§ 535.104 Requests for and granting critical position pay authority

5 CFR 535.104(a)(a) An agency may request critical position pay authority only after determining that the position in question cannot be filled with an exceptionally well-qualified individual through the use of other available human resources flexibilities and pay authorities. OPM, in consultation with OMB, will review agency requests. OPM will advise the requesting agency as to whether the request is approved and when the agency's critical position pay authority becomes effective.

5 CFR 535.104(b)(b) A request for critical position pay authority (or authorities) must be signed by the head of an agency and submitted to OPM. Requests covering multiple positions must include a list of the positions in priority order. The head of an agency may request coverage of positions of a type not listed in 5 U.S.C. 5377(a)(2), as authorized by 5 U.S.C. 5377(i)(2) and Executive Order 13415.

5 CFR 535.104(c)(c) Requests for critical position pay authority must include information and data required by OPM to justify the higher pay, including, as appropriate, market-based justification, evidence of recruitment and retention needs, and the qualifications of the individual. The head of an agency must submit such requests to OPM with the information required in paragraph (d) of this section. If OPM, in consultation with OMB, concurs with a request to set pay above the rate payable for level I of the Executive Schedule, the Director of OPM must provide written approval and may establish a maximum limitation on the critical position pay rate.

5 CFR 535.104(d)(d) Requests for critical position pay authority must include:

5 CFR 535.104(d)(1)(1) Position title;

5 CFR 535.104(d)(2)(2) Position appointment authority (for Senior Executive Service positions, appointment authority for any incumbent);

5 CFR 535.104(d)(3)(3) Pay plan and grade/level;

5 CFR 535.104(d)(4)(4) Occupational series of the position;

5 CFR 535.104(d)(5)(5) Geographic location of the position;

5 CFR 535.104(d)(6)(6) Current salary of the position or incumbent;

5 CFR 535.104(d)(7)(7) Name of incumbent (or “Vacant”);

5 CFR 535.104(d)(8)(8) Length of time the incumbent has been in the position or length of time the position has been vacant;

5 CFR 535.104(d)(9)(9) A written evaluation of the need to designate the position as critical. Such an evaluation must include—

5 CFR 535.104(d)(9)(i)(i) The kinds of work required by the position and the context within which it operates;

5 CFR 535.104(d)(9)(ii)(ii) The range of positions and qualification requirements that characterize the occupational field, including those that require extremely high levels of expertise;

5 CFR 535.104(d)(9)(iii)(iii) The rates of pay reasonably and generally required in the public and private sectors for similar positions; and

5 CFR 535.104(d)(9)(iv)(iv) The availability of individuals who possess the qualifications to do the work required by the position;

5 CFR 535.104(d)(10)(10) Any additional information the agency may deem appropriate to demonstrate that higher pay is needed to recruit or retain an employee for a critical position;

5 CFR 535.104(d)(11)(11) Unless the position is an Executive Schedule position, a copy of the position description for the critical position; and

5 CFR 535.104(d)(12)(12) The desired rate of basic pay for requests to set pay above the rate for level I of the Executive Schedule and justification, including, as appropriate, market-based justification, evidence of recruitment and retention needs, and qualifications of the individual to show that such a rate is necessary to recruit and retain an individual exceptionally well-qualified for the critical position.