Section I Two things, not one
The headline merges two separate instruments, and the difference is about $147,000.
| Instrument | What it does |
|---|---|
| OPM final regulations CPM 2026-10, effective 26 Aug 2026 | Sets the default ceiling at EX-I — $253,100 in 2026 |
| Presidential memorandum 29 May 2026 | Approves up to $400,000 for up to 400 positions in national-security investment programmes |
Both rest on the same statute — 5 U.S.C. 5377, the critical position pay authority — which is why they are easy to conflate. The memorandum cites 5 U.S.C. 5377(d)(2) together with 5 CFR 535.103(a)(3) and 535.104(c), the provisions that allow a rate above the normal ceiling.
The covered workforce is narrow and specific: investment, engineering, financial and legal professionals working on critical minerals, advanced materials and strategic supply chains. OPM allocates the positions to agencies in consultation with OMB, and the memorandum is expressly subject to the availability of appropriations.
No more than 800 critical-pay positions may exist government-wide at any one time, and no more than 30 active authorisations may cover positions otherwise paid under the Executive Schedule.
So the 400 approved in May occupy up to half the entire government-wide ceiling.
Section II What the August rule changed
The regulations took effect 26 August 2026 and were transmitted to agencies by CPM 2026-10 the following day. Three changes matter.
The default ceiling moved up. EX-I replaces EX-II as the standard maximum, and a separate tier that applied in so-called exceptional circumstances was removed entirely.
The vague criteria went. The undefined “rare” and “exceptional” tests are gone. Requests must still rest on objective, evidence-based justification — the standard is narrower in wording but no looser in substance.
Approval moved. A rate above EX-I used to require case-by-case presidential approval. It now takes written approval by the OPM Director, in consultation with OMB, under authority delegated by Executive Order 13415.
Agencies may also now use written service agreements for future critical pay, and OPM can require one as a condition of approval.
Section III Which positions qualify
Three tests, all of which must hold:
- The position requires an extremely high level of expertise in a scientific, technical, professional or administrative field
- It is critical to the agency's successful accomplishment of an important mission
- Pay is set only to the extent needed to recruit or retain someone exceptionally well qualified
Eligible categories are broader than people assume: General Schedule, Senior-Level and Scientific and Professional positions, the Senior Executive Service including the FBI and DEA SES, Executive Schedule positions, FBI intelligence positions as the FBI Director determines, and anything else the OPM Director designates at an agency head's request.
Special rate schedules raise the table for an entire occupation and location where recruitment is hard. Critical position pay is approved one position at a time, capped at 800 government-wide, and reviewed annually.
If you are in a hard-to-fill occupation, the special rate is the mechanism that will actually reach you.
Section IV What the money counts for
Under 5 CFR 535.106, a critical position pay rate is considered a rate of basic pay for all purposes, with three stated exceptions:
| Treated as basic pay? | Where |
|---|---|
| Yes — general rule | All purposes not excepted below |
| No | Saved pay and pay retention |
| No | Adverse action provisions |
| No | GS pay administration — 5 CFR 531, subpart B |
| As a non-GS rate | Maximum payable rate rule |
The three exceptions do not name retirement, life insurance or the TSP, so on the face of the regulation the general rule reaches them. That matters enormously to a high-3 calculation, and it is exactly the kind of inference worth confirming in writing with your servicing HR office rather than taking from any guide, including this one.
Section V The provision to read first
If you are ever offered one of these positions, read this before the salary figure.
5 CFR 535.103(f)
And 5 CFR 535.106(b) excludes the rate from the adverse action provisions, including 5 U.S.C. 7512.
So the ordinary protections a federal employee would expect against a pay cut do not attach here. Rights under some other applicable law survive — a discrimination or reprisal claim still travels its own route — but the pay decision itself is not reviewable.
Three further conditions sit alongside it. OPM monitors use annually and may terminate the authority for a position after notifying the agency. The rate may be adjusted each January, and only for employees rated at least Fully Successful. And if critical pay ends, the rate simply reverts to what you would otherwise be paid.
Where the two numbers come from
Same statute, different instruments.
If one of these is ever on the table
- Establish which authority applies — the EX-I ceiling or the 400-position memorandum.
- Read the service agreement before the salary; it governs what happens next.
- Understand that the rate is reviewed annually and can be cut without appeal.
- Confirm in writing how your agency treats the rate for retirement and TSP.
- Keep your rating at Fully Successful or above — below it, no January adjustment.
- Plan your finances on the rate ending, because reversion is to your ordinary pay.
- If your occupation is simply hard to fill, pursue a special rate schedule instead.
Section VI Questions
Up to 400 of them may, but not under the rule that generated the headline. A presidential memorandum of 29 May 2026 approved critical position pay of up to 400,000 dollars for up to 400 positions supporting national security investment programmes, citing 5 U.S.C. 5377(d)(2) together with 5 CFR 535.103(a)(3) and 535.104(c). OPM, in consultation with the Office of Management and Budget, allocates those positions to departments and agencies and approves their requests. That is a separate instrument from the revised regulations OPM issued in August, and the two have been merged in much of the coverage.
Executive Schedule level I, which is 253,100 dollars in 2026. The revised regulations make that the default maximum in place of level II, which was the previous default, and they removed a separate tier that had applied in so-called exceptional circumstances. A rate above level I is still possible where an agency head sets one on supporting data with the approval of the OPM Director, and the regulation at 5 CFR 535.103(a) and 535.104(c) is what the May memorandum relies on to reach 400,000 dollars for the positions it covers.
Three things worth knowing. The undefined rare and exceptional circumstances criteria were removed, though requests must still rest on objective, evidence-based justification. Approval of rates above level I moved from case-by-case presidential approval to written approval by the OPM Director in consultation with the Office of Management and Budget, under authority delegated by Executive Order 13415. And agencies were authorised to use written service agreements for future critical pay, with OPM able to require one as a condition of approval. The memorandum transmitting the regulations is CPM 2026-10, dated 27 August 2026, and the regulations took effect on 26 August 2026.
No more than 800 across the whole government at any one time, and within that, no more than 30 active authorisations may cover positions that would otherwise be paid under the Executive Schedule. The 400 positions approved by the May memorandum therefore occupy up to half of the government-wide ceiling. This is a deliberately scarce authority, which is the main reason most federal employees will never encounter it in their own agency.
The position must require an extremely high level of expertise in a scientific, technical, professional or administrative field and must be critical to the agency's successful accomplishment of an important mission, and pay may be set only to the extent needed to recruit or retain an individual who is exceptionally well qualified. Eligible categories include General Schedule, Senior-Level and Scientific and Professional positions, the Senior Executive Service including the FBI and DEA SES, Executive Schedule positions, FBI intelligence positions as determined by the FBI Director, and others the OPM Director designates at an agency head's request.
For most purposes yes. Under 5 CFR 535.106 a critical position pay rate is considered a rate of basic pay for all purposes, with three stated exceptions: saved pay and pay retention, the adverse action provisions, and the General Schedule pay administration rules in 5 CFR part 531, subpart B. For the maximum payable rate rule it is treated as a non-General-Schedule rate of basic pay. Because the exceptions do not name the retirement, life insurance or Thrift Savings Plan programmes, the general rule applies on the face of the regulation, but anyone relying on that for a retirement calculation should get it confirmed in writing by their servicing human resources office.
Yes, and this is the provision to understand before accepting such a position. An agency may use the authority as long as it is needed, but OPM monitors use annually and may terminate the authority for a position after notifying the agency. The rate may be adjusted each January, and only for employees rated at least Fully Successful or equivalent. If critical pay ends, the rate reverts to what the employee would otherwise be paid. A service agreement may govern future payments, so read it closely.
No. Under 5 CFR 535.103(f) an employee has no right to grieve or appeal a decision to reduce a critical position pay rate, to decline to increase it, or to terminate it, and 5 CFR 535.106(b) excludes the rate from the adverse action provisions, including 5 U.S.C. 7512. Rights arising under some other applicable law are not affected, so a discrimination or reprisal claim would travel its own route, but the pay decision itself is not reviewable through the ordinary channels a federal employee would expect.