### §5384. Performance awards in the Senior Executive 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 performance 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 during any fiscal year may not exceed the greater of—

(A) an amount equal to 10 percent of the aggregate amount of basic pay paid to career appointees in such agency during the preceding fiscal year; or

(B) an amount equal to 20 percent of the average 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 recommendations by performance review boards established 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 recommendations under such paragraph with respect to a career appointee. The requirement of the preceding sentence shall not apply in any case in which the Office of Personnel Management determines that there exists an insufficient number of career appointees available to comply with the requirement.

(d) The Office of Personnel Management may issue guidance to agencies concerning the proportion of Senior Executive Service salary expenses that may be appropriately applied to payment of performance awards and the distribution 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 provisions 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 number of Senior Executive Service positions in such agency, except for an agency having less than 4 such positions.

#### **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 section] shall take effect on October 1, 1998, or the date of enactment of this Act [Oct. 21, 1998], whichever is later."

#### Effective Date of 1984 Amendment

Amendment by Pub. L. 98–615 effective following expiration of 90-day period beginning on Nov. 8, 1984, see section 307 of Pub. L. 98–615, set out as a note under section 3393 of this title.

#### Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional 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.

#### Limitation on Number of Performance Awards for Career Appointees

Section 306(c) of S. 2939, Ninety-seventh Congress, 2nd Session, as reported Sept. 22, 1982, and incorporated by reference in Pub. L. 97–276, §101(e), Oct. 2, 1982, 96 Stat. 1189, to be effective as if enacted into law, provided that: "None of the funds appropriated by this Act or any other Act shall be used by any agency to pay performance awards in fiscal year 1983 under section 5384 of title 5, United States Code, or any comparable personnel system established on or after October 13, 1978, to more than 20 per centum of the number of Senior Executive Service or comparable personnel system positions in such agency: Provided, That an agency with less than five Senior Executive Service employees or equivalent positions may grant one such performance award."

Similar provisions were contained in the following acts:

Pub. L. 97–51, §§101(c), 124, Oct. 1, 1981, 95 Stat. 959, 965.

Pub. L. 96–536, §101(c), Dec. 16, 1980, 94 Stat. 3167.

Pub. L. 96–369, §101(c), Oct. 1, 1980, 94 Stat. 1352.

Pub. L. 96–304, title III, §303, July 8, 1980, 94 Stat. 927.

1 So in original. Probably should be capitalized.