5 U.S.C. § 5384 — Performance awards in the Senior Execu-

Page 629 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5384 1 So in original. Probably should be capitalized. applying the limitation under paragraph (1) of this sub- section with respect to such fiscal year. ‘‘(C) The Office of Personnel Management shall pre- scribe regulations, consistent with section 5582 of this title, under which payment under this paragraph shall be made in the case of any individual whose death pre- cludes payment under subparagraph (A) of this para- graph.’’ 1991—Subsec. (e). Pub. L. 102–175 added subsec. (e). 1990—Subsec. (b)(1). Pub. L. 101–509, which directed that ‘‘5304(j),’’ be struck out after the reference to sec- tion 4507, could not be executed because ‘‘5304(j),’’ does not appear in text. 1984—Subsec. (b). Pub. L. 98–615 designated existing provisions as par. (1) and added par. (2). 1979—Subsec. (b). Pub. L. 96–166 inserted reference to section 5948. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2003 AMENDMENT Amendment by Pub. L. 108–136 effective on first day of first pay period beginning on or after Jan. 1, 2004, but not to result in reduction in rate of basic pay for any senior executive during first year after effective date, see section 1125(c) of Pub. L. 108–136, set out as a note under section 5304 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–615 effective following ex- piration of 90-day period beginning on Nov. 8, 1984, see section 307 of Pub. L. 98–615, set out as a note under sec- tion 3393 of this title. EFFECTIVE DATE Section effective 9 months after Oct. 13, 1978, and con- gressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b) of Pub. L. 95–454, set out as a note under section 3131 of this title. SENIOR EXECUTIVE SERVICE; MAXIMUM AGGREGATE AMOUNT PAYABLE, ETC.; REPORT Pub. L. 98–168, title III, § 301(a), Nov. 29, 1983, 97 Stat. 1112, required Office of Personnel Management to study and, within 12 months after Nov. 29, 1983, submit to each House of Congress a report on effect which 5 U.S.C. 5383(b) (relating to maximum aggregate amount payable to a member of Senior Executive Service in a fiscal year) has had with respect to recruitment, reten- tion, and morale of career appointees in Senior Execu- tive Service. § 5384. Performance awards in the Senior Execu- tive Service (a)(1) To encourage excellence in performance by career appointees, performance awards shall be paid to career appointees in accordance with the provisions of this section. (2) Such awards shall be paid in a lump sum and shall be in addition to the basic pay paid under section 5382 of this title or any award paid under section 4507 of this title. (b)(1) No performance award under this section shall be paid to any career appointee whose per- formance was determined to be less than fully successful at the time of the appointee’s most recent performance appraisal and rating under subchapter II of chapter 43 of this title. (2) The amount of a performance award under this section shall be determined by the agency head but may not be less than 5 percent nor more than 20 percent of the career appointee’s rate of basic pay. (3) The aggregate amount of performance awards paid under this section by an agency dur- ing any fiscal year may not exceed the greater of— (A) an amount equal to 10 percent of the ag- gregate amount of basic pay paid to career ap- pointees in such agency during the preceding fiscal year; or (B) an amount equal to 20 percent of the av- erage of the annual rates of basic pay paid to career appointees in such agency during the preceding fiscal year. (c)(1) Performance awards paid by any agency under this section shall be based on rec- ommendations by performance review boards es- tablished by such agency under section 4314 of this title. (2) not 1 less than a majority of the members of any review board referred to in paragraph (1) shall be career appointees whenever making rec- ommendations under such paragraph with re- spect to a career appointee. The requirement of the preceding sentence shall not apply in any case in which the Office of Personnel Manage- ment determines that there exists an insuffi- cient number of career appointees available to comply with the requirement. (d) The Office of Personnel Management may issue guidance to agencies concerning the pro- portion of Senior Executive Service salary ex- penses that may be appropriately applied to payment of performance awards and the dis- tribution of awards. (Added Pub. L. 95–454, title IV, § 407(a), Oct. 13, 1978, 92 Stat. 1172; amended Pub. L. 98–615, title III, § 302, Nov. 8, 1984, 98 Stat. 3217; Pub. L. 101–136, title VI, § 625(a), Nov. 3, 1989, 103 Stat. 822; Pub. L. 105–277, div. A, § 101(h) [title VI, § 632(a)], Oct. 21, 1998, 112 Stat. 2681–480, 2681–523.) Editorial Notes AMENDMENTS 1998—Subsec. (b)(3). Pub. L. 105–277 substituted ‘‘10 percent’’ for ‘‘3 percent’’ in subpar. (A) and substituted ‘‘20 percent’’ for ‘‘15 percent’’ in subpar. (B). 1989—Subsec. (c). Pub. L. 101–136 designated existing provisions as par. (1) and added par. (2). 1984—Subsec. (b)(2). Pub. L. 98–615, § 302(1), substituted ‘‘but may not be less than 5 percent nor more than 20 percent’’ for ‘‘but may not exceed 20 percent’’. Subsec. (b)(3). Pub. L. 98–615, § 302(2), substituted pro- visions limiting the aggregate amount of performance awards paid under this section by an agency during any fiscal year to the greater of 3 percent of the aggregate basic pay of career appointees in that agency during the preceding fiscal year or 15 percent of the average of the annual rates of basic pay of such appointees during such fiscal year for provisions limiting the number of career appointees paid performance awards under this section during any fiscal year to 50 percent of the num- ber of Senior Executive Service positions in such agen- cy, except for an agency having less than 4 such posi- tions. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1998 AMENDMENT Pub. L. 105–277, div. A, § 101(h) [title VI, § 632(b)], Oct. 21, 1998, 112 Stat. 2681–480, 2681–523, provided that: ‘‘The amendments made by this section [amending this sec- tion] shall take effect on October 1, 1998, or the date of enactment of this Act [Oct. 21, 1998], whichever is later.’’ Page 630 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5385 EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–615 effective following ex- piration of 90-day period beginning on Nov. 8, 1984, see section 307 of Pub. L. 98–615, set out as a note under sec- tion 3393 of this title. EFFECTIVE DATE Section effective 9 months after Oct. 13, 1978, and con- gressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b) of Pub. L. 95–454, set out as a note under section 3131 of this title. LIMITATION ON NUMBER OF PERFORMANCE AWARDS FOR CAREER APPOINTEES Section 306(c) of S. 2939, Ninety-seventh Congress, 2nd Session, as reported Sept. 22, 1982, and incorporated by reference in Pub. L. 97–276, § 101(e), Oct. 2, 1982, 96 Stat. 1189, to be effective as if enacted into law, provided that: ‘‘None of the funds appropriated by this Act or any other Act shall be used by any agency to pay per- formance awards in fiscal year 1983 under section 5384 of title 5, United States Code, or any comparable per- sonnel system established on or after October 13, 1978, to more than 20 per centum of the number of Senior Ex- ecutive Service or comparable personnel system posi- tions in such agency: Provided, That an agency with less than five Senior Executive Service employees or equivalent positions may grant one such performance award.’’ Similar provisions were contained in the following acts: Pub. L. 97–51, §§ 101(c), 124, Oct. 1, 1981, 95 Stat. 959, 965. Pub. L. 96–536, § 101(c), Dec. 16, 1980, 94 Stat. 3167. Pub. L. 96–369, § 101(c), Oct. 1, 1980, 94 Stat. 1352. Pub. L. 96–304, title III, § 303, July 8, 1980, 94 Stat. 927. § 5385. Regulations The Office of Personnel Management shall pre- scribe regulations to carry out the purpose of this subchapter. (Added Pub. L. 95–454, title IV, § 407(a), Oct. 13, 1978, 92 Stat. 1172.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 9 months after Oct. 13, 1978, and con- gressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b) of Pub. L. 95–454, set out as a note under section 3131 of this title. SUBCHAPTER IX—SPECIAL OCCUPATIONAL PAY SYSTEMS Editorial Notes AMENDMENTS 1992—Pub. L. 102–378, § 2(36), Oct. 2, 1992, 106 Stat. 1351, struck out subchapter analysis, consisting of item 5391 ‘‘Definitions’’ and item 5392 ‘‘Establishment of special occupational pay systems’’. § 5391. Definitions For the purposes of this subchapter, ‘‘agency’’, ‘‘employee’’, and ‘‘position’’ have the meanings given them by section 5102. (Added Pub. L. 101–509, title V, § 529 [title I, § 105(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1447.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, § 305] of Pub. L. 101–509, set out as an Effective Date of 1990 Amendment note under section 5301 of this title. § 5392. Establishment of special occupational pay systems (a) Authority under this section may be exer- cised with respect to any occupation or group of occupations to which subchapter III applies (or would apply but for this section). (b) Subject to subsection (a), the President’s pay agent (as referred to in section 5304(d)) may establish one or more special occupational pay systems for any positions within occupations or groups of occupations that the pay agent deter- mines, for reasons of good administration, should not be classified under chapter 51 or sub- ject to subchapter III. (c) In establishing special occupational pay systems, the pay agent shall— (1) identify occupations or groups of occupa- tions for which chapter 51 and subchapter III do not function adequately; (2) consider alternative approaches for deter- mining the pay for employees in positions in such occupations or groups of occupations; (3) give thorough consideration to the views of agencies employing such employees and labor organizations representing such employ- ees, as well as other interested parties; (4) publish a proposed plan for determining the pay of such employees in the Federal Reg- ister; (5) conduct one or more public hearings; (6) provide each House of Congress with a re- port at least 90 days in advance of the date the system is to take effect setting forth the de- tails of the proposed plan; and (7) not later than 30 days before the date the system is to take effect, publish in the Federal Register the details of the final plan for the special occupational pay system. (d) A special occupational pay system may not— (1) provide for a waiver of any law, rule, or regulation that could not be waived under sec- tion 4703(c); or (2) provide a rate of basic pay for any em- ployee in excess of the rate payable for level V of the Executive Schedule. (e) Subject to subsection (d)(2), effective at the beginning of the first applicable pay period com- mencing on or after the first day of the month in which an adjustment takes effect under sec- tion 5303 in the rates of pay under the General Schedule, each rate of pay established under this section shall be adjusted by such amount as the Office considers appropriate. (Added Pub. L. 101–509, title V, § 529 [title I, § 105(a)(1)], Nov. 5, 1990, 104 Stat. 1427, 1448.) Editorial Notes REFERENCES IN TEXT Level V of the Executive Schedule, referred to in sub- sec. (d)(2), is set out in section 5316 of this title. The General Schedule, referred to in subsec. (e), is set out under section 5332 of this title.