PUBLIC LAW 108–201—FEB. 24, 2004 118 STAT. 461

Public Law 108–201

108th Congress

An Act

To amend the provisions of title 5, United States Code, to provide for workforce

flexibilities and certain Federal personnel provisions relating to the National

Aeronautics and Space Administration, and for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘NASA Flexibility Act of 2004’’.

SEC. 2. COMPENSATION FOR CERTAIN EXCEPTED PERSONNEL.

(a) IN GENERAL.—Subparagraph (A) of section 203(c)(2) of the

National Aeronautics and Space Act of 1958 (42 U.S.C.

2473(c)(2)(A)) is amended by striking ‘‘the highest rate of grade

18 of the General Schedule of the Classification Act of 1949, as

amended,’’ and inserting ‘‘the rate of basic pay payable for level

III of the Executive Schedule,’’.

(b) EFFECTIVE DATE.—The amendment made by this section

shall take effect on the first day of the first pay period beginning

on or after the date of enactment of this Act.

SEC. 3. WORKFORCE AUTHORITIES.

(a) IN GENERAL.—Subpart I of part III of title 5, United States

Code, is amended by inserting after chapter 97, as added by section

841(a)(2) of the Homeland Security Act of 2002 (Public Law 107–

296; 116 Stat. 2229), the following:

‘‘CHAPTER 98—NATIONAL AERONAUTICS AND SPACE

ADMINISTRATION

‘‘Sec.

‘‘9801. Definitions.

‘‘9802. Planning, notification, and reporting requirements.

‘‘9803. Restrictions.

‘‘9804. Recruitment, redesignation, and relocation bonuses.

‘‘9805. Retention bonuses.

‘‘9806. Term appointments.

‘‘9807. Pay authority for critical positions.

‘‘9808. Assignments of intergovernmental personnel.

‘‘9809. Science and technology scholarship program.

‘‘9810. Distinguished scholar appointment authority.

‘‘9811. Travel and transportation expenses of certain new appointees.

‘‘9812. Annual leave enhancements.

‘‘9813. Limited appointments to Senior Executive Service positions.

‘‘9814. Qualifications pay.

‘‘9815. Reporting requirement.

‘‘§ 9801. Definitions

‘‘For purposes of this chapter—

42 USC 2473

note.

5 USC 101 note.

NASA Flexibility

Act of 2004.

Feb. 24, 2004

[S. 610]

118 STAT. 462 PUBLIC LAW 108–201—FEB. 24, 2004

‘‘(1) the term ‘Administration’ means the National Aeronautics and Space Administration;

‘‘(2) the term ‘Administrator’ means the Administrator of

the National Aeronautics and Space Administration;

‘‘(3) the term ‘critical need’ means a specific and important

safety, management, engineering, science, research, or operations requirement of the Administration’s mission that the

Administration is unable to fulfill because the Administration

lacks the appropriate employees because—

‘‘(A) of the inability to fill positions; or

‘‘(B) employees do not possess the requisite skills;

‘‘(4) the term ‘employee’ means an individual employed

in or under the Administration;

‘‘(5) the term ‘workforce plan’ means the plan required

under section 9802(a);

‘‘(6) the term ‘appropriate committees of Congress’ means—

‘‘(A) the Committees on Government Reform, Science,

and Appropriations of the House of Representatives; and

‘‘(B) the Committees on Governmental Affairs, Commerce, Science, and Transportation, and Appropriations

of the Senate;

‘‘(7) the term ‘redesignation bonus’ means a bonus under

section 9804 paid to an individual described in subsection (a)(2)

thereof;

‘‘(8) the term ‘supervisor’ has the meaning given such term

by section 7103(a)(10); and

‘‘(9) the term ‘management official’ has the meaning given

such term by section 7103(a)(11).

‘‘§ 9802. Planning, notification, and reporting requirements

‘‘(a) Not later than 90 days before exercising any of the

workforce authorities made available under this chapter, the

Administrator shall submit a written plan to the appropriate

committees of Congress. Such plan shall be approved by the Office

of Personnel Management.

‘‘(b) A workforce plan shall include a description of—

‘‘(1) each critical need of the Administration and the criteria

used in the identification of that need;

‘‘(2)(A) the functions, approximate number, and classes or

other categories of positions or employees that—

‘‘(i) address critical needs; and

‘‘(ii) would be eligible for each authority proposed to

be exercised under this chapter; and

‘‘(B) how the exercise of those authorities with respect

to the eligible positions or employees involved would address

each critical need identified under paragraph (1);

‘‘(3)(A) any critical need identified under paragraph (1)

which would not be addressed by the authorities made available

under this chapter; and

‘‘(B) the reasons why those needs would not be so

addressed;

‘‘(4) the specific criteria to be used in determining which

individuals may receive the benefits described under sections

9804 and 9805 (including the criteria for granting bonuses

in the absence of a critical need), and how the level of those

benefits will be determined;

Deadlines.

PUBLIC LAW 108–201—FEB. 24, 2004 118 STAT. 463

‘‘(5) the safeguards or other measures that will be applied

to ensure that this chapter is carried out in a manner consistent

with merit system principles;

‘‘(6) the means by which employees will be afforded the

notification required under subsections (c) and (d)(1)(B);

‘‘(7) the methods that will be used to determine if the

authorities exercised under this chapter have successfully

addressed each critical need identified under paragraph (1);

‘‘(8)(A) the recruitment methods used by the Administration

before the enactment of this chapter to recruit highly qualified

individuals; and

‘‘(B) the changes the Administration will implement after

the enactment of this chapter in order to improve its recruitment of highly qualified individuals, including how it intends

to use—

‘‘(i) nongovernmental recruitment or placement agencies; and

‘‘(ii) Internet technologies; and

‘‘(9) any workforce-related reforms required to resolve the

findings and recommendations of the Columbia Accident Investigation Board, the extent to which those recommendations

were accepted, and, if necessary, the reasons why any of those

recommendations were not accepted.

‘‘(c) Not later than 60 days before first exercising any of the

workforce authorities made available under this chapter, the

Administrator shall provide to all employees the workforce plan

and any additional information which the Administrator considers

appropriate.

‘‘(d)(1)(A) The Administrator may from time to time modify

the workforce plan. Any modification to the workforce plan shall

be submitted to the Office of Personnel Management for approval

by the Office before the modification may be implemented.

‘‘(B) Not later than 60 days before implementing any such

modifications, the Administrator shall provide an appropriately

modified plan to all employees of the Administration and to the

appropriate committees of Congress.

‘‘(2) Any reference in this chapter or any other provision of

law to the workforce plan shall be considered to include any modification made in accordance with this subsection.

‘‘(e) Before submitting any written plan under subsection (a)

(or modification under subsection (d)) to the Office of Personnel

Management, the Administrator shall—

‘‘(1) provide to each employee representative representing

any employees who might be affected by such plan (or modification) a copy of the proposed plan (or modification);

‘‘(2) give each representative 30 calendar days (unless

extraordinary circumstances require earlier action) to review

and make recommendations with respect to the proposed plan

(or modification); and

‘‘(3) give any recommendations received from any such

representatives under paragraph (2) full and fair consideration

in deciding whether or how to proceed with respect to the

proposed plan (or modification).

‘‘(f) None of the workforce authorities made available under

this chapter may be exercised in a manner inconsistent with the

workforce plan.

118 STAT. 464 PUBLIC LAW 108–201—FEB. 24, 2004

‘‘(g) Whenever the Administration submits its performance plan

under section 1115 of title 31 to the Office of Management and

Budget for any year, the Administration shall at the same time

submit a copy of such plan to the appropriate committees of Congress.

‘‘(h) Not later than 6 years after the date of enactment of

this chapter, the Administrator shall submit to the appropriate

committees of Congress an evaluation and analysis of the actions

taken by the Administration under this chapter, including—

‘‘(1) an evaluation, using the methods described in subsection (b)(7), of whether the authorities exercised under this

chapter successfully addressed each critical need identified

under subsection (b)(1);

‘‘(2) to the extent that they did not, an explanation of

the reasons why any critical need (apart from the ones under

subsection (b)(3)) was not successfully addressed; and

‘‘(3) recommendations for how the Administration could

address any remaining critical need and could prevent those

that have been addressed from recurring.

‘‘(i) The budget request for the Administration for the first

fiscal year beginning after the date of enactment of this chapter

and for each fiscal year thereafter shall include a statement of

the total amount of appropriations requested for such fiscal year

to carry out this chapter.

‘‘§ 9803. Restrictions

‘‘(a) None of the workforce authorities made available under

this chapter may be exercised with respect to any officer who

is appointed by the President, by and with the advice and consent

of the Senate.

‘‘(b) Unless specifically stated otherwise, all workforce authorities made available under this chapter shall be subject to section

5307.

‘‘(c)(1) None of the workforce authorities made available under

section 9804, 9805, 9806, 9807, 9809, 9812, 9813, 9814, or 9815

may be exercised with respect to a political appointee.

‘‘(2) For purposes of this subsection, the term ‘political

appointee’ means an employee who holds—

‘‘(A) a position which has been excepted from the competitive service by reason of its confidential, policy-determining,

policy-making, or policy-advocating character; or

‘‘(B) a position in the Senior Executive Service as a noncareer appointee (as such term is defined in section 3132(a)).

‘‘§ 9804. Recruitment, redesignation, and relocation bonuses

‘‘(a) Notwithstanding section 5753, the Administrator may pay

a bonus to an individual, in accordance with the workforce plan

and subject to the limitations in this section, if—

‘‘(1) the Administrator determines that the Administration

would be likely, in the absence of a bonus, to encounter difficulty in filling a position; and

‘‘(2) the individual—

‘‘(A) is newly appointed as an employee of the Federal

Government;

‘‘(B) is currently employed by the Federal Government

and is newly appointed to another position in the same

geographic area; or

PUBLIC LAW 108–201—FEB. 24, 2004 118 STAT. 465

‘‘(C) is currently employed by the Federal Government

and is required to relocate to a different geographic area

to accept a position with the Administration.

‘‘(b) If the position is described as addressing a critical need

in the workforce plan under section 9802(b)(2)(A), the amount of

a bonus may not exceed—

‘‘(1) 50 percent of the employee’s annual rate of basic pay

(including comparability payments under sections 5304 and

5304a) as of the beginning of the service period multiplied

by the service period specified under subsection (d)(1)(B)(i);

or

‘‘(2) 100 percent of the employee’s annual rate of basic

pay (including comparability payments under sections 5304

and 5304a) as of the beginning of the service period.

‘‘(c) If the position is not described as addressing a critical

need in the workforce plan under section 9802(b)(2)(A), the amount

of a bonus may not exceed 25 percent of the employee’s annual

rate of basic pay (excluding comparability payments under sections

5304 and 5304a) as of the beginning of the service period.

‘‘(d)(1)(A) Payment of a bonus under this section shall be contingent upon the individual entering into a service agreement with

the Administration.

‘‘(B) At a minimum, the service agreement shall include—

‘‘(i) the required service period;

‘‘(ii) the method of payment, including a payment schedule,

which may include a lump-sum payment, installment payments,

or a combination thereof;

‘‘(iii) the amount of the bonus and the basis for calculating

that amount; and

‘‘(iv) the conditions under which the agreement may be

terminated before the agreed-upon service period has been completed, and the effect of the termination.

‘‘(2) For purposes of determinations under subsections (b)(1)

and (c)(1), the employee’s service period shall be expressed as the

number equal to the full years and twelfth parts thereof, rounding

the fractional part of a month to the nearest twelfth part of a

year. The service period may not be less than 6 months and may

not exceed 4 years.

‘‘(3) A bonus under this section may not be considered to be

part of the basic pay of an employee.

‘‘(e) Before paying a bonus under this section, the Administration shall establish a plan for paying recruitment, redesignation,

and relocation bonuses, subject to approval by the Office of Personnel Management.

‘‘(f) No more than 25 percent of the total amount in bonuses

awarded under subsection (a) in any year may be awarded to

supervisors or management officials.

‘‘§ 9805. Retention bonuses

‘‘(a) Notwithstanding section 5754, the Administrator may pay

a bonus to an employee, in accordance with the workforce plan

and subject to the limitations in this section, if the Administrator

determines that—

‘‘(1) the unusually high or unique qualifications of the

employee or a special need of the Administration for the

employee’s services makes it essential to retain the employee;

and

118 STAT. 466 PUBLIC LAW 108–201—FEB. 24, 2004

‘‘(2) the employee would be likely to leave in the absence

of a retention bonus.

‘‘(b) If the position is described as addressing a critical need

in the workforce plan under section 9802(b)(2)(A), the amount of

a bonus may not exceed 50 percent of the employee’s annual rate

of basic pay (including comparability payments under sections 5304

and 5304a).

‘‘(c) If the position is not described as addressing a critical

need in the workforce plan under section 9802(b)(2)(A), the amount

of a bonus may not exceed 25 percent of the employee’s annual

rate of basic pay (excluding comparability payments under sections

5304 and 5304a).

‘‘(d)(1)(A) Payment of a bonus under this section shall be contingent upon the employee entering into a service agreement with

the Administration.

‘‘(B) At a minimum, the service agreement shall include—

‘‘(i) the required service period;

‘‘(ii) the method of payment, including a payment schedule,

which may include a lump-sum payment, installment payments,

or a combination thereof;

‘‘(iii) the amount of the bonus and the basis for calculating

the amount; and

‘‘(iv) the conditions under which the agreement may be

terminated before the agreed-upon service period has been completed, and the effect of the termination.

‘‘(2) The employee’s service period shall be expressed as the

number equal to the full years and twelfth parts thereof, rounding

the fractional part of a month to the nearest twelfth part of a

year. The service period may not be less than 6 months and may

not exceed 4 years.

‘‘(3) Notwithstanding paragraph (1), a service agreement is

not required if the Administration pays a bonus in biweekly installments and sets the installment payment at the full bonus percentage rate established for the employee, with no portion of the bonus

deferred. In this case, the Administration shall inform the employee

in writing of any decision to change the retention bonus payments.

The employee shall continue to accrue entitlement to the retention

bonus through the end of the pay period in which such written

notice is provided.

‘‘(e) A bonus under this section may not be considered to be

part of the basic pay of an employee.

‘‘(f) An employee is not entitled to a retention bonus under

this section during a service period previously established for that

employee under section 5753 or under section 9804.

‘‘(g) No more than 25 percent of the total amount in bonuses

awarded under subsection (a) in any year may be awarded to

supervisors or management officials.

‘‘§ 9806. Term appointments

‘‘(a) The Administrator may authorize term appointments

within the Administration under subchapter I of chapter 33, for

a period of not less than 1 year and not more than 6 years.

‘‘(b) Notwithstanding chapter 33 or any other provision of law

relating to the examination, certification, and appointment of

individuals in the competitive service, the Administrator may convert an employee serving under a term appointment to a permanent

PUBLIC LAW 108–201—FEB. 24, 2004 118 STAT. 467

appointment in the competitive service within the Administration

without further competition if—

‘‘(1) such individual was appointed under open, competitive

examination under subchapter I of chapter 33 to the term

position;

‘‘(2) the announcement for the term appointment from

which the conversion is made stated that there was potential

for subsequent conversion to a career-conditional or career

appointment;

‘‘(3) the employee has completed at least 2 years of current

continuous service under a term appointment in the competitive

service;

‘‘(4) the employee’s performance under such term appointment was at least fully successful or equivalent; and

‘‘(5) the position to which such employee is being converted

under this section is in the same occupational series, is in

the same geographic location, and provides no greater promotion potential than the term position for which the competitive examination was conducted.

‘‘(c) Notwithstanding chapter 33 or any other provision of law

relating to the examination, certification, and appointment of

individuals in the competitive service, the Administrator may convert an employee serving under a term appointment to a permanent

appointment in the competitive service within the Administration

through internal competitive promotion procedures if the conditions

under paragraphs (1) through (4) of subsection (b) are met.

‘‘(d) An employee converted under this section becomes a careerconditional employee, unless the employee has otherwise completed

the service requirements for career tenure.

‘‘(e) An employee converted to career or career-conditional

employment under this section acquires competitive status upon

conversion.

‘‘§ 9807. Pay authority for critical positions

‘‘(a) In this section, the term ‘position’ means—

‘‘(1) a position to which chapter 51 applies, including a

position in the Senior Executive Service;

‘‘(2) a position under the Executive Schedule under sections

5312 through 5317;

‘‘(3) a position established under section 3104; or

‘‘(4) a senior-level position to which section 5376(a)(1)

applies.

‘‘(b) Authority under this section—

‘‘(1) may be exercised only with respect to a position that—

‘‘(A) is described as addressing a critical need in the

workforce plan under section 9802(b)(2)(A); and

‘‘(B) requires expertise of an extremely high level in

a scientific, technical, professional, or administrative field;

‘‘(2) may be exercised only to the extent necessary to recruit

or retain an individual exceptionally well qualified for the position; and

‘‘(3) may be exercised only in retaining employees of the

Administration or in appointing individuals who were not

employees of another Federal agency as defined under section

5102(a)(1).

‘‘(c)(1) Notwithstanding section 5377, the Administrator may

fix the rate of basic pay for a position in the Administration in

118 STAT. 468 PUBLIC LAW 108–201—FEB. 24, 2004

accordance with this section. The Administrator may not delegate

this authority.

‘‘(2) The number of positions with pay fixed under this section

may not exceed 10 at any time.

‘‘(d)(1) The rate of basic pay fixed under this section may

not be less than the rate of basic pay (including any comparability

payments) which would otherwise be payable for the position

involved if this section had never been enacted.

‘‘(2) The annual rate of basic pay fixed under this section

may not exceed the per annum rate of salary payable under section

104 of title 3.

‘‘(3) Notwithstanding any provision of section 5307, in the case

of an employee who, during any calendar year, is receiving pay

at a rate fixed under this section, no allowance, differential, bonus,

award, or similar cash payment may be paid to such employee

if, or to the extent that, when added to basic pay paid or payable

to such employee (for service performed in such calendar year

as an employee in the executive branch or as an employee outside

the executive branch to whom chapter 51 applies), such payment

would cause the total to exceed the per annum rate of salary

which, as of the end of such calendar year, is payable under section

104 of title 3.

‘‘§ 9808. Assignments of intergovernmental personnel

‘‘For purposes of applying the third sentence of section 3372(a)

(relating to the authority of the head of a Federal agency to extend

the period of an employee’s assignment to or from a State or

local government, institution of higher education, or other organization), the Administrator may, with the concurrence of the employee

and the government or organization concerned, take any action

which would be allowable if such sentence had been amended

by striking ‘two’ and inserting ‘four’.

‘‘§ 9809. Science and technology scholarship program

‘‘(a)(1) The Administrator shall establish a National Aeronautics

and Space Administration Science and Technology Scholarship Program to award scholarships to individuals that is designed to recruit

and prepare students for careers in the Administration.

‘‘(2) Individuals shall be selected to receive scholarships under

this section through a competitive process primarily on the basis

of academic merit, with consideration given to financial need and

the goal of promoting the participation of individuals identified

in section 33 or 34 of the Science and Engineering Equal Opportunities Act.

‘‘(3) To carry out the Program the Administrator shall enter

into contractual agreements with individuals selected under paragraph (2) under which the individuals agree to serve as full-time

employees of the Administration, for the period described in subsection (f)(1), in positions needed by the Administration and for

which the individuals are qualified, in exchange for receiving a

scholarship.

‘‘(b) In order to be eligible to participate in the Program, an

individual must—

‘‘(1) be enrolled or accepted for enrollment as a full-time

student at an institution of higher education in an academic

field or discipline described in the list made available under

subsection (d);

PUBLIC LAW 108–201—FEB. 24, 2004 118 STAT. 469

‘‘(2) be a United States citizen or permanent resident; and

‘‘(3) at the time of the initial scholarship award, not be

an employee (as defined in section 2105).

‘‘(c) An individual seeking a scholarship under this section

shall submit an application to the Administrator at such time,

in such manner, and containing such information, agreements, or

assurances as the Administrator may require.

‘‘(d) The Administrator shall make publicly available a list

of academic programs and fields of study for which scholarships

under the Program may be utilized and shall update the list as

necessary.

‘‘(e)(1) The Administrator may provide a scholarship under

the Program for an academic year if the individual applying for

the scholarship has submitted to the Administrator, as part of

the application required under subsection (c), a proposed academic

program leading to a degree in a program or field of study on

the list made available under subsection (d).

‘‘(2) An individual may not receive a scholarship under this

section for more than 4 academic years, unless the Administrator

grants a waiver.

‘‘(3) The dollar amount of a scholarship under this section

for an academic year shall be determined under regulations issued

by the Administrator, but shall in no case exceed the cost of attendance.

‘‘(4) A scholarship provided under this section may be expended

for tuition, fees, and other authorized expenses as established by

the Administrator by regulation.

‘‘(5) The Administrator may enter into a contractual agreement

with an institution of higher education under which the amounts

provided for a scholarship under this section for tuition, fees, and

other authorized expenses are paid directly to the institution with

respect to which the scholarship is provided.

‘‘(f)(1) The period of service for which an individual shall be

obligated to serve as an employee of the Administration is, except

as provided in subsection (h)(2), 24 months for each academic year

for which a scholarship under this section is provided. Under no

circumstances shall the total period of obligated service be more

than 4 years.

‘‘(2)(A) Except as provided in subparagraph (B), obligated

service under paragraph (1) shall begin not later than 60 days

after the individual obtains the educational degree for which the

scholarship was provided.

‘‘(B) The Administrator may defer the obligation of an individual

to provide a period of service under paragraph (1) if the Administrator determines that such a deferral is appropriate. The Administrator shall prescribe the terms and conditions under which a

service obligation may be deferred through regulation.

‘‘(g)(1) Scholarship recipients who fail to maintain a high level

of academic standing, as defined by the Administrator by regulation,

who are dismissed from their educational institutions for disciplinary reasons, or who voluntarily terminate academic training before

graduation from the educational program for which the scholarship

was awarded, shall be in breach of their contractual agreement

and, in lieu of any service obligation arising under such agreement,

shall be liable to the United States for repayment within 1 year

after the date of default of all scholarship funds paid to them

and to the institution of higher education on their behalf under

Regulations.

Regulations.

Deadline.

Public

information.

Records.

118 STAT. 470 PUBLIC LAW 108–201—FEB. 24, 2004

the agreement, except as provided in subsection (h)(2). The repayment period may be extended by the Administrator when determined to be necessary, as established by regulation.

‘‘(2) Scholarship recipients who, for any reason, fail to begin

or complete their service obligation after completion of academic

training, or fail to comply with the terms and conditions of

deferment established by the Administrator pursuant to subsection

(f)(2)(B), shall be in breach of their contractual agreement. When

recipients breach their agreements for the reasons stated in the

preceding sentence, the recipient shall be liable to the United States

for an amount equal to—

‘‘(A) the total amount of scholarships received by such

individual under this section; plus

‘‘(B) the interest on the amounts of such awards which

would be payable if at the time the awards were received

they were loans bearing interest at the maximum legal prevailing rate, as determined by the Treasurer of the United

States,

multiplied by 3.

‘‘(h)(1) Any obligation of an individual incurred under the Program (or a contractual agreement thereunder) for service or payment shall be canceled upon the death of the individual.

‘‘(2) The Administrator shall by regulation provide for the partial or total waiver or suspension of any obligation of service or

payment incurred by an individual under the Program (or a contractual agreement thereunder) whenever compliance by the individual

is impossible or would involve extreme hardship to the individual,

or if enforcement of such obligation with respect to the individual

would be contrary to the best interests of the Government.

‘‘(i) For purposes of this section—

‘‘(1) the term ‘cost of attendance’ has the meaning given

that term in section 472 of the Higher Education Act of 1965;

‘‘(2) the term ‘institution of higher education’ has the

meaning given that term in section 101(a) of the Higher Education Act of 1965; and

‘‘(3) the term ‘Program’ means the National Aeronautics

and Space Administration Science and Technology Scholarship

Program established under this section.

‘‘(j)(1) There is authorized to be appropriated to the Administration for the Program $10,000,000 for each fiscal year.

‘‘(2) Amounts appropriated under this section shall remain

available for 2 fiscal years.

‘‘§ 9810. Distinguished scholar appointment authority

‘‘(a) In this section—

‘‘(1) the term ‘professional position’ means a position that

is classified to an occupational series identified by the Office

of Personnel Management as a position that—

‘‘(A) requires education and training in the principles,

concepts, and theories of the occupation that typically can

be gained only through completion of a specified curriculum

at a recognized college or university; and

‘‘(B) is covered by the Group Coverage Qualification

Standard for Professional and Scientific Positions; and

‘‘(2) the term ‘research position’ means a position in a

professional series that primarily involves scientific inquiry

or investigation, or research-type exploratory development of

Appropriation

authorization.

Regulations.

PUBLIC LAW 108–201—FEB. 24, 2004 118 STAT. 471

a creative or scientific nature, where the knowledge required

to perform the work successfully is acquired typically and primarily through graduate study.

‘‘(b) The Administration may appoint, without regard to the

provisions of section 3304(b) and sections 3309 through 3318, but

subject to subsection (c), candidates directly to General Schedule

professional, competitive service positions in the Administration

for which public notice has been given (in accordance with regulations of the Office of Personnel Management), if—

‘‘(1) with respect to a position at the GS–7 level, the

individual—

‘‘(A) received, within 2 years before the effective date

of the appointment, from an accredited institution authorized to grant baccalaureate degrees, a baccalaureate degree

in a field of study for which possession of that degree

in conjunction with academic achievements meets the qualification standards as prescribed by the Office of Personnel

Management for the position to which the individual is

being appointed; and

‘‘(B) achieved a cumulative grade point average of 3.0

or higher on a 4.0 scale and a grade point average of

3.5 or higher for courses in the field of study required

to qualify for the position;

‘‘(2) with respect to a position at the GS–9 level, the

individual—

‘‘(A) received, within 2 years before the effective date

of the appointment, from an accredited institution authorized to grant graduate degrees, a graduate degree in a

field of study for which possession of that degree meets

the qualification standards at this grade level as prescribed

by the Office of Personnel Management for the position

to which the individual is being appointed; and

‘‘(B) achieved a cumulative grade point average of 3.5

or higher on a 4.0 scale in graduate coursework in the

field of study required for the position;

‘‘(3) with respect to a position at the GS–11 level, the

individual—

‘‘(A) received, within 2 years before the effective date

of the appointment, from an accredited institution authorized to grant graduate degrees, a graduate degree in a

field of study for which possession of that degree meets

the qualification standards at this grade level as prescribed

by the Office of Personnel Management for the position

to which the individual is being appointed; and

‘‘(B) achieved a cumulative grade point average of 3.5

or higher on a 4.0 scale in graduate coursework in the

field of study required for the position; or

‘‘(4) with respect to a research position at the GS–12 level,

the individual—

‘‘(A) received, within 2 years before the effective date

of the appointment, from an accredited institution authorized to grant graduate degrees, a graduate degree in a

field of study for which possession of that degree meets

the qualification standards at this grade level as prescribed

by the Office of Personnel Management for the position

to which the individual is being appointed; and

118 STAT. 472 PUBLIC LAW 108–201—FEB. 24, 2004

‘‘(B) achieved a cumulative grade point average of 3.5

or higher on a 4.0 scale in graduate coursework in the

field of study required for the position.

‘‘(c) In making any selections under this section, preference

eligibles who meet the criteria for distinguished scholar appointments shall be considered ahead of nonpreference eligibles.

‘‘(d) An appointment made under this authority shall be a

career-conditional appointment in the competitive civil service.

‘‘§ 9811. Travel and transportation expenses of certain new

appointees

‘‘(a) In this section, the term ‘new appointee’ means—

‘‘(1) a person newly appointed or reinstated to Federal

service to the Administration to—

‘‘(A) a career or career-conditional appointment or an

excepted service appointment to a continuing position;

‘‘(B) a term appointment;

‘‘(C) an excepted service appointment that provides

for noncompetitive conversion to a career or career-conditional appointment;

‘‘(D) a career or limited term Senior Executive Service

appointment;

‘‘(E) an appointment made under section 203(c)(2)(A)

of the National Aeronautics and Space Act of 1958 (42

U.S.C. 2473(c)(2)(A));

‘‘(F) an appointment to a position established under

section 3104; or

‘‘(G) an appointment to a position established under

section 5108; or

‘‘(2) a student trainee who, upon completion of academic

work, is converted to an appointment in the Administration

that is identified in paragraph (1) in accordance with an appropriate authority.

‘‘(b) The Administrator may pay the travel, transportation,

and relocation expenses of a new appointee to the same extent,

in the same manner, and subject to the same conditions as the

payment of such expenses under sections 5724, 5724a, 5724b, and

5724c to an employee transferred in the interests of the United

States Government.

‘‘§ 9812. Annual leave enhancements

‘‘(a) In this section—

‘‘(1) the term ‘newly appointed employee’ means an individual who is first appointed—

‘‘(A) as an employee of the Federal Government; or

‘‘(B) as an employee of the Federal Government following a break in service of at least 90 days after that

individual’s last period of Federal employment, other

than—

‘‘(i) employment under the Student Educational

Employment Program administered by the Office of

Personnel Management;

‘‘(ii) employment as a law clerk trainee;

‘‘(iii) employment under a short-term temporary

appointing authority while a student during periods

of vacation from the educational institution at which

the student is enrolled;

PUBLIC LAW 108–201—FEB. 24, 2004 118 STAT. 473

‘‘(iv) employment under a provisional appointment

if the new appointment is permanent and immediately

follows the provisional appointment; or

‘‘(v) employment under a temporary appointment

that is neither full-time nor the principal employment

of the individual;

‘‘(2) the term ‘period of qualified non-Federal service’ means

any period of service performed by an individual that—

‘‘(A) was performed in a position the duties of which

were directly related to the duties of the position in the

Administration which that individual will fill as a newly

appointed employee; and

‘‘(B) except for this section, would not otherwise be

service performed by an employee for purposes of section

6303; and

‘‘(3) the term ‘directly related to the duties of the position’

means duties and responsibilities in the same line of work

which require similar qualifications.

‘‘(b)(1) For purposes of section 6303, the Administrator may

deem a period of qualified non-Federal service performed by a

newly appointed employee to be a period of service of equal length

performed as an employee.

‘‘(2) A decision under paragraph (1) to treat a period of qualified

non-Federal service as if it were service performed as an employee

shall continue to apply so long as that individual serves in or

under the Administration.

‘‘(c)(1) Notwithstanding section 6303(a), the annual leave

accrual rate for an employee of the Administration in a position

paid under section 5376 or 5383, or for an employee in an equivalent

category whose rate of basic pay is greater than the rate payable

at GS–15, step 10, shall be 1 day for each full biweekly pay period.

‘‘(2) The accrual rate established under this subsection shall

continue to apply to the employee so long as such employee serves

in or under the Administration.

‘‘§ 9813. Limited appointments to Senior Executive Service

positions

‘‘(a) In this section—

‘‘(1) the term ‘career reserved position’ means a position

in the Administration designated under section 3132(b) which

may be filled only by—

‘‘(A) a career appointee; or

‘‘(B) a limited emergency appointee or a limited term

appointee—

‘‘(i) who, immediately before entering the career

reserved position, was serving under a career or careerconditional appointment outside the Senior Executive

Service; or

‘‘(ii) whose limited emergency or limited term

appointment is approved in advance by the Office of

Personnel Management;

‘‘(2) the term ‘limited emergency appointee’ has the

meaning given under section 3132; and

‘‘(3) the term ‘limited term appointee’ means an individual

appointed to a Senior Executive Service position in the Administration to meet a bona fide temporary need, as determined

by the Administrator.

118 STAT. 474 PUBLIC LAW 108–201—FEB. 24, 2004

‘‘(b) The number of career reserved positions which are filled

by an appointee as described under subsection (a)(1)(B) may not

exceed 10 percent of the total number of Senior Executive Service

positions allocated to the Administration.

‘‘(c) Notwithstanding sections 3132 and 3394(b)—

‘‘(1) the Administrator may appoint an individual to any

Senior Executive Service position in the Administration as a

limited term appointee under this section for a period of—

‘‘(A) 4 years or less to a position the duties of which

will expire at the end of such term; or

‘‘(B) 1 year or less to a position the duties of which

are continuing; and

‘‘(2) in rare circumstances, the Administrator may authorize

an extension of a limited appointment under—

‘‘(A) paragraph (1)(A) for a period not to exceed 2

years; and

‘‘(B) paragraph (1)(B) for a period not to exceed 1

year.

‘‘(d) A limited term appointee who has been appointed in the

Administration from a career or career-conditional appointment

outside the Senior Executive Service shall have reemployment

rights in the agency from which appointed, or in another agency,

under requirements and conditions established by the Office of

Personnel Management. The Office shall have the authority to

direct such placement in any agency.

‘‘(e) Notwithstanding section 3394(b) and section 3395—

‘‘(1) a limited term appointee serving under a term prescribed under this section may be reassigned to another Senior

Executive Service position in the Administration, the duties

of which will expire at the end of a term of 4 years or less;

and

‘‘(2) a limited term appointee serving under a term prescribed under this section may be reassigned to another continuing Senior Executive Service position in the Administration,

except that the appointee may not serve in 1 or more positions

in the Administration under such appointment in excess of

1 year, except that in rare circumstances, the Administrator

may approve an extension up to an additional 1 year.

‘‘(f) A limited term appointee may not serve more than 7

consecutive years under any combination of limited appointments.

‘‘(g) Notwithstanding section 5384, the Administrator may

authorize performance awards to limited term appointees in the

Administration in the same amounts and in the same manner

as career appointees.

‘‘§ 9814. Qualifications pay

‘‘(a) Notwithstanding section 5334, the Administrator may set

the pay of an employee paid under the General Schedule at any

step within the pay range for the grade of the position, if such

employee—

‘‘(1) possesses unusually high or unique qualifications; and

‘‘(2) is assigned—

‘‘(A) new duties, without a change of position; or

‘‘(B) to a new position.

‘‘(b) If an exercise of the authority under this section relates

to a current employee selected for another position within the

Administration, a determination shall be made that the employee’s

PUBLIC LAW 108–201—FEB. 24, 2004 118 STAT. 475

contribution in the new position will exceed that in the former

position, before setting pay under this section.

‘‘(c) Pay as set under this section is basic pay for such purposes

as pay set under section 5334.

‘‘(d) If the employee serves for at least 1 year in the position

for which the pay determination under this section was made,

or a successor position, the pay earned under such position may

be used in succeeding actions to set pay under chapter 53.

‘‘(e) Before setting any employee’s pay under this section, the

Administrator shall submit a plan to the Office of Personnel

Management and the appropriate committees of Congress, that

includes—

‘‘(1) criteria for approval of actions to set pay under this

section;

‘‘(2) the level of approval required to set pay under this

section;

‘‘(3) all types of actions and positions to be covered;

‘‘(4) the relationship between the exercise of authority

under this section and the use of other pay incentives; and

‘‘(5) a process to evaluate the effectiveness of this section.

‘‘§ 9815. Reporting requirement

‘‘The Administrator shall submit to the appropriate committees

of Congress, not later than February 28 of each of the next 6

years beginning after the date of enactment of this chapter, a

report that provides the following:

‘‘(1) A summary of all bonuses paid under subsections

(b) and (c) of section 9804 during the preceding fiscal year.

Such summary shall include the total amount of bonuses paid,

the total number of bonuses paid, the percentage of the amount

of bonuses awarded to supervisors and management officials,

and the average percentage used to calculate the total average

bonus amount, under each of those subsections.

‘‘(2) A summary of all bonuses paid under subsections

(b) and (c) of section 9805 during the preceding fiscal year.

Such summary shall include the total amount of bonuses paid,

the total number of bonuses paid, the percentage of the amount

of bonuses awarded to supervisors and management officials,

and the average percentage used to calculate the total average

bonus amount, under each of those subsections.

‘‘(3) The total number of term appointments converted

during the preceding fiscal year under section 9806 and, of

that total number, the number of conversions that were made

to address a critical need described in the workforce plan pursuant to section 9802(b)(2).

‘‘(4) The number of positions for which the rate of basic

pay was fixed under section 9807 during the preceding fiscal

year, the number of positions for which the rate of basic pay

under such section was terminated during the preceding fiscal

year, and the number of times the rate of basic pay was

fixed under such section to address a critical need described

in the workforce plan pursuant to section 9802(b)(2).

‘‘(5) The number of scholarships awarded under section

9809 during the preceding fiscal year and the number of scholarship recipients appointed by the Administration during the

preceding fiscal year.

Deadline.

118 STAT. 476 PUBLIC LAW 108–201—FEB. 24, 2004

‘‘(6) The total number of distinguished scholar appointments made under section 9810 during the preceding fiscal

year and, of that total number, the number of appointments

that were made to address a critical need described in the

workforce plan pursuant to section 9802(b)(2).

‘‘(7) The average amount paid per appointee, and the

largest amount paid to any appointee, under section 9811

during the preceding fiscal year for travel and transportation

expenses.

‘‘(8) The total number of employees who were awarded

enhanced annual leave under section 9812 during the preceding

fiscal year; of that total number, the number of employees

who were serving in a position addressing a critical need

described in the workforce plan pursuant to section 9802(b)(2);

and, for employees in each of those respective groups, the

average amount of additional annual leave such employees

earned in the preceding fiscal year (over and above what they

would have earned absent section 9812).

‘‘(9) The total number of appointments made under section

9813 during the preceding fiscal year and, of that total number,

the number of appointments that were made to address a

critical need described in the workforce plan pursuant to section

9802(b)(2).

‘‘(10) The number of employees for whom the Administrator

set the pay under section 9814 during the preceding fiscal

year and the number of times pay was set under such section

to address a critical need described in the workforce plan pursuant to section 9802(b)(2).

‘‘(11) A summary of all recruitment, relocation, redesignation, and retention bonuses paid under authorities other than

this chapter and excluding the authorities provided in sections

5753 and 5754 of this title, during the preceding fiscal year.

Such summary shall include, for each type of bonus, the total

amount of bonuses paid, the total number of bonuses paid,

the percentage of the amount of bonuses awarded to supervisors

and management officials, and the average percentage used

to calculate the total average bonus amount.’’.

PUBLIC LAW 108–201—FEB. 24, 2004 118 STAT. 477

LEGISLATIVE HISTORY—S. 610 (H.R. 1085):

HOUSE REPORTS: No. 108–244, Pt. 1 accompanying H.R. 1085 (Comm. on

Science).

SENATE REPORTS: No. 108–113 (Comm. on Governmental Affairs).

CONGRESSIONAL RECORD:

Vol. 149 (2003): Nov. 24, considered and passed Senate.

Vol. 150 (2004): Jan. 28, considered and passed House.

WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 40 (2004):

Feb. 24, Presidential statement.

Æ

(b) CLERICAL AMENDMENT.—The table of chapters for part III

of title 5, United States Code, is amended by inserting after the

item relating to chapter 97 the following:

‘‘98. National Aeronautics and Space Administration ......................................... 9801’’.

Approved February 24, 2004.