22 U.S.C. § 3965 — Performance pay

Page 1446 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 3965 (other than Foreign Service personnel who are paid in accordance with section 3967 of this title or section 3968 of this title) to appropriate sal- ary classes in the Foreign Service Schedule. (b)(1) The salary class to which a member of the Service is assigned under this section shall not be affected by the assignment of the member to a position classified under subchapter V. (2) Except as authorized by subchapter I of chapter 35 of title 5, changes in the salary class of a member of the Senior Foreign Service or a member of the Service assigned to a salary class in the Foreign Service Schedule shall be made only in accordance with subchapter VI. The Sec- retary shall prescribe regulations (which shall be consistent with the relevant provisions of subchapter VI of chapter 53 of title 5 and with the regulations prescribed to carry out such pro- visions) providing for retention of pay by mem- bers of the Service in cases in which reduction- in-force procedures are applied. (Pub. L. 96–465, title I, § 404, Oct. 17, 1980, 94 Stat. 2088; Pub. L. 103–236, title I, § 180(a)(3), Apr. 30, 1994, 108 Stat. 415.) Editorial Notes AMENDMENTS 1994—Subsec. (a). Pub. L. 103–236 struck out ‘‘who are family members of Government employees paid in ac- cordance with a local compensation plan established under’’ after ‘‘section 3967 of this title or’’. § 3965. Performance pay (a) Eligibility; additional lump sum payment; ex- cessive compensation not precluding award Subject to subsection (e), members of the Sen- ior Foreign Service who are serving— (1) under career or career candidate appoint- ments, or (2) under limited appointments with reem- ployment rights under section 3950 of this title as career appointees in the Senior Executive Service, shall be eligible to compete for performance pay in accordance with this section. Performance pay shall be paid in a lump sum and shall be in addition to the basic salary prescribed under section 3962 of this title and any other award. The fact that a member of the Senior Foreign Service competing for performance pay would, as a result of the payment of such performance pay, receive compensation exceeding the com- pensation of any other member of the Service shall not preclude the award or its payment. (b) Criteria; limitations Awards of performance pay shall take into ac- count the criteria established by the Office of Personnel Management for performance awards under section 5384 of title 5 and rank awards under section 4507 of title 5. Awards of perform- ance pay under this section shall be subject to the following limitations: (1) Not more than 33 percent of the members of the Senior Foreign Service may receive per- formance pay in any fiscal year. (2) Except as provided in paragraph (3), per- formance pay for a member of the Senior For- eign Service may not exceed 20 percent of the annual rate of basic salary for that member. (3) Not more than 6 percent of the members of the Senior Foreign Service may receive per- formance pay in any fiscal year in an amount which exceeds the percentage limitation speci- fied in paragraph (2). Payments under this paragraph to a member of the Senior Foreign Service may not exceed, in any fiscal year, the percentage of basic pay established under sec- tion 4507(e)(1) of title 5 for a Meritorious Exec- utive, except that payments of the percentage of the basic pay established under section 4507(e)(2) of such title for Distinguished Execu- tives may be made in any fiscal year to up to 1 percent of the members of the Senior For- eign Service. (4) Any award under this section shall be subject to the limitation on certain payments under section 5307 of title 5, or the limitation under section 3962(a)(3) of this title, whichever is higher. (5) The Secretary of State shall prescribe regulations, consistent with section 5582 of title 5, under which payment under this sec- tion shall be made in the case of any indi- vidual whose death precludes payment under paragraph (4) of this subsection. (c) Determination of amount by Secretary; dis- tribution on basis of selection board rec- ommendations The Secretary shall determine the amount of performance pay available under subsection (b)(2) each year for distribution among the mem- bers of the Senior Foreign Service and shall dis- tribute performance pay to particular individ- uals on the basis of recommendations by selec- tion boards established under section 4002 of this title. (d) Recommendations for meritorious or distin- guished service awards The President may grant awards of perform- ance pay under subsection (b)(3) on the basis of annual recommendations by the Secretary of State of members of the Senior Foreign Service who are nominated by their agencies as having performed especially meritorious or distin- guished service. Such service in the promotion of internationally recognized human rights, in- cluding the right to freedom of religion, shall serve as a basis for granting awards under this section. Recommendations by the Secretary of State under this subsection shall be made on the basis of recommendations by special inter- agency selection boards established by the Sec- retary of State for the purpose of reviewing and evaluating the nominations of agencies. (e) Recognition in lieu of award Notwithstanding any other provision of law, the Secretary of State may provide for recogni- tion of the meritorious or distinguished service of any member of the Foreign Service described in subsection (a) (including any member of the Senior Foreign Service) by means other than an award of performance pay in lieu of making such an award under this section. (Pub. L. 96–465, title I, § 405, Oct. 17, 1980, 94 Stat. 2088; Pub. L. 100–204, title I, § 175(b), Dec. 22, 1987, 101 Stat. 1361; Pub. L. 103–236, title I, § 173(d), Apr. 30, 1994, 108 Stat. 412; Pub. L. 105–277, div. G, subdiv. B, title XXIII, § 2311(a), Oct. 21, 1998, 112 Page 1447 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 3966 Stat. 2681–826; Pub. L. 105–292, title V, § 504(a), Oct. 27, 1998, 112 Stat. 2811; Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title III, § 323], Nov. 29, 1999, 113 Stat. 1536, 1501A–437; Pub. L. 107–228, div. A, title III, § 312(a), Sept. 30, 2002, 116 Stat. 1378; Pub. L. 108–447, div. B, title IV, § 412(b), Dec. 8, 2004, 118 Stat. 2905.) Editorial Notes AMENDMENTS 2004—Subsec. (b)(4). Pub. L. 108–447 inserted ‘‘, or the limitation under section 3962(a)(3) of this title, which- ever is higher’’ before period at end. 2002—Subsec. (b)(3). Pub. L. 107–228 inserted second sentence and struck out former second sentence which read as follows: ‘‘Payments under this paragraph to a member of the Senior Foreign Service may not exceed $10,000 in any fiscal year, except that payments of up to $20,000 in any fiscal year may be made under this para- graph to up to 1 percent of the members of the Senior Foreign Service.’’ 1999—Subsec. (b)(1). Pub. L. 106–113 substituted ‘‘33’’ for ‘‘50’’. 1998—Subsec. (a). Pub. L. 105–277, § 2311(a)(1), sub- stituted ‘‘Subject to subsection (e), members’’ for ‘‘Members’’ in introductory provisions. Subsec. (d). Pub. L. 105–292 inserted ‘‘Such service in the promotion of internationally recognized human rights, including the right to freedom of religion, shall serve as a basis for granting awards under this sec- tion.’’ after first sentence. Subsec. (e). Pub. L. 105–277, § 2311(a)(2), added subsec. (e). 1994—Subsec. (b)(4). Pub. L. 103–236 amended par. (4) generally. Prior to amendment, par. (4) read as follows: ‘‘The total amount of basic salary plus performance pay received in any fiscal year by any member of the Senior Foreign Service may not exceed the salary pay- able for level I of the Executive Schedule under section 5312 of title 5 as in effect at the end of that fiscal year. Any amount which is not paid to a member of the Sen- ior Foreign Service during a fiscal year because of this limitation shall be paid to that individual in a lump sum at the beginning of the following fiscal year. Any amount paid under this authority during a fiscal year shall be taken into account for purposes of applying the limitation in the first sentence of this subparagraph with respect to such fiscal year.’’ 1987—Subsec. (b)(4), (5). Pub. L. 100–204 inserted at end of par. (4) ‘‘Any amount which is not paid to a member of the Senior Foreign Service during a fiscal year be- cause of this limitation shall be paid to that individual in a lump sum at the beginning of the following fiscal year. Any amount paid under this authority during a fiscal year shall be taken into account for purposes of applying the limitation in the first sentence of this subparagraph with respect to such fiscal year.’’ and added par. (5). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Pub. L. 107–228, div. A, title III, § 312(b), Sept. 30, 2002, 116 Stat. 1378, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall take effect October 1, 2002.’’ SENIOR FOREIGN SERVICE PERFORMANCE PAY Pub. L. 103–236, title I, § 173(a)–(c), Apr. 30, 1994, 108 Stat. 412, as amended by Pub. L. 103–415, § 1(gg), Oct. 25, 1994, 108 Stat. 4303, provided that: ‘‘(a) PROHIBITION ON AWARDS.—Notwithstanding any other provision of law, the Secretary of State may not award or pay performance payments for fiscal years 1994 and 1995 under section 405 of the Foreign Service Act of 1980 (22 U.S.C. 3965), unless the Secretary awards or pays performance awards to other Federal employees for such fiscal years. ‘‘(b) AWARDS IN SUBSEQUENT FISCAL YEARS.—The Sec- retary may not make a performance award or payment in any fiscal year after a fiscal year referred to in sub- section (a) for the purpose of providing an individual with a performance award or payment to which the in- dividual would otherwise have been entitled in a fiscal year referred to in such subsection but for the prohibi- tion described in such subsection. ‘‘(c) APPLICATION TO USIA, AID, AND ACDA.—Sub- sections (a) and (b) shall apply to the United States In- formation Agency, the Agency for International Devel- opment, and the United States Arms Control and Disar- mament Agency in the same manner as such sub- sections apply to the Department of State, except that the Director of the United States Information Agency, the Administrator of the Agency for International De- velopment, and the Director of the United States Arms Control and Disarmament Agency shall be subject to the limitations and authority of the Secretary of State under subsections (a) and (b) for their respective agen- cies.’’ [For abolition of United States Information Agency (other than Broadcasting Board of Governors and Inter- national Broadcasting Bureau), transfer of functions, and treatment of references thereto, see sections 6531, 6532, and 6551 of this title, and for abolition, transfer of functions, and treatment of references to United States Arms Control and Disarmament Agency, see section 6511 et seq. of this title.] REVIEW OF PERFORMANCE PAY PROGRAMS Pub. L. 100–204, title I, § 175(a), Dec. 22, 1987, 101 Stat. 1361, provided that: ‘‘(1) SUSPENSION OF AWARDS DURING REVIEW.—During the period beginning on the date of enactment of this Act [Dec. 22, 1987], and ending on the date on which the Inspector General of the Department of State reports to the Congress pursuant to paragraph (2), performance pay may not be awarded under section 405 of the For- eign Service Act of 1980 (22 U.S.C. 3965) to any member of the Senior Foreign Service in the Department of State. ‘‘(2) REVIEW BY INSPECTOR GENERAL.—The Inspector General of the Department of State shall conduct a complete and thorough review of— ‘‘(A) the procedures in the Department of State under which performance pay recipients are chosen to determine whether the procedures and award deter- minations are free from bias and reflect fair stand- ards; and ‘‘(B) the adequacy of the criteria and the equity of the criteria actually applied in making those awards. The review should be conducted in accordance with generally accepted Government auditing standards. The Inspector General shall report the results of this review to the Secretary of State and to the Congress no later than May 1, 1988. ‘‘(3) REPORT BY SECRETARY OF STATE.—No later than 60 days after the report of the Inspector General is sub- mitted to the Secretary of State under paragraph (2), the Secretary shall submit to the Congress a report containing the comments of the Secretary on the re- port of the Inspector General and describing the ac- tions taken and proposed to be taken by the Secretary as a result of the report.’’ § 3966. Within-class salary increases (a) Time period; limitation Any member of the Service receiving a salary under the Foreign Service Schedule shall be ad- vanced to the next higher salary step in the member’s class at the beginning of the first ap- plicable pay period following the completion by that member of a period of— (1) 52 calendar weeks of service in each of salary steps 1 through 9, and (2) 104 calendar weeks of service in each of salary steps 10 through 13,