TITLE:  ï¿½Appointment of Department of the Interior Associate Deputy Secretary, B-290233, October 22, 2002
BNUMBER:  B-290233
DATE:  October 22, 2002
**********************************************************************
 Appointment of Department of the Interior Associate Deputy Secretary, B-290233,
October 22, 2002

   B-290233
    
October 22, 2002
    
The Honorable Jeff Bingaman
Chairman, Committee on Energy and Natural Resources
United States Senate
    
Subject:  Appointment of Department of the Interior Associate Deputy
Secretary
    
Dear Chairman Bingaman:
    
This responds to your request for our opinion on issues relating to the
responsibilities, authorities, and manner of appointment of the incumbent
Associate Deputy Secretary of the Department of the Interior (DOI).  You
have expressed concern that the Associate Deputy Secretary might be
exercising all of the authorities of the Secretary of the Interior but,
unlike the Secretary, he was not nominated by the President and confirmed
by the Senate.  In particular, you have asked whether the incumbent
Associate Deputy Secretary: (1) exercises *significant authority pursuant
to the laws of the United States,* as the Supreme Court has used that
term; (2) is a de facto *Officer of the United States* based on the
exercise of such authority, potentially requiring nomination by the
President and confirmation by the Senate under the Constitution's
Appointments Clause; and (3) appears to have been properly appointed to
his position. 
    
Based on information and documentation we received from DOI and other
agency officials, and for the reasons discussed below, we conclude that
the incumbent in this position: (1) does not exercise *significant
authority pursuant to the laws of the United States;* (2) is therefore not
a de facto *officer* subject to Appointments Clause procedures, including
but not limited to Presidential appointment and Senate confirmation (a
so-called *PAS appointment*); and (3) appears to have been properly
appointed to his position as a Non-Career Senior Executive Service federal
employee.
    

                                   Background

    
The position of DOI Associate Deputy Secretary, which Department officials
advised has existed since at least the mid-1970's, is classified as a
Senior Executive Service (SES) *general* position.[1]  An SES *general*
position may be filled through either a career or a non-career
appointment.  DOI non-career appointees serve at the will of the
Secretary, and the current Associate Deputy Secretary, as well as his
immediate predecessor, have both served under non-career appointments.[2] 
The appointment process for the incumbent DOI Associate Deputy Secretary
position involved clearances by the White House, the Office of Personnel
Management and the Office of the Secretary, as well as approval by DOI's
Executive Resources Board.  DOI officials do not recall that the position
has ever been treated as a PAS position. 
    
According to the current Position Description, the incumbent Associate
Deputy Secretary reports to the Deputy Secretary and is the Deputy
Secretary's principal aide.  (By statute, the position of Deputy Secretary
must be filled through a PAS appointment.[3])  The Associate Deputy
Secretary provides advice and assistance in the administration of the
Deputy Secretary's responsibilities, by managing internal and program
activities of the office.  The incumbent's specific duties include acting
as the focal point for review of proposed policies, regulations, and
legislation, in order to ensure coordination within DOI and with other
agencies, Congress, public interest groups, and state, local, and tribal
governments.  The incumbent also alerts the Deputy Secretary to matters
requiring his attention, and performs a host of other duties.  These
include managing staff, coordinating and monitoring project planning and
assignments, and attending high level DOI meetings on behalf of the Deputy
Secretary to ensure that the Deputy Secretary's views are represented and
that views expressed by others are reported back to the Deputy Secretary
accurately.  In addition, the Associate Deputy Secretary is the Deputy
Secretary's liaison to DOI's legislative and communications directors, and
he coordinates sensitive discussions between the Deputy Secretary and
other high-level DOI officials.[4]
    
The foregoing responsibilities appear consistent with the authority given
to the Associate Deputy Secretary by DOI's internal delegations.  Under
the delegations, the Deputy Secretary is *authorized to exercise all of
the authority of the Secretary,* subject to certain limitations, but the
Associate Deputy Secretary is authorized to exercise only certain of these
authorities and then only *in the absence of, and under conditions
specified by the [Deputy Secretary . . ..*[5]  The most notable of the
Associate Deputy Secretary's delegated authorities (when the Deputy is
absent) is that he may sign proposed and final rulemakings and other
*amendments of and additions to the materials in the Code of Federal
Regulations.*[6] 
    
DOI officials confirmed that the above-described Position Description and
delegated authorities reflect the actual responsibilities and activities
of the incumbent Associate Deputy Secretary.  They stated that the
Associate Deputy Secretary functions as an assistant to the Deputy
Secretary, not as a second Deputy Secretary.  Although the Associate
Deputy Secretary sometimes fills in for the Deputy Secretary in meetings
and in other limited ways, he only rarely makes significant policy
decisions and, in accordance with the DOI delegations, does so only in the
Deputy's absence.  For example, as noted in your request, the Associate
Deputy Secretary occasionally signs notices of proposed or final
rulemaking as the *Acting Deputy Secretary.*  DOI officials advised that
two of the three rulemaking actions  cited in your request[7] involved
situations where the Deputy Secretary was effectively *absent* because he
had recused himself from the proceedings.  (He had represented businesses
affected by these proceedings prior to joining the Department and wished
to avoid any possible conflict of interest.)  In the third example,[8] DOI
officials explained that the Deputy Secretary was out of town.  DOI
officials also advised that the Associate Deputy Secretary is considered
the *first assistant* to the Deputy Secretary for purposes of the
Vacancies Act.  The Vacancies Act generally provides that if a PAS
position becomes vacant because of the death, resignation or disability of
the incumbent, the incumbent's first assistant (or certain other
officials) shall temporarily assume the duties of the office for up to 210
days, in an acting capacity and without undergoing PAS review and
approval.[9] 
    
Discussion
    
Determining whether the DOI Associate Deputy Secretary has been properly
appointed under the Appointments Clause depends on whether he is an
*officer of the United States* or instead is a non-officer employee.  As
explained below, if he is an officer, the Appointments Clause requires
that he must either have been appointed under the PAS process or, if he is
an *inferior officer* and Congress elects not to require PAS approval,
under a statute vesting the power of his appointment solely in the DOI
Secretary.  On the other hand, if he is an employee, his appointment was
not subject to the Appointments Clause but only to general federal civil
service requirements.
    
The Appointments Clause[10] mandates that *officers of the United States*
whose appointments are *established by Law* be nominated by the President
and confirmed by the Senate.  The only exception, which the Framers of the
Constitution added for *administrative convenience,*[11] is that *inferior
officers* may instead be appointed by an agency head, the President, or
the courts if Congress provides for such appointment by statute.  The
Constitution thus divides *officers* into two categories: *principal* or
*superior* officers, whose appointment requires nomination by the
President and confirmation by the Senate, and *inferior* officers, whose
appointment Congress may vest in certain others.[12] 
    
Who is a *principal* versus an *inferior* officer, and who is an *officer*
versus an employee, are subjects of considerable debate.  As Chief Justice
Marshall observed in 1823, *[a]lthough an office is 'an employment,' it
does not follow that every employment is an office,*[13] and many of the
decisions on these issues contain little analysis.  The leading modern
case addressing the distinction between officers and employees is the
Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1 (1976).  The
Court declared an *officer* to be an appointee who exercises *significant
authority pursuant to the laws of the United States*[14] or *perform[s] a
significant governmental duty exercised pursuant to a public law.*[15]  In
Buckley, members of the Federal Election Commission had powers to
investigate and disseminate information, to administer the FEC's organic
act by issuing regulations and advisory opinions, and to enforce the
statute through administrative hearings and civil suits.  The Court found
that the administration and enforcement powers constituted *significant
authority* and thus held that the Commissioners were, *at the very least,*
inferior officers.[16]  Because the Commissioners had not been appointed
pursuant to Appointments Clause procedures, the Court declared the statute
providing such powers to be unconstitutional. 
    
In determining that the FEC Commissioners were *at least* inferior
officers, Buckley looked to two early Supreme Court decisions holding that
positions which today would be considered relatively low-level * a federal
district court clerk and a local postmaster  * were inferior officers for
purposes of removal.[17]  The decisions contain no analysis, however, and
thus are of limited utility in identifying the characteristics of an
inferior officer.[18]  Buckley also addressed *employees of the United
States* by way of comparison, explaining that *[e]mployees are lesser
functionaries subordinate to officers* and are *subject to the control or
direction of . . . other executive, judicial, or legislative
authorit[ies].*[19]  As examples, Buckley cited two nineteenth-century
Supreme Court decisions, Germaine and Hedden,  holding that certain
part-time officials did not rise to the level of officers.[20]  In both of
those cases, the Court had applied the standard announced in United States
v. Hartwell: *[a]n office . . . embraces the ideas of tenure, duration,
emolument, and duties.*[21]  Other cases of that era,[22] as well as the
original Vacancies Act,[23] likewise recognized that exercising all of a
PAS officer's authorities, if done temporarily, does not necessarily
transform an employee into an officer. 
    
More recent cases distinguishing between officers and employees have
likewise focused on the nature and scope of an official's authority.  In
United States v. Clarridge, 811 F. Supp. 697, 701 (D. D.C. 1992), for
example, a subordinate to an Independent Counsel was held to be an
employee rather than an officer because, although the Independent Counsel
*delegate[d] particular tasks to various employees,* it was the
Independent Counsel who *made the decision to seek an indictment . . . and
[who] also signed that indictment* and who *retained ultimate authority
over indictments and plea bargains.*  (The Independent Counsel had
previously been found to be an inferior rather than a principal
officer.[24])  Similarly, in United States v. Cisneros, 26 F. Supp. 2d 13,
24 (D. D.C. 1998), Deputy and Associate Independent Counsels were held to
be employees rather than officers because, although they presided over
much of an investigation and trial, *the ultimate prosecutorial decisions
still rest[ed] with the Independent Counsel himself.*  
    
Applied to the present facts, we believe the foregoing case law indicates
that the DOI Associate Deputy Secretary is an employee rather than an
officer, either principal or inferior, and thus was not subject to the
Appointment Clause's PAS or statutory delegation procedures.[25]  Like the
subordinates to the Independent Counsels in Cisneros and Clarridge, who
had received authority from the Independent Counsels to run investigations
and trials but who did not make ultimate prosecutorial decisions, the DOI
Associate Deputy Secretary performs highly important * but limited *
tasks.  Virtually all of the Associate Deputy Secretary's functions
involve coordination and management rather than ultimate decision-making
on policy issues.  To be sure, the issues he coordinates and manages are
complex, sensitive and substantial, and his position is undoubtedly a
critical one requiring a high degree of expertise and skill.  But as the
Supreme Court found in Steele v. United States, 267 U.S. 505 (1925),
officials can exercise substantial judgment and discretion and yet not
qualify as constitutional officers.[26]   In addition, like the part-time
officials in Germaine and Hedden, the DOI Associate Deputy Secretary's
most *officer*-like authority * his rulemaking authority * exists only
*occasionally and temporarily.*  Thus in the words of Buckley, the DOI
Associate Deputy Secretary is one of the *lesser functionaries subordinate
to officers . . .  [and] subject to the control or direction of . . .
other executive . . . authorit[ies].*[27]
    
We believe the situation of the DOI Associate Deputy Secretary is
substantially different from the facts addressed in the two Attorney
General opinions cited in your request.  In both of those opinions, the
deputy determined to be an *officer* was assumed, based on his title
alone, to hold all of the powers of his PAS-appointed peer or
superior.[28]  By contrast, there is no dispute that the DOI Associate
Deputy Secretary exercises only some of his superior's authorities and
does so only in the superior's absence.  He does not, as in one of the
opinions, act as a *Second Deputy.* 
    
For the same reason, this is also different from the situation addressed
in a Department of Justice Office of Legal Counsel (OLC) opinion, where
the Secretary of Housing and Urban Development had made so-called
*concurrent* delegations of authority to a series of HUD principal
officers and their deputies.[29]  Under such delegations, the
non-Presidentially appointed deputies received authority identical to that
of their Presidentially appointed and Senate confirmed superiors, and
could exercise this authority at any time, even when the superiors were
not *absent.*  In response to a Senator's challenge to the
constitutionality of one of these delegations,[30] OLC essentially agreed
that it would be unconstitutional for a non-PAS official to exercise all
of the authorities of a PAS officer, but determined that the HUD situation
was constitutional because in practice, the PAS officers remained legally
accountable for and in control of their respective units.[31]  Even
assuming the validity of such a distinction in the HUD situation, that is
not this case.  The DOI Associate Deputy Secretary's powers, both as
delegated and as exercised, are far more modest than the Deputy
Secretary's in both scope and duration.[32]  The Associate Deputy
Secretary can perform only certain of the Deputy Secretary's functions,
and only in the absence and at the pleasure of the Deputy Secretary.
    
Finally, our conclusion that the DOI Associate Deputy Secretary is an
employee rather than an officer is supported by comparison with the
Associate Deputy Secretary at the Department of Transportation, the
position cited in your request.  Based on the current Position Description
for that position, the duties appear far more significant than those of
the DOI Associate Deputy Secretary Interior.  In our judgment, they rise
to the level of a constitutional officer exercising *significant authority
pursuant to the laws of the United States,*[33] and, consistent with this
level of responsibility, Congress has designated it as a PAS
position.[34] 
    
Conclusion
    
In summary, we conclude that the incumbent DOI Associate Deputy Secretary
does not exercise *significant authority* for purposes of the Appointments
Clause and therefore is not an officer of the United States.  The
incumbent's appointment thus was not subject to the PAS process, and he
appears to have been appointed consistent with federal civil service
requirements. If you would like to discuss this matter further, please
contact Susan D. Sawtelle, Associate General Counsel, at (202) 512-6417,
Doreen Feldman, Assistant General Counsel, at (202) 512-8264, or Robert
Crystal, Deputy Assistant General Counsel, at (202) 512-8209. 
    
Sincerely yours,

   Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1] As originally created, the position had the title of  *Deputy Under
Secretary,* because the title of the official to whom this person reported
was *Under Secretary.*  When the Under Secretary's title was changed in
1990 to *Deputy Secretary,* by Pubic Law No. 101-509, a corresponding
change was made to the subordinate's title to the current *Associate
Deputy Secretary.*  According to DOI officials, the Associate Deputy
Secretary position has not always been filled, and certain Under/Deputy
Secretaries have had more than one deputy.
[2] The current Associate Deputy Secretary, James E. Cason, was appointed
by Secretary Norton in August 2001.  His immediate predecessor, Donald R.
Knowles, was appointed by Secretary Lujan and served from December 1989
until 1994.  We understand the position was vacant between 1994 and 2001.
[3] See 43 U.S.C. S: 1452.
[4] Comparing the Position Description for the incumbent with that of his
immediate predecessor, the incumbent advises the Deputy Secretary while
his predecessor advised both the Secretary and the Deputy Secretary.  In
both cases, however, the Associate Deputy Secretary reported to the Deputy
Secretary.
[5] See DOI Departmental Manual Part 209, Sec. 2.1, 2.3 (updated in 1982
and thus referring to the Deputy Secretary as the Under Secretary and the
Associate Deputy Secretary as Deputy Under Secretary) (emphasis added). 
Similar delegations of the Secretary's authorities have been made to the
DOI Assistant Secretaries and their respective deputies.  The Assistant
Secretaries have been given *all of the authority of the Secretary* with
certain limitations, while their deputies have been given only certain of
these authorities and then only *in the absence of, and under conditions
specified by* the Assistant Secretaries.  See, e.g., DOI Departmental
Manual at Sec. 6.1, 6.3 (1994 ed.) (Assistant Secretary and Deputy
Assistant Secretary for Fish and Wildlife and Parks), Sec. 7.1, 7.3 (2001
ed.) (Assistant Secretary and Deputy Assistant Secretary for Land and
Minerals Management) (emphasis added).  Like the Deputy Secretary, the
Assistant Secretaries are statutory PAS officers.  See 43 U.S.C. S:S:
1453, 1453a.
[6] DOI Departmental Manual, Sec. 2.1.A (1982 ed.).
[7] See 67 Fed. Reg. 1862 (Jan. 15, 2002) (final rule on royalty relief
for oil and gas producers on the Outer Continental Shelf); 67 Fed. Reg.
6454 (Feb. 12, 2002) (proposed rule clarifying rules on oil and gas
royalty suspension volume determinations on the Outer Continental
Shelf).  
[8]  See 67 Fed. Reg. 1171 (Jan. 9, 2002) (proposed rule on suspension of
oil and gas operations on the Outer Continental Shelf).  The Associate
Deputy signed this proposed rule as *Acting Assistant Secretary, Land and
Minerals Management,* but this was subsequently corrected to read *Acting
Deputy Secretary.*  See 67 Fed. Reg. 3632 (Jan. 25, 2002).
[9] See 5 U.S.C. S:S: 3345, 3346.
[10] The Appointments Clause provides that *[the President] shall
nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the President Alone, in
the Courts of Law, or in the Heads of Departments.*  U.S. Const. Art. II.
S: 2, cl. 2 (emphasis added). 
[11] See Edmond v. United States, 520 U.S. 651, 660 (1997), citing United
States v. Germaine, 99 U.S. 508, 510 (1878) (*[F]oreseeing that when
offices became numerous, and sudden removals necessary, this [Presidential
nomination, Senate confirmation] mode might be inconvenient, it was
provided that, in regard to officers inferior to those specially
mentioned, Congress might by law vest their appointment in the President
alone, in the courts of law, or in the heads of departments.*).
[12] See Germaine, note 11 above, 99 U.S. at 509-11. 
[13] United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823)
(Marshall, Circuit Justice). 
[14] 424 U.S. at 126 (emphasis added).
[15] Id. at 141 (emphasis added).
[16] Id. at 126. 
[17] See Ex parte Hennen, 38 U.S. 225 (1839), and Myers v. United States,
272 U.S. 52 (1926), respectively.
[18] It has been suggested the cases might be explained by the fact that
these government positions were previously of greater significance.  See
U.S. Department of Justice, Office of Legal Counsel, Opinion for the
General Counsels of the Federal Government, 1996 OLC LEXIS 60 (May 7,
1996), at *57.
[19] 424 U.S. at 126 n. 162.
[20] The two cases cited by Buckley were Germaine, see note 11 above, id.
at 512, where the Court held that a surgeon who periodically examined
pension applicants, at the request of the Commissioner of Pensions, was
not an officer because his duties were only *occasional and intermittent*
rather than *continuing and permanent,* and Auffmordt v. Hedden, 137 U.S.
310, 327 (1890), where the Court held that a merchant appraiser who
periodically valued merchandise for duty purposes, at the request of the
Collector of Customs, was not an officer (or even a government civil
service employee) because *[h]is position is without tenure, duration,
continuing emolument or continuous duties, and he acts only occasionally
and temporarily.*  
[21] 73 U.S. 385, 393 (1867) (emphasis added).   
[22] In United States v. Eaton, 169 U.S. 331 (1898), for example, a
non-officer served temporarily as a non-PAS inferior officer.  Because the
non-PAS officer served as the principal PAS officer in the latter's
absence, the net effect was that the non-officer served temporarily * for
10 months * as a PAS officer without undergoing PAS scrutiny.  The Supreme
Court found this arrangement consistent with the Appointments Clause,
because Congress had vested appointment authority for the non-PAS
officer's position in the head of the relevant agency, and because without
provision for temporary service under *special and temporary conditions,*
*the discharge of administrative duties would be seriously hindered.*  Id.
at 343.
[23] As enacted in 1868, the Vacancies Act allowed a non-officer to fill a
vacant PAS office for up to 10 days.  This time period has been lengthened
over the last century to 30 days (in 1891), 120 days (in 1988) and the
current 210 days (in 1998).  See generally M. Rosenberg, *The New
Vacancies Act: Congress Acts to Protect the Senate's Confirmation
Prerogative,* CRS 98-892A (Nov. 2, 1998).
[24] See Morrison v. Olson, 487 U.S. 654 (1988).  As acknowledged in your
request, *[t]he line between 'inferior' and 'principal' officers is one
that is far from clear, and the Framers provided little guidance into
where it should be drawn.*  Id. at 671.  In declaring the Independent
Counsel to be an inferior officer, Morrison focused on the Independent
Counsel's *temporary* tenure (limited to a specific mission), limited
duties (investigation and prosecution of only certain crimes and no
policymaking power), limited jurisdiction, and removability by a principal
officer (the Attorney General).  While there is no definitive list of
distinctions between principal and inferior officers, courts look to these
and other factors such as the continuing versus intermittent nature of an
officer's responsibilities (e.g., United States v. Eaton, see note 22
above and cited with approval in Morrison) and the identity of the person
with removal power over the officer (e.g., Silver v. United States Postal
Service, 951 F.2d 1033 (9th Cir. 1991), holding that Postmaster General,
removable by Board of Governors, was inferior officer).  See also Edmond
v. United States, note 11 above, at 652 (*Generally speaking, 'inferior
officers' are officers whose work is directed and supervised at some level
by others who were appointed by Presidential nomination with the Senates
advice and consent.*).
[25] The incumbent's appointment appears to have been made consistent with
federal civil service requirements.  As an executive branch agency, DOI
has authority under 5 U.S.C. S: 3101 to employ persons in the various
classes recognized by 5 U.S.C. Chapter 51, including SES positions
established and approved by the Office of Personnel Management (OPM). See
5 U.S.C. S: 5108 (a ).  OPM approved the appointment of the incumbent DOI
Associate Deputy Secretary on August 9, 2001. 
[26] Steele held that a deputy U.S. marshal *called upon to exercise great
responsibility and discretion* in *the enforcement of the peace of the
United States* was an employee rather than an officer.  267 U.S. at 508.
[27] 424 U.S. at 126 n. 162.
[28] In the 1908 opinion, *Second Deputy Comptroller of the Currency *
Appointment,* 26 Op. Atty. Gen. 627, the so-called *Second Deputy
Comptroller* of the Currency was determined to be an inferior officer who,
based on the Treasury Secretary's lack of statutory appointment authority,
had to be appointed under the PAS process.  By statute, the so-called
First Deputy assumed all of the Comptroller's powers when the Comptroller
was absent or disabled, and the Attorney General determined that the
Second Deputy (once properly appointed) could assume the same powers as
the First Deputy when both the First Deputy and the Comptroller were
absent or disabled.  The Attorney General based his expansive views of the
Second Deputy's authority solely on his title; he believed that
*[g]enerally speaking, a deputy has power to do every act which his
principal may do . . . Doubtless it was on account of this general rule .
. . that Congress did not deem it necessary to prescribe specifically the
duties of the additional [Second] Deputy Comptroller.*  Id. at 630
(emphasis added).
                  In the 1911 opinion, *Appointments in the Department of
Commerce and Labor,* 29 U.S. Op. Atty. Gen. 116, the Deputy Commissioner
of Fisheries was determined to be a *de facto* inferior officer who, based
on the Secretary of Commerce and Labor's lack of statutory authority to
appoint such officers, had to be appointed under the PAS process.  Id. at
119.  As in the 1908 opinion, the Attorney General concluded that the
Deputy was an officer based entirely on the title of the position, which
he believed *necessarily implies a power to perform all the duties which
might be performed by the Commissioner of Fisheries,* a statutory PAS
position.  Id. at 118 (emphasis added). 
[29] See U.S. Department of Justice, Office of Legal Counsel, Memorandum
Opinion for the General Counsel, Department of Housing and Urban
Development, 2 Op. O.L.C. 87 (April 19, 1978).
[30] Senator Eagleton challenged the legality of the HUD Secretary's
delegation of identical authority to both the HUD Federal Insurance
Administrator and his deputy, asserting that the confirmation process was
being *vitiate[d]* and made *a mockery* because, after the Senate's
inquiry into the qualifications of the person nominated by the President,
all of the same functions could be exercised by someone *about whom
Congress and the public know nothing.*  124 Cong. Rec. 4929, 4929 (Feb.
28, 1978).  Such an arrangement *creates a shadow government,* the Senator
declared, *over which Congress has little control.*  Id.
[31] *While both parties may have the same apparent powers with respect to
outsiders,* OLC stated, *there is no doubt that in the internal relations
between the Assistant Secretary and his deputy, the former is the
superior.* 2 Op. O.L.C. at 88.
[32] As Senator Eagleton acknowledged in the HUD case, *I can understand a
situation where a deputy exercises powers of an office in the absence of
the incumbent.  I have no problem either with a deputy carrying out
certain functions at the pleasure of his boss.  Those are normal, every
day administrative arrangements.*  124 Cong. Rec. at 4929.
[33] According to the DOT Position Description, the Associate Deputy
Secretary is the senior advisor to both the Secretary and the Deputy
Secretary on major policies and programs, and reports directly to both
officers.  The Secretary assigns responsibility to the Associate Deputy
Secretary for major actions requiring the direct and ongoing supervision
of a senior official.  The Associate Deputy Secretary evaluates program
initiatives and directs changes when necessary, and ensures the
participation of administration officials in major planning and operating
studies, conveying the Secretary's views in the process.  He also acts as
the Secretary's representative and speaks authoritatively for the
Secretary at congressional hearings, meetings, and conferences concerning
departmental policies and programs. 
[34] See 49 U.S.C. S: 102(d).  DOT officials advised us that before the
Associate Deputy Secretary position became a statutory PAS position in
1985, it existed in much the same form as an SES position.