[Senate Report 110-328]
[From the U.S. Government Publishing Office]
110th Congress
2d Session SENATE Report
110-328
_______________________________________________________________________
Calendar No. 703
SENIOR PROFESSIONAL PERFORMANCE ACT OF 2007
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 1046
TO MODIFY PAY PROVISIONS RELATING TO CERTAIN SENIOR-LEVEL POSITIONS IN
THE FEDERAL GOVERNMENT, AND FOR OTHER PURPOSES
April 22, 2008.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma
BARACK OBAMA, Illinois PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri JOHN WARNER, Virginia
JON TESTER, Montana JOHN E. SUNUNU, New Hampshire
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Lawrence B. Novey, Senior Counsel
Thomas J.R. Richards, Professional Staff Member, Subcommittee on
Oversight of Government Management, the Federal Workforce, and the
District of Columbia
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Amanda Wood, Minority Director of Governmental Affairs
Theresa M. Manthripragada, Minority Professional Staff Member,
Subcommittee on Oversight of Government Management, the Federal
Workforce, and the District of Columbia
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 703
110th Congress
SENATE
Report
2d Session 110-328
======================================================================
SENIOR PROFESSIONAL PERFORMANCE ACT OF 2007
_______
April 22, 2008.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 1046]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 1046) to modify pay
provisions relating to certain senior-level positions in the
Federal Government, and for other purposes, having considered
the same, reports favorably thereon without amendment and
recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
IV. Section-by-Section Analysis......................................4
V. Evaluation of Regulatory Impact..................................6
VI. Congressional Budget Office Cost Estimate........................6
VII. Changes in Existing Law Made by the Bill, as Reported............8
I. Purpose and Summary
S. 1046 raises the maximum pay levels for certain senior
professionals in the federal government to match the maximum
pay levels now allowed for members of the Senior Executive
Service (SES), and the bill generally brings the pay system for
senior professionals more in line with the pay system for the
SES. Just as agencies that have certified performance
management systems may now provide to SES members higher pay
than other agencies may provide, this bill will likewise allow
agencies with certified performance management systems to
provide higher pay to covered senior professionals than may
other agencies. S. 1046 also makes a number of clarifications
and technical corrections to the process by which agencies
obtain such certification of their performance management
systems.
II. Background and Need for the Legislation
In 2002 and 2003, Congress strengthened the connection
between performance-management and pay for members of the SES
and for senior professionals, including employees classified as
senior-level (SL) or scientific and professional personnel (ST)
by raising certain statutory pay ceilings at agencies with
certified performance appraisal systems. A statute enacted in
2002 raised the maximum annual pay of all senior employees at
such agencies.\1\ The Director of OPM, with the concurrence of
the Director of the Office of Management and Budget (OMB), was
authorized to certify an agency's performance appraisal system
if it makes meaningful distinctions based on relative employee
performance. Upon certification, the maximum amount that the
agency may pay to a senior employee in a year (including base
pay and allowances such as premium pay, bonuses, and incentive
awards) was raised from the current ceiling, of level I of the
Executive Schedule, to the annual pay level of the Vice
President.
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\1\Section 1322 of Public Law 107-296 (Nov. 25, 2002) (5 U.S.C.
Sec. 5307(d)).
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Then in 2003 Congress built on the 2002 amendments by also
increasing the maximum level of base pay that agencies with
certified performance appraisal systems are allowed to pay, but
the 2003 statute applied to SES members only.\2\ The 2003
provisions increased the maximum allowable base pay for members
of the SES from level IV of the Executive Schedule to level III
and ended the locality-based comparability payments to SES
members. The new system also replaced the six pay steps and
corresponding pay levels with a single, broad range. Upon
certification of their performance management systems by OPM,
with concurrence by OMB, agencies were given the authority to
further increase the maximum allowed base pay for their SES
workforce from level III of the Executive Schedule to level II.
The 2003 pay reforms were not applied to SL or ST personnel.
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\2\Section 1125 of Public Law 108-136.
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While SL and ST positions are different in some respects
from the SES, whose members provide the executive management of
the federal government,\3\ these other senior positions are
also recognized as providing essential specialized skills that
are needed to address the federal government's 21st Century
challenges. The ST system is for specially qualified non-
executive personnel who conduct research and development
functions in the physical, biological, medical, or engineering
sciences, or a closely-related field.\4\ ST positions are
graded and paid above level 15 of the General Schedule (GS-15)
and, according to OPM, ``would be expected to have a graduate
degree, significant research experience, and a national or
international reputation in his/her field.''\5\ The SL system
is for high-level non-executive positions, also graded above
GS-15, that do not involve fundamental research and development
responsibilities. Examples offered by OPM include ``a high
level special assistant or a senior attorney in a highly-
specialized field who is not a manager, supervisor, or policy
advisor.''\6\
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\3\5 U.S.C. Sec. 3131.
\4\See 5 U.S.C. Sec. 3104; U.S. Office of Personnel Management, The
Senior Executive Service (February 2004), page 8. This document is
currently available at: http://www.opm.gov/ses/pdf/SESGUIDE04.pdf.
\5\Id.
\6\Id. at page 7. See 5 U.S.C. Sec. 5108.
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In 2006, the Government Accountability Office identified
the difference between the maximum rate of basic pay for the
SES and the maximum for SL and ST employees as an undesirable
anomaly in the law.\7\ The Senior Executives Association, whose
membership includes SL and ST employees, has requested that
their pay systems be made comparable to that of the SES.
Moreover, the Office of Personnel Management (OPM) has proposed
that Congress make the pay system for senior federal employees
comparable to the pay system for members of the SES.\8\
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\7\U.S. Government Accountability Office, Human Capital: Trends in
Executive and Judicial Pay, GAO-06-708, p. 7.
\8\Letter from Linda M. Springer, Director, OPM, to Richard B.
Cheney, President of the United States Senate, June 8, 2007. This
letter is currently available at: http://www.opm.gov/news_events/
congress/proposals/senior_professional_performance_act.pdf.
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The principal purpose of S. 1046 is to bring the pay system
for SL and ST personnel into line with that for SES members.
Locality-based comparability payments for SL and ST employees
will be eliminated and replaced with a boost in the maximum pay
level that may be paid to these employees. Specifically, the
bill will raise the basic-pay ceiling for SL and ST personnel
from level IV to level III of the Executive Schedule, or,
assuming that the employing agency has a certified performance
appraisal system, to level II of the Executive Schedule.
The bill also makes a variety of adjustments to the
standards and procedures for appointing and employing senior
professional personnel, as well as clarifications and technical
corrections to the process by which agencies obtain
certification of their performance management systems. These
provisions of the bill are based on legislative proposals made
by OPM.\9\
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\9\Id.; Letter from Linda M. Springer, Director, OPM, to Richard B.
Cheney, President of the United States Senate, February 7, 2007. This
letter is currently available at: http://www.opm.gov/news_events/
congress/proposals/ses_certification.pdf.
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III. Legislative History
Senator Voinovich introduced S. 1046 on March 29, 2007. The
bill was referred to the Committee on Homeland Security and
Governmental Affairs and, on June 6, 2007, was further referred
to the Subcommittee on Oversight of Government Management, the
Federal Workforce and the District of Columbia.
The Subcommittee subsequently favorably polled S. 1046,
and, on June 13, 2007, the Committee considered the bill and
ordered it reported favorably without amendment to the full
Senate by voice vote. Senators present were: Lieberman, Levin,
Akaka, Pryor, Tester, Collins, Stevens, Voinovich, Coleman, and
Warner.
The subject matter of the bill had also been considered by
the Committee in past Congresses. In the 109th Congress,
section 6 of S. 3492, the Federal Workforce Performance
Appraisal and Management Improvement Act of 2006, would have
established parity between the pay systems for members of the
SES and SL and ST employees. The Subcommittee on Oversight of
Government Management, the Federal Workforce and the District
of Columbia held a hearing on June 29, 2006, entitled,
Enhancing Employee Performance: A Hearing on Pending
Legislation, at which S. 3492 was discussed. In the 108th
Congress, S. 768, the Senior Executive Service Reform Act of
2003, which would have made similar amendments to both the SES
and the SL and ST pay systems, was introduced and referred to
the Committee.
IV. Section-by-Section Analysis
Section 1. Short title
This section provides that the short title of the bill is
``The Senior Professional Performance Act of 2007.''
Section 2. Pay provisions relating to certain senior-level positions
Subsections (a) and (b) of Section 2 amend Title 5, United
States Code, to make the pay provisions for SL and ST employees
comparable to the pay provisions for members of the SES as
modified by legislation enacted in 2003. These changes will end
the virtually automatic locality-based comparability payments
to personnel in SL and ST positions and will increase the
maximum levels of basic pay that agencies may provide to such
personnel. The highest levels of basic pay will be available at
agencies that have certified performance appraisal systems.
Subsection (a)--Locality Pay. This subsection amends 5
U.S.C. Sec. 5304, which generally governs locality-based
comparability payments for federal employees, by exempting
personnel in SL and ST positions from receiving locality pay.
For these personnel, 5 U.S.C. Sec. 5304 currently places a cap
on total basic pay including locality pay at no more than level
III of the Executive Schedule; the amendments in this
subsection of the bill also remove SL and ST personnel from
that ceiling on basic pay.
Subsection (b)--Access to Higher Maximum Rate of Basic Pay.
This subsection amends 5 U.S.C. Sec. 5376, which generally
governs the establishment of basic pay rates for SL and ST
personnel. Counterbalancing the withdrawal of locality pay
under subsection (a), this subsection (b) will raise the
available pay range for SL and ST personnel by increasing the
ceiling on their rate of basic pay from level IV to level III
of the Executive Schedule. Moreover, if the employing agency
has a performance appraisal system that has been certified
under section 5 U.S.C. Sec. 5307 as making meaningful
distinctions based on relative performance, the cap on basic
pay will be further raised, to level II of the Executive
Schedule. These changes will parallel the provisions enacted in
2003 with respect to members of the SES.
Subsection (c)--Authority for Employment; Appointments;
Classification Standards. This subsection makes several changes
to the standards and procedures relating to the appointment and
employment of senior-level professional personnel. These
changes, which were requested by OPM,\10\ are as follows:
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\10\Letter dated June 8, 2007, note 8 above.
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Paragraph (1) of this subsection amends 5 U.S.C.
Sec. 3104(a). The current code provision authorizes agencies to
establish ST positions under standards and procedure prescribed
by OPM. Under the amendment, these standards and procedures
prescribed by OPM will be published in such form as OPM may
determine.
Paragraph (2) amends 5 U.S.C. Sec. 3324, which now provides
that the qualifications of a proposed appointee for a position
classified above GS-15 must be approved by OPM. The amendment
specifies that OPM must grant such approval on the basis of
qualification standards developed by the employing agency, and
that the agency must develop those qualification standards in
accordance with criteria specified in regulation by OPM. OPM
has also pointed out that, under its general delegation
authority, OPM ``could and should delegate this determination
to agency heads, where appropriate.''\11\
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\11\Id., Section-by-Section Analysis enclosed with the letter.
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Paragraph (3) amends 5 U.S.C. Sec. 3325, which now provides
that the qualifications of a proposed appointee for an ST
position must be approved by OPM if the appointment is made
without competitive examination. The amendments specify that
OPM must grant such approval on the basis of qualification
standards developed by the employing agency, and that the
agency must develop those qualification standards in accordance
with criteria specified in regulation by OPM. The amendments
also require OPM to prescribe regulations to carry out 5 U.S.C.
Sec. 3325.
Paragraph (4) amends 5 U.S.C. Sec. 5108(a)(2). The current
code provision authorizes OPM to establish standards and
procedures in accordance with which an agency may classify
positions above GS-15. Under the amendment, these standards and
procedures will be published in such form as OPM may determine.
Subsection (d)--Effective Date and Application.
Paragraph (1) states that the amendments made by Section 2
of the bill will go into effect on the first day of the first
pay period beginning on or after the 180th day following the
date of enactment.
Paragraph (2) provides that, when the amendments in Section
2 go into effect, they may not reduce the rate of basic pay of
any personnel in an ST or SL position. Instead, for affected
individuals, the rate of basic pay will be deemed to be the
rate of basic pay set for the individual, plus locality pay
paid to the individual, as of the effective date.
Paragraph (3) clarifies the meaning of cross references
elsewhere in law that refer to the maximum rate of pay under
the code provision that governs ST and SL employees' pay.
Section 3. Limitations on certain payments
Under 5 U.S.C. Sec. 5307(d), OPM, with the concurrence of
OMB, provide certifications to agencies that have performance
appraisal systems that make meaningful distinctions based on
relative performance. This certification is necessary for
agencies to be subject to higher ceilings on aggregate annual
pay and on rates of basic pay for their senior executives and
other senior personnel. Section (3) makes corrections and
clarifications to the process by which agencies' performance
appraisal systems are certified. These corrections and
clarifications, which were requested by OPM,\12\ are as
follows:
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\12\Letter dated February 7, 2007, note 9 above.
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Subsection (a)--In General.
Paragraph (1) amends 5 U.S.C. Sec. 5307(d)(2) to clarify
that the certification applies to the performance appraisal
system, not to the agency.
Paragraph (2) amends 5 U.S.C. Sec. 5307(d)(3)(B) to provide
that the certification of a performance appraisal system may be
granted for up to 24 months, with the option of extension by
the OPM Director for up to an additional 6 months. Under the
current code provision, certification is effective for two
calendar years, and OPM has pointed out that this has resulted
in unduly short certification periods, placing agencies at an
unintended disadvantage, when their appraisal systems are
certified near the end of a calendar year.\13\
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\13\Id., Section-by-Section Analysis enclosed with the letter.
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Subsection (b)--Extension of Certification. To address the
problem of performance appraisal systems that were certified
close to the end of a calendar year prior to enactment of this
legislation, this subsection (b) authorizes OPM to grant short
extensions of such certifications. For certifications that are
set to expire at the end of 2007, the extension could be up to
June 30, 2008, or the first anniversary of the certification,
whichever is later. For certifications set to expire at the end
of 2008, the extension could be up to June 30, 2009, or the
second anniversary of the certification, whichever is later.
Subsection (c)--Effective Date. This subsection makes the
provisions of Section 3 effective upon enactment of the
legislation.
V. Evaluation of Regulatory Impact
Pursuant to the requirement of paragraph 11(b)(1) of rule
XXVI of the Standing Rules of the Senate the Committee has
considered the regulatory impact of this bill. CBO states that
there are no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act and no costs on
State, local, or tribal governments. The legislation contains
no other regulatory impact.
VI. Congressional Budget Office Cost Estimate
September 12, 2007.
Hon. Joseph I. Lieberman, Chairman,
Committee on Homeland Security and Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1046, the Senior
Professional Performance Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Barry Blom.
Sincerely,
Peter R. Orszag.
Enclosure.
S. 1046--Senior Professional Performance Act of 2007
Summary: S. 1046 would raise the cap on base pay for
certain senior-level, scientific, and professional employees
while eliminating locality-based comparability payments for
those employees. It also would make several other small changes
to the procedures for new appointments of senior-level,
scientific, and professional positions classified above GS-15.
Finally, it would allow the Director of the Office of Personnel
Management (OPM) to extend the certification of an agency's
performance appraisal system, which is otherwise limited to 24
months under the bill, for up to six months. CBO estimates that
implementing the legislation would cost the federal government
roughly $7 million between 2008 and 2012, which would be paid
from discretionary appropriations. Enacting the bill would not
affect direct spending or revenues.
S. 1046 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The following
table shows the estimated costs of S. 1046. The costs of this
legislation fall within nearly all budget functions.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2008 2009 2010 2011 2012
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level...................................... * * 1 2 3
Estimated Outlays.................................................. * * 1 2 3
----------------------------------------------------------------------------------------------------------------
Note: * = less than $500,000.
Basis of estimate: Under current law, senior-level (SL) and
scientific and professional (ST) employees may receive basic
pay up to Level IV of the Executive Schedule ($145,400); their
maximum pay with the locality-based comparability adjustment is
set at Level III of the Executive Schedule ($154,600). SL and
ST employees receive the same annual across-the-board pay
raises and locality-based comparability adjustments that
General Schedule employees receive.
S. 1046 would raise the cap on base pay for most SL and ST
employees to $154,600 on the first day of the first pay period
that occurs six months after enactment. Those employees working
at agencies with a performance appraisal system that is
certified as making meaningful distinctions based on relative
performance would have their base pay capped at Level II of the
Executive Schedule ($168,000). Locality adjustments for SL and
ST employees would be eliminated, affecting roughly 900
employees. The legislation specifies that no SL or ST employee
will experience a reduction in pay (defined so as to include
the locality adjustment).
CBO assumes that--under both current law and under the
proposed legislation--the number of employees in the affected
categories will remain constant over the 2008-2012 period and
that base pay after 2007 will increase by CBO's projection of
the employment cost index for wages and salaries (ECI) minus
one-half percentage point in each year. Furthermore, CBO
estimates the average merit adjustment after 2007 will raise
pay by an additional one-half of one percent in each year for
employees in agencies without an OPM-certified performance
appraisal system and by 1.0 percent for employees who fall
under a certified system. In addition, CBO assumes that those
agencies that have received full certification from OPM for
their Senior Executive Service appraisal system in 2007 will
also receive approval for their SL and ST appraisal systems.
CBO inflated the statutory caps on base pay and overall pay
from 2008 through 2012 by projected raises for Executive
Schedule employees. Data about the number of employees and
average salary in each category comes from the Office of
Personnel Management.
Estimated impact on the private-sector: S. 1046 contains no
intergovernmental or private-sector mandates as defined in UMRA
and would impose no costs on state, local, or tribal
governments.
Estimate prepared by: Federal costs: Barry Blom; Impact on
state, local, and tribal governments: Elizabeth Cove; Impact on
the private sector: Amy Petz.
Estimate approved by: Peter H. Fontaine, Assistant Director
for Budget Analysis.
VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the following changes in existing
law made by the bill, as reported, are shown as follows:
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
UNITED STATES CODE
TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES
PART III--EMPLOYEES
Subpart B--Employment and Retention
CHAPTER 31--AUTHORITY FOR EMPLOYMENT
Subchapter I--Employment Authorities
SEC. 3104. EMPLOYMENT OF SPECIALLY QUALIFIED SCIENTIFIC AND
PROFESSIONAL PERSONNEL.
(a) The Director of the Office of Personnel Management may
establish, and from time to time revise, the maximum number of
scientific or professional positions for carrying out research
and development functions which require the services of
specially qualified personnel which may be established outside
of the General Schedule. Any such position may be established
by action of the Director or, under such standards and
procedures as the Office [prescribes] prescribes and publishes
in such form as the Office may determine (including procedures
under which the prior approval of the Director may be
required), by agency action.
* * * * * * *
CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
Subchapter I--Examination, Certification, and Appointment
SEC. 3324. APPOINTMENTS TO POSITIONS CLASSIFIED ABOVE GS-15.
(a) An appointment to a position classified above GS-15
pursuant to section 5108 may be made only on approval of the
qualifications of the proposed appointee by [the Office of
Personnel Management] the Director of the Office of Personnel
Management on the basis of qualification standards developed by
the agency involved in accordance with criteria specified in
regulations prescribed by the Director. This section does not
apply to a position--
* * * * * * *
SEC. 3325. APPOINTMENTS TO SCIENTIFIC AND PROFESSIONAL POSITIONS.
(a) Positions established under section 3104 of this title
are in the competitive service. However, appointments to the
positions are made without competitive examination on approval
of the qualifications of the proposed appointee by the Office
of Personnel Management [or its designee for this purpose] on
the basis of standards developed by the agency involved in
accordance with criteria specified in regulations prescribed by
the Director of the Office of Personnel Management.
(b) This section does not apply to positions established
under section 3104(c).
(c) The Director of the Office of Personnel Management
shall prescribe such regulations as may be necessary to carry
out the purpose of this section.
Subpart D--Pay and Allowances
CHAPTER 51--CLASSIFICATION
SEC. 5108. CLASSIFICATION OF POSITIONS ABOVE GS-15.
(a) The Office of Personnel Management may, for any
Executive agency--
* * * * * * *
(2) establish standards and procedures published by
the Director of the Office of Personnel Management in
such form as the Office may determine (including
requiring agencies, where necessary in the judgment of
the Office, to obtain the prior approval of the Office)
in accordance with which positions may be classified
above GS-15.
* * * * * * *
CHAPTER 53--PAY RATES AND SYSTEMS
Subchapter I--Pay Comparability System
SEC. 5304. LOCALITY-BASED COMPARABILITY PAYMENTS.
* * * * * * *
(g)(1) Except as provided in paragraph (2), comparability
payments may not be paid at a rate which, when added to the
rate of basic pay otherwise payable to the employee involved,
would cause the total to exceed the rate of basic pay payable
for level IV of the Executive Schedule.
(2) The applicable maximum under this subsection shall be
level III of the Executive Schedule for--
(A) positions under subparagraphs (A)[-(C)] and (B)
of subsection (h)(1); and
(B) any positions under subsection (h)(1)[(D)
which](C) as the President may determine.
(h)(1) For the purpose of this subsection, the term
``position'' means--
[(A) a position to which section 5376 applies
(relating to certain senior-level positions);]
[(B)] (A) a position to which section 5372 applies
(relating to administrative law judges appointed under
section 3105);
[(C)] (B) a position to which section 5372a applies
(relating to contract appeals board members); and
[(D)] (C) a position within an Executive agency not
covered under the General Schedule or any of the
preceding subparagraphs, the rate of basic pay for
which is (or, but for this section, would be) no more
than the rate payable for level IV of the Executive
Schedule; but does not include--
(i) a position to which subchapter IV applies
(relating to prevailing rate systems);
(ii) a position as to which a rate of pay is
authorized under section 5377 (relating to
critical positions);
(iii) a position to which subchapter II
applies (relating to the Executive Schedule);
(iv) a Senior Executive Service position
under section 3132;
(v) a position in the Federal Bureau of
Investigation and Drug Enforcement
Administration Senior Executive Service under
section 3151; [or]
(vi) a position in a system equivalent to the
system in clause (iv), as determined by the
President's Pay Agent designated under
subsection (d)[.]; or
(vii) a position to which section 5376
applies (relating to certain senior-level and
scientific and professional positions).
(2)(A) Notwithstanding subsection (c)(4) or any other
provision of this section, but subject to subparagraph (B) and
paragraph (3), upon the request of the head of an Executive
agency with respect to 1 or more categories of positions, the
President may provide that each employee of such agency who
holds a position within such category, and within the
particular locality involved, shall be entitled to receive
comparability payments.
(B) A request by an agency head or exercise of authority by
the President under subparagraph (A) shall cover--
(i) with respect to the positions under
[subparagraphs (A) through (C)] subparagraphs (A) and
(B) of paragraph (1), all positions described in the
subparagraph or subparagraphs involved (excluding any
under clause (i), (ii), (iii), (iv), (v), [or (vi)]
(vi), or (vii) of such paragraph); and
(ii) with respect to positions under [paragraph
(1)(D)] paragraph (1)(C), such positions as may be
considered appropriate (excluding any under clause (i),
(ii), (iii), (iv), (v), [or (vi)] (vi), or (vii) of
paragraph (1)).
(C) Notwithstanding subsection (c)(4) or any other
provision of law, but subject to paragraph (3), in the case of
a category with positions that are in more than 1 Executive
agency, the President may, on his own initiative, provide that
each employee who holds a position within such category, and in
the locality involved, shall be entitled to receive
comparability payments. No later than 30 days before an
employee receives comparability payments under this
subparagraph, the President or the President's designee shall
submit a detailed report to the Congress justifying the reasons
for the extension, including consideration of recruitment and
retention rates and the expense of extending locality pay.
(3) Comparability payments under this subsection--
(A) may be paid only in any calendar year in which
comparability payments under the preceding provisions
of this section are payable with respect to General
Schedule positions within the same locality;
(B) shall take effect, within the locality involved,
on the first day of the first applicable pay period
commencing on or after such date as the President
designates (except that no date may be designated which
would require any retroactive payments), and shall
remain in effect through the last day of the last
applicable pay period commencing during that calendar
year;
(C) shall be computed using the same percentage as is
applicable, for the calendar year involved, with
respect to General Schedule positions within the same
locality; and
(D) shall be subject to the applicable limitation
under subsection (g).
* * * * * * *
SEC. 5307. LIMITATION ON CERTAIN PAYMENTS.
* * * * * * *
(d)(1) Notwithstanding any other provision of this section,
subsection (a)(1) shall be applied by substituting ``the total
annual compensation payable to the Vice President under section
104 of title 3'' for ``the annual rate of basic pay payable for
level I of the Executive Schedule'' in the case of any employee
who--
(A) is paid under section 5376 or 5383 of this title
or section 332(f), 603, or 604 of title 28; and
(B) holds a position in or under an agency which is
described in paragraph (2).
(2) An agency described in this paragraph is any agency
which, for purposes of [the calendar year involved, has been
certified under this subsection as having a performance
appraisal system which (as designed and applied) makes
meaningful distinctions based on relative performance.]
applying the limitation in the calendar year involved, has a
performance appraisal system certified under this subsection as
making, in its design and application, meaningful distinctions
based on relative performance.
(3)(A) The Office of Personnel Management and the Office of
Management and Budget jointly shall promulgate such regulations
as may be necessary to carry out this subsection, including the
criteria and procedures in accordance with which any
determinations under this subsection shall be made.
(B) [An agency's certification under this subsection shall
be for a period of 2 calendar years] The certification of an
agency performance appraisal system under this subsection shall
be for a period not to exceed 24 months beginning on the date
of certification, unless extended by the Director of the Office
of Personnel Management for up to 6 additional months, except
that such certification may be terminated at any time, [for
purposes of either or both of those years,] upon a finding that
the actions of such agency have not remained in conformance
with applicable requirements.
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Subchapter VII--Miscellaneous Provisions
SEC. 5376. PAY FOR CERTAIN SENIOR-LEVEL POSITIONS.
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(b)(1) Subject to such regulations as the Office of
Personnel Management prescribes, the head of the agency
concerned shall fix the rate of basic pay for any position
within such agency to which this section applies. A rate fixed
under this section shall be--
(A) not less than 120 percent of the minimum rate of
basic pay payable for GS-15 of the General Schedule;
and
(B) [not greater than the rate of basic pay payable
for level IV of the Executive Schedule.] subject to
paragraph (3), not greater than the rate of basic pay
payable for level III of the Executive Schedule.
The payment of a rate of basic pay under this section shall not
be subject to the pay limitation of section 5306(e) or 5373.
(2) Subject to paragraph (1), effective at the beginning of
the first applicable pay period commencing on or after the
first day of the month in which an adjustment takes effect
under section 5303 in the rates of pay under the General
Schedule, each rate of pay established under this section for
positions within an agency shall be adjusted by such amount as
the head of such agency considers appropriate.
(3) In the case of an agency which, under section 5307(d),
has a performance appraisal system which, as designed and
applied, is certified as making meaningful distinctions based
on relative performance, paragraph (1)(B) shall apply as if the
reference to ``level III'' were a reference to ``level II''.
(4) No employee may suffer a reduction in pay by reason of
transfer from an agency with an applicable maximum rate of pay
prescribed under paragraph (3) to an agency with an applicable
maximum rate of pay prescribed under paragraph (1)(B).
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