HHS Transmittal 98.2 Page 1

Personnel Manual

Issue Date: January 27, 1998

[Material Transmitted:]{.underline}

HHS Instruction 304-1, Appointment of Experts and Consultants (pages 4
and 5)

[Material Superseded:]{.underline}

HHS Instruction 304-1 (pages 4 and 5)

[Background:]{.underline}

The transmitted material makes one major change and two minor changes in
HHS Instruction 304-1. The major change on page 4 is the elimination of
the last sentence of 304-1-40.B.3 because it has no legal basis. The
sentence being eliminated is as follows: \"The highest rate that may be
paid is the rate for Level IV of the Executive Schedule.\"

The two minor changes on page 5 involve clarity issues. Both changes are
made in paragraph 304-1-40.C. The first change clarifies the second
sentence of paragraph C as follows: \"Appointments under 5 U.S.C. 3109
usually are for l year or less.\" The following clarification is made in
the next sentence: \"However, if part-time or intermittent appointees do
not work more than 130 days in any service year, their appointments can
be for longer than a year.\" The first and last sentences of paragraph C
were not changed. Following is the corrected version of paragraph C:

Experts and consultants may be appointed on a full-time, part-time, or
intermittent basis. Appointments under 5 U.S.C. 3109 usually are for 1
year or less. However, if part-time or intermittent appointees do not
work more than 130 days in any service year, their appointments can be
for longer than a year. Appointments under other statutes may be for
more than a year regardless of how many days in a year the expert or
consultant works.

The major change above brings HHS Instruction 304-1 into conformance
with the applicable law.

Any reference to \"OPDIV\" in this Instruction now includes AHCPR,
ATSDR, CDC, FDA, HRSA, IHS, NIH, SAMHSA, the Office of the Secretary,
the Program Support Center, HCFA, ACF, and AoA.

Implementation of this issuance must be carried out in accordance with
applicable laws, regulations, and bargaining agreements.

HHS Transmittal 98.2 Page 2

Personnel Manual

Issue Date: January 27, 1998

[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Remove superseded material and file new material.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 lists.

Evelyn M. White

Deputy Assistant Secretary for

Human Resources, OASMB

INSTRUCTION 304-1

HHS Instruction 304-1 Page 4

Personnel Manual

HHS Transmittal 98.2

Experts and consultants appointed under 5 U.S.C. 3109 are subject to
appointment restrictions contained in CFR 304. Experts and consultants
appointed under other

statutes are not subject to those limitations. However, OPDIVs making
such

appointments must ensure that appointments are continued only as long as
necessary.

304-1-40 PAY, LEAVE, TRAVEL, AND OTHER BENEFITS

A. [General]{.underline}

Several different factors or conditions of employment determine the
amount of pay an expert or consultant receives for his/her services, and
the individual\'s entitlements under pay, leave, travel, and other laws
and regulations. These factors or conditions are discussed in the
subsections which follow.

B. [Rate of Compensation]{.underline}

1\. Heads of OPDIVs, or persons to whom they have delegated authority,
will determine the appropriate rate of pay in each case (HHS Instruction
250-2 on setting rates of pay no longer applies to experts and
consultants). Factors to be considered include:

a\. The level and difficulty of the work to be performed;

b\. The qualifications of the expert or consultant;

c\. The pay rates of comparable individuals performing similar work in
the Federal or non-Federal sectors; and

d\. The availability of qualified candidates.

2\. In accordance with the HHS appropriations act, the highest rate that
can be paid to an expert or consultant appointed under 5 U.S.C. is Level
IV of the Executive Schedule.

3\. The rate of compensation for consultants appointed under 42 U.S.C.
209(f) may be set by the OPDIV head or his/her designee.

4\. The basis for compensation levels shall be documented in the
Official Personnel Folder.

HHS Instruction 304-1 Page 5

Personnel Manual

HHS Transmittal 98.2

5\. Experts and consultants may also serve without compensation,
provided the individuals agree in advance in writing to waive any claim
for compensation for those services. 31 U.S.C. 1342 does not permit
acceptance of [voluntary]{.underline} service--that is, service
furnished on the initiative of the person rendering the service without
request from the Department. There is, however, no prohibition against
requesting gratuitous service provided the individual serving without
compensation is not assigned duties of a classified position (see
Comptroller General decision 27 CG 194).

Personnel offices must make sure that the invitation and acceptance to
serve without compensation are in the record. Form SF 50 to document and
terminate the appointment will be prepared even though no compensation
is to be paid.

C. [Duty Basis]{.underline}

Experts and consultants may be appointed on a full-time, part-time, or
intermittent basis. Appointments under 5 U.S.C. 3109 are usually for 1
year or less. However, if part-time or intermittent appointees do not
work more than 130 days in any service year, their appointments can be
for longer than a year. Appointments under other statutes may be for
more than a year regardless of how many days in a year the expert or
consultant works.

D. [Pay Basis]{.underline}

1\. Experts and consultants may be paid on an hourly basis or on a daily
basis. The basic difference between these two pay bases is that an
expert or consultant paid on an hourly basis is paid at his/her hourly
rate for each hour worked, whereas an expert or consultant paid on a
daily basis is paid at his/her full daily rate for each day worked,
regardless of the number of hours involved. At the time of appointment,
experts and consultants may be assigned a daily or an hourly pay basis.
Pay basis is documented on the SF 50 as a daily rate followed by \"PD\"
or as an hourly rate followed by \"PH.\" (See 304-1-40E.2 and F.2.) Pay
must be on an hourly basis for any expert or consultant approved to
perform duties away from the work site.

2\. Regardless of the pay basis of an expert or consultant, his/her
biweekly pay is still limited by law to an amount which does not exceed
the biweekly rate of pay for Level IV of the Executive Schedule. For
example, an expert or consultant being paid the maximum daily rate
cannot be paid for work in excess of 10 days per pay period, since such
pay would exceed the statutory