Changed Interpretation of Requirements Related to First 	 
Assistants Under the Federal Vacancies Reform Act of 1998	 
(07-DEC-01, GAO-02-272R).					 
								 
Congress passed the Federal Vacancies Reform Act of 1998 to	 
establish new requirements for temporary filling vacant executive
agency positions that require presidential appointment and Senate
confirmation (PAS positions). The act provides that only certain 
classes of individuals may serve as acting officers and that, in 
the absence of a designation by the President or another	 
qualified individual, a first assistant of a vacant office	 
temporarily shall perform the functions and duties of the office.
The Department of Justice has recently changed its interpretation
of the circumstances under which a first assistant may serve on  
an acting basis. The Vacancies Reform Act provides that when PAS 
positions covered by the act become vacant, "the first assistant 
to the office of such officer shall perform the functions and	 
duties of the office temporarily in an acting capacity subject to
the time limitations" established under the act. The act also	 
provides that the first assistant is not eligible to serve as the
acting officer if: (1) during the 365-day period preceding the	 
date of the death, resignation, or beginning of inability to	 
serve, such person: (a) did not serve in the position of first	 
assistant of such officer, or (b) served in the position of first
assistant to such officer for less than 90 days; and (2) the	 
President submits a nomination of such person to the Senate for  
appointment to such office. Justice's initial guidance to	 
agencies on the provision requiring a person to be in the first  
assistant position before the vacancy occurred to become acting  
officer has been revised. Justice revisited the question and	 
concluded that someone who becomes first assistant after a	 
vacancy in a PAS position can temporarily serve in that position 
on an acting basis as long as that person is not nominated for	 
the vacant position.						 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-02-272R					        
    ACCNO:   A02539						        
  TITLE:     Changed Interpretation of Requirements Related to First  
Assistants Under the Federal Vacancies Reform Act of 1998	 
     DATE:   12/07/2001 
  SUBJECT:   Executive agencies 				 
	     Federal personnel legislation			 
	     Presidential appointments				 
	     Temporary promotions				 

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GAO-02-272R
     
GAO- 02- 272R Vacancies Reform Act

United States General Accounting Office Washington, DC 20548

December 7, 2001 The Honorable Joseph I. Lieberman Chairman The Honorable
Fred Thompson Ranking Minority Member Committee on Governmental Affairs
United States Senate

The Honorable Dan Burton Chairman The Honorable Henry A. Waxman Ranking
Minority Member Committee on Government Reform House of Representatives

Subject: Changed Interpretation of Requirements Related to First Assistants
Under the Federal Vacancies Reform Act of 1998

The Congress passed the Federal Vacancies Reform Act of 1998 1 (Vacancies
Reform Act) to establish, among other things, new requirements for the
temporary filling of vacant executive agency positions that require
presidential appointment and Senate confirmation (PAS positions). The act
provides that only certain classes of individuals may serve as acting
officers 2 and that, in the absence of a designation by the President of
another qualified individual, a first assistant of a vacant office shall
perform the functions and duties of the office temporarily. 3 This letter is
to inform you that the Department of Justice has recently changed its
interpretation of the circumstances under which a first assistant may serve
on an acting basis.

The Vacancies Reform Act provides that when PAS positions covered by the act
become vacant, "the first assistant to the office of such officer shall
perform the functions and duties of the office temporarily in an acting
capacity subject to the time limitations" established under the act. 4 The
act also provides that the first assistant is not eligible to serve as the
acting officer if:

(A) during the 365- day period preceding the date of the death, resignation,
or beginning of inability to serve, such person-

1 5 U. S. C. sect.sect. 3345 - 3349d. 2 5 U. S. C. sect. 3345. 3 5 U. S. C. sect. 3345( a)(
1)( 2) and (3). 4 5 U. S. C. sect. 3345( a)( 1).

GAO- 02- 272R Vacancies Reform Act Page 2 (i) did not serve in the position
of first assistant to the office of such

officer; or (ii) served in the position of first assistant to the office of
such officer

for less than 90 days; and (B) the President submits a nomination of such
person to the Senate for

appointment to such office." (5 U. S. C. 3345( b)( 1)) Justice's guidance to
agencies on this provision of the Vacancies Reform Act, issued in March
1999, addressed the question of whether a person needed to be in the first
assistant position before the vacancy occurred to qualify to become the
acting officer. This initial guidance said that "while the Vacancies Reform
Act does not expressly address this question, we believe that the better
understanding is that you must be the first assistant when the vacancy
occurs in order to be the acting officer by virtue of being the first
assistant." Subsequently, Justice revisited this question and concluded that
someone who becomes the first assistant after a vacancy in a PAS position
can temporarily serve in that position on an acting basis as long as that
person is not nominated for the vacant position. After considering Justice's
position, we find it reasonable and concur with it.

We are informing you of the changed interpretation because, in preparing
earlier reports and correspondence dealing with the Vacancies Reform Act, we
used language similar to that in Justice's previous interpretation
indicating that a person needed to be a first assistant before a vacancy
occurred to qualify to serve as acting officer. We now take the position
that a person need not have been in the first assistant position before the
vacancy occurs in order to serve as acting officer, unless that person is
also nominated for the position. The effect of Justice's new interpretation
is that heads of agencies have greater flexibility than under the previous
interpretation to designate individuals to serve on a temporary basis in PAS
positions. Agency heads can name an individual to the first assistant
position (if it is not itself a PAS position) after a vacancy has occurred
and that person could then act temporarily in the office up to the time
limits allowed for acting officers under the Vacancies Reform Act as long as
the person is not nominated for the position.

We are sending copies of this letter to the Attorney General and the Counsel
to the President. This letter will also be available on GAO's home page at
http:// www. gao. gov. If you have any questions, please contact me or Tom
Dowdal, Assistant Director, on (202) 512- 6806. V. Bruce Goddard and Michael
Volpe also made key contributions to this letter.

Victor S. Rezendes Managing Director, Strategic Issues

(450081)
*** End of document. ***