[Material Transmitted:]{.underline}

HHS Instruction 302-1, Filling Excepted Positions

[Material Superseded:]{.underline}

HHS Instruction 302-1 (all)

[Background:]{.underline}

This Instruction has been revised consistent with recent changes in the
organization of HHS, and in support of HHS administrative initiatives
calling for more streamlined rules and greater delegations of authority.
In this instance, we have engaged in the streamlining of the rules.

Any reference to \"OPDIV" in this Instruction now includes the PHS
agencies, the Office of the Secretary, the Program Support Center, HCFA,
ACF, and AOA.

This issuance is effective immediately. Implementation of this issuance
must be carried out in accordance with applicable laws, regulations,
bargaining agreements, and Departmental policy.

[Filing Instructions:]{.underline}

Remove superseded material and file new material. Post receipt of this
transmittal to the HHS Check List of Transmittals and file this
transmittal in sequential order after the check list.

Eugene Kinlow

Deputy Assistant Secretary for

Human Resources, OASMB

INSTRUCTION 302-1

DISTRIBUTION: MS (PERS): HRFC-001

[HHS INSTRUCTION 302-1]{.underline}

[FILLING EXCEPTED POSITIONS]{.underline}

302-01-00 Purpose

10 Coverage

20 References

30 The Excepted Service

40 Qualification Requirements

50 Filling Excepted Positions by External Appointment

60 Adverse Action Protection

70 Time-in-Grade Requirements

80 Tenure Groups

90 Internal Movement of Excepted Service Employees

100 Special Requirements in the Indian Health Service

302-1-00 PURPOSE

This Instruction sets forth Department policy and procedures concerning
the filling of excepted service positions.

302-1-10 COVERAGE

This Instruction covers positions excepted by statute, Executive Order,
and regulations. It does not cover the Public Health Service
Commissioned Corps, the Senior Executive Service, Department positions
filled under the Canal Zone Merit System or

its successor, the appointment of experts and consultants, or PHS
Fellowship Programs authorized in Title 42 U.S. Code.

302-1-20 REFERENCES

A. 5 U.S. Code 2103 (law - definitions)

B. 5 U.S. Code 3101 (law - general authority to employ)

C. 5 U.S. Code 3320 (law - excepted service)

D. 42 U.S. Code (law - Public Health Service Act)

E. 5 CFR Part 213 (regulations - excepted service)

F. 5 CFR Part 302 (regulations - employment in the excepted service)

G. 5 CFR Part 752 (regulations - adverse actions)

H. Office of Personnel Management Qualification Standards

I. HHS Instruction 351-1 (reduction-in-force (RIF))

302-1-30 THE EXCEPTED SERVICE

5 Us. Code 2103 defines excepted service as \"\...those civil service
positions which are not in the competitive service or the Senior
Executive Service.\" By way of amplification, an excepted service
position is one which has been removed from the competitive service and
therefore may be filled without regard to the Office of Personnel
Management (OPM) competitive examining procedures even though a
competitive process may still be required. An excepted position may or
may not be covered by the Classification Act and other civil service
laws. Some positions, such as attorneys filled under Schedule A
authority 213.3102(d), are always excepted regardless of the incumbent.
Other positions are excepted only when filled by specific categories of
individuals, such as severely physically handicapped individuals
(213.3102(u)).

A.  Methods of Excepting Positions\
    \
    Positions may be excepted from the competitive service by law,
    Executive Order, or OPM action.

B.  Determining Whether Positions are Excepted

    1.  When positions are excepted by law or Executive Order, there is
        usually a section which clearly states that appointments may be
        made without regard to civil service laws or the provisions of
        Title 5 of the U.S. Code.

    2.  Positions excepted by OPM are usually placed in Schedule B,
        or C. A list of these exceptions is published every year in the
        Federal Register.

C.  Obtaining Exceptions\
    \
    OPDIV-specific requests for new excepted appointment authorities or
    for changes in existing authorities must be directed to OPM. These
    requests must include the basis for the exceptions, the number of
    positions, the series and grade levels, and the geographic and
    organizational location(s). A copy of the request and the final OPM
    action on the request must be forwarded to the Office of the Deputy
    Assistant Secretary for Human Resources in the Office of Management
    and Budget (OASMB). Requests concerning authorities that affect more
    than one OPDIV- Assistant Secretary to OPM must be sent to the
    Office of the Deputy

D.  for Human Resources, OASMB, for forwarding.

302-1-40 QUALIFICATION REQUIREMENTS

A.  Basic Policy\
    \
    The qualification requirements for excepted positions in this
    Department will be the same as set forth in the OPM qualification
    standards for competitive service positions, except as discussed
    below.

B.  Selective Factors\
    \
    Personnel offices may include selective factors as part of the basic
    qualification requirements for a position. These selective factors
    must meet the same criteria as selective factors in the competitive
    service. They may not include positive education requirements.

C.  Written Tests\
    \
    Written tests which are part of the qualification standards for
    competitive service positions will not be used for excepted service
    positions unless the particular excepted appointing authority
    requires them.

D.  Positions Filled by Disabled Individuals\
    \
    For positions filled by disabled individuals under Schedule A
    authorities 213.3102(t) and (u), a certification by a State
    vocational rehabilitation counselor (or Veterans Administration
    Counselor for the (u) authority only) may be substituted for the
    usual qualification standards. However, in most cases, applicants\'
    qualifications should not vary substantially from those contained in
    the OPM qualification standards. In no case may a counselors
    certification be substituted for a positive education requirement.

E.  Positions in the Indian Health Service

    1.  The Director of the Indian Health Service (IHS) may establish
        alternative qualification standards for positions in IHS; and

    2.  The Director of IHS may establish conditions under which
        qualification standards for positions in IHS may be waived when
        they are filled by Indians.

F.  Positions With No Qualification Standards\
    \
    There are some General Schedule (GS) and Federal Wage System (FWS)
    positions for which no qualification standards exist. In these
    cases, personnel offices must determine whether a standard for a
    similar series can be used. If this is not possible, the personnel
    office must develop its own standards which follow the general
    pattern of the OPM qualification standards. (This paragraph applies
    to the excepted service and does not authorize the development and
    application of standards to the competitive service.) For positions
    which are not under GS or FWS, personnel offices must determine a
    comparable series and grade for the position and apply the
    appropriate standards. When this is not possible, personnel offices
    must develop basic qualification requirements for the position. Many
    of these positions are special research or intern positions, and the
    basic qualification requirement may include such factors as an
    applicant\'s interest in a particular area of study or his\\her
    desire to enter a particular career field following completion of
    the internship.

G.  Waivers of Qualification Standards\
    \
    Personnel offices may waive qualification standards except that
    positive education requirements may not be waived.

H.  Scientific and Professional Positions\
    \
    Scientific and professional positions are those positions for which
    there is a positive education requirement in the basic OPM
    qualification standards, or which are designated as performing
    professional or scientific work.

I.  

302-1-50 FILLING EXCEPTED POSITIONS BY EXTERNAL APPOINTMENT

A.  External Appointment\
    \
    An external appointment is:

    1.  the filling of an excepted position from outside the Department;

    2.  the filling of an excepted position without time limitation by
        conversion of an employee on a time-limited appointment or an
        appointment designated as indefinite except that this does not
        include the conversion of law clerks to attorneys following
        admittance to the Bar;

    3.  the filling of an excepted position with an employee in the
        competitive service; or

    4.  the movement of an employee from one excepted position to
        another when the appointing authority changes.

        Actions described in section 302-1-90C below are not external
        appointments for purposes of this Instruction.

B.  Prior Approval Requirements\
    \
    Some excepted appointing authorities require prior OPM approval
    before they may be used. When this is the case, the requirement is
    contained in the authority itself.

C.  Positions Not Covered by Title 5 of the U.S. Code\
    \
    Positions excluded from Title 5 may be filled without regard to
    veterans preference and the requirement for priority consideration
    for employees on the Department\'s Priority Reemployment List. There
    is no prescribed rating process for these positions, but an OPDIV
    may elect to use one.

D.  Positions Covered by Title 5 of the U.S. Code\
    \
    When an excepted position is covered by the provisions of Title 5 of
    the U.S. Code, external appointments must be made in accordance with
    the standard rating procedures contained in 5 CFR 302.302(b).
    Additionally, these regulations discuss situations in which the
    rating procedures do not apply or may be modified. (See 5 CFR
    302.102 (c) . ) Modified rating procedures must be approved by OPM.

E.  Exemptions and Modifications to Standard Rating Procedures.

    1.  5 CFR 302 provides that Schedule A and similar positions are not
        covered by standard rating procedures when OPM agrees to this.
        This is not a blanket exemption for Schedule A positions. In
        fact, all other Schedule A positions must be filled under
        standard rating procedures if there are applicants entitled to
        veterans preference or priority consideration.

        a.  If no applicants entitled to veterans preference or priority
            consideration apply for a position, standard rating
            procedures do not have to be followed. However, personnel
            offices must still provide for a rating process which
            objectively assesses the qualifications of applicants,
            except as provided in b below. Such a process maybe as basic
            as qualified and well qualified or as complex as using
            precise numerical ratings.

        b.  If no applicants entitled to veterans preference or priority
            consideration apply under the Schedule A authorities
            213.3102 (t), (u), and (11) and the Schedule B authorities
            for student employment, no rating or ranking is required,
            regardless of the number of applicants.

    2.  When positions (such as attorneys) are excluded from standard
        rating procedures, applicants with veterans preference or
        entitlement to priority consideration are still entitled to
        their rights. For example, if a categorical rating system is
        used and a veteran and a nonveteran are both ranked in the top
        category, the nonveteran may not be selected ahead of the
        veteran without a written explanation of the reasons why the
        veteran is being passed over. Upon request, these reasons must
        be made available to the veteran. (See section 302-1-501 below).

    3.  If all the applicants for a position will be selected, they need
        not be rated and ranked. However, they must all meet the basic
        qualification requirements for the position.

F.  Priority Consideration\
    \
    With respect to the application of external appointment procedures,
    priority consideration is the consideration given to excepted
    service employees who are entitled to be placed on the Department\'s
    Priority Reemployment List as required by 5 CFR 302.303. The
    Priority Reemployment List is Department-wide in a particular
    commuting area, and it will include nonpreference eligibles. With
    respect to the filling of attorney positions, priority consideration
    applies only to those employees who have recovered from work-related
    injuries as described in 5 CFR 302.303(b)(3). This is because
    employees who recover from work-related injuries are entitled to
    priority consideration on the basis of statute while the priority
    consideration given to other employees is based on OPM regulations.
    The Department of Justice has determined that OPM has no authority
    to regulate the filling of attorney positions.

    Priority consideration described in this section is separate from
    priority consideration which sometimes is granted to remedy an
    employee\'s loss of consideration for a position. Generally, this
    latter type of priority consideration is granted by a personnel
    office and may not take precedence over priority consideration
    described above.

G.  Rating Criteria\
    \
    When it is necessary to rate and rank applicants, the rating
    criteria must be based on an in depth analysis of the requirements
    of the position. Ratings must be documented, and they must be based
    on an assessment of the applicant\'s knowledge, skills, and
    abilities in relation to the requirements of the position. Because
    these ratings are being made for external appointments, performance
    appraisals usually should not be obtained. However, this does not
    restrict a selecting official from obtaining references on an
    applicant before making a selection. For some intern and residency
    positions in the Public Health Service, letters of recommendation or
    appraisals from deans, professors, or supervisors may be used in the
    rating process. An interview may be part of the rating process if it
    is standardized and there is documentation to show which knowledge,
    skills, and abilities it was being used to assess.

H.  Source of Applicants\
    \
    Applicants for excepted positions may be located by the use of
    vacancy announcements, applicant supply files, or referral sources.

    1.  A vacancy announcement may have a specific opening and closing
        date (and must be open for at least 1 week), or it may be an
        open continuous announcement. In either case, the announcement
        must be distributed to sources outside the Department since it
        is being used to fill a position by external appointment.

    2.  Personnel offices may maintain applicant supply files for
        particular types of positions. These may be used in lieu of or
        in conjunction with vacancy announcements. Personnel offices may
        establish the time period during which applicants will receive
        consideration, but it must be at least 90 days. Applicants
        should be advised of the time period during which they will
        receive consideration. Personnel offices do not have to follow
        OPM instructions concerning applicant supply files, while they
        may be a useful guide.

    3.  In some cases, it may be appropriate to use only referrals from
        a particular source. For example, if an agency has a cooperative
        education agreement with one school, that school is the only
        appropriate source for applicants for cooperative education
        positions. If a disabled applicant is referred by a State
        vocational rehabilitation agency, there is no requirement that
        the position be announced in an attempt to locate other disabled
        applicants. However, if there are other disabled applicants in
        the applicant supply file who qualify for the position and are
        entitled to veterans preference or priority consideration, they
        must be considered and rated along with the referral from the
        State vocational rehabilitation agency.

I.  Passing Over Veterans and Employees Entitled to Priority
    Consideration

    1.  When a veteran is passed over, there must be written
        documentation showing the basis for the passover. The passover
        must be based on objective criteria, and the justification must
        show the areas in which the selectee is better qualified than
        the applicant passed over.\
        \
        Upon request, the reasons for the passover must be made
        available to the veteran. The passover must be reviewed by the
        management official above the selecting official, except in
        those cases where the selecting official is the Head of the
        OPDIV or STAFFDIV. In addition, the personnel officer must
        concur that the passover is justified. Personnel offices will
        keep all documentation for passovers for at least 2 years.

    2.  When an applicant entitled to priority consideration is passed
        over, the procedures contained in 5 CFR 302.304 must be
        followed.

J.  Plans for Filling Positions\
    \
    Personnel offices which have appointing authority over excepted
    positions must develop examining plans for making external
    appointments. These plans must conform to this Instruction. There
    may be different plans for different positions. For example,
    different plans would be appropriate for those positions not covered
    by Title 5 of the U.S. Code and those positions for which standard
    rating procedures are required.

302-1-60 ADVERSE ACTION PROTECTION

An excepted service employee with veterans preference acquires adverse
action protection under 5 CFR Part 752 after completing 1 year of
current continuous service in the excepted service regardless of whether
that year was designated as a trial period. An employee in the excepted
service who is a non-preference eligible who has completed 2 years of
current continuous service in the same or similar position under other
than a temporary appointment limited to 2 years or less is entitled to
adverse action protection under 5 CFR Part 752. Non-preference employees
in excepted positions which lead to conversion to the competitive
service are in a probationary period for determining whether they have
adverse action coverage no matter how many years of service they accrue
under such an appointment. Therefore, they do not acquire adverse action
protection. While the Department no longer prescribes a trial period, an
OPDIV may elect to do so, but the use of a trial period has no effect on
adverse action coverage.

302-1-70 TIME-IN-GRADE REQUIREMENTS

OPDIVs will apply time-in-grade requirements in the excepted service in
the same manner as they are applied in the competitive service.
Time-in-grade requirements may but do not have to be applied if an
employee could have been previously appointed at the higher grade under
external procedures, and this fact is documented. In a memorandum dated
September 29, 1993, the authority to waive time-in-grade requirements in
the excepted service - was delegated to the redelegation authorized.

302-1-80 TENURE GROUPS

The designation of tenure groups is intended only to be applicable to
reduction in force standing and has no effect on any other rights.

A.  Permanent Positions\
    \
    Employees placed in permanent positions will be placed in Tenure
    Group II. After 3 years of substantially continuous service, they
    will be placed in Tenure Group I. The determination as to the
    completion of 3 years of substantially continuous service will be
    made in the same manner as for the competitive service except that
    the service must begin and end with permanent appointments in the
    excepted service. Once an employee has met the requirement for
    placement in Tenure Group I, he/she does not have to serve a new
    3-year period regardless of any future breaks in service. The
    requirement may have been met in this Department or any other
    Department. Obtaining career tenure in the competitive service does
    not satisfy the requirement for being placed in Tenure Group 1 in
    the excepted service. (Such employees with career tenure in the
    competitive service but with no previous excepted service would be
    placed in Tenure Group II.) The instructions in this section do not
    apply to Schedule C employees. (See section 302-1-80B below.)

B.  Schedule C Employees\
    \
    A Schedule C employee whose appointment is not time-limited must be
    placed in Tenure Group I upon initial appointment.

C.  Use of Tenure Group III\
    \
    In the excepted service, an employee who has completed more than 1
    year of service under temporary appointments is placed in Tenure
    Group III. In addition, employees whose appointments are designated
    as indefinite are in Tenure Group III. The indefinite designation
    should be used only when an employee is working in a situation which
    is not permanent although the specific termination date may not be
    known. The indefinite designation may not be used for a permanent
    position.

302-1-90 INTERNAL MOVEMENT OF EXCEPTED SERVICE EMPLOYEES

A.  Applicability\
    \
    When a Department employee in the excepted service is moved to
    another position and the action does not meet the definition for
    external appointment contained in section 302-1-50A, the provisions
    of this section apply.

B.  Competitive Process\
    \
    OPDIVs may but are not required to use a competitive process in
    filling excepted service positions.

C.  Extensions and Changes in Tenure\
    \
    The following actions may be taken without regard to the procedures
    contained in section 302-1-50:

    1.  Extension of time-limited appointments:

    2.  Conversion of excepted time-limited appointments to excepted
        indefinite or excepted permanent appointments when the
        conversion results from the removal of the time limitation from
        the appointing authority itself or when the position was
        originally announced as a permanent position, the selectee was
        within reach for a permanent appointment, but at the time
        management placed him\\her on a time-limited appointment; and

    3.  Consecutive temporary appointments under the same authority when
        the authority permits or requires appointments to be made in
        l-year increments, for example, appointment of students. In
        these cases, appointments may be made at higher grades.

D.  Applicability of Veterans Preference\
    \
    Veterans preference is not applicable to the movement of excepted
    service employees within the Department unless that movement is
    effected under external appointment procedures as described in
    section 302-1-50.

E.  Right to Apply Under External Appointment Procedures\
    \
    An excepted service employee of the Department has the right to
    apply for any position being filled by external appointment. In such
    a case, the employee is rated and ranked in the same manner as other
    applicants applying for external appointment. An employee who
    applies under external appointment procedures must still meet
    time-in-grade requirements, if an OPDIV elects not to waive the
    time-in-grade requirements. A Department employee being considered
    for a position in the Indian Health Service under Schedule A
    authority 213.3116(b) (8) under external appointment procedures does
    not have to meet time-in-grade requirements.

302-1-100 SPECIAL REQUIREMENTS IN THE INDIAN HEALTH SERVICE

This Instruction applies to the Indian Health Service (IHS) as well as
to the rest of the Department. However, where any requirement of this
Instruction conflicts with the requirement to provide Indian preference,
the latter requirement is controlling. Competition among Indians, or
non-Indians where no Indians are available, is in accordance with this
Instruction. For example, the same conditions apply to passing over an
Indian with veterans preference by an Indian without veterans preference
as apply to passing over a veteran with a nonveteran. The rights of an
Indian not entitled to veterans preference are superior to those of a
non-Indian who is entitled to veterans preference. Personnel offices
which have appointing authority over excepted positions in IHS are
responsible for developing and implementing procedures which comply with
this Instruction and the requirements of Indian preference.