
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document affected by Public Law 107-67 Section 120]
[CITE: 5USC3104]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
                   Subpart B--Employment and Retention
 
                  CHAPTER 31--AUTHORITY FOR EMPLOYMENT
 
                  SUBCHAPTER I--EMPLOYMENT AUTHORITIES
 
Sec. 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, Sec. 1(7), 
Sept. 11, 1967, 81 Stat. 196; Pub. L. 91-375, Sec. 6(c)(5), Aug. 12, 
1970, 84 Stat. 776; Pub. L. 95-454, title IV, Sec. 414(a)(2)(B), (C), 
title VIII, Sec. 801(a)(3)(C), Oct. 13, 1978, 92 Stat. 1178, 1221; Pub. 
L. 99-386, title I, Sec. 101(b), Aug. 22, 1986, 100 Stat. 821; Pub. L. 
102-378, Sec. 2(7), Oct. 2, 1992, 106 Stat. 1346.)

                      Historical and Revision Notes
                                1966 Act
------------------------------------------------------------------------
                                                    Revised Statutes and
     Derivation                U.S. Code             Statutes at Large
------------------------------------------------------------------------
(a)................  5 U.S.C. 1161 (less 2d        Oct. 4, 1961, Pub. L.
                      sentence of (g)).             87-367, Sec.  202
                                                    ``Sec. 1'', 75 Stat.
                                                    789.
                                                   Oct. 11, 1962, Pub.
                                                    L. 87-793, Sec.
                                                    1001(a)(2) ``(g)
                                                    (less 2d
                                                    sentence)'', 76
                                                    Stat. 863.
(b)................  5 U.S.C. 1162(c).             Oct. 4, 1961, Pub. L.
                                                    87-367, Sec.  202
                                                    ``Sec. 2(c)'', 75
                                                    Stat. 790.
(c)................  5 U.S.C. 1163.                Oct. 4, 1961, Pub. L.
                                                    87-367, Sec.  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, Sec. 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 Sec. 501(a), 70 Stat. 761.
    Aug. 10, 1956, ch. 1041, Sec. 28, 70A Stat. 631.
    June 20, 1958, Pub. L. 85-462, Sec. 12(a)-(d), 72 Stat. 213A.
    Sept. 23, 1959, Pub. L. 86-370, Sec. 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
------------------------------------------------------------------------
                                                    Source (Statutes at
 Section of title 5       Source (U.S. Code)               Large)
------------------------------------------------------------------------
3104(a)(5).........  5 App.: 1161(e).              July 5, 1966, Pub. L.
                                                    89-492 Sec.  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, Sec. 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, Sec. 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, Sec. 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, Sec. 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.


  Experimental Personnel Program for Scientific and Technical Personnel

    Pub. L. 105-261, div. A, title XI, Sec. 1101, Oct. 17, 1998, 112 
Stat. 2139, as amended by Pub. L. 106-65, div. A, title X, Sec. 1067(3), 
Oct. 5, 1999, 113 Stat. 774; Pub. L. 106-398, Sec. 1 [[div. A] title X, 
Sec. 1087(d)(6), title XI, Sec. 1113], Oct. 30, 2000, 114 Stat. 1654, 
1654A-293, 1654A-314, provided that:
    ``(a) Program Authorized.--During the program period specified in 
subsection (e)(1), 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 and 
research and development projects administered by laboratories 
designated for the program by the Secretary from among the laboratories 
of each of the military departments.
    ``(b) Special Personnel Management Authority.--Under the program, 
the Secretary may--
        ``(1) without regard to any provision of title 5, United States 
    Code, governing the appointment of employees in the civil service, 
    appoint scientists and engineers from outside the civil service and 
    uniformed services (as such terms are defined in section 2101 of 
    such title) to--
            ``(A) not more than 40 scientific and engineering positions 
        in the Defense Advanced Research Projects Agency;
            ``(B) not more than 40 scientific and engineering positions 
        in the designated laboratories of each of the military services; 
        and
            ``(C) not more than a total of 10 scientific and engineering 
        positions in the National Imagery and Mapping Agency and the 
        National Security Agency;
        ``(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, as 
    increased by locality-based comparability payments under section 
    5304 of such title, 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 period for carrying out the 
program authorized under this section begins on October 17, 1998, and 
ends on October 16, 2005.
    ``(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)(2).
    ``(f) Savings Provisions.--In the case of an employee who, on the 
last day of the program period specified in subsection (e)(1), 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 2006, 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, Sec. 122, Nov. 26, 1997, 111 Stat. 2469, 
as amended by Pub. L. 105-277, div. C, title I, Sec. 102, Oct. 21, 1998, 
112 Stat. 2681-585, provided that during 3-year period beginning on Nov. 
26, 1997, Director of the Federal Bureau of Investigation could, with 
approval of Attorney General, establish personnel management system 
providing for 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 Federal Bureau of Investigation, further authorized 
Secretary of the Treasury to establish, for period of three years from 
Nov. 26, 1997, personnel management demonstration project providing for 
compensation and performance management of not more than combined total 
of 950 employees who fill critical scientific, technical, engineering, 
intelligence analyst, language translator, and medical positions in 
Bureau of Alcohol, Tobacco and Firearms, United States Customs Service, 
and United States Secret Service, and further provided for submittal of 
reports to Congress and termination of demonstration project authority 
on Nov. 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, Sec. 101(c)(1)] of Pub. L. 101-509, set out in a note under 
section 5376 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.
