5 U.S.C. § 5377 — Pay authority for critical positions

Page 623 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5377 1 So in original. Probably should be ‘‘or’’. under the General Schedule, shall be considered a reference to the maximum rate payable under sec- tion 5376 of such title (as amended by section 102(a)); ‘‘(ii) to the minimum rate of pay for grade GS–16 of the General Schedule shall be considered a ref- erence to the minimum rate payable under section 5376 of such title (as amended by section 102(a)); and ‘‘(iii) to a rate of pay for grade GS–16 or 17 of the General Schedule shall (except as provided in clause (ii)) be considered a reference to a rate of pay for a position classified above GS–15 pursuant to section 5108 of such title (as amended by section 102(b)(2)); and ‘‘(B) to a rate of pay under the General Schedule shall not include any comparability payment pay- able under section 5304 of such title (as amended by this section) or any geographic adjustment payable under section 302 [section 529 [title III, § 302] of Pub. L. 101–509, set out as a note under section 5304 of this title]; and ‘‘(2) any authority granted by a provision of law (which is outside such title, and in effect imme- diately before this section takes effect) to fix pay in accordance with chapter 51 and subchapter III of chapter 53 of such title— ‘‘(A) shall not be considered to include any au- thority under section 5304 of such title (as amended by this section) or section 302; but ‘‘(B) shall be considered to include authority under section 5376 of such title (as amended by sec- tion 102(a)), if applicable. ‘‘(d) REGULATIONS.—The Office of Personnel Manage- ment may prescribe regulations, consistent with sub- section (c)(1)(B) and section 303 [section 529 [title III, § 303] of Pub. L. 101–509, set out as a note under section 5301 of this title], governing the conversion or adjust- ment of rates of pay, where necessary because of the abolishment of grades GS–16, 17, and 18 of the General Schedule.’’ [For reference to maximum rate under section 5376 of this title, see section 2(d)(3) of Pub. L. 110–372, set out as an Effective Date of 2008 Amendment note under this section.] § 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 Investiga- tion and Drug Enforcement Administration Senior Executive Service; (B) a position under the Executive Sched- ule 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 ap- plies (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 In- vestigation, the primary duties and respon- sibilities 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 re- spect to a position— (A) which requires expertise of an ex- tremely high level in a scientific, technical, professional, or administrative field; and (B) which is critical to the agency’s suc- cessful accomplishment of an important mission; and (2) may be granted or exercised only to the extent necessary to recruit or retain an indi- vidual exceptionally well qualified for the po- sition. (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 ac- cordance 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 com- parability payments) which would then other- wise be payable for the position involved if this section had never been enacted. (2) Basic pay may not be fixed under this sec- tion 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 termi- nate— (1) whenever the Office of Personnel Manage- ment determines (in accordance with such pro- cedures and subject to such terms or condi- tions as such Office by regulation prescribes) that 1 or more of the requirements of sub- section (b) are no longer met; or (2) as of such date as such Office may other- wise 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 posi- tions 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 deter- mined 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 Com- mittee 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 dur- ing any part of the period covered by such re- port; 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 Page 624 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5378 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 in- clude any position under subsection (a)(2)(A)–(E). (2) At the request of an agency head, the Presi- dent may designate 1 or more categories of posi- tions within such agency to be treated, for pur- poses 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; amend- ed 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 sub- sec. (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 Per- sonnel Management’’ and ‘‘Office of Personnel Manage- ment’’ for ‘‘Office of Management and Budget’’. Subsec. (e)(1), (f). Pub. L. 108–411, § 102(2), substituted ‘‘Office of Personnel Management’’ for ‘‘Office of Man- agement and Budget’’. Subsec. (g). Pub. L. 108–411, § 102(1)–(3), substituted ‘‘Office of Personnel Management’’ for ‘‘Office of Man- agement 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 introduc- tory provisions, substituted ‘‘Office of Personnel Man- agement’’ 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 Rep- resentatives 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 Com- mittee on Oversight and Reform of House of Represent- atives by House Resolution No. 6, One Hundred Six- teenth 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 Hun- dred Eighteenth Congress, Jan. 9, 2023. Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Gov- ernmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Con- gress, 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. § 5378. Police forces of the Bureau of Engraving and Printing and the United States Mint (a) The Secretary of the Department of the Treasury, or his designee, in his sole discretion shall fix the rates of basic pay for positions within the police forces of the United States Mint and the Bureau of Engraving and Printing without regard to the pay provisions of title 5, United States Code, except that no entry-level police officer shall receive basic pay for a cal- endar year that is less than the basic rate of pay for General Schedule GS–7 and no executive se- curity official shall receive basic compensation for a calendar year that exceeds the basic rate of pay for General Schedule GS–15. (b) For the purpose of this section, the term ‘‘police forces of the Bureau of Engraving and Printing and the United States Mint’’ means the employees of the Department of the Treasury who are appointed, under the authority of the Secretary of the Treasury, as police officers for the protection of the Bureau of Engraving and Printing and the United States Mint buildings and property. (Added Pub. L. 101–509, title V, § 529 [title I, § 109(a)(1)(A)], Nov. 5, 1990, 104 Stat. 1427, 1451; amended Pub. L. 104–52, title V, § 521, Nov. 19, 1995, 109 Stat. 494; Pub. L. 105–61, title I, § 121, Oct. 10, 1997, 111 Stat. 1289.) Editorial Notes REFERENCES IN TEXT The General Schedule, referred to in subsec. (a), is set out under section 5332 of this title. AMENDMENTS 1997—Subsec. (a). Pub. L. 105–61 amended subsec. (a) generally. Prior to amendment, subsec. (a) consisted of pars. (1) to (8) providing maximum levels of General Schedule at which Secretary of the Treasury was to set basic rates of pay for positions in police forces of Bu- reau of Engraving and Printing and United States Mint. 1995—Subsec. (a)(8). Pub. L. 104–52, which directed amendment of this section by adding par. (8), was exe- cuted by adding par. (8) at end of subsec. (a) to reflect the probable intent of Congress. Statutory Notes and Related Subsidiaries EFFECTIVE DATE; CONVERSION AND SAVINGS PROVISIONS Pub. L. 101–509, title V, § 529 [title I, § 109(c)], Nov. 5, 1990, 104 Stat. 1427, 1452, provided that: ‘‘(1) This section and the amendments made by this section [enacting this section, amending section 5102 of this title, and enacting provisions set out as a note below] shall become effective on the first day of the first applicable pay period beginning on or after the 30th day following the date of enactment of this Act [Nov. 5, 1990].