5 U.S.C. § 5383 — Setting individual senior executive pay

Page 628 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 5383 mencing on or after the first day of the month in which an adjustment takes effect under section 5303 of this title in the rates of pay under the General Schedule, each rate of basic pay for the Senior Executive Service shall be adjusted by an amount determined by the President to be appropriate. ‘‘(d) The rates of basic pay that are established and adjusted under this section shall be printed in the Fed- eral Register and shall supersede any prior rates of basic pay for the Senior Executive Service.’’ 1990—Subsec. (b). Pub. L. 101–509, § 529 [title I, § 101(b)(6)(A), (9)(I)], substituted ‘‘under section 5376’’ for ‘‘for GS–16 of the General Schedule’’ and ‘‘5306(e)’’ for ‘‘5308’’. Subsec. (c). Pub. L. 101–509, § 529 [title I, § 101(b)(4)(B)], substituted ‘‘5303’’ for ‘‘5305’’ and struck out at end ‘‘The adjusted rates of basic pay for the Senior Execu- tive Service shall be included in the report transmitted to the Congress by the President under section 5305(a)(3) or (c)(1) of this title.’’ 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 1990 AMENDMENT Amendment by Pub. L. 101–509 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 a note under section 5301 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. PAY INCREASES For adjustment of rates of basic pay for the Senior Executive Service under this section, see the executive order detailing the adjustment of certain rates of pay set out as a note under section 5332 of this title. For miscellaneous provisions dealing with adjust- ments of pay and limitations on use of funds to pay sal- aries in prior years, see notes under section 5318 of this title. Executive Documents EXECUTIVE ORDER NO. 12592 Ex. Ord. No. 12592, Apr. 10, 1987, 52 F.R. 13417, as amended by Ex. Ord. No. 12609, Sept. 23, 1987, 52 F.R. 36211, which related to the establishment, functions, administration, and termination of the President’s Commission on Compensation of Career Federal Execu- tives, was revoked by Ex. Ord. No. 12692, Sept. 29, 1989, 54 F.R. 40627, formerly set out as a note under section 1013 of this title. § 5383. Setting individual senior executive pay (a) Each appointing authority shall determine, in accordance with criteria established by the Office of Personnel Management, which of the rates within a range established under section 5382 shall be paid to each senior executive under such appointing authority. (b) Members of the Senior Executive Service shall be subject to the limitation under section 5307. (c) Except as provided in regulations pre- scribed by the Office under section 5385, the rate of basic pay for any senior executive may not be adjusted more than once during any 12-month period. (d) The rate of basic pay for any career ap- pointee may be reduced from any rate of basic pay to any lower rate of basic pay only if the ca- reer appointee receives a written notice of the reduction at least 15 days in advance of the re- duction. (e)(1) This subsection applies to— (A) any individual who, after serving at least 5 years of current continuous service in 1 or more positions in the competitive service, is appointed, without any break in service, as a career appointee; and (B) any individual who— (i) holds a position which is converted from the competitive service to a career re- served position in the Senior Executive Service; and (ii) as of the conversion date, has at least 5 years of current continuous service in 1 or more positions in the competitive service. (2)(A) The initial rate of pay for a career ap- pointee who is appointed under the cir- cumstances described in paragraph (1)(A) may not be less than the rate of basic pay last pay- able to that individual immediately before being so appointed. (B) The initial rate of pay for a career ap- pointee following the position’s conversion (as described in paragraph (1)(B)) may not be less than the rate of basic pay last payable to that individual immediately before such position’s conversion. (Added Pub. L. 95–454, title IV, § 407(a), Oct. 13, 1978, 92 Stat. 1171; amended Pub. L. 96–166, § 3, Dec. 29, 1979, 93 Stat. 1273; Pub. L. 98–615, title III, § 305, Nov. 8, 1984, 98 Stat. 3219; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(7)], Nov. 5, 1990, 104 Stat. 1427, 1440; Pub. L. 102–175, § 2, Dec. 2, 1991, 105 Stat. 1222; Pub. L. 102–378, § 2(35), Oct. 2, 1992, 106 Stat. 1351; Pub. L. 108–136, div. A, title XI, § 1125(a)(3), Nov. 24, 2003, 117 Stat. 1639.) Editorial Notes AMENDMENTS 2003—Subsec. (a). Pub. L. 108–136, § 1125(a)(3)(A), sub- stituted ‘‘which of the rates within a range established under section 5382’’ for ‘‘which of the rates established under section 5382 of this title’’. Subsec. (c). Pub. L. 108–136, § 1125(a)(3)(B), substituted ‘‘as provided in regulations prescribed by the Office under section 5385’’ for ‘‘for any pay adjustment under section 5382 of this title’’. 1992—Subsec. (b). Pub. L. 102–378 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as fol- lows: ‘‘(1) In no event may the aggregate amount paid to a senior executive during any fiscal year under sections 4507, 5382, 5384, and 5948 of this title exceed the annual rate payable for positions at level I of the Executive Schedule in effect at the end of such fiscal year. ‘‘(2)(A) Any amount which is not paid to a senior ex- ecutive during a fiscal year because of the limitation under paragraph (1) of this subsection shall be paid to that individual in a lump sum at the beginning of the following fiscal year. ‘‘(B) Any amount paid under this paragraph during a fiscal year shall be taken into account for purposes of 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.’’