5 U.S.C. § 3133 — Authorization of positions; authority for appointment

(a) In every even-numbered calendar year, each agency must (1) examine its need for Senior Executive Service positions for each of the next two fiscal years, and (2) send OPM a written request for a specific number of Senior Executive Service positions for each year.

(b) Each request must (1) be based on the agency's expected type and amount of program activity and budget requests for each fiscal year, plus any other factors OPM prescribes from time to time, and (2) identify by position title the positions proposed to be designated as career-reserved positions or removed from that designation, and state the reasons for those proposed actions.

(c) After consulting OMB, OPM must review each agency's request and authorize a specific number of Senior Executive Service positions for that agency for each of the two fiscal years. Beginning in 2023, the number OPM authorizes for the Department of Defense may not exceed the limit in section 1109 of the National Defense Authorization Act for Fiscal Year 2017.

(d) (1) OPM may, after an agency's written request or on its own initiative, adjust the number of positions authorized for an agency. Each agency request must use the form and factors OPM prescribes. (2) At no time during a fiscal year may the total number of Senior Executive Service positions exceed 105 percent of the total number of positions authorized under subsection (c) for that fiscal year.

(e) (1) By July 1, 1979, and from time to time afterward when the Director of OPM considers it appropriate, the Director must establish by rule the number of positions out of the total number of Senior Executive Service positions authorized by this section or section 413 of the Civil Service Reform Act of 1978 that are to be career-reserved positions. Except as provided in paragraph (2), this number may not be less than the number of positions then in the Senior Executive Service that, before that Act's date, were authorized to be filled only through competitive civil-service examination. (2) The Director may designate by rule fewer career-reserved positions than paragraph (1) requires only if the Director decides that the smaller number is needed to designate as general positions one or more positions, other than positions described in section 3132(b)(3) of this title, that—

(A) involve policymaking duties requiring advocacy or management of the President's programs and support for controversial parts of those programs;

(B) involve significant participation in the President's major political policies; or

(C) require the senior executives in those positions to serve as personal assistants to, or advisers of, Presidential appointees. The Director must give a full explanation for each decision.