---
kind: "section"
citation: "5 U.S.C. § 5377"
title: "5"
title_heading: "Government Organization and Employees"
number: "5377"
heading: "Pay authority for critical positions"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/5/5377"
units:
  - "Part III — Employees"
  - "Subpart D — Pay and Allowances"
  - "Chapter 53 — Pay Rates and Systems"
  - "Subchapter VII — Miscellaneous Provisions"
---

# §5377. Pay authority for critical positions

- (a) For the purpose of this section—
  - (1) the term “[agency](/usc/5/5351.md?p=1)” has the meaning given it by [section 5102](/usc/5/5102.md); and
  - (2) the term “[position](/usc/5/5102.md?p=a-3)” means—
    - (A) a [position](/usc/5/5102.md?p=a-3) to which [chapter 51](/usc/5/chptIII/sptD/ch51.md) applies, including a [position](/usc/5/5102.md?p=a-3) in the [Senior Executive](/usc/5/3132.md?p=a-3) [Service](/usc/5/8401.md?p=26) or the Federal Bureau of Investigation and Drug Enforcement [Administration](/usc/5/9801.md?p=1) [Senior Executive](/usc/5/3132.md?p=a-3) [Service](/usc/5/8401.md?p=26);
    - (B) a [position](/usc/5/5102.md?p=a-3) under the Executive Schedule under sections 5312–5317;
    - (C) a [position](/usc/5/5102.md?p=a-3) to which [section 5372](/usc/5/5372.md) applies (or would apply, but for this section);
    - (D) a [position](/usc/5/5102.md?p=a-3) to which [section 5372a](/usc/5/5372a.md) applies (or would apply, but for this section);
    - (E) a [position](/usc/5/5102.md?p=a-3) established under [section 3104](/usc/5/3104.md);
    - (F) a [position](/usc/5/5102.md?p=a-3) in a category as to which a designation is in effect under [subsection (i)](#i); and
    - (G) a [position](/usc/5/5102.md?p=a-3) at the Federal Bureau of Investigation, the primary duties and responsibilities of which relate to intelligence functions (as determined by the [Director](/usc/5/8401.md?p=8) of the Federal Bureau of Investigation).
- (b) [Authority](/usc/5/7103.md?p=a-6) under this section—
  - (1) may be granted or exercised only with respect to a [position](/usc/5/5102.md?p=a-3)—
    - (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](/usc/5/5351.md?p=1)’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](/usc/5/5102.md?p=a-3).
- (c) The [Office](/usc/5/5402.md?p=3) of Personnel Management, in consultation with the [Office](/usc/5/5402.md?p=3) of Management and Budget, may, upon the request of the head of an [agency](/usc/5/5351.md?p=1), grant [authority](/usc/5/7103.md?p=a-6) to fix the [rate of basic pay](/usc/5/5361.md?p=4) for 1 or more [positions](/usc/5/5102.md?p=a-3) in such [agency](/usc/5/5351.md?p=1) in accordance with this section.
- (d)
  - (1) The [rate of basic pay](/usc/5/5361.md?p=4) fixed under this section by an [agency](/usc/5/5351.md?p=1) head may not be less than the [rate of basic pay](/usc/5/5361.md?p=4) (including any comparability payments) which would then otherwise be payable for the [position](/usc/5/5102.md?p=a-3) involved if this section had never been enacted.
  - (2) [Basic pay](/usc/5/8401.md?p=4) 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](/usc/5/7103.md?p=a-6) to fix the [rate of basic pay](/usc/5/5361.md?p=4) under this section for a [position](/usc/5/5102.md?p=a-3) shall terminate—
  - (1) whenever the [Office](/usc/5/5402.md?p=3) of Personnel Management determines (in accordance with such procedures and subject to such terms or conditions as such [Office](/usc/5/5402.md?p=3) by regulation prescribes) that 1 or more of the requirements of [subsection (b)](#b) are no longer met; or
  - (2) as of such date as such [Office](/usc/5/5402.md?p=3) may otherwise specify, except that termination under this paragraph may not take effect before the [authority](/usc/5/7103.md?p=a-6) has been available for such [position](/usc/5/5102.md?p=a-3) for at least 1 calendar year.
- (f) The [Office](/usc/5/5402.md?p=3) of Personnel Management may not authorize the exercise of [authority](/usc/5/7103.md?p=a-6) under this section with respect to more than 800 [positions](/usc/5/5102.md?p=a-3) at any time, of which not more than 30 may, at any such time, be [positions](/usc/5/5102.md?p=a-3) the [rate of basic pay](/usc/5/5361.md?p=4) for which would otherwise be determined under subchapter II.
- (g) The [Office](/usc/5/5402.md?p=3) of Personnel Management shall consult with the [Office](/usc/5/5402.md?p=3) of Management and Budget before making any decision to grant or terminate any [authority](/usc/5/7103.md?p=a-6) under this section.
- (h) The [Office](/usc/5/5402.md?p=3) of Personnel Management shall report to the Committee on [Government](/usc/5/4101.md?p=3) 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](/usc/5/5102.md?p=a-3), in the aggregate and by [agency](/usc/5/5351.md?p=1), for which higher rates of [pay](/usc/5/7511.md?p=a-4) were authorized or paid under this section during any part of the period covered by such report; and
  - (2) the name of each [employee](/usc/5/5361.md?p=1) to whom a higher rate of [pay](/usc/5/7511.md?p=a-4) 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](/usc/5/5102.md?p=a-3)” means the work, consisting of the duties and responsibilities, assignable to an [employee](/usc/5/5361.md?p=1), except that such term does not include any [position](/usc/5/5102.md?p=a-3) under [subsection (a)(2)(A)](#a-2-A)–(E).
  - (2) At the request of an [agency](/usc/5/5351.md?p=1) head, the President may designate 1 or more categories of [positions](/usc/5/5102.md?p=a-3) within such [agency](/usc/5/5351.md?p=1) to be treated, for purposes of this section, as [positions](/usc/5/5102.md?p=a-3) within the meaning of [subsection (a)(2)](#a-2).

## Footnotes

[^1]: So in original. Probably should be “or”.

## Source credit

(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.)

## Notes

### 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.