# § 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 and publishes in such form as the Director may determine (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.
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**Source Credit**: (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; Pub. L. 110–372, § 2(c)(1), Oct. 8, 2008, 122 Stat. 4044.)
| Derivation | U.S. Code | Revised Statutes andStatutes 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 ” appearing in former section 1162(c) are omitted as obsolete.
The , , as amended by the following Acts is omitted from the derivation and repealed (see Table II) as superseded by the Act of , , , which is carried into this section and sections 3325 and 5361:
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Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
| 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 reflects , section 5.
The other amendments to are based on , (), , and transfer plan, effective , 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 (). Provisions relating to the date for reporting to Congress are based on .
## Editorial Notes
### References in Text
The General Schedule, referred to in subsec. (a), is set out under .
### Amendments
2008—Subsec. (a). substituted “prescribes and publishes in such form as the Director may determine” for “prescribes”.
1992—Subsec. (a). 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— 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). , 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). , (C), struck out subsec. (b), redesignated subsec. (c) as (b), and substituted in subsec. (b), as redesignated, “to fix under the pay for positions established under this section” for “to establish and fix the pay of positions under this section and ”.
, substituted in subsec. (b), as redesignated, “” for “”.
Subsec. (c). , redesignated subsec. (c) as (b).
1970—Subsec. (a)(5). repealed provision for employment in Post Office Department in scientific or professional positions of not more than 6 qualified individuals.
## Statutory Notes and Related Subsidiaries
### Effective Date of 2008 Amendment
Amendment by effective on the first day of the first pay period beginning on or after the 180th day following , see , set out as a note under .
### Effective Date of 1978 Amendment
Amendment by effective on first day of first applicable pay period beginning on or after 90th day after , see , set out as an Effective Date note under .
Amendment by section 414(a)(2)(B), (C) of effective 180 days after , see , set out as an Effective Date note under .
### Effective Date of 1970 Amendment
Amendment by effective within 1 year after , on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see , set out as an Effective Date note preceding , Postal Service.
### Retention Pay for Employees Subject to a Reduction in Pay Upon Termination of Bureau’s Personnel Management Demonstration Project
> “Funds appropriated by this or any other Act, with respect to any fiscal year, under the heading ‘Bureau of Alcohol, Tobacco, Firearms and Explosives, Salaries and Expenses’ shall be available for retention pay for any employee who would otherwise be subject to a reduction in pay upon termination of the Bureau’s Personnel Management Demonstration Project (as transferred to the Attorney General by section 1115 of the Homeland Security Act of 2002,
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> , That such retention pay shall comply with
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> , United States Code, and related Office of Personnel Management regulations, except as provided in this section:
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> , That such retention pay shall be paid at the employee’s rate of pay immediately prior to the termination of the demonstration project and shall not be subject to the limitation set forth in
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> , United States Code, and related regulations.”
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### Experimental Personnel Program for Scientific and Technical Personnel
, , , as amended by , , ; title X, § 1087(d)(6), title XI, § 1113], , , 1654A–293, 1654A–314; , title XI, § 1116, , , 1636; , , ; , , ; , , ; , , ; , title XI, § 1102(a), , , 1973; , , ; , §§ 1075(b), 1081(b)(5), , , 1001, allowed Secretary of Defense, from , to , to carry out a program of experimental use of special personnel management authority to facilitate recruitment of eminent experts in science or engineering for certain research and development projects, prior to repeal by , , . See , Armed Forces.
### FBI Personnel Management System for Non-Special Agent Employees; Secretary of the Treasury
> “The Attorney General is authorized to extend through
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> , the Personnel Management Demonstration Project transferred to the Attorney General pursuant to [former] section 1115 of the Homeland Security Act of 2002 (
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Similar provisions were contained in the following prior appropriation acts:
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, , , as amended by , , ; , , ; , , ; , , ; , , ; , , ; , , ; , , ; , , ; , , , provided that during 3-year period beginning on , 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 14 years from , 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, and further provided for submittal of reports to Congress and termination of authority to establish demonstration project on .
[Personnel management demonstration project transferred to Attorney General for continued use by Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice, and Secretary of the Treasury for continued use by Tax and Trade Bureau, see , Judiciary and Judicial Procedure.]
### Termination of Authority To Establish Scientific or Professional Positions Outside the General Schedule
> “Notwithstanding any other provision of law (other than
>
> , 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.”
, , , provided that:
, , , provided that the provisions of section 414(a)(2)(A) take effect 180 days after .
### Limitations on Executive Positions Not To Apply to Individuals Occupying Those Positions on October 12, 1978
> **“(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.
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> **“(B)** The Director—
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> shall take into account positions to which subparagraph (A) of this paragraph applies.”
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> **“(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
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> **“(ii)** in establishing under section 3104 of such title 5 the maximum number of scientific or professional positions which may be established,
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[, , , provided that the provisions of section 414(a)(3) are effective 180 days after .]
[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 , set out in a note under .]