42 U.S.C. § 209 — Appointment of personnel

Page 63 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 209 Functions of Federal Security Administrator trans- ferred to Secretary of Health, Education, and Welfare and all agencies of Federal Security Agency transferred to Department of Health, Education, and Welfare by section 5 of Reorg. Plan No. 1 of 1953, set out as a note under section 3501 of this title. Federal Security Agen- cy and office of Administrator abolished by section 8 of Reorg. Plan No. 1 of 1953. DELEGATION OF FUNCTIONS Functions of President delegated to Secretary of Health and Human Services, see Ex. Ord. No. 11140, Jan. 30, 1964, 29 F.R. 1637, as amended, set out as a note under section 202 of this title. § 208. Repealed. Feb. 28, 1948, ch. 83, § 5(a), 62 Stat. 40 Section, act July 1, 1944, ch. 373, title II, § 207, 58 Stat. 685, related to establishment of special temporary pro- visions. See sections 206(c) and 207(c) of this title. § 209. Appointment of personnel (a) Original appointments to Regular and Ready Reserve Corps; limitation on appointment and call to active duty (1) Except as provided in subsections (b) and (e) of this section, original appointments to the Regular Corps may be made only in the warrant officer (W–1), chief warrant officer (W–2), chief warrant officer (W–3), chief warrant officer (W–4), junior assistant, assistant, and senior as- sistant grades and original appointments to a grade above junior assistant shall be made only after passage of an examination, given in ac- cordance with regulations of the President, in one or more of the several branches of medicine, dentistry, hygiene, sanitary engineering, phar- macy, psychology, nursing, or related scientific specialties in the field of public health. (2) Original appointments to the Ready Re- serve Corps may be made to any grade up to and including the director grade but only after pas- sage of an examination given in accordance with regulations of the President. Reserve commis- sions shall be for an indefinite period and may be terminated at any time, as the President may direct. (3) No individual who has attained the age of forty-four shall be appointed to the Regular Corps, or called to active duty in the Ready Re- serve Corps for a period in excess of one year, unless (A) he has had a number of years of active service (as defined in section 212(d) of this title) equal to the number of years by which his age exceeds forty-four, or (B) the Surgeon General determines that he possesses exceptional quali- fications, not readily available elsewhere in the Commissioned Corps of the Public Health Serv- ice, for the performance of special duties with the Service, or (C) in the case of an officer of the Ready Reserve Corps, the Commissioned Corps of the Service has been declared by the Presi- dent to be a military service. (b) Grade and number of original appointments (1) Not more than 10 per centum of the origi- nal appointments to the Regular Corps author- ized to be made during any fiscal year may be made to grades above that of senior assistant, but no such appointment (other than an ap- pointment under section 205 of this title) may be made to a grade above that of director. For the purpose of this subsection the number of origi- nal appointments authorized to be made during a fiscal year shall be (1) the excess of the num- ber of officers of the Regular Corps authorized by the appropriation Act or Acts for such year over the number of officers on active duty in the Regular Corps on the first day of such year, plus (2) the number of such officers of the Regular Corps who, during such fiscal year, have been or will be retired upon attainment of age sixty-four or have for any other reason ceased to be on ac- tive duty. In determining the number of ap- pointments authorized by this subsection an ap- pointment shall be deemed to be made in the fis- cal year in which the nomination is transmitted by the President to the Senate. (2) In addition to the number of original ap- pointments to the Regular Corps authorized by paragraph (1) to be made to grades above that of senior assistant, original appointments author- ized to be made to the Regular Corps in any year may be made to grades above that of senior as- sistant, but not above that of director, in the case of any individual who— (A)(i) was on active duty in the Ready Re- serve Corps on July 1, 1960, (ii) was on such ac- tive duty continuously for not less than one year immediately prior to such date, and (iii) applies for appointment to the Regular Corps prior to July 1, 1962; or (B) does not come within clause (A)(i) and (ii) but was on active duty in the Ready Re- serve Corps continuously for not less than one year immediately prior to his appointment to the Regular Corps and has not served on active duty continuously for a period, occurring after June 30, 1960, of more than three and one-half years prior to applying for such appointment. (3) No person shall be appointed pursuant to this subsection unless he meets standards estab- lished in accordance with regulations of the President. (c) Issuance of commissions Commissions evidencing the appointment by the President of officers of the Regular Corps or Ready Reserve Corps shall be issued by the Sec- retary under the seal of the Department of Health and Human Services. (d) Date of appointment; credit for service (1) For purposes of basic pay and for purposes of promotion, any person appointed under sub- section (a) to the grade of senior assistant in the Regular Corps, and any person appointed under subsection (b), shall, except as provided in para- graphs (2) and (3) of this subsection, be consid- ered as having had on the date of appointment the following length of service: Three years if appointed to the senior assistant grade, ten years if appointed to the full grade, seventeen years if appointed to the senior grade, and eight- een years if appointed to the director grade. (2) For purposes of basic pay, any person ap- pointed under subsection (a) to the grade of sen- ior assistant in the Regular Corps, and any per- son appointed under subsection (b), shall, in lieu of the credit provided in paragraph (1) of this subsection, be credited with the service for which he is entitled to credit under any other provision of law if such service exceeds that to Page 64 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 209 which he would be entitled under such para- graph. (3) For purposes of promotion, any person originally appointed in the Regular Corps to the senior assistant grade or above who has had ac- tive service in the Ready Reserve Corps shall be considered as having had on the date of appoint- ment the length of service provided for in para- graph (1) of this subsection, plus whichever of the following is greater: (A) The excess of his total active service in the Ready Reserve Corps (above the grade of junior assistant) over the length of service provided in such paragraph, to the extent that such excess is on account of service in the Ready Reserve Corps in or above the grade to which he is appointed in the Reg- ular Corps or (B) his active service in the same or any higher grade in the Ready Reserve Corps after the first day on which, under regulations in effect on the date of his appointment to the Regular Corps, he would have had the training and experience necessary for such appointment. (4) For purposes of promotion, any person whose original appointment is to the assistant grade in the Regular Corps shall be considered as having had on the date of appointment serv- ice equal to his total active service in the Ready Reserve Corps in and above the assistant grade. (e) Reappointment; credit for service (1) A former officer of the Regular Corps may, if application for appointment is made within two years after the date of the termination of his prior commission in the Regular Corps, be reappointed to the Regular Corps without exam- ination, except as the Surgeon General may oth- erwise prescribe, and without regard to the nu- merical limitations of subsection (b). (2) Reappointments pursuant to this sub- section may be made to the permanent grade held by the former officer at the time of the ter- mination of his prior commission, or to the next higher grade if such officer meets the eligibility requirements prescribed by regulation for origi- nal appointment to such higher grade. For pur- poses of pay, promotion, and seniority in grade, such reappointed officer shall receive the credits for service to which he would be entitled if such appointment were an original appointment, but in no event less than the credits he held at the time his prior commission was terminated, ex- cept that if such officer is reappointed to the next higher grade he shall receive no credit for seniority in grade. (3) No former officer shall be reappointed pur- suant to this subsection unless he shall meet such standards as the Secretary may prescribe. (f) Special consultants In accordance with regulations, special con- sultants may be employed to assist and advise in the operations of the Service. Such consult- ants may be appointed without regard to the civil-service laws. (g) Designation for fellowships; duties; pay In accordance with regulations, individual sci- entists, other than commissioned officers of the Service, may be designated by the Surgeon Gen- eral to receive fellowships, appointed for duty with the Service without regard to the civil- service laws, may hold their fellowships under conditions prescribed therein, and may be as- signed for studies or investigations either in this country or abroad during the terms of their fellowships. (h) Aliens Persons who are not citizens may be employed as consultants pursuant to subsection (f) and may be appointed to fellowships pursuant to subsection (g). Unless otherwise specifically pro- vided, any prohibition in any other Act against the employment of aliens, or against the pay- ment of compensation to them, shall not be ap- plicable in the case of persons employed or ap- pointed pursuant to such subsections. (i) Civil service appointments by Secretary The appointment of any officer or employee of the Service made in accordance with the civil- service laws shall be made by the Secretary, and may be made effective as of the date on which such officer or employee enters upon duty. (July 1, 1944, ch. 373, title II, § 207, formerly § 208, 58 Stat. 685; July 3, 1946, ch. 538, § 4, 60 Stat. 421; Aug. 13, 1946, ch. 958, § 3, 60 Stat. 1049; renum- bered § 207 and amended Feb. 28, 1948, ch. 83, § 5(a)–(d), 62 Stat. 40; Oct. 12, 1949, ch. 681, title V, § 521(a), 63 Stat. 834; 1953 Reorg. Plan No. 1, §§ 5, 8, eff. Apr. 11, 1953, 18 F.R. 2053, 67 Stat. 631; Apr. 27, 1956, ch. 211, § 3(a)–(c)(1), 70 Stat. 116; Pub. L. 86–415, §§ 2, 3, Apr. 8, 1960, 74 Stat. 32; Pub. L. 96–76, title III, § 305, Sept. 29, 1979, 93 Stat. 585; Pub. L. 96–88, title V, § 509(b), Oct. 17, 1979, 93 Stat. 695; Pub. L. 97–35, title XXVII, § 2765(c), Aug. 13, 1981, 95 Stat. 933; Pub. L. 97–414, § 8(a), Jan. 4, 1983, 96 Stat. 2060; Pub. L. 116–136, div. A, title III, § 3214(e)(1), (3), Mar. 27, 2020, 134 Stat. 373.) Editorial Notes CODIFICATION In subsec. (f), the words ‘‘and their compensation may be fixed without regard to the Classification Act of 1923, as amended’’, and in subsec. (g), the words ‘‘and compensated without regard to the Classification Act of 1923, as amended’’ were omitted as obsolete. Sections 1202 and 1204 of the Classification Act of 1949, 63 Stat. 972, 973, repealed the 1923 Act and all laws or parts of laws inconsistent with the 1949 Act. While section 1106(a) of the 1949 Act provided that references in other laws to the 1923 Act should be held and considered to mean the 1949 Act, it did not have the effect of con- tinuing the exceptions contained in subsecs. (f) and (g) because of section 1106(b) which provided that the ap- plication of the 1949 Act to any position, officer, or em- ployee shall not be affected by section 1106(a). The Classification Act of 1949 was repealed by Pub. L. 89–554, Sept. 6, 1966, § 8(a), 80 Stat. 632 (of which section 1 revised and enacted Title 5, Government Organization and Employees, into law). Section 5102 of Title 5 con- tains the applicability provisions of the 1949 Act, and section 5103 of Title 5 authorizes the Office of Personnel Management to determine the applicability to specific positions and employees. In subsec. (h), the references to subsections (f) and (g) of this section were, in the original, references to sub- sections (e) and (f) and were changed to reflect the probable intent of Congress. PRIOR PROVISIONS A prior section 207 of act July 1, 1944, was classified to section 208 of this title, prior to repeal by act Feb. 28, 1948, ch. 83, § 5(a), 62 Stat. 40. Page 65 TITLE 42—THE PUBLIC HEALTH AND WELFARE §§ 209a, 209b AMENDMENTS 2020—Subsecs. (a), (b). Pub. L. 116–136, § 3214(e)(3), sub- stituted ‘‘Ready Reserve Corps’’ for ‘‘Reserve Corps’’ wherever appearing. Subsec. (c). Pub. L. 116–136, § 3214(e)(1), substituted ‘‘Regular Corps or Ready Reserve Corps’’ for ‘‘Regular or Reserve Corps’’. Subsec. (d). Pub. L. 116–136, § 3214(e)(3), substituted ‘‘Ready Reserve Corps’’ for ‘‘Reserve Corps’’ wherever appearing. 1983—Subsec. (a)(1). Pub. L. 97–414 inserted ‘‘psy- chology,’’ after ‘‘pharmacy,’’. 1981—Subsec. (b)(1). Pub. L. 97–35 inserted provisions relating to exception for an appointment under section 205 of this title. 1979—Subsec. (a)(1). Pub. L. 96–76 inserted applica- bility to warrant officers and chief warrant officers. 1960—Subsec. (a)(3). Pub. L. 86–415, § 2, added par. (3). Subsec. (b). Pub. L. 86–415, § 3, designated first, second and third sentences as par. (1), fourth sentence as par. (3), and added par. (2). 1956—Subsec. (a)(1). Act Apr. 27, 1956, § 3(a), inserted reference to subsection (e) of this section. Subsec. (a)(2). Act Apr. 27, 1956, § 3(c)(1), substituted ‘‘an indefinite period’’ for ‘‘a period of not more than five years’’. Subsecs. (e) to (i). Act Apr. 27, 1956, § 3(b), added sub- sec. (e) and redesignated former subsecs. (e) to (h) as (f) to (i), respectively. 1949—Subsec. (d). Act Oct. 12, 1949, substituted ‘‘base pay’’ for ‘‘pay and pay period’’ wherever appearing. 1948—Subsec. (a)(1). Act Feb. 28, 1948, struck out ‘‘sur- gery’’ after ‘‘several branches of medicine’’. Subsec. (a)(2). Act Feb. 28, 1948, struck out ‘‘any such commission’’ before ‘‘may be terminated’’, and ‘‘in his discretion’’ after ‘‘at any time’’. Subsec. (b). Act Feb. 28, 1948, provided for grade and number of original appointments. Subsecs. (c) to (f). Act Feb. 28, 1948, added subsecs. (c) and (d) and redesignated former subsecs. (c) and (d) as (e) and (f), respectively. Former subsecs. (e) and (f) re- designated (g) and (h). Subsec. (g). Act Feb. 28, 1948, redesignated former subsec. (e) as (g) and changed reference in text from ‘‘subsection (c)’’ to ‘‘subsection (e)’’, and ‘‘subsection (d)’’ to ‘‘subsection (g)’’. Subsec. (h). Act Feb. 28, 1948, redesignated former subsec. (f) as (h). 1946—Subsec. (b). Act July 3, 1946, authorized appoint- ment of additional officers to grades above that of sen- ior assistant but not above that of director, and limits the number so appointed to 20. Subsec. (b)(2). Act Aug. 13, 1946, inserted ‘‘(A)’’ before ‘‘to assist’’, substituted ‘‘clause’’ for ‘‘paragraphs’’, and inserted cl. (B). Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Secretary of Health and Human Services’’ sub- stituted for ‘‘Secretary of Health, Education, and Wel- fare’’ in subsecs. (c), (e)(3), and (i), and ‘‘Department of Health and Human Services’’ substituted for ‘‘Depart- ment of Health, Education, and Welfare’’ in subsec. (c), pursuant to section 509(b) of Pub. L. 96–88, which is classified to section 3508(b) of Title 20, Education. EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96–76 effective Oct. 1, 1979, see section 314 of Pub. L. 96–76, set out as a note under sec- tion 206 of this title. EFFECTIVE DATE OF 1960 AMENDMENT Pub. L. 86–415, § 8(a), Apr. 8, 1960, 74 Stat. 36, provided that: ‘‘The amendments made by sections 2 and 5(b) [amending this section and section 210 of this title] shall become effective July 1, 1960.’’ EFFECTIVE DATE OF 1949 AMENDMENT Amendment by act Oct. 12, 1949, effective Oct. 1, 1949, see section 533(a) of act Oct. 12, 1949, set out as a note under section 854a of Title 33, Navigation and Navigable Waters. PERSONAL SERVICES CONTRACTING Pub. L. 109–149, title II, § 216, Dec. 30, 2005, 119 Stat. 2861, provided that: ‘‘The Division of Federal Occupa- tional Health hereafter may utilize personal services contracting to employ professional management/ad- ministrative and occupational health professionals.’’ SIMILAR PROVISIONS Similar provisions were contained in the following prior appropriation acts: Pub. L. 108–447, div. F, title II, § 216, Dec. 8, 2004, 118 Stat. 3141. Pub. L. 108–199, div. E, title II, § 216, Jan. 23, 2004, 118 Stat. 255. Pub. L. 108–7, div. G, title II, § 216, Feb. 20, 2003, 117 Stat. 325. Pub. L. 107–116, title II, § 216, Jan. 10, 2002, 115 Stat. 2201. Pub. L. 106–554, § 1(a)(1) [title II], Dec. 21, 2000, 114 Stat. 2763, 2763A–13. Pub. L. 106–113, div. B, § 1000(a)(4) [title II], Nov. 29, 1999, 113 Stat. 1535, 1501A–225. Pub. L. 105–277, div. A, § 101(f) [title II], Oct. 21, 1998, 112 Stat. 2681–337, 2681–347. Pub. L. 105–78, title II, Nov. 13, 1997, 111 Stat. 1477. Pub. L. 104–208, div. A, title I, § 101(e) [title II], Sept. 30, 1996, 110 Stat. 3009–233, 3009–242. Pub. L. 104–134, title I, § 101(d) [title II], Apr. 26, 1996, 110 Stat. 1321–211, 1321–221; renumbered title I, Pub. L. 104–140, § 1(a), May 2, 1996, 110 Stat. 1327. TERM OF RESERVE COMMISSIONS IN EFFECT ON APRIL 27, 1956 Act Apr. 27, 1956, ch. 211, § 3(c)(2), 70 Stat. 117, pro- vided that: ‘‘The enactment of paragraph (1) of this subsection [amending this section] shall not affect the term of the commission of any officer in the Reserve Corps in effect on the date of such enactment [Apr. 27, 1956] unless such officer consents in writing to the ex- tension of his commission for an indefinite period, in which event his commission shall be so extended with- out the necessity of a new appointment.’’ Executive Documents TRANSFER OF FUNCTIONS Functions of Public Health Service, Surgeon General of Public Health Service, and all other officers and em- ployees of Public Health Service, and functions of all agencies of or in Public Health Service transferred to Secretary of Health, Education, and Welfare by Reorg. Plan No. 3 of 1966, eff. June 25, 1966, 31 F.R. 8855, 80 Stat. 1610, set out as a note under section 202 of this title. Functions of Federal Security Administrator trans- ferred to Secretary of Health, Education, and Welfare and all agencies of Federal Security Agency transferred to Department of Health, Education, and Welfare by section 5 of Reorg. Plan No. 1 of 1953, set out as a note under section 3501 of this title. Federal Security Agen- cy and office of Administrator abolished by section 8 of Reorg. Plan No. 1 of 1953. DELEGATION OF FUNCTIONS Functions of President delegated to Secretary of Health and Human Services and Surgeon General, see Ex. Ord. No. 11140, Jan. 30, 1964, 29 F.R. 1637, as amend- ed, set out as a note under section 202 of this title. §§ 209a, 209b. Omitted Editorial Notes CODIFICATION Section 209a, act Dec. 22, 1944, ch. 660, title I, 58 Stat. 856, which related to number of regular commissioned