S10390 CONGRESSIONAL RECORD — SENATE October 1, 2008 

eradicating these and other human 

rights abuses. 

This bill is a step forward towards 

the prevention of human trafficking, 

protection of victims, and prosecution 

of traffickers. I hope the House of Representatives acts quickly on this legislation so it can be enacted before Congress adjourns. 

Mr. DURBIN. Mr. President, I ask 

unanimous consent that the Durbin 

amendment, which is at the desk, be 

agreed to, the committee substitute, as 

amended be agreed to, the bill, as 

amended be read a third time and 

passed, the motions to reconsider be 

laid upon the table, with no intervening action or debate, and any statements related to the bill be printed in 

the RECORD. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

The amendment (No. 5688) was agreed 

to, as follows: 

(Purpose: To provide a complete substitute) 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Trafficking 

in Persons Accountability Act of 2008’’. 

SEC. 2. JURISDICTION IN CERTAIN TRAFFICKING 

OFFENSES. 

(a) IN GENERAL.—Chapter 77 of title 18, 

United States Code, is amended by adding at 

the end the following: 

‘‘§ 1596. Additional jurisdiction in certain 

trafficking offenses 

‘‘(a) IN GENERAL.—In addition to any domestic or extra-territorial jurisdiction otherwise provided by law, the courts of the 

United States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to commit an offense) under section 

1581, section 1583, section 1584, section 1589, 

section 1590, or section 1591 of this title if— 

‘‘(1) an alleged offender is a national of the 

United States or an alien lawfully admitted 

for permanent residence (as those terms are 

defined in section 101 of the Immigration and 

Nationality Act (8 U.S.C. 1101)); or 

‘‘(2) an alleged offender is present in the 

United States, irrespective of the nationality 

of the alleged offender. 

‘‘(b) LIMITATION ON PROSECUTIONS OF OFFENSES PROSECUTED IN OTHER COUNTRIES.— 

No prosecution may be commenced against a 

person under this section if a foreign government, in accordance with jurisdiction recognized by the United States, has prosecuted or 

is prosecuting such person for the conduct 

constituting such offense, except upon the 

approval of the Attorney General or the Deputy Attorney General (or a person acting in 

either such capacity), which function of approval may not be delegated.’’. 

(b) CLERICAL AMENDMENT.—The table of 

sections at the beginning of chapter 77 of 

title 18, United States Code, is amended by 

adding at the end the following: 

‘‘1596. Additional jurisdiction in certain trafficking offenses.’’. 

The committee substitute amendment, as amended, was agreed to. 

The bill (S. 1703), as amended, was ordered to be engrossed for a third reading, was read the third time, and 

passed. 

f 

NON-FOREIGN AREA RETIREMENT 

EQUITY ASSURANCE ACT OF 2008 

Mr. DURBIN. Mr. President, I ask 

unanimous consent that the Senate 

proceed to the immediate consideration of Calendar No. 954, S. 3013. 

The PRESIDING OFFICER. The 

clerk will report the bill by title. 

The legislative clerk read as follows: 

A bill (S. 3013) to provide for retirement equity for Federal employees in nonforeign 

areas outside the 48 contiguous States and 

the District of Columbia, and for other purposes. 

There being no objection, the Senate 

proceeded to consider the bill, which 

had been reported from the Committee 

on Homeland Security and Governmental Affairs, with amendments; as 

follows: 

(The parts of the bill intended to be 

stricken are shown in boldface brackets and the parts of the bill intended to 

be inserted are shown in italics) 

S. 3013 

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 ‘‘Non-Foreign 

Area Retirement Equity Assurance Act of 

2008’’ or the ‘‘Non-Foreign AREA Act of 

2008’’. 

SEC. 2. EXTENSION OF LOCALITY PAY. 

ø(a) LOCALITY-BASED COMPARABILITY PAYMENTS.—Section 5304(f)(1) of title 5, United 

States Code, is amended by striking subparagraph (A) and inserting the following: 

ø‘‘(A) each General Schedule position in 

the United States, as defined under section 

5921(4), and its territories and possessions, 

including the Commonwealth of Puerto Rico 

and the Commonwealth of the Northern Mariana Islands shall be included within a pay 

locality; and’’.¿ 

(a) LOCALITY-BASED COMPARABILITY PAYMENTS.—Section 5304 of title 5, United States 

Code, is amended— 

(1) in subsection (f)(1), by striking subparagraph (A) and inserting the following: 

‘‘(A) each General Schedule position in the 

United States, as defined under section 5921(4), 

and its territories and possessions, including the 

Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands, shall 

be included within a pay locality;’’; 

(2) in subsection (g)— 

(A) in paragraph (2)— 

(i) in subparagraph (A), by striking ‘‘and’’ 

after the semicolon; 

(ii) by redesignating subparagraph (B) as subparagraph (C); 

(iii) by inserting after subparagraph (A) the 

following: 

‘‘(B) positions under subsection (h)(1)(D) not 

covered by appraisal systems certified under section 5382; and’’; and 

(iv) in subparagraph (C) (as redesignated by 

this paragraph), by striking ‘‘under subsection 

(h)(1)(D)’’ and inserting ‘‘under subsection 

(h)(1)(E)’’; and 

(B) by adding at the end the following: 

‘‘(3) The applicable maximum under this subsection shall be level II of the Executive Schedule for positions under subsection (h)(1)(D) covered by appraisal systems certified under section 

5307(d).’’; and 

(3) in subsection (h)(1)— 

(A) in subparagraph (C) by striking ‘‘and’’ 

after the semicolon; 

(B) by redesignating subparagraph (D) as subparagraph (E); 

(C) by inserting after subparagraph (C) the 

following: 

‘‘(D) a Senior Executive Service position 

under section 3132 stationed within the United 

States, but outside the 48 contiguous States and 

the District of Columbia in which the incumbent 

the day before the date of enactment of the NonForeign Area Retirement Equity Assurance Act 

of 2008 was eligible to receive a cost-of-living allowance under section 5941; and’’; and 

(D) in clause (iii) in the matter following subparagraph (D), by inserting ‘‘stationed in the 48 

contiguous States and the District of Columbia, 

or stationed within the United States, but outside the 48 contiguous States and the District of 

Columbia, in which the incumbent the day before the date of enactment of the Non-Foreign 

Area Retirement Equity Assurance Act of 2008 

was not eligible to receive a cost-of-living allowance under section 5941; and’’ before the semicolon. 

(b) ALLOWANCES BASED ON LIVING COSTS

AND CONDITIONS OF ENVIRONMENT.—Section 

5941 of title 5, United States Code, is amended— 

(1) in subsection (a), by adding after the 

last sentence ‘‘Notwithstanding any preceding provision of this subsection, the costof-living allowance rate based on paragraph 

(1) of this subsection shall be the cost-of-living allowance rate in effect on December 31, 

2008, except as adjusted under subsection 

(c).’’; 

(2) by redesignating subsection (b) as subsection (d); and 

(3) by inserting after subsection (a) the following: 

‘‘(b) This section shall apply only to areas 

that are designated as cost-of-living allowance areas as in effect on December 31, 2008. 

‘‘(c)(1) The cost-of-living allowance rate 

payable under this section shall be adjusted 

on the first day of the first applicable pay 

period beginning on or after— 

‘‘(A) January 1, 2009; and 

‘‘(B) on January 1 of each calendar year in 

which a locality-based comparability adjustment takes effect under section 4 (2) and (3) 

of the Non-Foreign Area Retirement Equity 

Assurance Act of 2008. 

‘‘(2)(A) In this paragraph, the term ‘applicable locality-based comparability pay percentage’ means, with respect to calendar 

year 2009 and each calendar year thereafter, 

the applicable percentage under section 4 (1), 

(2), or (3) of Non-Foreign Area Retirement 

Equity Assurance Act of 2008. 

‘‘(B) Each adjusted cost-of-living allowance 

rate under paragraph (1) shall be computed 

by— 

‘‘(i) subtracting 65 percent of the applicable locality-based comparability pay percentage from the cost-of-living allowance 

percentage rate in effect on December 31, 

2008; and 

‘‘(ii) dividing the resulting percentage determined under clause (i) by the sum of— 

‘‘(I) one; and 

‘‘(II) the applicable locality-based comparability payment percentage expressed as 

a numeral. 

‘‘(3) No allowance rate computed under 

paragraph (2) may be less than zero. 

‘‘(4) Each allowance rate computed under 

paragraph (2) shall be paid as a percentage of 

basic pay (including any applicable localitybased comparability payment under section 

5304 or similar provision of law and any applicable special rate of pay under section 5305 

or similar provision of law).’’. 

SEC. 3. ADJUSTMENT OF SPECIAL RATES. 

(a) IN GENERAL.—Each special rate of pay 

established under section 5305 of title 5, 

United States Code, and payable in an area 

designated as a cost-of-living allowance area 

under section 5941(a) of that title, shall be 

adjusted, on the dates prescribed by section 

4 of this Act, in accordance with regulations 

prescribed by the Director of the Office of 

Personnel Management under section 9 of 

this Act. 

(b) DEPARTMENT OF VETERANS AFFAIRS.— 

Each special rate of pay established under 


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October 1, 2008 CONGRESSIONAL RECORD — SENATE S10391 

section 7455 of title 38, United States Code, 

and payable in a location designated as a 

cost-of-living allowance area under section 

5941(a)(1) of title 5, United States Code, shall 

be adjusted in accordance with regulations 

prescribed by the Secretary of Veterans Affairs that are consistent with the regulations 

issued by the Director of the Office of Personnel Management under subsection (a). 

(c) TEMPORARY ADJUSTMENT.—Regulations 

issued under subsection (a) or (b) may provide that statutory limitations on the 

amount of such special rates may be temporarily raised to a higher level during the 

transition period described in section 4 ending on the first day of the first pay period beginning on or after January 1, 2011, at which 

time any special rate of pay in excess of the 

applicable limitation shall be converted to a 

retained rate under section 5363 of title 5, 

United States Code. 

SEC. 4. TRANSITION SCHEDULE FOR LOCALITYBASED COMPARABILITY PAYMENTS. 

Notwithstanding any other provision of 

this Act or section 5304 or 5304a of title 5, 

United States Code, in implementing the 

amendments made by this Act, for each nonforeign area determined under section 5941(b) 

of that title, the applicable rate for the locality-based comparability adjustment that 

is used in the computation required under 

section 5941(c) of that title shall be adjusted 

effective on the first day of the first pay period beginning on or after January 1— 

(1) in calendar year 2009, by using 1⁄3 of the 

locality pay percentage for the rest of United 

States locality pay area; 

(2) in calendar year 2010, by using 2⁄3 of the 

otherwise applicable comparability payment 

approved by the President for each non-foreign area; and 

(3) in calendar year 2011 and each subsequent year, by using the full amount of the 

applicable comparability payment approved 

by the President for each non-foreign area. 

SEC. 5. SAVINGS PROVISION. 

ø(a) IN GENERAL.—The application of this 

Act to any employee may not result in the 

amount of the decrease in the amount of pay 

attributable to special rate pay and the costof-living allowance as in effect on the date of 

enactment of this Act exceeding the amount 

of the increase in the locality-based comparability payments paid to that employee. 

ø(b)(a) SENSE OF CONGRESS.—It is the sense 

of Congress that the application of this Act 

to any employee should not result in a decrease in the take home pay of that employee. 

(b) SENSE OF CONGRESS.—It is the sense of 

Congress that the Bureau of Labor Statistics 

will conduct separate surveys pursuant to the 

establishment by the President’s Pay Agent of 1 

new locality area for the entire State of Hawaii 

and 1 new locality area for the entire state of 

Alaska, and that upon the completion of the 

phase in period no employee shall receive less 

than the Rest of the U.S. locality pay rate. 

(c) SAVINGS PROVISIONS.— 

(1) IN GENERAL.—During the period described 

under section 4 of this Act, an employee paid a 

special rate under 5305 of title 5, United States 

Code, who the day before the date of enactment 

of this Act was eligible to receive a cost-of-living 

allowance under section 5941 of title 5, United 

States Code, and who continues to be officially 

stationed in an allowance area, shall receive an 

increase in the employee’s special rate consistent 

with increases in the applicable special rate 

schedule. For employees in allowance areas, the 

minimum step rate for any grade of a special 

rate schedule shall be increased at the time of 

an increase in the applicable locality rate percentage for the allowance area by not less than 

the dollar increase in the locality-based comparability payment for a non-special rate employee at the same minimum step provided under 

section 4 of the Act, and corresponding increases shall be provided for all step rates of the 

given pay range. 

(2) CONTINUATION OF COST OF LIVING ALLOWANCE RATE.—If an employee, who the day before 

the date of enactment of this Act was eligible to 

receive a cost-of-living allowance under section 

5941 of title 5, United States Code, would receive 

a rate of basic pay and applicable locality-based 

comparability payment which is in excess of the 

maximum rate limitation set under section 

5304(g) of title 5, United States Code, for his position (but for that maximum rate limitation) 

due to the operation of this Act, the employee 

shall continue to receive the cost-of-living allowance rate in effect on December 31, 2008 

without adjustment until— 

(A) the employee leaves the allowance area or 

pay system; or 

(B) the employee is entitled to receive basic 

pay (including any applicable locality-based 

comparability payment or similar supplement) at 

a higher rate, 

but, when any such position becomes vacant, 

the pay of any subsequent appointee thereto 

shall be fixed in the manner provided by applicable law and regulation. 

(3) LOCALITY-BASED COMPARABILITY PAYMENTS.—Any employee covered under paragraph (2) shall receive any applicable localitybased comparability payment extended under 

section 4 of this Act which is not in excess of the 

maximum rate set under section 5304(g) of title 

5, United States Code, for his position including 

any future increase to statutory pay caps under 

5318 of title 5, United States Code. Notwithstanding paragraph (2), to the extent that an 

employee covered under that paragraph receives 

any amount of locality-based comparability 

payment, the cost-of-living allowance rate 

under that paragraph shall be reduced accordingly, as provided under section 5941(c)(2)(B) of 

title 5, United States Code. 

SEC. 6. APPLICATION TO OTHER ELIGIBLE EMPLOYEES. 

(a) IN GENERAL.— 

(1) DEFINITION.—In this subsection, the 

term ‘‘covered employee’’ means— 

(A) any employee who— 

(i) on— 

(I) the day before the date of enactment of 

this Act— 

(aa) was eligible to be paid a cost-of-living 

allowance under 5941 of title 5, United States 

Code; and 

(bb) was not eligible to be paid localitybased comparability payments under 5304 or 

5304a of that title; or 

(II) or after the date of enactment of this 

Act becomes eligible to be paid a cost-of-living allowance under 5941 of title 5, United 

States Code; and 

(ii) except as provided under paragraph (2), 

is not covered under— 

(I) section 5941 of title 5, United States 

Code (as amended by section 2 of this Act); 

and 

(II) section 4 of this Act; or 

(B) any employee who— 

(i) on the day before the date of enactment 

of this Act— 

(I) was eligible to be paid an allowance 

under section 1603(b) of title 10, United 

States Code; 

(II) was eligible to be paid an allowance 

under section 1005(b) of title 39, United 

States Code; or 

(III) was employed by the Transportation 

Security Administration of the Department 

of Homeland Security and was eligible to be 

paid an allowance based on section 5941 of 

title 5, United States Code; or 

(ii) on or after the date of enactment of 

this Act— 

(I) becomes eligible to be paid an allowance 

under section 1603(b) of title 10, United 

States Code; 

(II) becomes eligible to be paid an allowance under section 1005(b) of title 39, United 

States Code; or 

(III) is employed by the Transportation Security Administration of the Department of 

Homeland Security and becomes eligible to 

be paid an allowance based on section 5941 of 

title 5, United States Code. 

(2) APPLICATION TO COVERED EMPLOYEES.— 

(A) IN GENERAL.—Notwithstanding any 

øprovision of title 5, United States 

Code,¿other provision of law, for purposes of 

this Act (including the amendments made by 

this Act) any covered employee shall be 

treated as an employee to whom section 5941 

of title 5, United States Code (as amended by 

section 2 of this Act), and section 4 of this 

Act apply. 

(B) PAY FIXED BY STATUTE.—Pay to covered 

employees under section 5304 or 5304a of title 

5, United States Code, as a result of the application of this Act shall be considered to be 

fixed by statute. 

(C) PERFORMANCE APPRAISAL SYSTEM.— 

With respect to a covered employee who is 

subject to a performance appraisal system no 

part of pay attributable to locality-based 

comparability payments as a result of the 

application of this Act including section 5941 

of title 5, United States Code (as amended by 

section 2 of this Act), may be reduced on the 

basis of the performance of that employee. 

ø(b) POSTAL SERVICE EMPLOYEES IN NONFOREIGN AREAS.—Section 1005(b) of title 39, 

United States Code, is amended by inserting 

‘‘and the Non-Foreign Area Retirement Equity Assurance Act of 2008’’ after ‘‘Section 

5941 of title 5’’.¿ 

(b) POSTAL EMPLOYEES IN NON-FOREIGN

AREAS.— 

(1) IN GENERAL.—Section 1005(b) of title 39, 

United States Code, is amended— 

(A) by inserting ‘‘(1)’’ after ‘‘(b)’’; 

(B) by striking ‘‘Section 5941,’’ and inserting 

‘‘Except as provided under paragraph (2), section 5941’’; 

(C) by striking ‘‘For purposes of such section,’’ and inserting ‘‘Except as provided under 

paragraph (2), for purposes of section 5941 of 

that title,’’; and 

(D) by adding at the end the following: 

‘‘(2) On and after the date of enactment of the 

Non-Foreign Area Retirement Equity Assurance 

Act of 2008— 

‘‘(A) the provisions of that Act and section 

5941 of title 5 shall apply to officers and employees covered by section 1003(b) and (c) whose 

duty station is in a nonforeign area; and 

‘‘(B) with respect to officers and employees of 

the Postal Service (other than those officers and 

employees described under subparagraph (A)) 

section 6(b)(2) of that Act shall apply.’’. 

(2) CONTINUATION OF COST OF LIVING ALLOWANCE.— 

(A) IN GENERAL.—Notwithstanding any other 

provision of this Act, any employee of the Postal 

Service (other than an employee covered by section 1003 (b) and (c) of title 39, United States 

Code, whose duty station is in a nonforeign 

area) who is paid an allowance under section 

1005(b) of that title shall be treated for all purposes as if the provisions of this Act (including 

the amendments made by this Act) had not been 

enacted, except that the cost-of-living allowance 

rate paid to that employee— 

(i) may result in the allowance exceeding 25 

percent of the rate of basic pay of that employee; and 

(ii) shall be the greater of— 

(I) the cost-of-living allowance rate in effect 

on December 31, 2008 for the applicable area; or 

(II) the applicable locality-based comparability pay percentage under section 4. 

(B) RULE OF CONSTRUCTION.—Nothing in this 

Act shall be construed to— 

(i) provide for an employee described under 

subparagraph (A) to be a covered employee as 

defined under subsection (a); or 


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S10392 CONGRESSIONAL RECORD — SENATE October 1, 2008 

(ii) authorize an employee described under 

subparagraph (A) to file an election under section 7 or 8 of this Act. 

SEC. 7. ELECTION OF ADDITIONAL BASIC PAY 

FOR ANNUITY COMPUTATION BY EMPLOYEES. 

(a) DEFINITION.—In this section the term 

‘‘covered employee’’ means any employee— 

(1) to whom section 4 applies; 

(2) who is separated from service by reason 

of retirement under chapter 83 or 84 of title 

5, United States Code, during the period of 

January 1, 2009, through December 31, 2011; 

and 

(3) who files and election with the Office of 

Personnel Management under subsection (b). 

(b) ELECTION.— 

(1) IN GENERAL.—An employee described 

under subsection (a) (1) and (2) may file an 

election with the Office of Personnel Management to be covered under this section. 

(2) DEADLINE.—An election under this subsection may be filed not later than December 

31, 2011. 

ø(c) COMPUTATION OF ANNUITY.—For purposes of the computation of an annuity of a 

covered employee any cost-of-living allowance under section 5941 of title 5, United 

States Code, paid to that employee during 

the first applicable pay period beginning on 

or after January 1, 2009 through the first applicable pay period ending on or after December 31, 2011, shall be considered basic pay 

as defined under section 8331(3) or 8401(4) of 

that title.¿ 

(c) COMPUTATION OF ANNUITY.— 

(1) IN GENERAL.—Except as provided under 

paragraph (2), for purposes of the computation 

of an annuity of a covered employee any costof-living allowance under section 5941 of title 5, 

United States Code, paid to that employee during the first applicable pay period beginning on 

or after January 1, 2009 through the first applicable pay period ending on or after December 31, 

2011, shall be considered basic pay as defined 

under section 8331(3) or 8401(4) of that title. 

(2) LIMITATION.—The amount of the cost-ofliving allowance which may be considered basic 

pay under paragraph (1) may not exceed the 

amount of the locality-based comparability payments the employee would have received during 

that period for the applicable pay area if the 

limitation under section 4 of this Act did not 

apply. 

(d) CIVIL SERVICE RETIREMENT AND DISABILITY RETIREMENT FUND.— 

(1) EMPLOYEE CONTRIBUTIONS.—A covered 

employee shall pay into the Civil Service Retirement and Disability Retirement Fund— 

(A) an amount equal to the difference between— 

(i) employee contributions that would have 

been deducted and withheld from pay under 

section 8334 or 8422 of title 5, United States 

Code, during the period described under subsection (c) of this section if that subsection 

had been in effect during that period; and 

(ii) employee contributions that were actually deducted and withheld from pay under 

section 8334 or 8422 of title 5, United States 

Code, during that period; and 

(B) interest as prescribed under section 

8334(e) of title 5, United States Code, based 

on the amount determined under subparagraph (A). 

(2) AGENCY CONTRIBUTIONS.— 

(A) IN GENERAL.—The employing agency of 

a covered employee shall pay into the Civil 

Service Retirement and Disability Retirement Fund an amount for applicable agency 

contributions based on payments made under 

paragraph (1). 

(B) SOURCE.—Amounts paid under this 

paragraph shall be contributed from the appropriation or fund used to pay the employee. 

(3) REGULATIONS.—The Office of Personnel 

Management may prescribe regulations to 

carry out this section. 

SEC. 8. ELECTION OF COVERAGE BY EMPLOYEES. 

(a) IN GENERAL.—Notwithstanding any 

other provision of this Act (other than section 

6(b)), an employee may make an irrevocable 

election in accordance with this section, if— 

(1) that employee is paid an allowance 

under section ø5491¿5941 of title 5, United 

States Code, during a pay period in which 

the date of the enactment of this Act occurs; 

or 

(2) that employee— 

(A) is a covered employee as defined under 

section 6(a)(1); and 

(B) during a pay period in which the date 

of the enactment of this Act occurs is paid 

an allowance— 

(i) under section 1603(b) of title 10, United 

States Code; 

(ii) under section 1005(b) of title 39, United 

States Code; or 

(iii) based on section 5941 of title 5, United 

States Code. 

(b) FILING ELECTION.—Not later than 60 

days after the date of enactment of this Act, 

an employee described under subsection (a) 

may file an election with the Office of Personnel Management to be treated for all purposes— 

(1) in accordance with the provisions of 

this Act (including the amendments made by 

this Act); or 

(2) as if the provisions of this Act (including the amendments made by this Act) had 

not been enacted, except that the cost-of-living allowance rate paid to that employee 

shall be the cost-of-living allowance rate in 

effect on December 31, 2008, for that employee without any adjustment after that 

date. 

(c) FAILURE TO FILE.—Failure to make a 

timely election under this section shall be 

treated in the same manner as an election 

made under subsection (b)(1) on the last day 

authorized under that subsection. 

(d) NOTICE.—To the greatest extent practicable, the Office of Personnel Management 

shall provide timely notice of the election 

which may be filed under this section to employees described under subsection (a). 

SEC. 9. REGULATIONS. 

(a) IN GENERAL.—The Director of the Office 

of Personnel Management shall prescribe 

regulations to carry out this Act, including— 

(1) rules for special rate employees described under section 3; 

(2) rules for adjusting rates of basic pay for 

employees in pay systems administered by 

the Office of Personnel Management when 

such employees are not entitled to localitybased comparability payments under section 

5304 of title 5, United States Code, without 

regard to otherwise applicable statutory pay 

limitations during the transition period described in section 4 ending on the first day of 

the first pay period beginning on or after 

January 1, 2011; and 

(3) rules governing establishment and adjustment of saved or retained rates for any 

employee whose rate of pay exceeds applicable pay limitations on the first day of the 

first pay period beginning on or after January 1, 2011. 

(b) OTHER PAY SYSTEMS.—With the concurrence of the Director of the Office of Personnel Management, the administrator of a 

pay system not administered by the Office of 

Personnel Management shall prescribe regulations to carry out this Act with respect to 

employees in such pay system, consistent 

with the regulations issued by the Office 

under subsection (a). 

SEC. 10. EFFECTIVE DATES. 

(a) IN GENERAL.—Except as provided by 

subsection (b), this Act (including the 

amendments made by this Act) shall take effect on the date of enactment of this Act. 

(b) LOCALITY PAY AND SCHEDULE.—The 

amendments made by section 2 and the provisions of section 4 shall take effect on the 

first day of the first applicable pay period beginning on or after January 1, 2009. 

Mr. DURBIN. Mr. President, I ask 

unanimous consent that the committee 

amendments be agreed to as original 

text, the Collins amendment, which is 

at the desk, be agreed to, the bill, as 

amended, be read a third time and 

passed, the motions to reconsider be 

laid upon the table, with no intervening action or debate, and that any 

statements related thereto be printed 

in the RECORD. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

The committee amendments were 

agreed to. 

The amendment (No. 5689) was agreed 

to, as follows: 

(Purpose: To strike the provision relating to 

election of coverage by employees; and for 

other purposes) 

On page 7, line 8, strike ‘‘9’’ and insert ‘‘8’’. 

On page 10, line 12, strike ‘‘the’’ and insert 

‘‘this’’. 

On page 17, line 18, strike ‘‘or 8’’. 

On page 21, line 1, strike all through page 

22, line 17. 

On page 22, line 18, strike ‘‘SEC. 9’’ and insert ‘‘SEC. 8’’. 

On page 23, line 20, strike ‘‘SEC. 10’’ and insert ‘‘SEC. 9’’. 

The bill (S. 3013), as amended, was ordered to be engrossed for a third reading, was read the third time, and 

passed, as follows: 

S. 3013 

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 ‘‘Non-Foreign 

Area Retirement Equity Assurance Act of 

2008’’ or the ‘‘Non-Foreign AREA Act of 

2008’’. 

SEC. 2. EXTENSION OF LOCALITY PAY. 

(a) LOCALITY-BASED COMPARABILITY PAYMENTS.—Section 5304 of title 5, United States 

Code, is amended— 

(1) in subsection (f)(1), by striking subparagraph (A) and inserting the following: 

‘‘(A) each General Schedule position in the 

United States, as defined under section 

5921(4), and its territories and possessions, 

including the Commonwealth of Puerto Rico 

and the Commonwealth of the Northern Mariana Islands, shall be included within a pay 

locality;’’; 

(2) in subsection (g)— 

(A) in paragraph (2)— 

(i) in subparagraph (A), by striking ‘‘and’’ 

after the semicolon; 

(ii) by redesignating subparagraph (B) as 

subparagraph (C); 

(iii) by inserting after subparagraph (A) 

the following: 

‘‘(B) positions under subsection (h)(1)(D) 

not covered by appraisal systems certified 

under section 5382; and’’; and 

(iv) in subparagraph (C) (as redesignated by 

this paragraph), by striking ‘‘under subsection (h)(1)(D)’’ and inserting ‘‘under subsection (h)(1)(E)’’; and 

(B) by adding at the end the following: 

‘‘(3) The applicable maximum under this 

subsection shall be level II of the Executive 

Schedule for positions under subsection 

(h)(1)(D) covered by appraisal systems certified under section 5307(d).’’; and 

(3) in subsection (h)(1)— 

(A) in subparagraph (C) by striking ‘‘and’’ 

after the semicolon; 


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October 1, 2008 CONGRESSIONAL RECORD — SENATE S10393 

(B) by redesignating subparagraph (D) as 

subparagraph (E); 

(C) by inserting after subparagraph (C) the 

following: 

‘‘(D) a Senior Executive Service position 

under section 3132 stationed within the 

United States, but outside the 48 contiguous 

States and the District of Columbia in which 

the incumbent the day before the date of enactment of the Non-Foreign Area Retirement Equity Assurance Act of 2008 was eligible to receive a cost-of-living allowance 

under section 5941; and’’; and 

(D) in clause (iii) in the matter following 

subparagraph (D), by inserting ‘‘stationed in 

the 48 contiguous States and the District of 

Columbia, or stationed within the United 

States, but outside the 48 contiguous States 

and the District of Columbia, in which the 

incumbent the day before the date of enactment of the Non-Foreign Area Retirement 

Equity Assurance Act of 2008 was not eligible 

to receive a cost-of-living allowance under 

section 5941; and’’ before the semicolon. 

(b) ALLOWANCES BASED ON LIVING COSTS

AND CONDITIONS OF ENVIRONMENT.—Section 

5941 of title 5, United States Code, is amended— 

(1) in subsection (a), by adding after the 

last sentence ‘‘Notwithstanding any preceding provision of this subsection, the costof-living allowance rate based on paragraph 

(1) of this subsection shall be the cost-of-living allowance rate in effect on December 31, 

2008, except as adjusted under subsection 

(c).’’; 

(2) by redesignating subsection (b) as subsection (d); and 

(3) by inserting after subsection (a) the following: 

‘‘(b) This section shall apply only to areas 

that are designated as cost-of-living allowance areas as in effect on December 31, 2008. 

‘‘(c)(1) The cost-of-living allowance rate 

payable under this section shall be adjusted 

on the first day of the first applicable pay 

period beginning on or after— 

‘‘(A) January 1, 2009; and 

‘‘(B) on January 1 of each calendar year in 

which a locality-based comparability adjustment takes effect under section 4 (2) and (3) 

of the Non-Foreign Area Retirement Equity 

Assurance Act of 2008. 

‘‘(2)(A) In this paragraph, the term ‘applicable locality-based comparability pay percentage’ means, with respect to calendar 

year 2009 and each calendar year thereafter, 

the applicable percentage under section 4 (1), 

(2), or (3) of Non-Foreign Area Retirement 

Equity Assurance Act of 2008. 

‘‘(B) Each adjusted cost-of-living allowance 

rate under paragraph (1) shall be computed 

by— 

‘‘(i) subtracting 65 percent of the applicable locality-based comparability pay percentage from the cost-of-living allowance 

percentage rate in effect on December 31, 

2008; and 

‘‘(ii) dividing the resulting percentage determined under clause (i) by the sum of— 

‘‘(I) one; and 

‘‘(II) the applicable locality-based comparability payment percentage expressed as 

a numeral. 

‘‘(3) No allowance rate computed under 

paragraph (2) may be less than zero. 

‘‘(4) Each allowance rate computed under 

paragraph (2) shall be paid as a percentage of 

basic pay (including any applicable localitybased comparability payment under section 

5304 or similar provision of law and any applicable special rate of pay under section 5305 

or similar provision of law).’’. 

SEC. 3. ADJUSTMENT OF SPECIAL RATES. 

(a) IN GENERAL.—Each special rate of pay 

established under section 5305 of title 5, 

United States Code, and payable in an area 

designated as a cost-of-living allowance area 

under section 5941(a) of that title, shall be 

adjusted, on the dates prescribed by section 

4 of this Act, in accordance with regulations 

prescribed by the Director of the Office of 

Personnel Management under section 8 of 

this Act. 

(b) DEPARTMENT OF VETERANS AFFAIRS.— 

Each special rate of pay established under 

section 7455 of title 38, United States Code, 

and payable in a location designated as a 

cost-of-living allowance area under section 

5941(a)(1) of title 5, United States Code, shall 

be adjusted in accordance with regulations 

prescribed by the Secretary of Veterans Affairs that are consistent with the regulations 

issued by the Director of the Office of Personnel Management under subsection (a). 

(c) TEMPORARY ADJUSTMENT.—Regulations 

issued under subsection (a) or (b) may provide that statutory limitations on the 

amount of such special rates may be temporarily raised to a higher level during the 

transition period described in section 4 ending on the first day of the first pay period beginning on or after January 1, 2011, at which 

time any special rate of pay in excess of the 

applicable limitation shall be converted to a 

retained rate under section 5363 of title 5, 

United States Code. 

SEC. 4. TRANSITION SCHEDULE FOR LOCALITYBASED COMPARABILITY PAYMENTS. 

Notwithstanding any other provision of 

this Act or section 5304 or 5304a of title 5, 

United States Code, in implementing the 

amendments made by this Act, for each nonforeign area determined under section 5941(b) 

of that title, the applicable rate for the locality-based comparability adjustment that 

is used in the computation required under 

section 5941(c) of that title shall be adjusted 

effective on the first day of the first pay period beginning on or after January 1— 

(1) in calendar year 2009, by using 1⁄3 of the 

locality pay percentage for the rest of United 

States locality pay area; 

(2) in calendar year 2010, by using 2⁄3 of the 

otherwise applicable comparability payment 

approved by the President for each non-foreign area; and 

(3) in calendar year 2011 and each subsequent year, by using the full amount of the 

applicable comparability payment approved 

by the President for each non-foreign area. 

SEC. 5. SAVINGS PROVISION. 

(a) SENSE OF CONGRESS.—It is the sense of 

Congress that the application of this Act to 

any employee should not result in a decrease 

in the take home pay of that employee. 

(b) SENSE OF CONGRESS.—It is the sense of 

Congress that the Bureau of Labor Statistics 

will conduct separate surveys pursuant to 

the establishment by the President’s Pay 

Agent of 1 new locality area for the entire 

State of Hawaii and 1 new locality area for 

the entire state of Alaska, and that upon the 

completion of the phase in period no employee shall receive less than the Rest of the 

U.S. locality pay rate. 

(c) SAVINGS PROVISIONS.— 

(1) IN GENERAL.—During the period described under section 4 of this Act, an employee paid a special rate under 5305 of title 

5, United States Code, who the day before 

the date of enactment of this Act was eligible to receive a cost-of-living allowance 

under section 5941 of title 5, United States 

Code, and who continues to be officially stationed in an allowance area, shall receive an 

increase in the employee’s special rate consistent with increases in the applicable special rate schedule. For employees in allowance areas, the minimum step rate for any 

grade of a special rate schedule shall be increased at the time of an increase in the applicable locality rate percentage for the allowance area by not less than the dollar increase in the locality-based comparability 

payment for a non-special rate employee at 

the same minimum step provided under section 4 of this Act, and corresponding increases shall be provided for all step rates of 

the given pay range. 

(2) CONTINUATION OF COST OF LIVING ALLOWANCE RATE.—If an employee, who the day before the date of enactment of this Act was eligible to receive a cost-of-living allowance 

under section 5941 of title 5, United States 

Code, would receive a rate of basic pay and 

applicable locality-based comparability payment which is in excess of the maximum rate 

limitation set under section 5304(g) of title 5, 

United States Code, for his position (but for 

that maximum rate limitation) due to the 

operation of this Act, the employee shall 

continue to receive the cost-of-living allowance rate in effect on December 31, 2008 without adjustment until— 

(A) the employee leaves the allowance area 

or pay system; or 

(B) the employee is entitled to receive 

basic pay (including any applicable localitybased comparability payment or similar supplement) at a higher rate, 

but, when any such position becomes vacant, 

the pay of any subsequent appointee thereto 

shall be fixed in the manner provided by applicable law and regulation. 

(3) LOCALITY-BASED COMPARABILITY PAYMENTS.—Any employee covered under paragraph (2) shall receive any applicable locality-based comparability payment extended 

under section 4 of this Act which is not in excess of the maximum rate set under section 

5304(g) of title 5, United States Code, for his 

position including any future increase to 

statutory pay caps under 5318 of title 5, 

United States Code. Notwithstanding paragraph (2), to the extent that an employee 

covered under that paragraph receives any 

amount of locality-based comparability payment, the cost-of-living allowance rate under 

that paragraph shall be reduced accordingly, 

as provided under section 5941(c)(2)(B) of 

title 5, United States Code. 

SEC. 6. APPLICATION TO OTHER ELIGIBLE EMPLOYEES. 

(a) IN GENERAL.— 

(1) DEFINITION.—In this subsection, the 

term ‘‘covered employee’’ means— 

(A) any employee who— 

(i) on— 

(I) the day before the date of enactment of 

this Act— 

(aa) was eligible to be paid a cost-of-living 

allowance under 5941 of title 5, United States 

Code; and 

(bb) was not eligible to be paid localitybased comparability payments under 5304 or 

5304a of that title; or 

(II) or after the date of enactment of this 

Act becomes eligible to be paid a cost-of-living allowance under 5941 of title 5, United 

States Code; and 

(ii) except as provided under paragraph (2), 

is not covered under— 

(I) section 5941 of title 5, United States 

Code (as amended by section 2 of this Act); 

and 

(II) section 4 of this Act; or 

(B) any employee who— 

(i) on the day before the date of enactment 

of this Act— 

(I) was eligible to be paid an allowance 

under section 1603(b) of title 10, United 

States Code; 

(II) was eligible to be paid an allowance 

under section 1005(b) of title 39, United 

States Code; or 

(III) was employed by the Transportation 

Security Administration of the Department 

of Homeland Security and was eligible to be 

paid an allowance based on section 5941 of 

title 5, United States Code; or 


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S10394 CONGRESSIONAL RECORD — SENATE October 1, 2008 

(ii) on or after the date of enactment of 

this Act— 

(I) becomes eligible to be paid an allowance 

under section 1603(b) of title 10, United 

States Code; 

(II) becomes eligible to be paid an allowance under section 1005(b) of title 39, United 

States Code; or 

(III) is employed by the Transportation Security Administration of the Department of 

Homeland Security and becomes eligible to 

be paid an allowance based on section 5941 of 

title 5, United States Code. 

(2) APPLICATION TO COVERED EMPLOYEES.— 

(A) IN GENERAL.—Notwithstanding any 

other provision of law, for purposes of this 

Act (including the amendments made by this 

Act) any covered employee shall be treated 

as an employee to whom section 5941 of title 

5, United States Code (as amended by section 

2 of this Act), and section 4 of this Act apply. 

(B) PAY FIXED BY STATUTE.—Pay to covered 

employees under section 5304 or 5304a of title 

5, United States Code, as a result of the application of this Act shall be considered to be 

fixed by statute. 

(C) PERFORMANCE APPRAISAL SYSTEM.— 

With respect to a covered employee who is 

subject to a performance appraisal system no 

part of pay attributable to locality-based 

comparability payments as a result of the 

application of this Act including section 5941 

of title 5, United States Code (as amended by 

section 2 of this Act), may be reduced on the 

basis of the performance of that employee. 

(b) POSTAL EMPLOYEES IN NON-FOREIGN

AREAS.— 

(1) IN GENERAL.—Section 1005(b) of title 39, 

United States Code, is amended— 

(A) by inserting ‘‘(1)’’ after ‘‘(b)’’; 

(B) by striking ‘‘Section 5941,’’ and inserting ‘‘Except as provided under paragraph (2), 

section 5941’’; 

(C) by striking ‘‘For purposes of such section,’’ and inserting ‘‘Except as provided 

under paragraph (2), for purposes of section 

5941 of that title,’’; and 

(D) by adding at the end the following: 

‘‘(2) On and after the date of enactment of 

the Non-Foreign Area Retirement Equity Assurance Act of 2008— 

‘‘(A) the provisions of that Act and section 

5941 of title 5 shall apply to officers and employees covered by section 1003(b) and (c) 

whose duty station is in a nonforeign area; 

and 

‘‘(B) with respect to officers and employees 

of the Postal Service (other than those officers and employees described under subparagraph (A)) section 6(b)(2) of that Act shall 

apply.’’. 

(2) CONTINUATION OF COST OF LIVING ALLOWANCE.— 

(A) IN GENERAL.—Notwithstanding any 

other provision of this Act, any employee of 

the Postal Service (other than an employee 

covered by section 1003 (b) and (c) of title 39, 

United States Code, whose duty station is in 

a nonforeign area) who is paid an allowance 

under section 1005(b) of that title shall be 

treated for all purposes as if the provisions 

of this Act (including the amendments made 

by this Act) had not been enacted, except 

that the cost-of-living allowance rate paid to 

that employee— 

(i) may result in the allowance exceeding 

25 percent of the rate of basic pay of that 

employee; and 

(ii) shall be the greater of— 

(I) the cost-of-living allowance rate in effect on December 31, 2008 for the applicable 

area; or 

(II) the applicable locality-based comparability pay percentage under section 4. 

(B) RULE OF CONSTRUCTION.—Nothing in 

this Act shall be construed to— 

(i) provide for an employee described under 

subparagraph (A) to be a covered employee 

as defined under subsection (a); or 

(ii) authorize an employee described under 

subparagraph (A) to file an election under 

section 7 of this Act. 

SEC. 7. ELECTION OF ADDITIONAL BASIC PAY 

FOR ANNUITY COMPUTATION BY EMPLOYEES. 

(a) DEFINITION.—In this section the term 

‘‘covered employee’’ means any employee— 

(1) to whom section 4 applies; 

(2) who is separated from service by reason 

of retirement under chapter 83 or 84 of title 

5, United States Code, during the period of 

January 1, 2009, through December 31, 2011; 

and 

(3) who files and election with the Office of 

Personnel Management under subsection (b). 

(b) ELECTION.— 

(1) IN GENERAL.—An employee described 

under subsection (a) (1) and (2) may file an 

election with the Office of Personnel Management to be covered under this section. 

(2) DEADLINE.—An election under this subsection may be filed not later than December 

31, 2011. 

(c) COMPUTATION OF ANNUITY.— 

(1) IN GENERAL.—Except as provided under 

paragraph (2), for purposes of the computation of an annuity of a covered employee any 

cost-of-living allowance under section 5941 of 

title 5, United States Code, paid to that employee during the first applicable pay period 

beginning on or after January 1, 2009 through 

the first applicable pay period ending on or 

after December 31, 2011, shall be considered 

basic pay as defined under section 8331(3) or 

8401(4) of that title. 

(2) LIMITATION.—The amount of the cost-ofliving allowance which may be considered 

basic pay under paragraph (1) may not exceed the amount of the locality-based comparability payments the employee would 

have received during that period for the applicable pay area if the limitation under section 4 of this Act did not apply. 

(d) CIVIL SERVICE RETIREMENT AND DISABILITY RETIREMENT FUND.— 

(1) EMPLOYEE CONTRIBUTIONS.—A covered 

employee shall pay into the Civil Service Retirement and Disability Retirement Fund— 

(A) an amount equal to the difference between— 

(i) employee contributions that would have 

been deducted and withheld from pay under 

section 8334 or 8422 of title 5, United States 

Code, during the period described under subsection (c) of this section if that subsection 

had been in effect during that period; and 

(ii) employee contributions that were actually deducted and withheld from pay under 

section 8334 or 8422 of title 5, United States 

Code, during that period; and 

(B) interest as prescribed under section 

8334(e) of title 5, United States Code, based 

on the amount determined under subparagraph (A). 

(2) AGENCY CONTRIBUTIONS.— 

(A) IN GENERAL.—The employing agency of 

a covered employee shall pay into the Civil 

Service Retirement and Disability Retirement Fund an amount for applicable agency 

contributions based on payments made under 

paragraph (1). 

(B) SOURCE.—Amounts paid under this 

paragraph shall be contributed from the appropriation or fund used to pay the employee. 

(3) REGULATIONS.—The Office of Personnel 

Management may prescribe regulations to 

carry out this section. 

SEC. 8. REGULATIONS. 

(a) IN GENERAL.—The Director of the Office 

of Personnel Management shall prescribe 

regulations to carry out this Act, including— 

(1) rules for special rate employees described under section 3; 

(2) rules for adjusting rates of basic pay for 

employees in pay systems administered by 

the Office of Personnel Management when 

such employees are not entitled to localitybased comparability payments under section 

5304 of title 5, United States Code, without 

regard to otherwise applicable statutory pay 

limitations during the transition period described in section 4 ending on the first day of 

the first pay period beginning on or after 

January 1, 2011; and 

(3) rules governing establishment and adjustment of saved or retained rates for any 

employee whose rate of pay exceeds applicable pay limitations on the first day of the 

first pay period beginning on or after January 1, 2011. 

(b) OTHER PAY SYSTEMS.—With the concurrence of the Director of the Office of Personnel Management, the administrator of a 

pay system not administered by the Office of 

Personnel Management shall prescribe regulations to carry out this Act with respect to 

employees in such pay system, consistent 

with the regulations issued by the Office 

under subsection (a). 

SEC. 9. EFFECTIVE DATES. 

(a) IN GENERAL.—Except as provided by 

subsection (b), this Act (including the 

amendments made by this Act) shall take effect on the date of enactment of this Act. 

(b) LOCALITY PAY AND SCHEDULE.—The 

amendments made by section 2 and the provisions of section 4 shall take effect on the 

first day of the first applicable pay period beginning on or after January 1, 2009. 

f 

MILITARY VOTING PROTECTION 

ACT OF 2008 

Mr. DURBIN. Mr. President, I ask 

unanimous consent that the Committee on Rules and Administration be 

discharged from further consideration 

of S. 3073, and the Senate proceed to its 

immediate consideration. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

The clerk will report the bill by title. 

The legislative clerk read as follows: 

A bill (S. 3073) to amend the Uniformed and 

Overseas Citizens Absentee Voting Act to 

improve procedures for the collection and delivery of absentee ballots of absent overseas 

uniformed services voters, and for other purposes. 

There being no objection, the Senate 

proceeded to consider the bill. 

Mr. DURBIN. Mr. President, I ask 

unanimous consent that the CornynFeinstein substitute amendment at the 

desk be agreed to, the bill, as amended, 

be read a third time and passed, the 

motions to reconsider be laid upon the 

table, and any statements relating to 

the measure be printed in the RECORD. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

The amendment (No. 5690) was agreed 

to, as follows: 

(Purpose: In the nature of a substitute) 

Strike all after the enacting clause and insert the following: 

SECTION 1. PROCEDURES FOR COLLECTION AND 

DELIVERY OF MARKED ABSENTEE 

BALLOTS OF ABSENT OVERSEAS 

UNIFORMED SERVICES VOTERS. 

(a) PROCEDURES.— 

(1) IN GENERAL.—The Uniformed and Overseas Citizens Absentee Voting Act (42 U.S.C. 

1973ff et seq.) is amended by inserting after 

section 103 the following new section: 


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