HUMAN CAPITAL

The Department of Health 

and Human Service’s and 

Environmental Protection 

Agency’s Use of Special Pay 

Rates for Consultants and 

Scientists 

Statement of 

Robert Goldenkoff, 

Director, Strategic Issues

Robert Cramer

Managing Associate General Counsel

Testimony 

Before the Subcommittee on Health, 

Committee on Energy and Commerce, 

House of Representatives

For Release on Delivery 

Expected at 10:00 a.m. EDT 

Friday, September 14, 2012

GAO-12-1035T

United States Government Accountability Office

GAO
United States Government Accountability Office

Highlights of GAO-12-1035T, a testimony 

before the Subcommittee on Health, 

Committee on Energy and Commerce, House 

of Representatives 

September 2012

HUMAN CAPITAL

The Department of Health and Human Service’s and 

Environmental Protection Agency's Use of Special 

Pay Rates for Consultants and Scientists 

Why GAO Prepared This 

Testimony

HHS and EPA have been using special 

hiring authority provided under 42 

U.S.C. §§209(f) and (g)—referred to in 

this testimony as Title 42—to appoint 

individuals to fill mission critical 

positions in science and medicine and, 

in many cases, pay them above salary 

limits usually applicable to federal 

government employees. GAO was 

asked to review the extent to which 

HHS and EPA have (1) used authority 

under Title 42 to appoint and 

compensate employees since 2006, 

and (2) followed applicable agency 

policy, guidance, and internal controls 

for appointments and compensation. 

GAO was also asked to determine if 

there are statutory caps on pay for 

consultants and scientists appointed 

pursuant to Title 42.

This testimony is based on GAO’s July 

2012 report (GAO-12-692) and a legal 

opinion on whether there are statutory 

caps on pay for consultants and 

scientists appointed pursuant to 42 

U.S.C. §§ 209(f) or (g). (B-3223357)

What GAO Recommends

In the report on which this testimony is 

based, GAO made recommendations 

to HHS to improve oversight and 

management of its Title 42 authority 

and a recommendation to EPA to 

improve enforcement of its ethics 

requirements. HHS agreed with GAO’s 

recommendations, while EPA 

disagreed, citing actions already taken.

GAO acknowledged EPA’s plans to 

address these issues, but maintained 

the recommendation was needed to 

ensure implementation.

What GAO Found

The Department of Health and Human Services’ (HHS) use of special hiring 

authorities under 42 U.S.C. §§ 209(f) and (g) has increased in recent years, from 

5,361 positions in 2006 to 6,697 positions in 2010, an increase of around 25 

percent. Nearly all HHS Title 42 employees work in one of three HHS operating 

divisions: the National Institutes of Health (NIH), the Food and Drug 

Administration (FDA), and the Centers for Disease Control and Prevention 

(CDC). Title 42 employees at HHS serve in a variety of areas, including scientific 

and medical research support and in senior, director-level leadership positions. 

At NIH, one-quarter of all employees, and 44 percent of its researchers and 

clinical practitioners, were Title 42 appointees. 

HHS reported that Title 42 enables the agency to quickly fill knowledge gaps so 

medical research can progress and to respond to medical emergencies. HHS 

further reported Title 42 provides the compensation flexibility needed to compete 

with the private sector. In 2010, 1,461 of HHS’s Title 42 employees earned 

salaries over $155,500. The highest base pay amount under the General 

Schedule – the system under which most federal employees are paid – was 

$155,500 in 2010. Under certain types of Title 42 appointments, statutory pay 

caps may apply. 2010 was the last year of HHS data available at the time of 

GAO’s review.

HHS does not have reliable data to manage and provide oversight of its use of 

Title 42. Moreover, HHS did not consistently adhere to certain sections of its Title 

42 section 209(f) policy. For example, the policy states that 209(f) appointments 

may only be made after non-Title 42 authorities have failed to yield a qualified 

candidate, but GAO found few instances where such efforts were documented. 

HHS has recently issued updated 209(f) policy that addresses most of these 

issues. HHS is developing agencywide policy for appointing and compensating 

employees under Title 42 section 209(g), but it is not clear the policy will address 

important issues such as documenting the basis for compensation. 

Since 2006, the Environmental Protection Agency (EPA) has used section 209(g) 

to appoint 17 employees. Fifteen of EPA’s 17 Title 42 employees earned salaries 

over $155,500 in 2010. EPA appointment and compensation practices were 

generally consistent with its guidance; however, EPA does not have postappointment procedures in place to ensure Title 42 employees meet ethics 

requirements to which they have previously agreed.

In its legal opinion, GAO concluded that an appropriations pay cap applies to 

certain, but not all, employees appointed under 42 U.S.C. §§ 209(f) and (g). If 

Congress desires upper pay limits for appointments not currently subject to the 

pay cap, it may wish to consider legislation to specifically establish such limits.

View GAO-12-1035T. For more information, 

contact Robert Goldenkoff at (202) 512-2757 

or goldenkoffr@gao.gov, or Robert Cramer at 

(202) 512-7227 or cramerr@gao.gov. 
 

Page 1 GAO-12-1035T 

Chairman Pitts, Ranking Member Pallone, Members of the 

Subcommittee,

Thank you for the opportunity to be here today to discuss a special hiring 

authority used by the Department of Health and Human Services (HHS) 

and the Environmental Protection Agency (EPA) to help them overcome 

difficulties in recruiting and retaining individuals in medicine, science, 

engineering, and other fields in support of their missions. One reason for 

these difficulties, according to agency officials, is that salaries available 

under typical federal government hiring authorities are not always 

competitive with those in the private sector for individuals in these highly 

specialized fields. Since 2001, we have designated strategic human 

capital management a government-wide high-risk area in part because of 

the need to address current and emerging critical skills gaps that are 

undermining agencies’ abilities to meet their missions.1

One such human capital flexibility that is available only to HHS and EPA 

is known informally as Title 42 because it is provided under 42 U.S.C. 

§§209(f) and 209(g).

Effective use of 

various human capital flexibilities such as special hiring authority is one 

way agencies can be more competitive in the labor market for top notch 

employees. At the same time, adequate internal controls are needed to 

ensure the flexibilities are used cost-effectively and in accordance with 

applicable laws and agency guidance.

2 Section 209(f) authorizes the employment of 

special consultants to assist and advise in the operation of HHS’s Public 

Health Service (PHS), while section 209(g) authorizes fellowships in the 

PHS for scientists who may be assigned to studies and investigations for 

the term of their fellowships.3

 

1

GAO, High-Risk Series: An Update, 

In 2005, Congress provided EPA with the 

authority to use section 209 to make a limited number of appointments in 

its Office of Research and Development. Congress initially granted this 

authority to EPA for fiscal years 2006 through 2011, but Congress 

amended the authority twice and currently EPA is permitted to employ up 

GAO-11-278 (Washington, D.C.: Feb. 2011).

2

HHS has other special hiring authorities provided under Title 42 of the U.S. Code, but this 

testimony deals exclusively with the special hiring authorities under 42 U.S.C. §§ 209 (f) 

and (g).

3

The PHS is comprised of most operating divisions within HHS—including the National 

Institutes of Health, the Food and Drug Administration and the Centers for Disease 

Control and Prevention—as well as some staff divisions within the Office of the Secretary. 

 
 

Page 2 GAO-12-1035T 

to 30 persons at any one time through fiscal year 2015. HHS has used 

sections 209(f) and (g) and EPA has used section 209(g) to appoint 

individuals from the private sector and academia as well as to convert 

federal government employees under other pay systems—such as the 

General Schedule—to Title 42.

In implementing Title 42, HHS and EPA can set higher pay limits than 

those provided under typical civil service hiring authorities. According to 

HHS and EPA officials, the pay setting flexibility is needed to compete 

with the private sector and academia to recruit and retain critical 

personnel. For example, the highest base pay amount in the General 

Schedule in 2012 is $155,500. In comparison, per HHS policy, the annual 

base salary for many appointments under Title 42 at HHS cannot exceed 

$250,000 per calendar year, with total compensation not to exceed 

$275,000 unless approved by the Secretary.4

To obtain a better understanding of the appointment and compensation 

practices under sections 209(f) and 209(g), we were asked to review the

extent to which HHS and EPA have (1) used the authority under sections 

209(f) and (g) to appoint and set pay for employees since January 2006, 

and (2) followed applicable agency policy, guidance, and internal controls 

for appointments and compensation.

Similarly, EPA policy caps 

annual base salary for Title 42 employees at $250,000, with total 

compensation that may not exceed $275,000. As discussed below, under 

certain types of Title 42 appointments, statutory pay caps may apply.

5

GAO-12-692

 We were also asked to determine 

whether there are any statutory caps on pay for consultants and scientists 

appointed under sections 209(f) and (g). This testimony is based on our 

report ( ) and related legal opinion (B-323357) issued in July 

2012 that both addressed the questions above.

 

4

The salary and compensation limits were lowered in HHS policy issued in February 2012. 

In March 2007, HHS limited annual base salary for employees hired under section 209(f) 

to $350,000 and $375,000 in total compensation. These higher limits were in place during 

most years of our review of HHS’s Title 42 use (2006 through 2010). Total compensation 

at HHS includes base pay; recruitment and retention incentives; and cash awards, such 

as performance bonuses.

5

According to HHS human resource officials, personnel data prior to 2006 were likely not 

reliable for our analysis. EPA began using Title 42 in 2006. HHS data are available 

through the end of 2010, the last year of complete data available at the time we did our 

study; and at EPA, through the end of 2011.
 

Page 3 GAO-12-1035T 

For the report and legal opinion, we analyzed agency Title 42 data, 

interviewed agency officials, and conducted file reviews.6 Details on our 

objectives, scope, and methodology are contained in those two products. 

The audit work upon which this statement is based was conducted in 

accordance with generally accepted government auditing standards.

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives.

During calendar year 2010, HHS had 6,697 employees who were 

appointed under sections 209(f) or (g).7 All but 27 of these employees 

served at the National Institutes of Health (NIH), the Food and Drug 

Administration (FDA), or the Centers for Disease Control and Prevention 

(CDC), while the remaining employees served in the Office of the 

Secretary or within other operating divisions, as shown in figure 1.

 

6

See GAO, Human Capital: HHS and EPA Can Improve Practices Under Special Hiring 

Authorities, GAO-12-692 (Washington, D.C.: July 9, 2012), and GAO, Pay for Consultants 

and Scientists Appointed under Title 42, B-323357 (Washington, D.C.: July 11, 2012).

7

All years are in calendar years unless otherwise stated. 2010 data was the last year of 

complete HHS data available at the time of the study. 

HHS Has Increased Its 

Use of Title 42, but 

More Reliable Data 

Could Improve HHS’s 

Oversight
 

Page 4 GAO-12-1035T 

Figure 1: Most Title 42, Sections 209(f) and (g) Employees Served at NIH, FDA, or 

CDC, 2010

The number of employees appointed under sections 209(f) and (g) 

increased overall at HHS by 25 percent from 2006 through 2010. Since 

2006, the number of Title 42 employees grew by 15 percent at NIH, by 54 

percent at FDA, and by 81 percent at CDC, while declining by 48 percent 

at the Office of the Secretary and all other operating divisions. HHS 

officials attributed the increases in Title 42 employees to, among other 

factors, the agency’s response to urgent public health matters. For 

example, according to HHS officials, the agency used Title 42 authority to 

quickly hire experts needed to develop a vaccine in response to the H1N1 

flu pandemic of 2009. HHS officials told us appointment agility associated 

with Title 42 is important because many research projects, particularly 

those at NIH, are not meant to be long-term and Title 42 appointments – 

which are indefinite or temporary term – can align with project time 

frames better than hiring full-time permanent staff under regular hiring 

authorities. In some cases, the temporary appointment of a researcher 

with highly-specialized skills to assist with a limited-scope, limitedduration study may be more appropriate than a permanent position.

As shown in table 1, NIH relies on Title 42 authority for a greater 

percentage of its total workforce than does FDA and CDC. In 2010, 25 

percent of all NIH employees were Title 42 employees, while 6 percent of 

FDA employees and 10 percent of CDC employees were Title 42. Also, 
 

Page 5 GAO-12-1035T 

NIH relied on the use of Title 42 authority for a substantial portion—44 

percent—of its total research and clinical practitioner workforce.

Table 1: NIH Relied on Title 42 for a Greater Percentage of its Total Workforce and

Research and Clinical Practitioners than FDA and CDC, 2010

Agency

Title 42 

employees

Total 

operating 

division 

workforce

Title 42 

percentage of 

total operating 

division 

workforce

Total 

researchers 

and clinical 

practitioners 

Title 42 

percentage of 

researchers 

and clinical 

practitioners

NIH 4,879 19,292 25 11,040 44

FDA 862 14,617 6 10,025 9 

CDC 929 9,707 10 5,817 16

Source: GAO analysis of HHS and OPM’s Central Personnel Data File data.

Title 42 employees at HHS serve in a variety of functional areas, including 

scientific and medical research support and in senior, director-level 

leadership positions. Base salary ranges for Title 42 employees varied by 

operating division and occupation. In 2010, almost 60 percent of Title 42 

employees at NIH served in one of five general occupations: staff 

scientist, research fellow, senior investigator, clinical research nurse, and 

clinical fellow. Table 2 describes some of the general responsibilities and 

duties, and salary data for these occupations at NIH.

Title 42 Employees Serve 

in Various Functions
 

Page 6 GAO-12-1035T 

Table 2: Most Common Title 42 Occupations at NIH and Characteristics

Occupation (number of Title 42 

employees in 2010) Characteristics Salarya

Staff Scientist (1,103) Supports the long-term research of a senior 

investigator and independently designs 

experiments, but does not have 

responsibilities for initiating new research 

programs

• Base salary range: $82,000-200,000

• Average base salary: $118,000

• Median base salary: $114,000 

Research Fellow (666) Scientists obtaining experience in biomedical 

research while providing a service relevant 

to the NIH’s program needs

• Base salary range: $45,000-112,000

• Average base salary: $70,000

• Median base salary: $69,000

Senior Investigator (521) Has been granted tenure.b

Some senior investigators are assigned 

organizational responsibilities in the institute 

or center, that is, section or branch chief

• Base salary range: $117,000-350,000

• Average base salary: $192,000

• Median base salary: $195,000

Clinical Research Nurse (347)c Specializes in the care of research 

participants and is responsible for assuring 

participant safety, formulating patient care 

plans, integrity of protocol implementation, 

accuracy of data collection, and recording

• Base salary range: $62,000-96,000

• Average and median base salary: 

$78,000

Clinical Fellow (249) Participates in protocol-based clinical 

research (i.e., research with people serving 

as volunteer participants) as well as 

laboratory research

• Base salary range: $57,000-137,000

• Average base salary: $84,000

• Median base salary: $82,000

Source: GAO analysis of HHS data and documents.

a

Salary figures as of 2010. All figures are rounded to the nearest thousand dollars. 

b

Tenure at NIH differs from tenure at an academic institution. Tenure at NIH is defined as the longterm commitment of salary, personnel, and research resources needed to conduct an independent 

research program within the scope of the institutes’ missions, and subject to regular review. Tenure 

may be conferred on Title 42 employees despite the nonpermanent nature of the position. 

c

As part of the sunsetting of the Clinical Research Support pilot, NIH is currently phasing out Title 42 

appointments for nurses. 

At FDA and CDC, the most common occupation of Title 42 employees is 

a fellow. In 2010, 340 (40 percent) of FDA’s Title 42 employees were staff 

fellows. These positions are for promising research and regulatory review 

scientists. FDA staff fellows’ base salary range in 2010 is approximately 

$42,000 to $224,000, with an average base salary of about $96,000 and 

a median salary of about $92,000. According to FDA policy, total 

compensation for staff fellows may not exceed certain pay limits 

($155,500 in 2010) unless the FDA Director of Human Resources and 

Management and Services grants an exception. Three of 340 staff fellows 

at FDA earned more than $155,500 in 2010.
 

Page 7 GAO-12-1035T 

Of CDC’s Title 42 employees in 2010, 687 (74 percent) were senior 

service fellows or associate service fellows appointed to study areas such 

as basic and applied research in medical, physical, biological, 

mathematical, social, biometric, epidemiological, behavioral, computer 

sciences, and other fields directly related to the mission of CDC. Senior 

service fellows had a base salary range in 2010 of approximately $49,000 

to $155,500, with an average base salary of about $103,000 and a 

median salary of about $100,000. Associate service fellows had a base 

salary range of approximately $44,000 to $93,000, with an average base 

salary of about $69,000 and a median salary of about $71,000.

The average base salary for all HHS Title 42 employees in 2010 was 

about $116,000 and the median salary was about $101,000. More than 

one-fifth of all Title 42 employees at HHS, however, earned a base salary 

above Executive Level IV ($155,500 in 2010). There were Title 42 

employees that earned above $155,500 at NIH, FDA, and CDC.

Table 3: HHS Title 42 Employees with Base Salaries within or Exceeding Federal 

Executive Salary Levels, 2010

Executive level

Number of Title 42 

employeesa

At or above Executive Level I ($199,700) 629

Within Executive Levels I and II ($179,700-199,699) 319

Within Executive Levels II and III ($165,300-179,699) 295

Within Executive Levels III and IV ($155,500-165,299) 218

Total 1,461

Source: GAO analysis of HHS data.

a

The remaining 5,236 Title 42 employees had salaries below Executive Level IV ($155,500) 

HHS officials said compensation flexibility helps HHS compete with the 

private sector and academia to hire and retain highly qualified employees 

with rare and critical skill sets. Officials further stated the salaries HHS 

can offer to its top researchers are often not commensurate with private 

sector salaries. However, they said the higher compensation limits under 

Title 42 combined with other benefits—such as name recognition and 

access to advanced research equipment and technology not often 

available in the private sector or academia—can help offset 

compensation disparities and make HHS attractive to researchers, 

doctors, and scientists.

Some Title 42 Employees 

Are Paid Above Executive 

Salary Levels
 

Page 8 GAO-12-1035T 

Our analysis of HHS data found thousands of cases where the section 

authority applicable to the Title 42 appointment (section 209 (f) or (g)) 

was not recorded in the HHS central personnel transaction system.

Although HHS relies on Title 42 authority to fill some of its most critical 

scientific and medical research positions, the lack of complete data and 

guidance may limit the agency’s ability to strategically manage the use of 

the authority. For example, the lack of section authority data in its 

personnel system has made it difficult for HHS to provide accurate 

headcounts of employees hired under sections 209(f) or (g) and resulted 

in HHS overstating the number and operating division of its employees 

hired under these sections to oversight bodies, including Congress, and 

in response to our audit. HHS also erroneously reported appointments 

made under sections 209(f) and (g) that would have been prohibited by 

law, indicating the agency’s data management practices may preclude 

effective oversight of the program and workforce planning. Effective 

oversight is particularly important in light of HHS’s increasing use of Title 

42 and the number of employees earning salaries higher than most 

federal employees.

To address this issue, we recommended that HHS ensure section 

authority—sections 209(f) or (g)—be consistently entered in appropriate 

automated personnel systems, such as making section authority a 

required, drop-down field in its personnel system where this information is 

initially entered. HHS agreed with our recommendation and stated that, 

as it moves forward with the implementation of a new human resources 

system, it will explore the possibility of using a drop-down field to enter 

Title 42 section authority. HHS also said that its Office of Human 

Resources will continue to work with Operating and Staff Divisions to 

ensure that Title 42 personnel actions are processed in a consistent and 

accurate manner.

HHS did not consistently adhere to certain sections of its policy for hiring 

and converting employees under section 209(f). For example,

• Special consultants may only be appointed under section 209(f) to fill 

scientific positions; however, the policy included no formal criteria and 

did not define “scientific.” We reviewed the statement of duties for 28 

section 209(f) cases and found in 5 cases that it was unclear the 

position was scientific.

• Appointments can only be made after other available personnel 

systems have failed to yield candidates that possess critical scientific 

HHS Does Not Have 

Reliable Data on the Use of 

its Title 42 Authority

HHS Did Not Consistently 

Adhere to Sections of its 

Title 42 Policy and Lacks 

Guidance for Some 

Authority Provisions
 

Page 9 GAO-12-1035T 

expertise. These recruitment and retention efforts, according to the 

policy, are to be documented prior to making an appointment under 

section 209(f). In only 5 of the 28 section 209(f) case files we 

reviewed was there documentation showing HHS considered other 

personnel systems before using Title 42.

• 209(f) policy also includes guidance for converting employees from 

other pay systems into special consultant positions under Title 42. 

The policy states conversions are only to be used in exceptional 

circumstances and employees may only be converted to the Title 42 

program if they meet all conversion criteria, such as providing 

leadership in a field equivalent to a full-tenured professor in academia 

and recognition as a national or international expert in the field. In our 

case reviews of six conversions to section 209(f), two cases met each 

of the requirements for converting employees. For other case files we 

reviewed, documentation provided by HHS did not support the basis 

for conversion.

In August 2010, HHS’s Office of Human Resources reviewed the 

agency’s use of section 209(f) authority and found two issues similar to 

those found in our review. Recommendations from the audit report 

became the basis for a new 209(f) policy, which was issued in February 

2012.8

While these changes to 209(f) policy are a step in the right direction, they 

still do not address the need to strengthen documentation to better 

support the use of Title 42. Therefore, we recommended that HHS, as 

part of its effort to implement new section 209(f) guidance, systematically 

document how policy requirements were fulfilled when hiring or 

converting 209(f) employees. HHS agreed with our recommendation and 

stated that its updated policy was, in part, due to our findings.

Significant changes to the 209(f) policy include a definition of

“scientific position”; a requirement that the same recruitment plan be used 

for both Title 5 and Title 42 employees to demonstrate that other available 

personnel systems failed to yield qualified candidates, and identifies 

specific positions and/or categories of positions at NIH that may be filled 

through section 209(f) without “exhausting” other recruitment mechanisms 

or authorities.

 

8

HHS Human Resources Manual, Instruction 42-1: Appointment of 42 U.S.C. § 209(f) 

Special Consultants (Feb. 15, 2012).
 

Page 10 GAO-12-1035T 

For appointments made under Title 42, section 209(g), HHS has no 

agencywide implementing policy for appointing and compensating 

employees hired as fellows, including details about what documents are 

needed to support the basis for appointments and compensation. We 

have previously reported that agencies should have clearly defined, welldocumented, transparent, and consistently applied criteria for appointing 

and compensating personnel.9

Therefore, we recommended that HHS, as part of its ongoing effort to 

develop agencywide policy for appointing and compensating employees 

hired under section 209(g), ensure the policy requires and provides 

guidance for documenting the basis for employee compensation. HHS 

agreed with our recommendation and stated that the section 209(g) policy 

will be implemented in the near future.

In lieu of guidance from HHS, the 

individual operating divisions established their own policies and guidance 

for appointing and compensating fellows under 209(g), each with different 

levels of detail, compensation limits, and documentation requirements.

The lack of an HHS-wide policy poses the risk that compensation 

decisions for section 209(g) fellows at HHS may not be made consistently 

across operating divisions. Although some guidance exists at the 

operating division level for setting compensation targets, in 11 of the 20 

case files we reviewed of section 209(g) fellows, we found either no or 

insufficient documentation to support the basis for compensation. Without 

an agencywide policy, an agency cannot be assured that it is allocating its 

resources most appropriately.

 

9

GAO, A Model of Strategic Human Capital Management, GAO-02-373SP (Washington, 

D.C.: Mar. 15, 2002).
 

Page 11 GAO-12-1035T 

Congress provided EPA with the authority to use Title 42 to employ up to 

30 persons at any one time through fiscal year 2015. At the time of our 

study, EPA had appointed 17 fellows in its Office of Research and 

Development from 2006 to 2011 under section 209(g) and all 17 fellows 

remained with EPA. Appointments for the three fellows hired in 2006 have 

been renewed for another 5-year term.10

Figure 2: Cumulative Number of EPA Title 42 Staff, 2006 through 2011

Figure 2 shows the cumulative 

onboard Title 42 staff, by new hire or conversion.

 

10EPA policy provides that at the conclusion of their term, fellows with Title 5 permanent 

competitive status based on prior employment retain reinstatement eligibility but have no 

guarantee of return to a Title 5 position. Fellows who do not have Title 5 competitive 

status based on prior employment obtain no reinstatement eligibility due to service in a 

Title 42 position. In this case, if the employee is interested in a Title 5 position following 

the Title 42 appointment, they are subject to the normal application and competitive 

selection process.

EPA Employs a 

Limited Number of 

Title 42 Fellows in 

Leadership Positions 

and Could Improve 

Procedures for 

Resolving Potential 

Conflicts of Interest
 

Page 12 GAO-12-1035T 

According to EPA officials, the agency has identified mission critical 

personnel needs and is actively recruiting to fill the 13 remaining 

authorized Title 42 positions. The agency has no plans to use authority 

under section 209(f) at this time, but may consider it in the future. Officials 

told us EPA would need to develop guidance for implementing section 

209(f) before using the authority.11

Title 42 fellows at EPA lead scientific research initiatives, are considered 

experts in the related scientific discipline, and some manage or direct a 

division or office. According to EPA officials, Title 42 provides two 

important tools EPA needs to achieve its mission: (1) the flexibility to be 

competitive in recruiting top experts who are also sought after by other 

federal agencies, private industry, and academia; and (2) the appointment 

flexibility needed to align experts with specific skills to changing scientific 

priorities. EPA officials stated it is not the agency’s intention to hire a 

fellow long-term under Title 42, but rather employ the individual as long 

as a priority remains high.

Annual salaries for Title 42 fellows at EPA range from approximately 

$153,000 to $216,000, with an average salary of about $176,000 and a 

median salary of about $171,000. As shown in table 4, 15 of the 17 EPA 

fellows had salaries exceeding Executive Level IV.

Table 4: Number of EPA Title 42 Fellows with Salaries in Federal Executive Salary 

Levels, 2010

Executive level Number of fellows

At or above Executive Level I ($199,700) 3 

Within Executive Levels I and II ($179,700-199,699) 3 

Within Executive Levels II and III ($165,300-179,699) 4 

Within Executive Levels III and IV ($155,500-165,299) 5 

Below Executive Level IV ($155,500) 2 

Source: GAO analysis of EPA data.

 

11In response to a National Academy of Sciences National Research Council report in 

2000, EPA modeled its Title 42 program after the NIH program. NIH had already 

implemented its program and many structural aspects of the program are similar.
 

Page 13 GAO-12-1035T 

In December 2010, EPA began a pilot of using market salary data to 

estimate salaries of what Title 42 candidates could earn in positions 

outside of government given their education, experience, professional 

standing, and other factors. EPA used the market salary data to inform 

salary negotiations for the five fellows appointed since the implementation 

of the pilot. According to EPA officials, the market salary pilot concludes 

in December 2012 and its effect will be analyzed at that time.

In appointing Title 42 fellows, EPA generally followed appointment 

guidance described in its Title 42 Operations Manual. EPA could, 

however, improve procedures for resolving potential conflicts of interest.

We conducted 10 case file reviews of EPA Title 42 employees and in two 

cases we reviewed, employees had potential conflict of interest situations 

arise after appointment resulting, in part, from the agency’s failure to 

ensure Title 42 employees followed agreed upon ethics requirements.

EPA acknowledged it could improve its postappointment ethics oversight 

and reported it has plans to ensure that Title 42 employees follow 

requirements such as submitting confirmation of stock divestitures to its 

General Counsel, for example, and other ethics requirements. However, 

at the time of our review, EPA had not provided us with implementation 

plans or timeframes for its improved oversight.

To address this issue, we recommended that EPA, as part of its efforts to 

improve postappointment ethics oversight, develop and document a 

systematic approach for ensuring Title 42 employees are compliant with 

ethics requirements after appointment. EPA disagreed with our 

recommendation, citing certain actions already taken, such as a plan to 

require proof of compliance with ethics agreements. We acknowledged 

EPA’s plans to address these issues, but maintained the recommendation 

was needed to ensure implementation because the two ethics issues we 

reported occurred over 2 years ago. 
 

Page 14 GAO-12-1035T 

Our legal opinion, issued on July 11, 2012, responded to a Congressional 

request for our views on whether there are statutory caps on pay for 

consultants and scientists appointed pursuant to 42 U.S.C. §§ 209(f) or 

(g).12

Federal pay systems are extremely complex, and we encountered 

challenges in attempting to resolve ambiguities arising from pay laws 

enacted at different times over nearly 70 years. Sections 209(f) and (g) of 

title 42 were enacted in 1944 and have not been amended since that 

time. There have, however, been many significant changes in related 

laws and regulations that were relevant to our consideration of the issues 

raised. Consequently, we conducted extensive research of legislative 

history to aid in our understanding of congressional actions and the 

interplay of the laws addressed below, and examined regulations issued 

pursuant to these provisions over the last 65 years. We also solicited the 

views of HHS, the Office of Personnel Management (OPM), and the EPA.

We concluded that an appropriations law provision enacted as part 

of the Fiscal Year 1993 Labor-HHS-Education Appropriations Act

established a permanent appropriation cap on the pay of individuals 

appointed on a limited-time basis under 42 U.S.C. §§ 209(f) or (g) at 

agencies funded through that Act. With regard to individuals not subject to 

this cap, we concluded further that two other pay limitations set forth in 

Title 5 of the U.S. Code that we considered do not apply to appointments 

made pursuant to 42 U.S.C. §§ 209(f) or (g).

The appropriations for each fiscal year from 1957 through 1993 included 

a cap on pay for “consultants or individual scientists appointed for limited 

periods of time” (underscoring added) pursuant to 42 U.S.C. §§ 209(f) or 

(g). The appropriations for fiscal year 1993 established a permanent cap 

on such compensation, providing that pay may be set at rates not to 

exceed “the per diem rate equivalent to the maximum rate payable for 

senior-level positions under 5 U.S.C. § 5376.” This cap currently limits 

base pay to $155,500. Our review of the legislative history of the first 

appropriation to contain the limit indicated that it was enacted due to other 

restrictions in law on compensation as an increase over then-existing pay 

authority.

 

12B-323357, July 11, 2012.

Legal Opinion 

Whether There are 

Statutory Caps on Pay 

for Consultants and 

Scientists Appointed 

under Title 42
 

Page 15 GAO-12-1035T 

We considered the meaning of the phrase “for limited periods of time,” 

which has appeared in all of the relevant appropriations provisions from 

1956 to 1993. In 1956, when this language was first included in the 

appropriations law, the Public Health Service’s regulations included time 

limitations on employment. Thus the time limit generally applied to all 

consultant appointments made under section 209(f) beginning in 1947, 

when the regulation containing the limit was first promulgated, unless 

“special circumstances” led the administrator to approve an extension.

Further, the limit was in effect in 1956, when the first appropriations law 

provision referring to consultants appointed for “limited periods of time” 

was enacted.

However, this time limitation was removed from the regulations in 1966.

31 Fed. Reg. 12,939 (Oct. 5, 1966). Therefore, the appropriations pay 

cap applied to all section 209(f) consultants from 1956 until HHS changed 

the regulations in 1966 allowing for the hiring of consultants for indefinite 

periods.

Although the regulations implementing section 209(f) no longer included a 

time limitation on the employment of special consultants after 1966, the 

appropriations provisions for 1967 and subsequent years, using virtually 

identical language each year, imposed a cap only on pay of “consultants 

or individual scientists appointed for limited periods of time pursuant to 

[42 U.S.C. §§ 209(f) or (g)].” The appropriations restriction did not impose 

any cap on pay for those consultants whose appointments were not 

limited in time. As a result, after the 1966 regulations were promulgated 

and continuing to the present, HHS has employed two categories of 

consultants: those appointed for limited periods of time, to whom the pay 

cap applies, and consultants appointed for indefinite periods, to whom the 

pay cap does not apply.

Importantly, the appropriations pay restriction is applicable only to 

payments made from Labor-HHS-Education Appropriations Acts. Three 

components of the Public Health Service (the Agency for Toxic 

Substances and Disease Registrations, the Food and Drug 

Administration, and the Indian Health Services) are funded by 

appropriations acts other than the Labor-HHS-Education Appropriations 

Act, and are not covered by a restriction on funds appropriated under that 

Act. Thus, we concluded that there is a cap of Executive Level IV on the 

pay of consultants and scientists employed for limited periods of time 

pursuant to 42 U.S.C. §§ 209(f) or (g) in all but three of the Public Health 

Service Agencies.
 

Page 16 GAO-12-1035T 

With respect to individuals not covered by the appropriation cap, we 

examined the applicability of two pay limitations found in title 5: section 

3109, which limits pay for consultants “procure[d]” on a temporary or 

intermittent basis, and section 5373, which limits pay fixed by 

administrative action.

Section 3109, enacted in 1946, establishes specific legal parameters, 

including a pay cap and a limit on appointment duration, governing the 

employment of experts or consultants whose appointment must be 

authorized by an “appropriation or other statute.” That pay cap applies 

unless a different cap is authorized by the appropriation or another 

statute.

Beginning in 1956, Congressional actions signaled that section 3109 did 

not apply to section 209(f) appointments. From1956 and continuing until 

1993, Congress enacted provisions yearly in appropriations acts that set 

a cap (which may or may not have been higher than that found in section 

3109 in any given year) for all those appointed pursuant to sections 209(f) 

or (g) for a limited period of time and funded out of the Labor-HHSEducation Appropriations Act. From fiscal year 1970 until the provisions 

became permanent in fiscal year 1993, the appropriations acts for HHS 

contained separate provisions placing identical compensation limits for 

experts and consultants subject to 5 U.S.C. § 3109, and for consultants 

and scientists appointed for limited periods of time pursuant to 42 U.S.C. 

§§ 209(f) or (g). Identical provisions would have been unnecessary if 

Congress believed that the limitations in 5 U.S.C. § 3109 would apply to 

42 U.S.C. §§ 209(f) and (g) consultants or scientists.

Further, in 1992, Congress added subsection (d) to section 3109. It 

directs OPM to prescribe regulations necessary to administer section 

3109. OPM subsequently issued regulations which provide that section 

3109 does not apply to the appointment of experts or consultants under 

other authorities. 5 C.F.R. § 304.101. It also informed us that it “does not 

consider the cap under 5 U.S.C. § 3109 to apply to consultants under 42 

U.S.C. § 209(f).” This interpretation is entitled to considerable weight 

since OPM is the agency charged with administering section 3109.

Based on our review, we found that Congress had not spoken directly on 

the applicability of section 3109 to the authorities in 42 U.S.C. 209(f) and 

(g) and that OPM’s interpretation was reasonable. Therefore, we 

concluded that the provisions of section 3109 do not apply to consultants 

employed pursuant to 42 U.S.C. § 209(f).
 

Page 17 GAO-12-1035T 

The other pay cap that we considered is found in section 5373 of title 5 of 

the United States Code, which places limits on pay fixed by administrative 

action. Pay fixed by administrative action refers to the various pay-setting 

authorities in which pay is determined by the agency instead of pursuant 

to pay rates under otherwise applicable statutory pay systems, such as 

the General Schedule. Congress first enacted section 5373 in 1964, 20 

years after it passed sections 209(f) and (g). Section 5373 limits pay set 

by administrative action to no more than the rate for level IV of the 

Executive Schedule, and lists specific pay authorities which are excepted 

from coverage. The rate for level IV of the Executive Schedule is currently 

$155,500 per year. 42 U.S.C. §§ 209(f) and (g) are not among the 

authorities explicitly excepted from section 5373.

We looked at multiple issues in determining that the section 5373 cap 

does not apply to 42 U.S.C. §§ 209(f) or (g) appointees. We found no 

evidence that Congress had considered the section 209 authorities when 

the administrative pay cap was enacted. Sections 209(f) and (g) allow for 

compensation “without regard to the Classification Act of 1923.” We 

parsed laws enacted in 1923 and later to see if this language should be 

interpreted to create an exemption from section 5373, which of course 

was enacted over 40 years after the Classification Act of 1923, and after 

several additional pay laws had also been enacted. Finally, we looked at 

Congressional action in appropriations passed from 1964 through 1993, 

and in extending section 209 authority to EPA in 2005 and in 2009. These 

Congressional actions led us to believe that it did not intend for the 5 

U.S.C. § 5373 pay cap to apply to consultants and scientists hired 

pursuant to 42 U.S.C. §§ 209(f) and (g). Given the evidence of how 

Congress viewed the authority, we did not object to HHS’s interpretation 

that the 1993 appropriations cap is the only restriction on its authority to 

compensate individuals appointed under 42 U.S.C. §§ 209(f) or (g).

In conclusion, with respect to the first issue, the 1993 appropriations act 

unequivocally limits the pay of consultants and scientists appointed for 

limited periods of time pursuant to 42 U.S.C. §§ 209(f) or (g) at agencies 

that are funded by Labor-HHS-Education Appropriations Acts. With 

regard to the two title 5 limitations, we think that the pay limitations do not 

apply to appointments made pursuant to 42 U.S.C. §§ 209(f) or (g).
 

Page 18 GAO-12-1035T 

The statutory pay provisions we analyzed, as mentioned earlier, were 

enacted over the course of nearly 70 years, and are in different federal 

pay systems. As one court has observed, “although some pay systems 

are ‘linked’ to one another,” they have not been “fastidiously integrated” to 

achieve uniform federal compensation policies.”13 In this case, the issues 

raised – in particular the applicability of the two title 5 limitations on the 

title 42 authority to hire special consultants and fellows – reflect the 

difficulty of applying distinct statutory schemes to determine whether 

specific pay limits apply. Thus if Congress desires upper pay limits for 

appointments under sections 209(f) and (g), it may wish to consider 

amending these provisions to specifically establish such limits.

Both HHS and EPA have used Title 42 to recruit and retain highly skilled, 

in-demand personnel to government service in order to execute their 

missions. At the same time, HHS’s lack of complete data and guidance 

on its use of Title 42 may limit the agency’s ability to strategically manage 

its use and provide oversight of the authority. Effective monitoring of the 

use of Title 42 is particularly important in light of HHS’s increasing use of 

the authority and the number of employees earning salaries higher than 

most federal employees.

EPA generally followed its Title 42 policies and has incorporated some 

modifications to improve its appointment and compensation practices; 

however, EPA’s current ethics guidance does not sufficiently ensure Title 

42 employees meet ethics requirements after appointment. EPA 

acknowledged it could improve its post-appointment ethics oversight and 

reported it has plans to ensure that Title 42 employees send its General 

Counsel confirmation of stock divestitures and other ethics requirements. 

However, at the time of our review, EPA had not provided us with 

implementation plans or timeframes. Although its plans appear to be 

prudent steps for addressing the specific issues that arose in the cases 

we reported, it will be important for EPA to implement them as soon as 

possible to mitigate the risk of future potential conflict of interest issues.

 

13International Organization of Masters, Mates & Pilots v. Brown, 698 F.2d 536, 539 

(C.A.D.C. 1983). 

Concluding 

Observations
 

Page 19 GAO-12-1035T 

Going forward, our recommendations to HHS and EPA to strengthen 

certain practices under Title 42, if implemented, should help strengthen 

the management and oversight of this special hiring authority.

Chairman Pitts, Ranking Member Pallone, and Members of the 

Subcommittee, this completes our prepared statement. We would be 

pleased to respond to any questions you or others may have at this time.

For further information regarding this statement, please contact Robert 

Cramer, Managing Associate General Counsel, at (202) 512-7227, or 

Cramerr@gao.gov, or Robert Goldenkoff, Director, Strategic Issues, at 

(202) 512-2757, or Goldenkoffr@gao.gov. Contact points for our Offices 

of Congressional Relations and Public Affairs may be found on the last 

page of this statement. Individuals making key contributions to this 

testimony include Trina Lewis, Assistant Director; Shea Bader, Analyst-InCharge; Dewi Djunaidy; Karin Fangman; and Sabrina Streagle.

GAO Contacts and 

Staff 

Acknowledgments

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