§3104. Employment of specially qualified scientific and professional personnel

(a) The Director of the Office of Personnel Management may establish, and from time to time revise, the maximum number of scientific or professional positions for carrying out research and development functions which require the services of specially qualified personnel which may be established outside of the General Schedule. Any such position may be established by action of the Director or, under such standards and procedures as the Office prescribes (including procedures under which the prior approval of the Director may be required), by agency action.

(b) The provisions of subsection (a) of this section shall not apply to any Senior Executive Service position (as defined in section 3132(a) of this title).

(c) In addition to the number of positions authorized by subsection (a) of this section, the Librarian of Congress may establish, without regard to the second sentence of subsection (a) of this section, not more than 8 scientific or professional positions to carry out the research and development functions of the Library of Congress which require the services of specially qualified personnel.

( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 415 ; Pub. L. 90–83, §1(7), Sept. 11, 1967, 81 Stat. 196 ; Pub. L. 91–375, §6(c)(5), Aug. 12, 1970, 84 Stat. 776 ; Pub. L. 95–454, title IV, §414(a)(2)(B), (C), title VIII, §801(a)(3)(C), Oct. 13, 1978, 92 Stat. 1178 , 1221; Pub. L. 99–386, title I, §101(b), Aug. 22, 1986, 100 Stat. 821 ; Pub. L. 102–378, §2(7), Oct. 2, 1992, 106 Stat. 1346 .)

Historical and Revision Notes
1966 Act

Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 1161 (less 2d sentence of (g)).	Oct. 4, 1961, Pub. L. 87–367, §202 "Sec. 1", 75 Stat. 789 . Oct. 11, 1962, Pub. L. 87–793, §1001(a)(2) "(g) (less 2d sentence)", 76 Stat. 863 .
(b)	5 U.S.C. 1162(c).	Oct. 4, 1961, Pub. L. 87–367, §202 "Sec. 2(c)", 75 Stat. 790 .
(c)	5 U.S.C. 1163.	Oct. 4, 1961, Pub. L. 87–367, §202 "Sec. 3", 75 Stat. 790 .

In subsection (a), the authority to fix pay is omitted and carried into section 5361.

In subsection (b), the words "subsequent to February 1, 1958" appearing in former section 1162(c) are omitted as obsolete.

The Act of Aug. 1, 1947, ch. 433, 61 Stat. 715 , as amended by the following Acts is omitted from the derivation and repealed (see Table II) as superseded by the Act of Oct. 4, 1961, Pub. L. 87–367, §202, 75 Stat. 789 , which is carried into this section and sections 3325 and 5361:

June 24, 1948, ch. 624, 62 Stat. 604 .

July 13, 1949, ch. 332, 63 Stat. 410 .

July 31, 1956, ch. 804 §501(a), 70 Stat. 761.

Aug. 10, 1956, ch. 1041, §28, 70A Stat. 631 .

June 20, 1958, Pub. L. 85–462, §12(a)–(d), 72 Stat. 213 A.

Sept. 23, 1959, Pub. L. 86–370, §4, 73 Stat. 651 .

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

Section of title 5	Source (U.S. Code)	Source (Statutes at Large)
3104(a)(5)	5 App.: 1161(e).	July 5, 1966, Pub. L. 89–492 §5, 80 Stat. 262.

The amendment to 5 U.S.C. 3104(a)(5) reflects Public Law 89–492, section 5.

The other amendments to 5 U.S.C. 3104 are based on section 302 of the act of July 20, 1958, Public Law 85–568 (72 Stat. 433), 42 U.S.C. 2453, and transfer plan, effective March 15, 1960, 25 Federal Register 2151, section (2)(a)(2), (b) of which in effect transferred from the Department of Defense to the National Aeronautics and Space Administration 12 of the 450 scientific and professional positions authorized by section 2 of Public Law 86–377 (10 U.S.C. 1581). Provisions relating to the date for reporting to Congress are based on 10 U.S.C. 1582.

Amendments

1992-Subsec. (a). Pub. L. 102–378 struck out "(not to exceed 517)" after "positions" in first sentence and amended second sentence generally, substituting provisions authorizing establishment of positions by Director and by agency action for provisions specifying that only Director may establish positions.

1986-Pub. L. 99–386 struck out subsec. (b) relating to reports to Congress, redesignated pars. (1), (2), and (3) of subsec. (a) as subsecs. (a), (b), and (c), respectively, and substituted "subsection (a) of this section" for "paragraph (1) of this subsection" wherever appearing in subsecs. (b) and (c) as redesignated.

1978-Subsec. (a). Pub. L. 95–454, §414(a)(2)(B), substituted provisions authorizing the Director to establish the maximum number of scientific or professional positions, excepting Senior Executive Service positions, and authorizing the Librarian to establish not more than 8 such positions for provisions authorizing the head of certain named agencies to establish a specified number of scientific or professional positions.

Subsec. (b). Pub. L. 95–454, §414(a)(2)(B), (C), struck out subsec. (b), redesignated subsec. (c) as (b), and substituted in subsec. (b), as redesignated, "to fix under section 5361 of this title the pay for positions established under this section" for "to establish and fix the pay of positions under this section and section 5361 of this title".

Pub. L. 95–454, §801(a)(3)(C), substituted in subsec. (b), as redesignated, "section 5371 of this title" for "section 5361 of this title".

Subsec. (c). Pub. L. 95–454, §414(a)(2)(C)(i), redesignated subsec. (c) as (b).

1970-Subsec. (a)(5). Pub. L. 91–375 repealed provision for employment in Post Office Department in scientific or professional positions of not more than 6 qualified individuals.

Effective Date of 1978 Amendment

Amendment by section 801(a)(3)(C) of Pub. L. 95–454 effective on first day of first applicable pay period beginning on or after 90th day after Oct. 13, 1978, see section 801(a)(4) of Pub. L. 95–454, set out as an Effective Date note under section 5361 of this title.

Amendment by section 414(a)(2)(B), (C) of Pub. L. 95–454 effective 180 days after Oct. 13, 1978, see section 415(a)(3) of Pub. L. 95–454, set out as an Effective Date note under section 3131 of this title.

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

Defense Advanced Research Projects Agency Experimental Personnel Management Program for Technical Personnel

Pub. L. 105–261, div. A, title XI, §1101, Oct. 17, 1998, 112 Stat. 2139 , as amended by Pub. L. 106–65, div. A, title X, §1067(3), Oct. 5, 1999, 113 Stat. 774 , provided that:

"(a) Program Authorized.-During the 5-year period beginning on the date of the enactment of this Act [Oct. 17, 1998], the Secretary of Defense may carry out a program of experimental use of the special personnel management authority provided in subsection (b) in order to facilitate recruitment of eminent experts in science or engineering for research and development projects administered by the Defense Advanced Research Projects Agency.

"(b) Special Personnel Management Authority.-Under the program, the Secretary may-

"(1) appoint scientists and engineers from outside the civil service and uniformed services (as such terms are defined in section 2101 of title 5, United States Code) to not more than 20 scientific and engineering positions in the Defense Advanced Research Projects Agency without regard to any provision of title 5, United States Code, governing the appointment of employees in the civil service;

"(2) prescribe the rates of basic pay for positions to which employees are appointed under paragraph (1) at rates not in excess of the maximum rate of basic pay authorized for senior-level positions under section 5376 of title 5, United States Code, notwithstanding any provision of such title governing the rates of pay or classification of employees in the executive branch; and

"(3) pay any employee appointed under paragraph (1) payments in addition to basic pay within the limit applicable to the employee under subsection (d)(1).

"(c) Limitation on Term of Appointment.-(1) Except as provided in paragraph (2), the service of an employee under an appointment under subsection (b)(1) may not exceed 4 years.

"(2) The Secretary may, in the case of a particular employee, extend the period to which service is limited under paragraph (1) by up to 2 years if the Secretary determines that such action is necessary to promote the efficiency of the Defense Advanced Research Projects Agency.

"(d) Limitations on Additional Payments.-(1) The total amount of the additional payments paid to an employee under subsection (b)(3) for any 12-month period may not exceed the least of the following amounts:

"(A) $25,000.

"(B) The amount equal to 25 percent of the employee's annual rate of basic pay.

"(C) The amount of the limitation that is applicable for a calendar year under section 5307(a)(1) of title 5, United States Code.

"(2) An employee appointed under subsection (b)(1) is not eligible for any bonus, monetary award, or other monetary incentive for service except for payments authorized under subsection (b)(3).

"(e) Period of Program.-(1) The program authorized under this section shall terminate at the end of the 5-year period referred to in subsection (a).

"(2) After the termination of the program-

"(A) no appointment may be made under paragraph (1) of subsection (b);

"(B) a rate of basic pay prescribed under paragraph (2) of that subsection may not take effect for a position; and

"(C) no period of service may be extended under subsection (c)(1) [(c)(2)].

"(f) Savings Provisions.-In the case of an employee who, on the day before the termination of the program, is serving in a position pursuant to an appointment under subsection (b)(1)-

"(1) the termination of the program does not terminate the employee's employment in that position before the expiration of the lesser of-

"(A) the period for which the employee was appointed; or

"(B) the period to which the employee's service is limited under subsection (c), including any extension made under paragraph (2) of that subsection before the termination of the program; and

"(2) the rate of basic pay prescribed for the position under subsection (b)(2) may not be reduced for so long (within the period applicable to the employee under paragraph (1)) as the employee continues to serve in the position without a break in service.

"(g) Annual Report.-(1) Not later than October 15 of each year, beginning in 1999 and ending in 2004, the Secretary of Defense shall submit a report on the program to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives. The report submitted in a year shall cover the 12-month period ending on the day before the anniversary, in that year, of the date of the enactment of this Act.

"(2) The annual report shall contain, for the period covered by the report, the following:

"(A) A detailed discussion of the exercise of authority under this section.

"(B) The sources from which individuals appointed under subsection (b)(1) were recruited.

"(C) The methodology used for identifying and selecting such individuals.

"(D) Any additional information that the Secretary considers helpful for assessing the utility of the authority under this section."

FBI Personnel Management System for Non-Special Agent Employees; Secretary of the Treasury

Pub. L. 105–119, title I, §122, Nov. 26, 1997, 111 Stat. 2469 , as amended by Pub. L. 105–277, div. C, title I, §102, Oct. 21, 1998, 112 Stat. 2681–585 , provided that:

"(a) Notwithstanding any other provision of law relating to position classification or employee pay or performance, during the 3-year period beginning on the date of enactment of this Act [Nov. 26, 1997], the Director of the Federal Bureau of Investigation may, with the approval of the Attorney General, establish a personnel management system providing for the compensation and performance management of not more than 3,000 non-Special Agent employees to fill critical scientific, technical, engineering, intelligence analyst, language translator, and medical positions in the Federal Bureau of Investigation.

"(b) Except as otherwise provided by law, no employee compensated under any system established under this section may be paid at a rate in excess of the rate payable for a position at level III of the Executive Schedule [5 U.S.C. 5314].

"(c) Total payments to employees under any system established under this section shall be subject to the limitation on payments to employees set forth in section 5307 of title 5, United States Code.

"(d) Not later than 90 days after the date of enactment of this Act [Nov. 26, 1997], the Director of the Federal Bureau of Investigation shall submit to the Committees on Appropriations and the Committees on the Judiciary of the House of Representatives and the Senate, the Committee on Government Reform and Oversight [now Committee on Government Reform] of the House of Representatives, and the Committee on Governmental Affairs of the Senate, an operating plan describing the Director's intended use of the authority under this section, and identifying any provisions of title 5, United States Code, being waived for purposes of any personnel management system to be established by the Director under this section.

"(e) Any performance management system established under this section shall have not less than 2 levels of performance above a retention standard.

"(f) Not later than March 31, 2000, the Director of the Federal Bureau of Investigation shall submit to Congress an evaluation of the performance management system established under this section, which shall include-

"(1) a comparison of-

"(A) the compensation, benefits, and performance management provisions governing personnel of similar employment classification series in other departments and agencies of the Federal Government; and

"(B) the costs, consistent with standards prescribed in Office of Management and Budget Circular A–76, of contracting for any services provided through those departments and agencies; and

"(2) if appropriate, a recommendation for legislation to extend the authority under this section.

"(g)(1) Notwithstanding any other provision of law and subject to paragraph (2), the Secretary of the Treasury is authorized to establish, for a period of three years from date of enactment of this provision [Nov. 26, 1997], a personnel management demonstration project providing for the compensation and performance management of not more than a combined total of 950 employees who fill critical scientific, technical, engineering, intelligence analyst, language translator, and medical positions in the Bureau of Alcohol, Tobacco and Firearms, the United States Customs Service, and the United States Secret Service.

"(2) The provisions of subsections (b) through (f) and subsection (h) shall apply to the demonstration project authorized by paragraph (1) except that-

"(A) any reference in such subsections to the Director of the Federal Bureau of Investigation shall include a reference to the Secretary of the Treasury;

"(B) the operating plan required by subsection (d) shall be submitted not later than February 1, 1999 to the House and Senate Committees on Appropriations, the House Committee on Government Reform and Oversight [now House Committee on Government Reform], the Senate Committee on Governmental Affairs, the House Committee on Ways and Means, and the Senate Committee on Finance; and

"(C) the report required by subsection (f) shall be submitted not later than March 31, 2001.

"(h) The authority to establish a demonstration project under this section shall terminate on November 26, 2000."

Termination of Authority To Establish Scientific or Professional Positions Outside the General Schedule

Section 414(a)(2)(A) of Pub. L. 95–454 provided that: "Notwithstanding any other provision of law (other than section 3104 of title 5, United States Code), the authority granted to an agency (as defined in section 5102(a)(1) of such title 5) to establish scientific or professional positions outside of the General Schedule is hereby terminated."

Section 415(a)(3) of Pub. L. 95–454 provided that the provisions of section 414(a)(2)(A) take effect 180 days after Oct. 13, 1978.

Limitations on Executive Positions Not To Apply to Individuals Occupying Those Positions on October 12, 1978

Section 414(a)(3) of Pub. L. 95–454 provided that:

"(A) The provisions of paragraphs (1) and (2) of this subsection [amending sections 3104 and 5108 of this title] shall not apply with respect to any position so long as the individual occupying such position on the day before the date of the enactment of this Act [Oct. 13, 1978] continues to occupy such position.

"(B) The Director-

"(i) in establishing under section 5108 of title 5, United States Code, the maximum number of positions which may be placed in GS–16, 17, and 18 of the General Schedule, and

"(ii) in establishing under section 3104 of such title 5 the maximum number of scientific or professional positions which may be established,

shall take into account positions to which subparagraph (A) of this paragraph applies."

[Section 415(a)(3) of Pub. L. 95–454 provided that the provisions of section 414(a)(3) are effective 180 days after Oct. 13, 1978.]

[References in laws to rates of pay for GS–16, 17, or 18, or to maximum rates of pay under General Schedule, to be considered references to rates payable under specified sections of this title, see section 529 [title I, §101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of this title.]

Cross References

Positions established under this section in the competitive service but without competitive examination, see section 3325 of this title.

Section Referred to in Other Sections

This section is referred to in sections 3325, 5376, 5377 of this title; title 20 section 3461.