§ 3965. — Performance pay.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 22USC3965]
TITLE 22--FOREIGN RELATIONS AND INTERCOURSE
CHAPTER 52--FOREIGN SERVICE
SUBCHAPTER IV--COMPENSATION
Sec. 3965. Performance pay
(a) Eligibility; additional lump sum payment; excessive compensation not
precluding award
Subject to subsection (e) of this section, members of the Senior
Foreign Service who are serving--
(1) under career or career candidate appointments, or
(2) under limited appointments with reemployment 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 compensation
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 account 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 performance 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 performance pay in any fiscal year.
(2) Except as provided in paragraph (3), performance pay for a
member of the Senior Foreign 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 performance pay in any fiscal year in an amount
which exceeds the percentage limitation specified 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 section 4507(e)(1) of title 5 for a
Meritorious Executive, except that payments of the percentage of the
basic pay established under section 4507(e)(2) of such title for
Distinguished Executives may be made in any fiscal year to up to 1
percent of the members of the Senior Foreign Service.
(4) Any award under this section shall be subject to the
limitation on certain payments under section 5307 of title 5.
(5) The Secretary of State shall prescribe regulations,
consistent with section 5582 of title 5, under which payment under
this section shall be made in the case of any individual whose death
precludes payment under paragraph (4) of this subsection.
(c) Determination of amount by Secretary; distribution on basis of
selection board recommendations
The Secretary shall determine the amount of performance pay
available under subsection (b)(2) of this section each year for
distribution among the members of the Senior Foreign Service and shall
distribute performance pay to particular individuals on the basis of
recommendations by selection boards established under section 4002 of
this title.
(d) Recommendations for meritorious or distinguished service awards
The President may grant awards of performance pay under subsection
(b)(3) of this section 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 distinguished service. 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
section. Recommendations by the Secretary of State under this subsection
shall be made on the basis of recommendations by special interagency
selection boards established by the Secretary 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 recognition of the meritorious or distinguished service
of any member of the Foreign Service described in subsection (a) of this
section (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, Sec. 405, Oct. 17, 1980, 94 Stat. 2088; Pub.
L. 100-204, title I, Sec. 175(b), Dec. 22, 1987, 101 Stat. 1361; Pub. L.
103-236, title I, Sec. 173(d), Apr. 30, 1994, 108 Stat. 412; Pub. L.
105-277, div. G, subdiv. B, title XXIII, Sec. 2311(a), Oct. 21, 1998,
112 Stat. 2681-826; Pub. L. 105-292, title V, Sec. 504(a), Oct. 27,
1998, 112 Stat. 2811; Pub. L. 106-113, div. B, Sec. 1000(a)(7) [div. A,
title III, Sec. 323], Nov. 29, 1999, 113 Stat. 1536, 1501A-437; Pub. L.
107-228, div. A, title III, Sec. 312(a), Sept. 30, 2002, 116 Stat.
1378.)
Amendments
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 paragraph 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, Sec. 2311(a)(1), substituted
``Subject to subsection (e) of this section, 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 section.'' after first sentence.
Subsec. (e). Pub. L. 105-277, Sec. 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 payable
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 Senior 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 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.'' and
added par. (5).
Effective Date of 2002 Amendment
Pub. L. 107-228, div. A, title III, Sec. 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
Section 173(a)-(c) of Pub. L. 103-236, as amended by Pub. L. 103-
415, Sec. 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 Secretary may not make
a performance award or payment in any fiscal year after a fiscal year
referred to in subsection (a) for the purpose of providing an individual
with a performance award or payment to which the individual would
otherwise have been entitled in a fiscal year referred to in such
subsection but for the prohibition described in such subsection.
``(c) Application to USIA, AID, and ACDA.--Subsections (a) and (b)
shall apply to the United States Information Agency, the Agency for
International Development, and the United States Arms Control and
Disarmament Agency in the same manner as such subsections apply to the
Department of State, except that the Director of the United States
Information Agency, the Administrator of the Agency for International
Development, 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 agencies.''
[For abolition of United States Information Agency (other than
Broadcasting Board of Governors and International 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
Section 175(a) of Pub. L. 100-204 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 Foreign 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 determinations are free from bias and reflect
fair standards; 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 submitted 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 report of the Inspector
General and describing the actions taken and proposed to be taken by the
Secretary as a result of the report.''
Section Referred to in Other Sections
This section is referred to in sections 4002, 4006, 4153 of this
title.
