions are not required to personally or politically support the current President or the policies of the current administration. Employees in Schedule Policy/Career positions must faithfully implement administration policies to the best of their ability, consistent with their constitutional oath and the vesting of executive authority solely in the President. Failure to do so is grounds for dismissal.

(f) Individuals appointed to positions in Schedule Policy/Career are subject to trial periods as required by 5 CFR part 11. If they are appointed in the same manner as appointments in the competitive service, they acquire competitive status after completing two years of continuing service in the same or similar positions.

PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE

0 13. The authority citation for part 302 is revised to read as follows:

Authority: 5 U.S.C. 1302, 3301, 3302, 3317, 3318, 3319, 3320, 8151; E.O. 10577, 19 FR 7521, 3 CFR, 1954-1958 Comp., p. 218; E.O. 14171, 90 FR 8625.

Sec. 302.105 also issued under 5 U.S.C. 1104; sec. 3(5), Pub. L. 95-454, 92 Stat. 1112 (5 U.S.C. 1101 note).

Sec. 302.107 also issued under 5 U.S.C. 9201-9206; sec. 1122(b)(1), Pub. L. 116-92, 133 Stat. 1605 (5 U.S.C. 9201 note).

Sec. 302.501 also issued under 5 U.S.C. ch. 77.

0 14. Amend Sec. 302.101 by revising paragraphs (c)(7) and (8), and adding paragraph (c)(12) to read as follows:

Sec. 302.101 Positions covered by regulations.

* * * * *

(c) * * *

(7) Positions included in Schedule C (see subpart C of part 213 of this chapter);

(8) Attorney positions; * * * * *

(12) Confidential, policy-determining, policy-making or policy- advocating positions filled under Schedule Policy/Career authorized under Executive Order 13957, as amended. Appointments under this authority must be made in accordance with the provisions of Sec. 213.3601 of this chapter.

0 15. Amend Sec. 302.102 by revising the last sentence of paragraph (c) to read as follows:

Sec. 302.102 Method of filling positions and status of incumbent.

* * * * *

(c) * * * Persons appointed pursuant to a specific authorization by OPM under this paragraph may acquire competitive status.

Subpart F [Removed]

0 16. Remove subpart F, “Moving Employees and Positions into and Within the Excepted Service”, consisting of Sec. Sec. 302.601 through 302.603.

PART 432--PERFORMANCE BASED REDUCTION IN GRADE AND REMOVAL ACTIONS

0 17. The authority citation for part 432 continues to read as follows:

Authority: 5 U.S.C. 4303, 4305.

0 18. Amend Sec. 432.102 by revising paragraph (f)(10) to read as follows:

Sec. 432.102 Coverage.

* * * * *

(f) * * *

(10) An employee occupying a position in Schedule C or Schedule Policy/Career as authorized under part 213 of this chapter; * * * * *

PART 451--AWARDS

0 19. The authority citation for part 451 continues to read as follows:

Authority: 5 U.S.C. 4302, 4501-4509; E.O. 11438, 33 FR 18085, 3 CFR, 1966-1970 Comp., p. 755; E.O. 12828, 58 FR 2965, 3 CFR, 1993 Comp., p. 569.

0 20. Amend Sec. 451.302 by revising paragraph (b)(3)(ii) to read as follows:

Sec. 451.302 Ranks for senior career employees.

* * * * *

(b) * * *

(3) * * *

(ii) To positions that are excepted from the competitive service because of their confidential or policy-making character. * * * * *

PART 537--STUDENT LOAN REPAYMENTS

0 21. The authority citation for part 537 continues to read as follows:

Authority: 5 U.S.C. 2301, 2302, and 5379(g). E.O. 11478, 3 CFR, 1966-1970 Comp., p. 803, unless otherwise noted; E.O. 13087, 63 FR 30097, 3 CFR, 1998 Comp., p. 191; and E.O. 13152, 65 FR 26115, 3 CFR, 2000 Comp., p. 264.

0 22. Amend Sec. 537.104 by revising paragraph (b) to read as follows:

Sec. 537.104 Employee eligibility.

* * * * *

(b) An employee occupying a position that is excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character is ineligible for student loan repayment benefits, except that an employee whose position is moved into Schedule Policy/Career may continue to receive student loan repayment benefits based on the terms of the existing applicable service agreement, unless eligibility is lost as described in Sec. 537.108. * * * * *

PART 575--RECRUITMENT, RELOCATION, AND RETENTION INCENTIVES; SUPERVISORY DIFFERENTIALS; AND EXTENDED ASSIGNMENT INCENTIVES

0 23. The authority citation for part 575 is revised to read as follows:

Authority: 5 U.S.C. 1104(a)(2) and 5307. Subparts A and B also issued under 5 U.S.C. 5753. Subpart C also issued under 5 U.S.C. 5754. Subpart D also issued under 5 U.S.C. 5755. Subpart E also issued under 5 U.S.C. 5757 and sec. 207 Pub. L. 107-273, 116 Stat. 1780 (5 U.S.C. 5307 note).

0 24. Revise and republish Sec. 575.104 to read as follows:

Sec. 575.104 Ineligible categories of employees.

An agency may not pay a recruitment incentive to an employee in--

(a)(1) A position to which an individual is appointed by the President, by and with the advice and consent of the Senate;

(2) A position in the Senior Executive Service as a noncareer appointee (as defined in 5 U.S.C. 3132(a)(7));

(3) A position excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy- advocating character; or

(4) A position not otherwise covered by the exclusions in paragraphs (a), (b), and (c) of this section--

(i) To which an individual is appointed by the President without the advice and consent of the Senate, except a Senior Executive Service position in which the individual serves as a career appointee (as defined in 5 U.S.C. 3132(a)(4));

(ii) Designated as the head of an agency, including an agency headed by a collegial body composed of two or more individual members;

(iii) In which the employee is expected to receive an appointment as the head of an agency; or

(iv) To which an individual is appointed as a Senior Executive Service limited term appointee or limited emergency appointee (as defined in 5 U.S.C. 3132(a)(5) and (a)(6), respectively) when the appointment must be cleared through the White House Office of Presidential Personnel.

(b) Notwithstanding any other provision in this subpart, an agency may--

(1) Based on the terms of the applicable service agreement, continue to pay any outstanding recruitment incentive payments to an employee whose position is moved into Schedule Policy/Career and require the employee to fulfill that term; or

(2) Terminate the service agreement under the conditions in Sec. 575.111(a) for an employee whose position is moved into Schedule Policy/Career.

0 25. Revise and republish Sec. 575.204 to read as follows:

Sec. 575.204 Ineligible categories of employees.

An agency may not pay a relocation incentive to an employee in--

(a)(1) A position to which an individual is appointed by the President, by and with the advice and consent of the Senate;

(2) A position in the Senior Executive Service as a noncareer appointee (as defined in 5 U.S.C. 3132(a)(7));

(3) A position excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy- advocating character; or

(4) A position not otherwise covered by the exclusions in paragraphs (a), (b), and (c) of this section--

(i) To which an individual is appointed by the President without the advice and consent of the Senate, except a Senior Executive Service position in which the individual serves as a career appointee (as defined in 5 U.S.C. 3132(a)(4));

(ii) Designated as the head of an agency, including an agency headed by a collegial body composed of two or more individual members;

(iii) In which the employee is expected to receive an appointment as the head of an agency; or

(iv) To which an individual is appointed as a Senior Executive Service limited term appointee or limited emergency appointee (as defined in 5 U.S.C. 3132(a)(5) and (a)(6), respectively) when the appointment must be cleared through the White House Office of Presidential Personnel.

(b) Notwithstanding any other provision in this subpart, an agency may--

(1) Based on the terms of the applicable service agreement, continue to pay any outstanding relocation incentive payments to an employee whose position is moved into Schedule Policy/Career and require the employee to fulfill that agreed-upon service period; or

(2) Terminate the service agreement under the conditions in Sec. 575.211(a) for an employee whose position is moved into Schedule Policy/Career.

0 26. Revise Sec. 575.304 to read as follows:

Sec. 575.304 Ineligible categories of employees.

An agency may not pay a retention incentive to an employee in--

(a)(1) A position to which an individual is appointed by the President, by and with the advice and consent of the Senate;

(2) A position in the Senior Executive Service as a noncareer appointee (as defined in 5 U.S.C. 3132(a)(7));

(3) A position excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy- advocating character; or

(4) A position not otherwise covered by the exclusions in paragraphs (a), (b), and (c) of this section--

(i) To which an individual is appointed by the President without the advice and consent of the Senate, except a Senior Executive Service position in which the individual serves as a career appointee (as defined in 5 U.S.C. 3132(a)(4));

(ii) Designated as the head of an agency, including an agency headed by a collegial body composed of two or more individual members;

(iii) In which the employee is expected to receive an appointment as the head of an agency; or

(iv) To which an individual is appointed as a Senior Executive Service limited term appointee or limited emergency appointee (as defined in 5 U.S.C. 3132(a)(5) and (a)(6), respectively) when the appointment must be cleared through the White House Office of Presidential Personnel.

(b) Notwithstanding any provision in this subpart, an agency may--

(1) Continue to pay a retention incentive to an employee whose position is moved into Schedule Policy/Career based on the terms of the service agreement and require the employee to fulfill that agreed-upon service period; and

(2) Continue to pay a retention incentive to an employee whose position is moved into Schedule Policy/Career at a time when the employee is receiving a retention incentive without a service agreement, so long as the agency finds that the payment otherwise continues to be warranted in consideration of the factors set forth in Sec. 575.311(f).

PART 752--ADVERSE ACTIONS

0 27. The authority citation for part 752 is revised to read as follows:

Authority: 5 U.S.C. 6329b, 7504, 7514, 7515, and 7543; 38 U.S.C. 7403. E.O. 10577, 19 FR 7521, 3 CFR, 1954-1958 Comp., p. 218.

Subpart B--Regulatory Requirements for Suspension for 14 Days or Less

0 28. Amend Sec. 752.201 by: 0 a. Revising paragraphs (b), (c)(5) and (6), and; 0 b. Removing paragraph (c)(7).

The revisions read as follows:

Sec. 752.201 Coverage.

* * * * *

(b) Employees covered. This subpart covers:

(1) An employee in the competitive service who has completed a probationary or trial period, or who has completed 1 year of current continuous

employment in the same or similar positions under other than a temporary appointment limited to 1 year or less;

(2) An employee in the competitive service serving in an appointment which requires no probationary or trial period, and who has completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less;

(3) An employee with competitive status who occupies a position under Schedule B of part 213 of this chapter;

(4) An employee who was in the competitive service at the time his or her position was first listed under Schedule A or B of the excepted service and still occupies that position;

(5) An employee of the Department of Veterans Affairs appointed under 38 U.S.C. 7401(3); and

(6) An employee of the Government Publishing Office.

(c) * * *

(5) Of a National Guard Technician; or

(6) Taken under 5 U.S.C. 7515. * * * * *

Subpart D--Regulatory Requirements for Removal, Suspension for More Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or Less

0 29. Amend Sec. 752.401 by revising paragraphs (c) and (d)(2) to read as follows:

Sec. 752.401 Coverage.

* * * * *

(c) Employees covered. This subpart covers:

(1) A career or career conditional employee in the competitive service who is not serving a probationary or trial period;

(2) An employee in the competitive service--

(i) Who is not serving a probationary or trial period under an initial appointment; or

(ii) Who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less;

(3) An employee in the excepted service who is a preference eligible in an Executive agency as defined at section 105 of title 5, United States Code, the U.S. Postal Service, or the Postal Regulatory Commission and who has completed 1 year of current continuous service in the same or similar positions;

(4) A Postal Service employee covered by Public Law 100-90 who has completed 1 year of current continuous service in the same or similar positions and who is either a supervisory or management employee or an employee engaged in personnel work in other than a purely nonconfidential clerical capacity;

(5) An employee in the excepted service who is a nonpreference eligible in an Executive agency as defined at 5 U.S.C. 105, and who has completed 2 years of current continuous service in the same or similar positions under other than a temporary appointment limited to 2 years or less;

(6) An employee with competitive status who occupies a position in Schedule B of part 213 of this chapter;

(7) An employee who was in the competitive service at the time his or her position was first listed under Schedule A or B of the excepted service and who still occupies that position;

(8) An employee of the Department of Veterans Affairs appointed under 38 U.S.C. 7401(3); and

(9) An employee of the Government Publishing Office.

(d) * * *

(2) An employee whose position is in Schedule C or Schedule Policy/ Career. * * * * *

0 30. Amend Sec. 752.405 by revising paragraph (a) to read as follows:

Sec. 752.405 Appeal and grievance rights.

(a) Appeal rights. Under the provisions of 5 U.S.C. 7513(d), an employee against whom an action is taken under this subpart is entitled to appeal to the Merit Systems Protection Board. Employees listed under Sec. 752.401(d) may not appeal to the Merit Systems Protection Board under this section, irrespective of whether they or their positions were previously covered by this subpart. * * * * *

The Director of OPM, Scott Kupor, reviewed and approved this document and has authorized the undersigned to electronically sign and submit this document to the Office of the Federal Register for publication.

Jerson Matias, Federal Register Liaison, Office of Personnel Management. [FR Doc. 2026-02375 Filed 2-5-26; 8:45 am] BILLING CODE 6325-39-P