5 U.S.C. § 5401 — Purpose

Page 631 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5401 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. CHAPTER 54—HUMAN CAPITAL PERFORMANCE FUND Sec. 5401. Purpose. 5402. Definitions. 5403. Human Capital Performance Fund. 5404. Human capital performance payments. 5405. Regulations. 5406. Agency plan. 5407. Nature of payment. 5408. Appropriations. Editorial Notes PRIOR PROVISIONS A prior chapter 54, consisting of sections 5401 to 5410, related to performance management and recognition system, prior to repeal by Pub. L. 103–89, § 3(a)(1), (c), Sept. 30, 1993, 107 Stat. 981, 983, eff. Nov. 1, 1993. Statutory Notes and Related Subsidiaries TREATMENT OF EMPLOYEES COVERED BY PERFORMANCE MANAGEMENT AND RECOGNITION SYSTEM AS OF TER- MINATION DATE Pub. L. 103–89, § 4, Sept. 30, 1993, 107 Stat. 983, provided that: ‘‘(a) DEFINITIONS.—For purposes of this section— ‘‘(1) the term ‘employee’ means an individual em- ployed by an agency (within the meaning of section 7103(a)(3) of title 5, United States Code); ‘‘(2) the term ‘performance management and rec- ognition system’ means the performance manage- ment and recognition system under [former] chapter 54 of title 5, United States Code; ‘‘(3) the term ‘basic pay’ does not include any amount payable under section 302 [set out as a note under section 5304 of this title] or title IV [see Short Title set out in a note under section 5305 of this title] of FEPCA or section 5304 or 5304a of title 5, United States Code; ‘‘(4) the term ‘pay rate’, as used in clauses (iii) through (v) of subsection (c)(2)(B), is used in the same way as such term is used under section 5335(a) of title 5, United States Code; and ‘‘(5) the term ‘FEPCA’ means the Federal Employ- ees Pay Comparability Act of 1990 [section 529 [§§ 1–412] of Pub. L. 101–509, see Short Title of 1990 Amendment; Rules of Construction note set out under section 5301 of this title] (contained in the Treasury, Postal Service and General Government Appropriations Act, 1991 (Public Law 101–509; 104 Stat. 1427)). ‘‘(b) APPLICABILITY.—Notwithstanding section 5332(a)(1) of title 5, United States Code (as amended by section 3(b)(1)(F)), or any other provision of law, the rate of basic pay for an employee covered by the per- formance management and recognition system on Oc- tober 31, 1993, shall be determined in accordance with this section so long as such employee continues, with- out a break in service of more than 3 days, to occupy any position— ‘‘(1) which is in the same grade of the General Schedule, and the same agency, as the position which such employee occupied on October 31, 1993; and ‘‘(2) to which the provisions of [former] chapter 54 of title 5, United States Code (as in effect on October 31, 1993) would apply if such provisions had remained in effect. ‘‘(c) SPECIAL RULES.— ‘‘(1) IN GENERAL.—The rate of basic pay for an em- ployee who is subject to this section shall be the rate payable to such employee on October 31, 1993, subject to paragraph (2). ‘‘(2) ADJUSTMENTS.—Adjustments in the rate of basic pay for an employee who is subject to this sec- tion shall be made in accordance with the relevant provisions of title 5, United States Code, or otherwise applicable provisions of law, subject to the following: ‘‘(A) DEEM RATES AND POSITIONS TO BE UNDER THE GENERAL SCHEDULE.—For purposes of applying sub- chapters I and III of chapter 53 of such title (and the provisions of section 302 [set out as a note under section 5304 of this title] and title IV [see Short Title set out in a note under section 5305 of this title] of FEPCA with respect to any payment under any of those provisions)— ‘‘(i) the rate of basic pay determined under this section for an employee shall be treated as a rate of basic pay described in section 5302(8) of such title; ‘‘(ii) the position then currently occupied by an employee who is subject to this section shall be deemed to be a ‘General Schedule position’ within the meaning of section 5302(9) of such title; and ‘‘(iii) any employee who is subject to this sec- tion shall be considered to be a ‘General Schedule employee’ (as referred to in section 302(b) of FEPCA). ‘‘(B) SPECIAL RULES RELATING TO PROVISIONS GOV- ERNING STEP-INCREASES.—For purposes of applying the provisions of sections 5335 and 5336 of title 5, United States Code, with respect to any employee who is subject to this section— ‘‘(i) any reference in such provisions to a ‘step- increase’ shall be considered to mean an increase equal to one-ninth of the difference between the minimum and maximum rates of pay for the ap- plicable grade of the General Schedule; ‘‘(ii) any reference in such provisions to the ‘next higher rate within the grade’ shall be con- sidered to mean the rate of basic pay which ex- ceeds such employee’s then current rate of basic pay by the amount of a step-increase; ‘‘(iii) if the employee’s rate of basic pay is less than the rate for pay rate 4 of the applicable grade, such employee’s rate of basic pay shall be governed by paragraph (1) of section 5335(a) of such title; ‘‘(iv) if the employee’s rate of basic pay is equal to or greater than the rate for pay rate 4 but less than the rate for pay rate 7 of the applicable grade, such employee’s rate of basic pay shall be governed by paragraph (2) of section 5335(a) of such title; and ‘‘(v) if the employee’s rate of basic pay is equal to or greater than the rate for pay rate 7 but less than the maximum rate of the applicable grade, such employee’s rate of basic pay shall be gov- erned by paragraph (3) of section 5335(a) of such title. No rate of basic pay for an employee may be in- creased, as a result of this subparagraph (or any provision of law to which any clause of this sub- paragraph relates), if or to the extent that the re- sulting rate would exceed the maximum rate for the grade of the position occupied by such em- ployee. ‘‘(d) REGULATIONS.—The Office of Personnel Manage- ment shall prescribe any regulations which may be nec- essary for the administration of this section.’’ § 5401. Purpose The purpose of this chapter is to promote, through the creation of a Human Capital Per- formance Fund, greater performance in the Fed- eral Government. Monies from the Fund will be used to reward agencies’ highest performing and Page 632 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5402 most valuable employees. This Fund will offer Federal managers a new tool to recognize em- ployee performance that is critical to the achievement of agency missions. (Added Pub. L. 108–136, div. A, title XI, § 1129(a), Nov. 24, 2003, 117 Stat. 1642.) Editorial Notes PRIOR PROVISIONS A prior section 5401, added Pub. L. 95–454, title V, § 501, Oct. 13, 1978, 92 Stat. 1180; amended Pub. L. 97–346, § 2, Oct. 15, 1982, 96 Stat. 1647; Pub. L. 98–615, title II, § 201(a), Nov. 8, 1984, 98 Stat. 3208; Pub. L. 102–378, § 2(37), Oct. 2, 1992, 106 Stat. 1351, stated purpose of chapter to provide a performance management and recognition system, prior to repeal by Pub. L. 103–89, § 3(a)(1), (c), Sept. 30, 1993, 107 Stat. 981, 983, eff. Nov. 1, 1993. § 5402. Definitions For the purpose of this chapter— (1) ‘‘agency’’ means an Executive agency under section 105, but does not include the Government Accountability Office; (2) ‘‘employee’’ includes— (A) an individual paid under a statutory pay system defined in section 5302(1); (B) a prevailing rate employee, as defined in section 5342(a)(2); and (C) a category of employees included by the Office of Personnel Management fol- lowing the review of an agency plan under section 5403(b)(1); but does not include— (i) an individual paid at an annual rate of basic pay for a level of the Executive Sched- ule, under subchapter II of chapter 53, or at a rate provided for one of those levels under another provision of law; (ii) a member of the Senior Executive Service paid under subchapter VIII of chap- ter 53, or an equivalent system; (iii) an administrative law judge paid under section 5372; (iv) a contract appeals board member paid under section 5372a; (v) an administrative appeals judge paid under section 5372b; and (vi) an individual in a position which is ex- cepted from the competitive service because of its confidential, policy-determining, pol- icy-making, or policy-advocating character; and (3) ‘‘Office’’ means the Office of Personnel Management. (Added Pub. L. 108–136, div. A, title XI, § 1129(a), Nov. 24, 2003, 117 Stat. 1642; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.) Editorial Notes PRIOR PROVISIONS A prior section 5402, added Pub. L. 95–454, title V, § 501, Oct. 13, 1978, 92 Stat. 1181; amended Pub. L. 98–615, title II, § 201(a), Nov. 8, 1984, 98 Stat. 3208, related to ap- plicability of chapter, prior to repeal by Pub. L. 103–89, § 3(a)(1), (c), Sept. 30, 1993, 107 Stat. 981, 983, eff. Nov. 1, 1993. AMENDMENTS 2004—Par. (1). Pub. L. 108–271 substituted ‘‘Govern- ment Accountability Office’’ for ‘‘General Accounting Office’’. § 5403. Human Capital Performance Fund (a) There is hereby established the Human Capital Performance Fund, to be administered by the Office for the purpose of this chapter. (b)(1)(A) An agency shall submit a plan as de- scribed in section 5406 to be eligible for consider- ation by the Office for an allocation under this section. An allocation shall be made only upon approval by the Office of an agency’s plan. (B)(i) After the reduction for training required under section 5408, ninety percent of the remain- ing amount appropriated to the Fund may be al- located by the Office to the agencies. Of the amount to be allocated, an agency’s pro rata distribution may not exceed its pro rata share of Executive branch payroll. (ii) If the Office does not allocate an agency’s full pro rata share, the undistributed amount re- maining from that share will become available for distribution to other agencies, as provided in subparagraph (C). (C)(i) After the reduction for training under section 5408, ten percent of the remaining amount appropriated to the Fund, as well as the amount of the pro rata share not distributed be- cause of an agency’s failure to submit a satisfac- tory plan, shall be allocated among agencies with exceptionally high-quality plans. (ii) An agency with an exceptionally high- quality plan is eligible to receive an additional distribution in addition to its full pro rata dis- tribution. (2) Each agency is required to provide to the Office such payroll information as the Office specifies necessary to determine the Executive branch payroll. (Added Pub. L. 108–136, div. A, title XI, § 1129(a), Nov. 24, 2003, 117 Stat. 1642.) Editorial Notes PRIOR PROVISIONS A prior section 5403, added Pub. L. 95–454, title V, § 501, Oct. 13, 1978, 92 Stat. 1182; amended Pub. L. 98–615, title II, § 201(a), Nov. 8, 1984, 98 Stat. 3209; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(4)(C)], Nov. 5, 1990, 104 Stat. 1427, 1439; Pub. L. 102–378, § 2(38), Oct. 2, 1992, 106 Stat. 1351, related to general pay increases, prior to repeal by Pub. L. 103–89, § 3(a)(1), (c), Sept. 30, 1993, 107 Stat. 981, 983, eff. Nov. 1, 1993. § 5404. Human capital performance payments (a)(1) Notwithstanding any other provision of law, the Office may authorize an agency to pro- vide human capital performance payments to in- dividual employees based on exceptional per- formance contributing to the achievement of the agency mission. (2) The number of employees in an agency re- ceiving payments from the Fund, in any year, shall not be more than the number equal to 15 percent of the agency’s average total civilian full- and part-time permanent employment for the previous fiscal year. (b)(1) A human capital performance payment provided to an individual employee from the Fund, in any year, shall not exceed 10 percent of the employee’s rate of basic pay. (2) The aggregate of an employee’s rate of basic pay, adjusted by any locality-based com- parability payments, and human capital per-