I 

110TH CONGRESS 

2D SESSION S. 1046 

IN THE HOUSE OF REPRESENTATIVES 

JULY 14, 2008 

Referred to the Committee on Oversight and Government Reform 

AN ACT 

To modify pay provisions relating to certain senior-level 

positions in the Federal Government, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Senior Professional 

3 Performance Act of 2008’’. 

4 SEC. 2. PAY PROVISIONS RELATING TO CERTAIN SENIOR5 LEVEL POSITIONS. 

6 (a) LOCALITY PAY.—Section 5304 of title 5, United 

7 States Code, is amended— 

8 (1) in subsection (g), by amending paragraph 

9 (2) to read as follows: 

10 ‘‘(2) The applicable maximum under this sub11 section shall be level III of the Executive Schedule 

12 for— 

13 ‘‘(A) positions under subparagraphs (A) 

14 and (B) of subsection (h)(1); and 

15 ‘‘(B) any positions under subsection 

16 (h)(1)(C) as the President may determine.’’; 

17 and 

18 (2) in subsection (h)— 

19 (A) in paragraph (1)— 

20 (i) by striking subparagraph (A); 

21 (ii) in subparagraph (D)— 

22 (I) in clause (v), by striking ‘‘or’’ 

23 at the end; 

24 (II) in clause (vi), by striking the 

25 period at the end and inserting ‘‘; or’’; 

26 and 

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1 (III) by adding at the end the 

2 following: 

3 ‘‘(vii) a position to which section 5376 

4 applies (relating to certain senior-level and 

5 scientific and professional positions).’’; and 

6 (iii) by redesignating subparagraphs 

7 (B), (C), and (D) as subparagraphs (A), 

8 (B), and (C), respectively; and 

9 (B) in paragraph (2)(B)— 

10 (i) in clause (i)— 

11 (I) by striking ‘‘subparagraphs 

12 (A) through (C)’’ and inserting ‘‘sub13 paragraphs (A) and (B)’’; and 

14 (II) by striking ‘‘or (vi)’’ and in15 serting ‘‘(vi), or (vii)’’; and 

16 (ii) in clause (ii)— 

17 (I) by striking ‘‘paragraph 

18 (1)(D)’’ and inserting ‘‘paragraph 

19 (1)(C)’’; and 

20 (II) by striking ‘‘or (vi)’’ and in21 serting ‘‘(vi), or (vii)’’. 

22 (b) ACCESS TO HIGHER MAXIMUM RATE OF BASIC

23 PAY.—Section 5376(b) of title 5, United States Code, is 

24 amended— 

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1 (1) in paragraph (1), by striking subparagraph 

2 (B) and inserting the following: 

3 ‘‘(B) subject to paragraph (3), not greater 

4 than the rate of basic pay payable for level III 

5 of the Executive Schedule.’’; and 

6 (2) by adding at the end the following: 

7 ‘‘(3) In the case of an agency which has a per8 formance appraisal system which, as designed and 

9 applied, is certified under section 5307(d) as making 

10 meaningful distinctions based on relative perform11 ance, paragraph (1)(B) shall apply as if the ref12 erence to ‘level III’ were a reference to ‘level II’. 

13 ‘‘(4) No employee may suffer a reduction in pay 

14 by reason of transfer from an agency with an appli15 cable maximum rate of pay prescribed under para16 graph (3) to an agency with an applicable maximum 

17 rate of pay prescribed under paragraph (1)(B).’’. 

18 (c) AUTHORITY FOR EMPLOYMENT; APPOINTMENTS; 

19 CLASSIFICATION STANDARDS.—Title 5, United States 

20 Code is amended— 

21 (1) in section 3104(a), in the second sentence, 

22 by striking ‘‘prescribes’’ and inserting ‘‘prescribes 

23 and publishes in such form as the Director may de24 termine’’; 

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1 (2) in section 3324(a) by striking ‘‘the Office of 

2 Personnel Management’’ and inserting: ‘‘the Direc3 tor of the Office of Personnel Management on the 

4 basis of qualification standards developed by the 

5 agency involved in accordance with criteria specified 

6 in regulations prescribed by the Director’’; 

7 (3) in section 3325— 

8 (A) in subsection (a), in the second sen9 tence, by striking ‘‘or its designee for this pur10 pose’’ and inserting the following: ‘‘on the basis 

11 of standards developed by the agency involved 

12 in accordance with criteria specified in regula13 tions prescribed by the Director of the Office of 

14 Personnel Management’’; and 

15 (B) by adding at the end the following: 

16 ‘‘(c) The Director of the Office of Personnel Manage17 ment shall prescribe such regulations as may be necessary 

18 to carry out the purpose of this section.’’; and 

19 (4) in section 5108(a)(2) by inserting ‘‘pub20 lished by the Director of the Office of Personnel 

21 Management in such form as the Director may de22 termine’’ after ‘‘and procedures’’. 

23 (d) EFFECTIVE DATE AND APPLICATION.— 

24 (1) EFFECTIVE DATE.—The amendments made 

25 by this section shall take effect on the first day of 

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1 the first pay period beginning on or after the 180th 

2 day following the date of enactment of this Act. 

3 (2) NO REDUCTIONS IN RATES OF PAY.— 

4 (A) IN GENERAL.—The amendments made 

5 by this section may not result, at the time such 

6 amendments take effect, in a reduction in the 

7 rate of basic pay for an individual holding a po8 sition to which section 5376 of title 5, United 

9 States Code, applies. 

10 (B) DETERMINATION OF RATE OF PAY.— 

11 For the purposes of subparagraph (A), the rate 

12 of basic pay for an individual described in that 

13 subparagraph shall be deemed to be the rate of 

14 basic pay set for the individual under section 

15 5376 of title 5, United States Code, plus any 

16 applicable locality pay paid to that individual on 

17 the day before the effective date under para18 graph (1), subject to regulations that the Direc19 tor of the Office of Personnel Management may 

20 prescribe. 

21 (3) REFERENCES TO MAXIMUM RATES.—Except 

22 as otherwise provided by law, any reference in a pro23 vision of law to the maximum rate under section 

24 5376 of title 5, United States Code— 

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1 (A) as provided before the effective date of 

2 the amendments made by this section, shall be 

3 considered a reference to the rate of basic pay 

4 for level IV of the Executive Schedule; and 

5 (B) as provided on or after the effective 

6 date of the amendments made by this section, 

7 shall be considered a reference to— 

8 (i) the rate of basic pay for level III 

9 of the Executive Schedule; or 

10 (ii) if the head of the agency respon11 sible for administering the applicable pay 

12 system certifies that the employees are cov13 ered by a performance appraisal system 

14 meeting the certification criteria estab15 lished by regulation under section 5307(d), 

16 level II of the Executive Schedule. 

17 SEC. 3. LIMITATIONS ON CERTAIN PAYMENTS. 

18 (a) IN GENERAL.—Section 5307(d) of title 5, United 

19 States Code, is amended— 

20 (1) in paragraph (2), by striking all after ‘‘pur21 poses of’’ and inserting: ‘‘applying the limitation in 

22 the calendar year involved, has a performance ap23 praisal system certified under this subsection as 

24 making, in its design and application, meaningful 

25 distinctions based on relative performance.’’; and 

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1 (2) in paragraph (3)(B)— 

2 (A) by striking all beginning with ‘‘An’’ 

3 through ‘‘2 calendar years’’ and inserting ‘‘The 

4 certification of an agency performance appraisal 

5 system under this subsection shall be for a pe6 riod not to exceed 24 months beginning on the 

7 date of certification, unless extended by the Di8 rector of the Office of Personnel Management 

9 for up to 6 additional months’’; and 

10 (B) by striking ‘‘, for purposes of either or 

11 both of those years,’’. 

12 (b) EXTENSION OF CERTIFICATION.— 

13 (1) EXTENSION TO 2009.— 

14 (A) IN GENERAL.—For any certification of 

15 a performance appraisal system under section 

16 5307(d) of title 5, United States Code, in effect 

17 on the date of enactment of this Act and sched18 uled to expire at the end of calendar year 2008, 

19 the Director of the Office of Personnel Manage20 ment may provide that such a certification shall 

21 be extended without requiring additional jus22 tification by the agency. 

23 (B) LIMITATION.—The expiration of any 

24 extension under this paragraph shall be not 

25 later than the later of— 

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1 (i) June 30, 2009; or 

2 (ii) the first anniversary of the date of 

3 the certification. 

4 (2) EXTENSION TO 2010.— 

5 (A) IN GENERAL.—For any certification of 

6 a performance appraisal system under section 

7 5307(d) of title 5, United States Code, in effect 

8 on the date of enactment and scheduled to ex9 pire at the end of calendar year 2009, the Di10 rector of the Office of Personnel Management 

11 may provide that such a certification shall be 

12 extended without requiring additional justifica13 tion by the agency. 

14 (B) LIMITATION.—The expiration of any 

15 extension under this paragraph shall be not 

16 later than the later of— 

17 (i) June 30, 2010; or 

18 (ii) the second anniversary of the date 

19 of the certification. 

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1 (c) EFFECTIVE DATE.—The amendments made by 

2 this section shall take effect on the date of enactment of 

3 this Act. 

Passed the Senate July 11, 2008. 

Attest: NANCY ERICKSON, 

Secretary. 

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