The final rule establishes level I of the Executive Schedule as the default maximum critical pay rate. Higher critical pay rates require written approval by the Director of the Office of Personnel Management.

The final rule eliminates non-statutory caps and approval criteria for critical position pay. It also clarifies that employees have no right to grieve or appeal a decision to reduce, not increase, or terminate a critical position pay rate.

The Office of Personnel Management received one substantive comment on the proposed rule. The agency is adopting the proposed rule without change.

Why It Matters

The Office of Personnel Management has previously used critical position pay authority, but the specific action referenced in the presidential memorandum on May 29, 2026, is the first instance of approving critical position pay for up to 400 positions supporting investment programs related to national security. Pay rates for these roles can reach up to $400,000.

This development marks a shift from historical usage patterns where the authority was applied sparingly. The scale of the new authorization covers half of the maximum 800 positions permitted by statute, indicating a substantial deployment of this compensation tool for national security objectives.

Timeline

In 2025, the Office of Personnel Management authorized critical pay for 65 positions in 15 agencies. Also in 2025, nine agencies reported using critical pay authority for 25 total incumbents. The Office of Personnel Management issued a proposed rule on April 24, 2026, to amend critical position pay regulations.

The proposed rule had a 30-day comment period ending May 26, 2026.

What's New

Under 5 U.S.C. 5377 and 5 CFR part 535, the U.S. Office of Personnel Management has the authority to grant critical position pay, but this authority has been little-used historically. The recent action represents a significant expansion of this authority for national security investment positions. The Executive Schedule is the salary system of the U.S. federal government.

How Sources Differ

Regarding the number of critical authority positions, 5 U.S.C. 5377 states that by law, the Office of Personnel Management may approve critical pay authority for no more than 800 positions at any time, with no more than 30 under the Executive Schedule. Whitehouse.gov states that the Office of Personnel Management has previously used critical position pay authority, but the specific action referenced in the presidential memorandum on May 29, 2026, is the first instance of approving critical position pay for up to 400 positions.

Opm.gov states that under 5 U.S.C. 5377 and 5 CFR part 535, the U.S. Office of Personnel Management has the authority to grant critical position pay, but this authority has been little-used historically and the recent action represents a significant expansion.

Pub. L. 108–411 states that the Federal Workforce Flexibility Act of 2004 amended the critical position pay statute to place the Office of Personnel Management in charge of approving agency requests after consulting with the Office of Management and Budget.

Regarding critical position presidential memorandum positions supporting details, whitehouse.gov states that the Office of Personnel Management has previously used critical position pay authority, but the specific action referenced in the presidential memorandum on May 29, 2026, is the first instance of approving critical position pay for up to 400 positions. The Presidential Memorandum, May 29, 2026, states that it authorizes critical position pay for up to 400 positions supporting national security investment programs.

The Office of Personnel Management Final Rule states that the Office of Personnel Management estimates that a new presidential memorandum authorizing critical pay for national security roles will cost between approximately $44.1 million annually and approximately $58.8 million annually.