### §5377. Pay authority for critical positions

(a) For the purpose of this section—

(1) the term "agency" has the meaning given it by section 5102; and

(2) the term "position" means—

(A) a position to which chapter 51 applies, including a position in the Senior Executive Service or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service;

(B) a position under the Executive Schedule under sections 5312–5317;

(C) a position to which section 5372 applies (or would apply, but for this section);

(D) a position to which section 5372a applies (or would apply, but for this section);

(E) a position established under section 3104;

(F) a position in a category as to which a designation is in effect under subsection (i); and

(G) a position at the Federal Bureau of Investigation, the primary duties and responsibilities of which relate to intelligence functions (as determined by the Director of the Federal Bureau of Investigation).

(b) Authority under this section—

(1) may be granted or exercised only with respect to a position—

(A) which requires expertise of an extremely high level in a scientific, technical, professional, or administrative field; and

(B) which is critical to the agency's successful accomplishment of an important mission; and

(2) may be granted or exercised only to the extent necessary to recruit or retain an individual exceptionally well qualified for the position.

(c) The Office of Personnel Management, in consultation with the Office of Management and Budget, may, upon the request of the head of an agency, grant authority to fix the rate of basic pay for 1 or more positions in such agency in accordance with this section.

(d)(1) The rate of basic pay fixed under this section by an agency head may not be less than the rate of basic pay (including any comparability payments) which would then otherwise be payable for the position involved if this section had never been enacted.

(2) Basic pay may not be fixed under this section at a rate greater than the rate payable for level I of the Executive Schedule, except upon written approval of the President.

(e) The authority to fix the rate of basic pay under this section for a position shall terminate—

(1) whenever the Office of Personnel Management determines (in accordance with such procedures and subject to such terms or conditions as such Office by regulation prescribes) that 1 or more of the requirements of subsection (b) are no longer met; or

(2) as of such date as such Office may otherwise specify, except that termination under this paragraph may not take effect before the authority has been available for such position for at least 1 calendar year.

(f) The Office of Personnel Management may not authorize the exercise of authority under this section with respect to more than 800 positions at any time, of which not more than 30 may, at any such time, be positions the rate of basic pay for which would otherwise be determined under subchapter II.

(g) The Office of Personnel Management shall consult with the Office of Management and Budget before making any decision to grant or terminate any authority under this section.

(h) The Office of Personnel Management shall report to the Committee on Government Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate each year, in writing, on the operation of this section. Each report under this subsection shall include—

(1) the number of positions, in the aggregate and by agency, for which higher rates of pay were authorized or paid under this section during any part of the period covered by such report; and

(2) the name of each employee to whom a higher rate of pay was paid under this section during any portion of the period covered by such report, the rate on 1 rates paid under this section during such period, the dates between which each such higher rate was paid, and the rate or rates that would have been paid but for this section.

(i)(1) For the purpose of this subsection, the term "position" means the work, consisting of the duties and responsibilities, assignable to an employee, except that such term does not include any position under subsection (a)(2)(A)–(E).

(2) At the request of an agency head, the President may designate 1 or more categories of positions within such agency to be treated, for purposes of this section, as positions within the meaning of subsection (a)(2).

(Added Pub. L. 101–509, title V, §529 [title I, §103(a)], Nov. 5, 1990, 104 Stat. 1427, 1444; amended Pub. L. 102–378, §2(34), Oct. 2, 1992, 106 Stat. 1350; Pub. L. 108–411, title I, §102, Oct. 30, 2004, 118 Stat. 2311; Pub. L. 108–447, div. B, title I, §115, Dec. 8, 2004, 118 Stat. 2870.)

#### **Editorial Notes**

#### References in Text

Level I of the Executive Schedule, referred to in subsec. (d)(2), is set out in section 5312 of this title.

#### Amendments

2004—Subsec. (a)(2)(G). Pub. L. 108–447 added subpar. (G).

Subsec. (c). Pub. L. 108–411, §102(1), (2), substituted "Office of Management and Budget" for "Office of Personnel Management" and "Office of Personnel Management" for "Office of Management and Budget".

Subsec. (e)(1), (f). Pub. L. 108–411, §102(2), substituted "Office of Personnel Management" for "Office of Management and Budget".

Subsec. (g). Pub. L. 108–411, §102(1)–(3), substituted "Office of Personnel Management" for "Office of Management and Budget" and "Office of Management and Budget" for "Office of Personnel Management" and struck out "prescribing regulations under this section or" before "making any decision".

Subsec. (h). Pub. L. 108–411, §102(2), (4), in introductory provisions, substituted "Office of Personnel Management" for "Office of Management and Budget" and "Committee on Government Reform" for "Committee on Post Office and Civil Service".

1992—Subsec. (a)(2)(E), (F). Pub. L. 102–378, §2(34)(A), added subpars. (E) and (F).

Subsec. (i). Pub. L. 102–378, §2(34)(B), added subsec. (i).

#### **Statutory Notes and Related Subsidiaries**

#### Change of Name

Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

#### Effective Date

Section effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, §305] of Pub. L. 101–509, set out as an Effective Date of 1990 Amendment note under section 5301 of this title.

#### **Executive Documents**

#### Delegation of Functions

Functions of President under this section assigned to the Director of the Office of Personnel Management by section 1 of Ex. Ord. No. 13415, Dec. 1, 2006, 71 F.R. 70641, set out as a note under section 4505a of this title.

1 So in original. Probably should be "or".