b'Guidance on Application of Federal Vacancies Reform Act of\n1998\nT h is m em o ran d u m provides guidance on the application o f the Federal V acancies R eform Act o f 1998\nto vacan cies in S enate-confirm ed offices w ithin the E xecutive Branch.\n\nMarch 22, 1999\nM e m o r a n d u m O p in i o n f o r A g e n c y G e n e r a l C o u n s e l s\n\nOn October 21, 1998, the Federal Vacancies Reform Act of 1998 (\xe2\x80\x9c Vacancies\nReform A ct\xe2\x80\x9d or \xe2\x80\x9c Act\xe2\x80\x9d ) was signed into law.1 The Vacancies Reform Act\nreplaces the old Vacancies Act and alters the way in which vacancies in presidentially appointed, Senate-confirmed offices within the Executive Branch may\nbe filled on a temporary basis. The following Q&As are intended to provide gen\xc2\xad\neral guidance on the Vacancies Reform Act.\n\nTable of Subject Areas Covered by these Questions and Answers:\nWhat is the effective date of the Act?\nHow does the Act treat vacancies that arose before\nthe effective date?\nWhat constitutes a vacancy?\nWhich offices are covered by the Act?\nW ho can serve as an acting officer?\nW hat are the time limits on an acting officer\xe2\x80\x99s\nservice?\nW hat enforcement provisions apply under the Act?\nW hat are the reporting requirements under the Act?\n\nQ1\nQ2\nQ3\nQ4\xe2\x80\x94Q9\nQ10-Q21\nQ22-Q38\nQ39-Q49\nQ50-Q53\n\nQuestion 1. When did the Vacancies Reform Act become effective?\nAnswer. The Vacancies Reform Act took effect on November 20, 1998.\nQuestion 2. Does the Vacancies Reform Act affect offices that became vacant\nbefore November 20, 1998?\nAnswer. For offices that became vacant before November 20, 1998, the only\nprovision of the Vacancies Reform Act that applies is the limitation on how long\nsomeone may serve in an acting capacity for that office. Further, that time limit\nis the only part of the Act that applies even if no one is designated to perform\nthe duties of the office on a temporary basis until after November 20, 1998, as\nlong as the office was vacant before that date. (For a more complete discussion\no f the Vacancies Reform Act\xe2\x80\x99s application to offices that became vacant before\n1 See Pub. L No. 105-277, Div. C, tit 1, \xc2\xa7 151, 112 Stat 2681, 2681-611 to -616 (codified at 5 U.S.C \xc2\xa7\xc2\xa733453349d (Supp IV 1998)) For ease of reference, further citation to the Vacancies Reform Act will refer only to\nthe section at which the provision is to be codified.\n\n60\n\n\x0cGuidance on Application o f Federal Vacancies Reform Act o f 1998\n\nNovember 20, 1998, including the calculation of the time limits that apply to\nacting officers filling those offices, see Memorandum for Agency General Coun\xc2\xad\nsels, from Beth Nolan, Deputy Assistant Attorney General, Office of Legal\nCounsel, Re: Initial Guidance on the Federal Vacancies Reform Act o f 1998 (Nov.\n13, 1998).)\nIn contrast, the full scope of the Vacancies Reform Act applies to an office\nthat becomes vacant on or after November 20, 1998, including the Act\xe2\x80\x99s restric\xc2\xad\ntions on who may serve in an acting capacity and on which duties of the office\nmay be performed by someone other than an acting officer serving in conformity\nwith the Act.\nQuestion 3. When does an office become \xe2\x80\x9c vacant\xe2\x80\x9d for purposes of the Vacan\xc2\xad\ncies Reform Act?\nAnswer. Under the Vacancies Reform Act, a vacancy arises when a relevant\nofficer \xe2\x80\x9c dies, resigns, or is otherwise unable to perform the functions and duties\nof the office.\xe2\x80\x9d The full range of what would constitute being \xe2\x80\x9c otherwise unable\nto perform the functions and duties of the office\xe2\x80\x9d is unspecified in the Act, except\nthat the Act provides that \xe2\x80\x9c the expiration of a term o f office is an inability to\nperform the functions and duties of such office.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3345(c)(2). In floor\ndebate, Senators said, by way of example, that an officer would be \xe2\x80\x9c otherwise\nunable to perform the functions and duties of the office\xe2\x80\x99 \xe2\x80\x99 if he or she were fired,\nimprisoned, or sick. See 144 Cong. Rec. S12.823 (daily ed. Oct. 21, 1998) (state\xc2\xad\nment of Sen. Thompson); id. at S 12,824 (statement of Sen. Byrd). The Office\nof Legal Counsel (\xe2\x80\x9c OLC\xe2\x80\x9d ) can assist you with any questions about whether an\noffice is vacant for purposes of the Act.\nQuestion 4. Which offices are covered by the Vacancies Reform Act?\nAnswer. Generally, the Vacancies Reform Act applies to any office within an\nExecutive agency to which appointment is required to be made by the President,\nby and with the advice and consent of the Senate (a \xe2\x80\x9c PAS position\xe2\x80\x9d ). The Act,\nhowever, excludes from its coverage a few specified offices. The Act also recog\xc2\xad\nnizes that a number of PAS positions are covered by other statutes that specifically\naddress how the office is to be filled on a temporary basis. See Q6-Q8 for a\ndiscussion of the PAS positions expressly excluded from coverage by the Act\nand of the statutes that continue to apply to filling certain vacant PAS positions\non a temporary basis.\nQuestion 5. What is an \xe2\x80\x9c Executive agency\xe2\x80\x9d within the meaning of the Vacan\xc2\xad\ncies Reform Act?\nAnswer. In short, \xe2\x80\x9c Executive agency\xe2\x80\x9d as used in the Vacancies Reform Act\nincludes almost the entire Executive Branch. Under the Vacancies Reform Act,\nExecutive agency has the same meaning given to that term in 5 U.S.C. \xc2\xa7 105\n(1994), except that the Act also expressly includes within the definition of Execu\xc2\xad\ntive agency the Executive Office of the President and expressly excludes from\nthat definition the General Accounting Office. Section 105 of title 5 defines\n\xe2\x80\x9c Executive agency\xe2\x80\x9d to mean \xe2\x80\x9c an Executive department, a Government corpora\xc2\xad\n61\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\ntion, and an independent establishment.\xe2\x80\x9d The \xe2\x80\x9c Executive departments\xe2\x80\x9d are listed\nin 5 U.S.C. \xc2\xa7 101 (1994 & Supp. II 1996); \xe2\x80\x9c Government corporation\xe2\x80\x9d is defined\nin 5 U.S.C. \xc2\xa7 103 (1994) as \xe2\x80\x9c a corporation owned or controlled by the Govern\xc2\xad\nment of the United States\xe2\x80\x9d ; and \xe2\x80\x9c independent establishment\xe2\x80\x9d is defined in 5\nU.S.C. \xc2\xa7 104 (1994), in relevant part, as \xe2\x80\x9c an establishment in the executive branch\n(other than the United States Postal Service or the Postal Rate Commission) which\nis not an Executive department, military department, Government corporation, or\npart thereof, or part of an independent establishment.\xe2\x80\x9d 2\nQuestion 6. Are there executive-branch PAS positions that are not covered by\nthe Vacancies Reform Act?\nA nsw er. Yes, the Vacancies Reform Act expressly excludes certain offices from\ncoverage under the Act. The Act does not apply to any PAS who is (1) a member\no f a \xe2\x80\x9c board, commission, or similar entity that is composed of multiple members\nand governs an independent establishment or Government corporation;\xe2\x80\x9d (2) a\n\xe2\x80\x9c commissioner of the Federal Energy Regulatory Commission;\xe2\x80\x9d (3) a \xe2\x80\x9c member\no f the Surface Transportation Board;\xe2\x80\x9d or (4) a judge on \xe2\x80\x9c a court constituted under\narticle I o f the United States Constitution.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3349c.\nQuestion 7. If a position meets the definition of a covered office under the\nVacancies Reform Act, is the Act necessarily the exclusive means of temporarily\nfilling the vacancy?\nA nsw er. The Vacancies Reform Act was intended in most cases to be the exclu\xc2\xad\nsive means for filling a vacant executive-branch PAS position (i.e., having a per\xc2\xad\nson designated as the \xe2\x80\x9c Acting\xe2\x80\x9d officer). The Act also recognizes, however, the\ncontinued applicability of certain other mechanisms for filling PAS positions on\na temporary basis. In particular, the Act expressly recognizes that a PAS position\nmay be filled temporarily through (a) a recess appointment and (b) a statutory\nprovision that \xe2\x80\x9c expressly [i] authorizes the President, a court, or the head of an\nExecutive department, to designate an officer or employee to perform the functions\nand duties o f a specified office temporarily in an acting capacity; or [ii] designates\nan officer or employee to perform the functions and duties of a specified office\ntemporarily in an acting capacity.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3347(a). In addition, \xc2\xa7 3349b of\nthe Act provides that the Act does not alter the application of a \xe2\x80\x9c statute that\nauthorizes a person to continue to serve in any office \xe2\x80\x94 (1) after the expiration\no f the term for which that person is appointed; and (2) until a successor is\nappointed or a specified period o f time has expired.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3349b. The Act\nmakes clear, however, that an agency\xe2\x80\x99s organic statute does not provide authoriza\xc2\xad\ntion for filling PAS positions on a temporary basis. See Q9.\nQuestion 8. Is there a list of the statutes that continue to authorize the temporary\nfilling of a vacant PAS position?\n2 Although the military departments are defined separately in 5 U.S.C. \xc2\xa7 102 (1994), the Committee Report indicates\nthat they are nonetheless intended to be covered by the Act. See S Rep No 105-250, at 12 (1998) ( \xe2\x80\x9c Because\nthe Department o f Defense is a department within the meamng o f 5 U.S.C. \xc2\xa7 101, the military departments, which\nare located in the Department o f Defense, are also covered by this Act \xe2\x80\x9d )\n\n62\n\n\x0cGuidance on Application o f Federal Vacancies Reform Act o f 1998\n\nAnswer. The Report of the Committee on Governmental Affairs, United States\nSenate, on the Vacancies Reform Act lists forty such statutes. See S. Rep. No.\n105-250, at 16-17. This list is not comprehensive, however, and each Executive\nagency will need to determine which statutes apply to its PAS positions. OLC\ncan assist you with any questions about the continued applicability of specific\nstatutes.\nQuestion 9. May Executive agencies continue to rely on their organic authorities\nto designate acting officers for positions covered by the Vacancies Reform Act?\nAnswer. No. The Vacancies Reform Act provides that \xe2\x80\x9c [a]ny statutory provi\xc2\xad\nsion providing general authority to the head of an Executive agency . . . to dele\xc2\xad\ngate duties statutorily vested in that agency head to, or to reassign duties among,\nofficers or employees of such Executive agency, is not\xe2\x80\x9d the type of statutory\nprovision that remains a separate, viable authority for filling vacant PAS positions\non a temporary basis. 5 U.S.C. \xc2\xa7 3347(b).\nQuestion 10. Who may serve in an acting capacity for a vacant executivebranch PAS position under the Vacancies Reform Act?\nAnswer. There are generally three categories of people who may serve in an\nacting capacity for vacant PAS positions under the Vacancies Reform Act: (1)\nfirst assistants to the respective vacant offices, (2) PAS officers designated by\nthe President, and (3) certain senior agency employees designated by the President.\n5 U.S.C. \xc2\xa7 3345(a).\nQuestion 11. Who is the first assistant to the office?\nAnswer. The Vacancies Reform Act does not define the term \xe2\x80\x9c first assistant.\xe2\x80\x9d\nThe Committee Report, however, indicates that establishing first assistants by\nstatute or by regulation would be sufficient under the Act. See S. Rep. No. 105250, at 12. There is also some support for a broader definition of a first assistant.\nSee 144 Cong. Rec. SI 1,037 (daily ed. Sept. 28, 1998) (statement of Sen.\nLieberman) (identifying first assistant as \xe2\x80\x9c a term of art that generally refers to\nthe top deputy\xe2\x80\x9d to the position). At a minimum, a designation of a first assistant\nby statute, or by regulation where no statutory first assistant exists, should be\nadequate to establish a first assistant for purposes of the Vacancies Reform Act.\nOthers not designated by statute or regulation also may qualify as first assistants\nunder the Act, but there is less explicit support in the legislative history for this\nproposition.\nQuestion 12. How does the first assistant begin to serve as an acting officer\nfor a vacant position?\nAnswer. Under the terms of the Vacancies Reform Act, if there is a first assist\xc2\xad\nant to the vacant office, that first assistant begins to serve as the acting officer\nimmediately and automatically upon the occurrence of the vacancy. 5 U.S.C.\n\xc2\xa7 3345(a)(1).\nQuestion 13. If someone is designated to be first assistant after the vacancy\noccurs, does that person still become the acting officer by virtue of being the\nfirst assistant?\n63\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nAnswer. While the Vacancies Reform Act does not expressly address this ques\xc2\xad\ntion, we believe that the better understanding is that you must be the first assistant\nwhen the vacancy occurs in order to be the acting officer by virtue of being the\nfirst assistant. While someone who is not the first assistant when the vacancy\noccurs would not qualify to be the acting officer by virtue of being the first assist\xc2\xad\nant, the President may still designate that person to serve as the acting officer\nif he or she meets the qualifications for serving as an acting officer under a dif\xc2\xad\nferent provision of the Act. See Q17-Q20.*\nQuestion 14. Are there limitations on the ability of a first assistant to serve\nin an acting capacity?\nAnswer. In addition to the tim e limit on the length of service of an acting\nofficer, see Q23, the Vacancies Reform Act also limits a first assistant\xe2\x80\x99s ability\nto be the nominee for the office and, at the same time, to continue to serve as\nthe acting officer for that office. If the President nominates the first assistant for\nthe vacant office, the first assistant may continue to serve as the acting officer\nfor that position only if (1) the first assistant served as first assistant for at least\nninety days (they need not be consecutive days) during the 365-day period that\npreceded the beginning of the vacancy, or (2) the office of first assistant is itself\na PAS position and the Senate approved the appointment of that first assistant\nto the first assistant\xe2\x80\x99s position. 5 U.S.C. \xc2\xa7 3345(b).\nQuestion 15. Does this limitation on the ability to be both the nominee and\nthe acting officer apply only to first assistants, or does it also apply to persons\nwho qualify to serve as an acting officer under other provisions of the Vacancies\nReform Act?\nAnswer. The limitation on the ability to be the nominee for the vacant position\nand to serve as the acting officer applies only to persons who serve as acting\nofficers by virtue of having been the first assistant to the office. If someone is\nserving in an acting capacity on another basis, i.e., as a PAS or a senior agency\nemployee designated by the President, this particular limitation does not apply.\nHowever, because senior agency employees may not be designated by the Presi\xc2\xad\ndent unless they have served in the agency for ninety days within the year pre\xc2\xad\nceding the vacancy, see Q20, a similar time limitation in fact applies to anyone\nwho is not already in a PAS position.\nQuestion 16. If the first assistant also qualifies to serve in an acting capacity\nunder another provision of the Vacancies Reform Act, does the limitation on the\nability to be both the nominee and the acting officer apply?\nAnswer. If the first assistant also qualifies to serve in an acting capacity under\nanother category, he or she m ay be designated under that category. Accordingly,\nif the first assistant meets the requirements to be an acting officer based on his\nor her status as a senior agency employee, the first assistant could be nominated\n* Editor\xe2\x80\x99s Note: In 2001, the Office o f Legal Counsel reversed its position on this issue and now believes that,\non the better view, someone who becomes the first assistant after a vacancy occurs may serve as the acting officer\nby virtue o f being the first assistant\n\n64\n\n\x0cGuidance on Application o f Federal Vacancies Reform Act o f 1998\n\nfor the position and continue to serve in an acting capacity as long as the President\nmade the required designation for that senior agency employee to serve as the\nacting officer. (As noted above and discussed in more detail in question 20, the\nrequirements for a senior agency employee to serve as an acting officer include\nthat the employee have served within the agency for at least ninety days in the\nyear preceding the vacancy.)\nQuestion 17. How does a PAS officer come to serve as an acting officer for\na vacant position?\nAnswer. A PAS officer may begin serving as an acting officer for a vacant\nposition only upon direction from the President (and only the President) that that\nPAS officer is to perform the functions and duties of the vacant office in an acting\ncapacity. 5 U.S.C. \xc2\xa7 3345(a)(2).\nQuestion 18. Does the Vacancies Reform Act impose any limitations on which\nPAS officers the President may designate to serve in an acting capacity for a\nvacant office?\nAnswer. The Vacancies Reform Act does not impose any limitations on which\nPAS officers the President may designate. There are no length of service require\xc2\xad\nments, and the PAS officer need not be from the same agency as that in which\nthe vacancy arose.\nQuestion 19. How does a senior agency employee come to serve as an acting\nofficer for a vacant position?\nAnswer. As with PAS officers, certain senior agency employees (see Q20) may\nbegin to serve as the acting officer for a vacant position upon a directive from\nthe President (and only the President) instructing that senior agency employee\nto perform the functions and duties of the vacant office in an acting capacity.\n5 U.S.C. \xc2\xa7 3345(a)(3).\nQuestion 20. Does the Vacancies Reform Act impose any limitations on which\nsenior agency employees the President may designate to serve as acting officers?\nAnswer. Yes, the Vacancies Reform Act imposes a number of limitations on\nwhich senior agency employees the President may designate. First, the senior\nagency employee must be from the same Executive agency as the one in which\nthe vacancy occurs. 5 U.S.C. \xc2\xa7 3345(a)(3)(A). Second, the senior agency employee\nmust have served in a position within that Executive agency for not less than\nninety days during the 365 days preceding the vacancy. Id. Third, the rate of\npay for the position in which the senior agency employee served must be at least\nGS-15, step 1. 5 U.S.C. \xc2\xa7 3345(a)(3)(B).\nQuestion 21. Are there any other categories of persons qualified to serve in\nan acting capacity under the Vacancies Reform Act?\nAnswer. Yes, with regard to PAS positions that are filled for a term set by\nstatute and are located in an Executive department (a narrower category than\nExecutive agencies \xe2\x80\x94 see Q5), the Vacancies Reform Act also provides for a\nfourth category of persons who may serve in an acting capacity. For such an\noffice, the President (and only the President) may direct the officer whose term\n65\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nis expiring to continue to serve in that office if that officer is nominated for an\nadditional term to the same office without a break in service. 5 U.S.C.\n\xc2\xa7 3345(c)(1).\nQuestion 22. Does the Vacancies Reform Act impose the same time limits on\nofficers who continue to serve once their terms have expired as apply under the\nAct to the categories of acting officers?\nAnswer. No, the Act sets out an additional limitation on how long such an\nofficer may continue to serve. In addition to being subject to the general time\nlimits of the Vacancies Reform Act, the Act also provides that the carry-over\nofficer may no longer continue to serve on a temporary basis once the officer\xe2\x80\x99s\nnomination is either confirmed or rejected by the Senate.\nMore generally, although the Vacancies Reform Act does not impose such a\nlimitation on other acting officers who are nominated to fill the vacant position\nin which they are serving in an acting capacity, a similar limitation likely will\napply to any such officer as a practical matter. Congress routinely passes an appro\xc2\xad\npriations rider prohibiting the use o f appropriated funds to pay someone for filling\na position for which that person was nominated if the Senate has voted to reject\nthe nomination. See, e.g., Section 610 of the Treasury and General Government\nAppropriations Act, 1999, Pub. L. No. 105-277, Div. A, tit. 1, \xc2\xa7 101(h), 112 Stat.\n2681-480, 2681-515 (1998).\nQuestion 23. Generally, for how long may a vacant office be filled on an acting\nbasis under the Vacancies Reform Act?\nAnswer. The Vacancies Reform Act does not provide for a static, set number\nof days during which an acting officer may serve. Instead, the Vacancies Reform\nAct\xe2\x80\x99s limitation on the length of service involves a series of interrelated provisions\ntied to the submission of a nomination for the vacant position. These provisions\npermit an acting officer to serve for a 210-day period prior to the submission\nof a nomination. Once a nomination is submitted, the acting official may continue\nto serve until the Senate takes action on the nomination or the nomination is with\xc2\xad\ndrawn. If the first nomination is rejected or returned by the Senate, or withdrawn\nby the President, a new 210-day period of service begins. Once a second nomina\xc2\xad\ntion is submitted, an acting officer again may continue to serve as long as the\nnomination is pending in the Senate. If the second nomination also is rejected,\nreturned, or withdrawn, then a final 210-day period begins to run. The submission\nof a third nomination does not suspend the running of this final 210-day period;\nonce those 210 days have run, the functions and duties of the vacant office may\nno longer be performed by an acting officer. 5 U.S.C. \xc2\xa7 3346. See questions 2538 below for a more detailed discussion of how the time limits are calculated\nunder the Vacancies Reform Act.\nQuestion 24. Are there vacancies to which these time limits do not apply?\nAnswer. Yes, the time limits of the Vacancies Reform Act do not apply to\nvacancies caused by sickness. In the case of a PAS who is unable to perform\nthe functions and duties of the office because he or she is sick, the acting officer\n66\n\n\x0cGuidance on Application o f Federal Vacancies Reform Act o f 1998\n\nmay continue to serve until the sick PAS officer recovers, at which point the\nPAS officer again resumes performing the functions and duties of the office. 5\nU.S.C. \xc2\xa7 3346(a).3\nQuestion 25. If the President does not submit a nomination for the vacant posi\xc2\xad\ntion, how long may an acting officer perform the functions and duties of the\noffice?\nAnswer. If the President does not submit a nomination, an acting officer may\nserve in an acting capacity during an initial 210-day period. 5 U.S.C. \xc2\xa7 3346(a)(1).\nUnder various provisions of the Act, the length of this initial period may be\nadjusted in a number of ways. See Q27 and Q36-Q38 (discussing possible adjust\xc2\xad\nments to this period).\nQuestion 26. From what date do you begin calculating the initial 210-day\nperiod?\nAnswer. The Vacancies Reform Act clarifies prior law, making it clear that\nthe time limit begins to run on the date the vacancy occurs, rather than on the\ndate the acting officer begins performing the functions and duties of the office.\n5 U.S.C. \xc2\xa7 3346(a)(1).\nQuestion 27. Are there situations in which the time limit will be calculated\nbeginning on a date other than the date the vacancy occurred?\nAnswer. Yes, the Vacancies Reform Act provides that \xe2\x80\x9c [i]f a vacancy occurs\nduring an adjournment of the Congress sine die, the 210-day [initial limit] shall\nbegin on the date that the Senate first reconvenes.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3346(c). So for\nexample, the Congress adjourned sine die on October 21, 1998. See 144 Cong.\nRec. HI 1,704, S12.810, S12,979 (daily ed. Oct. 21, 1998). The Senate did not\nreconvene until January 6, 1999. As a result, for a vacancy that occurred prior\nto January 6, 1999, the initial 210-day period during which an acting officer may\nserve in the absence of a nomination began to run on January 6, 1999, and will\ncontinue for a 210-day period ending at the end of the day on August 3, 1999.4\nThe Vacancies Reform Act also includes a special provision that adjusts the\nbeginning dates for vacancies at the start of a new President\xe2\x80\x99s first administration\nto account for the increased difficulty and time required to nominate PAS officers\nat the beginning of a new administration. See Q38 for a detailed discussion of\nthat provision.\nQuestion 28. How is the time limit affected when the President submits a\nnomination to fill the vacant office?\nAnswer. Once the President submits a nomination to fill the vacant office, an\nacting officer may continue to serve in an acting capacity while the nomination\nis pending before the Senate. 5 U.S.C. \xc2\xa7 3346(b). A nomination remains pending\n3 See questions 6 and 7, as well, regarding vacancies that are not governed exclusively by the Vacancies Reform\nAct\n4 If August 3, 1999 is a day on which the Senate is not in session, the penod of service may be extended. See\nQ36-Q37.\n\n67\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nbefore the Senate until the nomination is confirmed, the nomination is withdrawn\nby the President, or the nomination is rejected or returned by the Senate.\nQuestion 29. What is meant by the Senate\xe2\x80\x99s \xe2\x80\x9c rejection\xe2\x80\x9d of the nomination?\nAnswer. The Senate \xe2\x80\x9c rejects\xe2\x80\x9d a nomination only when the full Senate votes\non and disapproves a nomination. A determination by a committee that it will\nnot report the nomination out for a vote of the full Senate or a determination\nof the Senate otherwise not to vote on the nomination does not constitute a rejec\xc2\xad\ntion o f the nomination. See Intrasession Recess Appointments, 13 Op. O.L.C. 271,\n274-75 (1989).\nQuestion 30. What is meant by the Senate\xe2\x80\x99s \xe2\x80\x9c return\xe2\x80\x9d of the nomination?\nAnswer. \xe2\x80\x9c Return\xe2\x80\x9d takes its meaning from Senate Rule XXXI, which provides\nin relevant part that \xe2\x80\x9c if the Senate shall adjourn or take a recess for more than\nthirty days, all nominations pending and not finally acted upon at the time of\ntaking such adjournment or recess shall be returned by the Secretary to the Presi\xc2\xad\ndent, and shall not again be considered unless they shall again be made to the\nSenate by the President.\xe2\x80\x9d Senate Rule XXXI(6); see also S. Rep. No. 105-250,\nat 15. Nominations left pending at the time o f a recess in excess of thirty days\nand at the end of the first session of a Congress frequently are not returned, but\nare instead held over pursuant to unanimous consent of the Senate. All nomina\xc2\xad\ntions left pending at the end of a Congress, however, are returned pursuant to\nSenate Rule XXXI.\nQuestion 31. How is the time limit affected if a nomination is submitted after\nthe 210-day period has expired?\nAnswer. The Vacancies Reform Act incorporates a spring-back provision,\nwhich permits an acting officer to begin performing the functions and duties of\nthe vacant office again upon the submission o f a nomination, even if the 210day period expired before that nomination was submitted. If the 210-day limitation\nperiod expires before the President has submitted a nomination, the restrictions\nin \xc2\xa7 3348 of the Act, which bar anyone from serving in an acting capacity, become\noperative. See Q39-Q 49 (discussing these restrictions). If thereafter the President\nsubmits a nomination, an acting officer is again able to perform the functions\nand duties of the office as of the date the nomination is submitted. 5 U.S.C.\n\xc2\xa7 3346(a)(2).\nQuestion 32. What happens if the first nomination is rejected or returned by\nthe Senate or is withdrawn by the President?\nAnswer. If the first nomination is rejected, returned, or withdrawn, a new 210day period during which an acting official may serve begins to run on the date\nthat the nomination is rejected, returned, or withdrawn. This is a new, full 210\ndays, and the period is not affected by the length of time an acting official served\nbefore the first nomination was submitted or by the length of time the first\nnomination was pending before the Senate. 5 U.S.C. \xc2\xa7 3346(b)(1).\nQuestion 33. How is the tim e limit affected by the submission of a second\nnomination to fill the vacant position?\n68\n\n\x0cGuidance on Application o f Federal Vacancies Reform Act o f 1998\n\nAnswer. The effect of the submission of a second nomination is the same as\nthat of the first nomination. Once the President submits a second nomination, an\nacting officer may continue to serve in an acting capacity while the second\nnomination is pending before the Senate. Further, the spring-back provision dis\xc2\xad\ncussed in question 31 also applies to the submission of a second nomination. 5\nU.S.C. \xc2\xa7 3346(a)(2), (b)(2).\nQuestion 34. What happens if the second nomination is rejected or returned\nby the Senate or is withdrawn by the President?\nAnswer. If the second nomination is rejected, returned, or withdrawn, a new\n(and final) 210-day period begins to run on the date that that nomination is with\xc2\xad\ndrawn, rejected, or returned. This is again a new, full 210 days, and the period\nis not affected by the length of time an acting official served before the second\nnomination was submitted or the length of time the second nomination was\npending before the Senate. 5 U.S.C. \xc2\xa7 3346(b)(2)(B).\nQuestion 35. What effect does the submission of a third nomination have on\nthe time limit?\nAnswer. The submission of a third nomination will not suspend or otherwise\naffect the running of the 210-day limit. The 210-day period that begins upon the\nrejection, return, or withdrawal of a second nomination is final; once that 210day period ends, the bar in \xc2\xa7 3348 of the Act on serving in an acting capacity\ntakes effect.\nQuestion 36. What happens if a 210-day period ends on a date when the Senate\nis not in session?\nAnswer. The Vacancies Reform Act provides for the time period to be extended\nwhen the last day of any 210-day period is \xe2\x80\x9c a day on which the Senate is not\nin session.\xe2\x80\x9d In this circumstance, the last day of the period is deemed to be the\nsecond day the Senate is next in session and receiving nominations. 5 U.S.C.\n\xc2\xa7 3348(c).\nQuestion 37. Is there any other provision that would activate the spring-back\nprovision while the Senate is recessed or adjourned?\nAnswer. The Vacancies Reform Act also includes a provision that would allow\nthe President, in circumstances in which the Senate is recessed or adjourned for\nmore than fifteen days, to provide the Senate with written notice of an intent\nto nominate and, by providing that notice, to trigger the spring-back provision.\n5 U.S.C. \xc2\xa7 3349d.\nQuestion 38. Does the Vacancies Reform Act include any provision to account\nfor the increased difficulty and time that may be involved in nominating PAS\nofficers at the beginning of a new administration?\nAnswer. The Vacancies Reform Act includes a specific provision that adjusts\nthe calculation of the time limits to provide extra time for a new administration\nto submit nominations for PAS positions. Specifically, the Act provides that for\nany vacancy existing at any point during a sixty-day period beginning on the date\nthe oath of office is taken by a new President (i.e., a President who was not\n69\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nthe President immediately before taking the oath of office) the vacancy shall be\ndeemed, for purposes o f calculating the time limit, to have arisen either (i) ninety\ndays after the date the oath of office was taken or (ii) ninety days after the date\nthe vacancy occurred, whichever is later. Thus, even if an office became vacant\nwell before the new President takes office, the time limit begins anew, and an\nextra ninety days is added on to what is deemed to be the first 210-day period.\n5 U.S.C. \xc2\xa7 3349a.\nQuestion 39. What are the effects under the Vacancies Reform Act of the time\nlimit expiring or there otherwise being no one qualified to serve in an acting\ncapacity?\nAnswer. Unless there is a person qualified to serve in an acting capacity under\nthe Vacancies Reform Act, i.e., there is a person who meets the requirements\nof an acting officer under \xc2\xa7 3345, and the time limit for serving has not expired,\n(i) no one may serve as the \xe2\x80\x9c acting officer\xe2\x80\x9d and (ii) no one other than the head\nof the Executive agency may perform any \xe2\x80\x9c function or duty\xe2\x80\x9d of the vacant office.\n5 U.S.C. \xc2\xa7 3348(b). See Q43 (discussing what is a \xe2\x80\x9c function or duty\xe2\x80\x9d of the\noffice under this section).\nQuestion 40. If the position o f head of the Executive agency is vacant, may\nthe acting head perform a function or duty of a vacant office for which there\nis no qualified acting officer?\nAnswer. A properly serving acting head of an agency may perform a function\nor duty of a vacant office.\nQuestion 41. What is the effect of someone other than a qualified acting officer\nor the head of the Executive agency performing a function or duty of the office?\nAnswer. Under the enforcement provisions set out in \xc2\xa7 3348 of the Vacancies\nReform Act, an \xe2\x80\x9c action\xe2\x80\x9d taken in the performance of a \xe2\x80\x9c function or duty\xe2\x80\x9d of\na vacant office to which the Act applies shall have no force or effect unless it\nwas performed either by someone qualified to serve as an acting officer or by\nthe head of the Executive agency. 5 U.S.C. \xc2\xa7 3348(d)(1). Further, the Act\nexpressly provides that an action that has no force or effect under this provision\ncannot later be ratified. 5 U.S.C. \xc2\xa7 3348(d)(2). While the effect of the enforcement\nprovisions is severe, the breadth of conduct to which the provisions apply is\nexpressly limited by the definition of \xe2\x80\x9c function or duty.\xe2\x80\x9d\nQuestion 42. How is an \xe2\x80\x9c action\xe2\x80\x9d defined under the Vacancies Reform Act?\nAnswer. \xe2\x80\x9c [A]ction\xe2\x80\x9d is defined under the Vacancies Reform Act by reference\nto the definition of \xe2\x80\x9c agency action\xe2\x80\x9d in 5 U.S.C. \xc2\xa7551(13) (1994). Agency action\nis defined in \xc2\xa7551(13) as \xe2\x80\x9c includ[ing] the whole or a part of an agency rule,\norder, license, sanction, relief, or the equivalent or denial thereof, or failure to\nact.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3348(a)(1).\nQuestion 43. How is a \xe2\x80\x9c function or duty\xe2\x80\x9d of the office defined under the\nVacancies Reform Act?\nAnswer. For purposes of \xc2\xa73348, a \xe2\x80\x9c function or duty\xe2\x80\x9d is defined as any func\xc2\xad\ntion or duty of the PAS office that is required by statute or regulation to be per\xc2\xad\n70\n\n\x0cGuidance on Application o f Federal Vacancies Reform Act o f 1998\n\nformed exclusively by the holder of that office. 5 U.S.C. \xc2\xa7 3348(a)(2). See Q48\n(discussing the practical scope of the definition of \xe2\x80\x9c function or duty\xe2\x80\x9d ).\nQuestion 44. May an agency revise its regulations to make what had been an\nexclusive function or duty under its regulations non-exclusive?\nAnswer. Yes, the Vacancies Reform Act anticipates that Executive agencies\nmay revise some of their regulations to eliminate a requirement under the regula\xc2\xad\ntion that a function be performed exclusively by the PAS officer. The Act, how\xc2\xad\never, also includes a look-back provision that delays the effectiveness of such\na revision for purposes of the Vacancies Reform Act. Under the definition, a func\xc2\xad\ntion or duty will be treated as exclusive if, at any time during the 180 days pre\xc2\xad\nceding the date on which the vacancy occurred, the regulation provided that the\nduty or function was to be performed exclusively by the applicable officer. 5\nU.S.C. \xc2\xa7 3348(a)(2)(B)(ii).\nQuestion 45. Does such a look-back provision also apply to the revision of\nstatutes imposing exclusive duties on officers?\nAnswer. No, there is no similar look-back provision for statutes. If a statute\nis amended to eliminate an exclusive performance requirement, either by elimi\xc2\xad\nnating a restriction on the ability to delegate the function or by reassigning the\nfunction to another officer, that change will eliminate the exclusivity requirement\nunder the Vacancies Reform Act without any delay. Similarly, if a regulation is\nrevised because of a change in the underlying statutory authority, there is no delay\nimposed by the Act on the elimination of a requirement that the function be per\xc2\xad\nformed exclusively by the PAS officer.\nQuestion 46. What if Congress imposes an exclusivity requirement on an office\nafter a vacancy arises?\nAnswer. Such a statutory imposition of an exclusive function or duty on an\noffice is effective as soon as the new statutory provision itself becomes effective,\neven if the statute is not enacted until after the vacancy.\nQuestion 47. What oversight mechanisms exist to ensure agency compliance\nwith the Act and application of the enforcement provisions?\nAnswer. The Act has a number of mechanisms to ensure agency compliance\nwith the law. Executive agencies, of course, are expected to ensure that they are\nin compliance with the Act. The Act also establishes a reporting procedure under\nwhich events that trigger application of the Act and its enforcement provisions\nare reported to the General Accounting Office (\xe2\x80\x9c GAO\xe2\x80\x9d ) and to each House of\nCongress to assist their oversight of compliance. See Q50-Q53. Congress also\nexpected that private parties would, through litigation challenging agency actions,\nprovide an additional mechanism to ensure compliance. See S. Rep. No. 105250, at 19-20 ( \xe2\x80\x9c The Committee expects that litigants with standing to challenge\npurported agency actions taken in violation of these provisions will raise noncompliance with this legislation in a judicial proceeding challenging the lawfulness\nof the agency action.\xe2\x80\x9d ).\n71\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nQuestion 48. Do the enforcement provisions of the Vacancies Reform Act mean\nthat unless there is a properly serving acting officer nothing the PAS officer did\nmay be performed by anyone other than the head of the Executive agency?\nAnswer. No, Congress understood that there would be occasions when the time\nlimits would expire or when there would, for a period, be no one qualified to\nserve in an acting capacity. Congress also understood that if everything the PAS\nofficer may have done in the performance of his or her duties had to be performed\nby the head of the Executive agency, the business of the government could be\nseriously impaired. See S. Rep. No. 105-250, at 30-31 (Additional Views). As\na result, Congress delimited which functions could be performed only by a quali\xc2\xad\nfied acting officer or the head of the Executive agency, defining them as only\nthose functions or duties assigned exclusively to the PAS officer by statute or\nregulation. Most, and in many cases all, the responsibilities performed by a PAS\nofficer will not be exclusive, and the Act permits non-exclusive responsibilities\nto be delegated to other appropriate officers and employees in the agency.\nQuestion 49. Are there PAS offices that are covered by the Vacancies Reform\nAct, but to which the enforcement provisions do not apply?\nAnswer. Yes, the Vacancies Reform Act sets out a list of offices to which\nthe enforcement provisions of \xc2\xa7 3348 do not apply. These offices are: (1) the Gen\xc2\xad\neral Counsel of the National Labor Relations Board, (2) the General Counsel of\nthe Federal Labor Relations Authority, (3) any Inspector General appointed by\nthe President, by and with the advice and consent of the Senate, (4) any Chief\nFinancial Officer appointed by the President, by and with the advice and consent\nof the Senate, and (5) any office of an Executive agency for which there is a\nstatutory provision that expressly prohibits the head of the Executive agency from\nperforming the functions and duties of the office. 5 U.S.C. \xc2\xa7 3348(e).\nQuestion 50. What reporting requirements does the Vacancies Reform Act\nimpose on agencies?\nAnswer. The Vacancies Reform Act requires the head of each Executive agency\nto provide notification of (i) a vacancy covered by the Act, (ii) the date on which\nthe vacancy occurred, (iji) the name of any person serving in an acting capacity\nin connection with such a vacancy, (iv) the date that person began serving in\nan acting capacity, (v) the name of any person nominated to fill the vacancy,\n(vi) the date on which the nomination is submitted, and (vii) the date of any\nrejection, withdrawal, or return o f the nomination. 5 U.S.C. \xc2\xa7 3349(a).\nQuestion 51. When must the report of each of these occurrences be provided?\nAnswer. The report is to be provided \xe2\x80\x9c immediately upon the occurrence\xe2\x80\x9d of\neach of these events.\nQuestion 52. To whom should the reporting information described above be\nprovided?\nAnswer. Each Executive agency is to provide the required information to the\nOffice o f Presidential Personnel. The Office of Presidential Personnel, in turn,\nwill provide the information to the Office of Management and Budget, which\n72\n\n\x0cGuidance on Application o f Federal Vacancies Reform Act o f 1998\n\nwill be responsible for providing the report to GAO and to each House of Con\xc2\xad\ngress.*\nQ uestion 53. Why is this information being reported to GAO?\nAnswer. The information is provided to GAO to permit GAO to supervise\ncompliance with the Act. If GAO determines that an acting officer is serving\nbeyond the time limit allowed under the Vacancies Reform Act, it is to report\nthat determination to relevant congressional committees, the President, and the\nOffice of Personnel Management. 5 U.S.C. \xc2\xa7 3349(b).\nBETH NOLAN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n* Editor\xe2\x80\x99s Note: This procedure is subject to change, and has been changed, by the current administration, which\nhas directed the agencies to report directly to GAO and Congress See Memorandum for the Heads o f Federal Execu\xc2\xad\ntive Departments and Agencies and Units o f the Executive Office o f the President, from Alberto R. Gonzales, Counsel\nto the President, Re. Agency Reporting Requirements Under the Vacancies Reform Act at 3 (Mar 21, 2001)\n\n73\n\n\x0c'


b'Authority of the Environmental Protection Agency to\nHold Employees Liable for Negligent Loss, Damage, or\nDestruction of Government Personal Property\nThe Environmental Protection Agency may hold its employees liable for the negligent loss, damage, or\ndestruction of government personal property or for the unauthorized personal use of agency-issued\ncell phones.\n\nMay 28, 2008\n\nMEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL\nENVIRONMENTAL PROTECTION AGENCY\nYou have asked whether the Environmental Protection Agency (\xe2\x80\x9cEPA\xe2\x80\x9d) may\nhold its employees liable for the negligent loss, damage, or destruction of government personal property or for the unauthorized personal use of agency-issued cell\nphones. We conclude that it may.\nI.\nEPA\xe2\x80\x99s policy on the treatment of government personal property is contained in\nthe agency\xe2\x80\x99s Personal Property Policy & Procedures Manual (\xe2\x80\x9cProperty Manual\xe2\x80\x9d),\navailable to employees on the agency Intranet. The Property Manual constitutes\nthe \xe2\x80\x9cauthoritative reference for EPA\xe2\x80\x99s management of personal property.\xe2\x80\x9d Id. at\nES-1. Describing itself as a \xe2\x80\x9csupplement\xe2\x80\x9d to existing federal law and regulations,\nthe Property Manual \xe2\x80\x9cprovid[es] basic policy and procedures governing the\npersonal property management of EPA.\xe2\x80\x9d Id. at ES-1 to ES-2. Pursuant to the\nProperty Manual, EPA employees are responsible for \xe2\x80\x9cproperly caring for,\nhandling, utilizing, and being accountable for EPA personal property assigned for\ntheir use within or away from an EPA facility,\xe2\x80\x9d as well as for \xe2\x80\x9censuring that\npersonal property in their possession, custody or control is used only for official\nauthorized duties (except as allowed per EPA Order 2100.3, \xe2\x80\x98Policy on Limited\nPersonal Use of Government Office Equipment.\xe2\x80\x99).\xe2\x80\x9d Id. \xc2\xa7 1.3.4.\nEPA\xe2\x80\x99s Property Manual expressly provides that employees may be held liable\nfor any government property in their care that is lost, damaged, or destroyed\nthrough their negligence. The Property Manual both notifies employees of their\nduty of care and requires them to acknowledge that responsibility by completing\ncertain forms before taking custody of EPA property. One form requires employees receiving personal property, like laptops and cell phones, to \xe2\x80\x9caccept responsibility for the equipment,\xe2\x80\x9d to agree to \xe2\x80\x9cexercise reasonable care in protecting it,\xe2\x80\x9d\nand to accept that they \xe2\x80\x9cmay be required to reimburse EPA for part or all of the\nacquisition cost\xe2\x80\x9d in case the property is lost, damaged, or destroyed due to\nnegligence. EPA Form 1740-22 (\xe2\x80\x9cPersonal Property Custody Card\xe2\x80\x9d); see also\n\n79\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nProperty Manual \xc2\xa7 2.1.3 (describing the purpose of EPA Form 1740-22). Another\nform requires employees transporting property outside EPA facilities to sign a\nnotice that they will be \xe2\x80\x9cpersonally responsible\xe2\x80\x9d for the property and \xe2\x80\x9cif the\nproperty has been lost, damaged, or destroyed because of [their] negligence, a\nBoard of Survey may find [them] at fault.\xe2\x80\x9d EPA Form 1700-9 (\xe2\x80\x9cProperty Pass\xe2\x80\x9d);\nsee also Property Manual \xc2\xa7 2.2.1 (discussing the use of short- and long-term\nproperty passes for taking EPA personal property offsite). A third form requires\nemployees transferring EPA personal property to other areas to accept that they are\n\xe2\x80\x9cpersonally responsible for [its] return in the condition in which received, normal\nwear and tear excepted . . . [and if] because of [their] negligence, the property has\nbeen lost, damaged or destroyed, EPA is hereby authorized to withhold any salary\ndue [the employees] until full restitution is made.\xe2\x80\x9d EPA Form 1740-10 (\xe2\x80\x9cProperty\nAction Request and Memorandum Receipt\xe2\x80\x9d); see also Property Manual \xc2\xa7 2.4.1\n(describing the purpose of EPA Form 1740-10).\nEPA provides its policy governing the appropriate use of cell phones in an\nadministrative order entitled \xe2\x80\x9cPolicy on Limited Personal Use of Government\nOffice Equipment,\xe2\x80\x9d which is available to employees on the agency Intranet. EPA\nOrder 2100.3 A1 (2004). The order sets the parameters of authorized use (allowing\nlimited personal use during non-work time where such use causes \xe2\x80\x9cminimal\nadditional expense to the Government\xe2\x80\x9d and does not \xe2\x80\x9creduce . . . productivity\xe2\x80\x9d)\nand states that \xe2\x80\x9c[u]nauthorized or inappropriate use of Government office equipment may result in [adverse consequences, including] . . . financial liability,\ndepending on the severity and nature of the misuse.\xe2\x80\x9d Id.\nEPA\xe2\x80\x99s Property Manual sets forth specific administrative procedures for reviewing claims that employees should be held liable for the loss, damage, or\ndestruction of agency property (referred to in the Manual as \xe2\x80\x9cLDD\xe2\x80\x9d). Under these\nprocedures, a Board of Survey, composed of three to five EPA employees\nappointed for three-year terms, \xe2\x80\x9cserves as a fact-finding body charged with\ndetermining the circumstances and conditions of each case in which EPA property\nis declared LDD.\xe2\x80\x9d Property Manual \xc2\xa7 1.3.2. The Board \xe2\x80\x9cmust ensure that facts are\nfully disclosed, government interests are fully served, and the rights of the\nemployee(s) involved are fully protected.\xe2\x80\x9d Id. \xc2\xa7 3.8.4. The Board must consider\nthe available evidence, including a custodial report \xe2\x80\x9cdescribing the circumstances\nof the LDD,\xe2\x80\x9d id. \xc2\xa7 3.8.2, and must interview the \xe2\x80\x9cemployee(s) assigned responsibility for the property and/or their supervisor,\xe2\x80\x9d id. \xc2\xa7 3.8.4. Following such\nconsideration, the Board must issue \xe2\x80\x9ccomprehensive\xe2\x80\x9d written findings and\nrecommendations, including a determination of whether the employees were \xe2\x80\x9cat\nfault\xe2\x80\x9d for the loss, damage, or destruction. Id. \xc2\xa7 3.8.6. The Board\xe2\x80\x99s findings and\nrecommendations then must be reviewed by a senior-level EPA official (\xe2\x80\x9cProgram/Regional leadership\xe2\x80\x9d), id. \xc2\xa7 3.8.7, and if the senior official disagrees, a\nspecified agency property officer must act as an advisor to \xe2\x80\x9cfacilitate resolution of\nthe case between all parties,\xe2\x80\x9d id.\n\n80\n\n\x0cAuthority of EPA to Hold Employees Liable for Loss or Damage of Property\n\nII.\nFederal departments and agencies may appeal to several sources of authority to\npromulgate rules concerning their employees\xe2\x80\x99 care for government property. Most\ndirectly, 5 U.S.C. \xc2\xa7 301 provides the heads of \xe2\x80\x9cExecutive departments\xe2\x80\x9d with a\ngeneral \xe2\x80\x9chousekeeping\xe2\x80\x9d authority to prescribe rules for the conduct of their\ndepartment\xe2\x80\x99s employees and \xe2\x80\x9cthe custody, use, and preservation of its records,\npapers, and property.\xe2\x80\x9d Although EPA is not an \xe2\x80\x9cExecutive department\xe2\x80\x9d within the\nmeaning of section 301, see 5 U.S.C. \xc2\xa7 101 (2006) (defining \xe2\x80\x9cExecutive departments\xe2\x80\x9d), we conclude that the Administrator of the EPA has the same \xe2\x80\x9chousekeeping\xe2\x80\x9d authority under EPA\xe2\x80\x99s organic statute.\nUnder 5 U.S.C. \xc2\xa7 301, \xe2\x80\x9c[t]he head of an Executive department or military\ndepartment may prescribe regulations for the government of his department, the\nconduct of its employees, the distribution and performance of its business, and the\ncustody, use, and preservation of its records, papers, and property.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 301\n(2006). Commonly referred to as a \xe2\x80\x9chousekeeping statute,\xe2\x80\x9d section 301 gives\n\xe2\x80\x9cauthority to [an] agency to regulate its own affairs.\xe2\x80\x9d Chrysler Corp. v. Brown,\n441 U.S. 281, 310 (1979). \xe2\x80\x9c[T]he antecedents of 5 U.S.C. \xc2\xa7 301 go back to the\nbeginning of the Republic, when statutes were enacted to give heads of early\nGovernment departments authority to govern internal departmental affairs.\xe2\x80\x9d Id. at\n301. This Office has interpreted section 301 to allow agencies not only to set rules\nfor employee conduct while on the job, but also to regulate employee conduct\noutside the workplace that \xe2\x80\x9cmay undermine the efficient operation of the Department or the effectiveness of employees in the performance of their duties.\xe2\x80\x9d\nAuthority to Prescribe Regulations Limiting the Partisan Political Activities of the\nCommissioned Officer Corps in the National Oceanic and Atmospheric Administration, 28 Op. O.L.C. 102, 104 (2004) (\xe2\x80\x9cAuthority to Prescribe Regulations\xe2\x80\x9d).\nIf section 301 applied to the EPA, we would have no difficulty concluding that\nit would confer authority to \xe2\x80\x9cprescribe regulations\xe2\x80\x9d setting standards of care for\nemployee use of government property and to impose liability for breaches of those\nstandards. The Property Manual and EPA Order 2100.3 regulate both the \xe2\x80\x9ccustody, use, and preservation of . . . [EPA] property\xe2\x80\x9d and \xe2\x80\x9cthe conduct of its employees.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 301. These rules thus concern \xe2\x80\x9cinternal departmental affairs,\xe2\x80\x9d\nChrysler, 441 U.S. at 301, and would constitute a proper exercise of \xe2\x80\x9cadministrative power\xe2\x80\x9d pursuant to the statute, United States v. George, 228 U.S. 14, 20\n(1913), which includes the authority to establish penalties for violations of agency\nregulations, see Mourning v. Family Publ\xe2\x80\x99ns Serv., Inc., 411 U.S. 356, 372, 376\n(1973) (holding that an agency\xe2\x80\x99s authority to regulate certain conduct included the\nauthority to impose penalties, such as a civil fine, for violating agency regulations). For this reason, several departments and agencies have cited section 301\n\n81\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nexpressly as a source of authority for rules subjecting employees to liability for\nlosses due to violations of internal personnel and property rules. 1\nThe difficulty here, however, is that section 301 confers regulatory authority\nonly on the \xe2\x80\x9cheads of Executive departments and military departments,\xe2\x80\x9d and not\nthe heads of other executive agencies, such as EPA. 5 U.S.C. \xc2\xa7 301; see also\n5 U.S.C. \xc2\xa7 101; Authority of the Office of Government Ethics to Issue Touhy\nRegulations, 25 Op. O.L.C. 13, 15 (2001) (recognizing that section 301 authority\nis limited to the listed departments). In considering whether the EPA Administrator may exercise housekeeping authority equivalent to that under section 301, we\nmust consider whether such authority has been conferred under EPA\xe2\x80\x99s organic\nstatute.\nThe Reorganization Plan establishing the EPA vests the Administrator with\nauthority equivalent in many respects to that enjoyed by the head of an executive\ndepartment. Reorganization Plan No. 3 of 1970, \xc2\xa7 1(b), 84 Stat. 2086, 2086\n(July 9, 1970) (codified at 5 U.S.C. app. 189 (2006)). 2 The Reorganization Plan,\nwhich names the Administrator the \xe2\x80\x9chead of the agency,\xe2\x80\x9d id., transfers to the\nAdministrator functions previously vested by law in the heads of other executive\ndepartments, including functions of the Secretary of the Interior and the Secretary\nof Health, Education, and Welfare. Id. \xc2\xa7 2(a)(1)\xe2\x80\x93(4). The Administrator\xe2\x80\x99s authority\nis not limited to those designated functions but also includes \xe2\x80\x9c[s]o much of the\nfunctions of the transferor officers and agencies\xe2\x80\x9d that are \xe2\x80\x9cincidental to or\n1\nSee, e.g., Dep\xe2\x80\x99t of Justice, Order 2400.3 (Aug. 6, 1998) (citing section 301 as legal authority for its\npolicy providing that \xe2\x80\x9c[a]ll employees . . . [s]hall be liable for violation of their [property management]\nresponsibilities when they result in losses to the Government through gross negligence\xe2\x80\x9d); Bureau of Land\nManagement Manual \xc2\xa7 1520 (providing that \xe2\x80\x9c[e]mployees may be held financially liable for loss, damage,\ndestruction, or theft of property items\xe2\x80\x9d and citing 5 U.S.C. \xc2\xa7 301 for authority) (available at www.blm.gov/\npgdata/etc/medialib/blm/wo/Information_Resources_Management/policy/blm_manual.Par.53408.File.dat/\n1520.pdf, last visited ca. 2008); National Aeronautics and Space Administration, Policy Directive 2540.1F,\n\xc2\xa7 1.g (May 25, 2005) (\xe2\x80\x9cUnauthorized or improper use of Government office equipment could result in . . .\ncriminal penalties, and/or employees/contractors being held financially liable for the cost of improper\nuse.\xe2\x80\x9d) (invoking 5 U.S.C. \xc2\xa7 301) (available at http://code210.gsfc.nasa.gov/NPD2540001F.pdf, last visited Aug. 12, 2014). Other agencies have adopted similar rules without expressly citing 5 U.S.C. \xc2\xa7 301. See\nU.S. Agency for International Development (\xe2\x80\x9cUSAID\xe2\x80\x9d), ADS Chapter 518\xe2\x80\x94Personal Property\nManagement (Domestic) (revised May 5, 2007) (available at www.usaid.gov/policy/ads/500/518.pdf, last\nvisited ca. 2008); Dep\xe2\x80\x99t of the Interior, Interior Property Management Directive 114-60.808-1 (available at\nwww.doi.gov/pam/114-60-8.html, last visited ca. 2008) (stating that \xe2\x80\x9cemployees will be held financially\nliable when a thorough investigation determines . . . [t]hat the property loss was a result of [misuse] . . . or\nordinary neglect or negligence\xe2\x80\x9d) (emphasis in original); U.S. Forest Service Manual \xc2\xa7 6500.2 (clarifying\nthat \xe2\x80\x9c[i]ndividuals are liable to the Government . . . [if] [t]he Government suffers a pecuniary loss due to\ntheir willful or unauthorized acts\xe2\x80\x9d); U.S. Fish & Wildlife Service Manual, 310 FW 1 (June 13, 1996)\n(available at www.fws.gov/policy/310fw1.html, last visited ca. 2008) (\xe2\x80\x9cEmployees who have been\ndetermined by a Board of Survey to be negligent in the use of such property may be held personally liable\nto make financial restitution to the Government for any incurred loss\xe2\x80\x9d).\n2\nReorganization Plan No. 3 was transmitted to Congress on July 9, 1970, and became effective on\nDecember 2, 1970, pursuant to chapter 9 of title 5, 5 U.S.C. \xc2\xa7\xc2\xa7 901 et seq.\n\n82\n\n\x0cAuthority of EPA to Hold Employees Liable for Loss or Damage of Property\n\nnecessary for . . . the performance of,\xe2\x80\x9d or \xe2\x80\x9cprimarily related to,\xe2\x80\x9d such functions. Id.\n\xc2\xa7 2(a)(9). This ancillary authority includes \xe2\x80\x9cauthority, provided by law, to\nprescribe regulations relating primarily to the transferred functions.\xe2\x80\x9d Id. At the\ntime of the Reorganization Plan, such ancillary authority included the housekeeping authority conferred by 5 U.S.C. \xc2\xa7 301 on the heads of those departments to\nenable their subordinates to carry out efficiently the statutory functions transferred\nto the Administrator of EPA. See 5 U.S.C. \xc2\xa7 301 (Supp. II 1966). To perform those\ntransferred functions, the Reorganization Plan further provides that the Director of\nOMB shall transfer to EPA \xe2\x80\x9cpersonnel, property, records, and unexpended\nbalances of appropriations . . . used, held, available, or to be made available in\nconnection with the functions transferred to the Administrator or the Agency.\xe2\x80\x9d\nReorganization Plan No. 3 of 1970, \xc2\xa7 4(a).\nTaken together, these provisions convey to the Administrator all of the housekeeping authority available to other department heads under section 301, including\nauthority to adopt property management regulations. Congress has vested the\nAdministrator with the authority to run EPA, to exercise its functions, and to issue\nregulations incidental to the performance of those functions. This grant includes\nthe authority to assign responsibility to others within the agency and to issue\nregulations prescribing the standards by which those functions are to be performed. The effective and efficient management of the agency\xe2\x80\x99s personnel and\nproperty is plainly \xe2\x80\x9cincidental to\xe2\x80\x9d and \xe2\x80\x9cnecessary for\xe2\x80\x9d the performance of the\nfunctions that the Administrator is charged with performing. Indeed, the Reorganization Plan specifically recognizes this authority by providing the Administrator\nnot only with transferred functions but with the personnel and equipment necessary for the effective performance of those functions. The Administrator\xe2\x80\x99s\nauthority to prescribe standards for the care and use of agency property also\nincludes the authority to enforce those standards by holding employees liable for\nlosses that occur due to the breach of those standards. See Mourning, 411 U.S. at\n372. Accordingly, we conclude that the Administrator has the regulatory authority\nto issue property management regulations. 3\n3\nIn view of this conclusion, we need not discuss at length EPA\xe2\x80\x99s authority under the two other\nsources identified in your letter: (1) 5 U.S.C. \xc2\xa7 7301 (2006), which recognizes the President\xe2\x80\x99s authority\nto \xe2\x80\x9cprescribe regulations for the conduct of employees in the executive branch,\xe2\x80\x9d and (2) the common\nlaw principle of bailment. See EPA Letter at 3. Both sources remain potential avenues under which\nEPA could seek to impose liability on its employees, albeit subject to certain procedural hurdles.\nPursuant to 5 U.S.C. \xc2\xa7 7301, the President has delegated to the Office of Government Ethics (\xe2\x80\x9cOGE\xe2\x80\x9d)\nthe authority to ensure that federal employees \xe2\x80\x9cprotect and conserve Federal property\xe2\x80\x9d and do \xe2\x80\x9cnot use\nit for other than authorized activities.\xe2\x80\x9d Exec. Order No. 12731, \xc2\xa7\xc2\xa7 101(i), 201 (Oct. 17, 1990), 3 C.F.R.\n306 (1990 Comp.). OGE in turn has issued a series of regulations authorizing agencies to issue\nsupplementary property regulations, 5 C.F.R. \xc2\xa7 2635.105(a), with which employees must comply or\nface \xe2\x80\x9ccorrective action,\xe2\x80\x9d which can include restitution, id. \xc2\xa7 2635.103. To rely on these OGE\nregulations to support its existing property regulations, EPA would have to submit those regulations for\nOGE\xe2\x80\x99s approval and have them published alongside OGE regulations in the Federal Register. See\n\n83\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nWe also conclude that the rules contained within the Property Manual and EPA\nOrder 2100.3 constitute binding and enforceable regulations. If EPA had submitted these rules for notice and comment and published them in the Federal\nRegister, there would likely be little ambiguity about whether they constituted\nregulations binding within the agency. EPA has not done so in this case, however,\nbecause the Administrative Procedure Act (\xe2\x80\x9cAPA\xe2\x80\x9d) expressly exempts rules\nrelated to internal agency governance from those procedural requirements. 4 See\n5 U.S.C. \xc2\xa7 552(b) (2006) (exempting from disclosure requirements \xe2\x80\x9cmatters that\nare . . . related solely to the internal personnel rules and practices of an agency\xe2\x80\x9d);\nid. \xc2\xa7 553(a) (2006) (providing that formal rulemaking requirements, such as notice\nand comment procedures, are not required \xe2\x80\x9cto the extent that there is involved . . .\na matter relating to agency management or personnel or to public property\xe2\x80\x9d); see\nalso Authority to Prescribe Regulations, 28 Op. O.L.C. at 105\xe2\x80\x9307 (concluding that\na regulation concerning government employees\xe2\x80\x99 political activities was not a\n\xe2\x80\x9csubstantive rule\xe2\x80\x9d subject to APA procedural requirements because it \xe2\x80\x9cwould\ngovern only the conduct of government employees and would not directly affect\nthe rights and obligations of private parties pursuant to the regulatory jurisdiction\nof the Department\xe2\x80\x9d). Accordingly, the fact that EPA\xe2\x80\x99s rules were not promulgated\nin a notice and comment rulemaking process does not deprive them of legal effect;\nrather, as courts have held in analogous circumstances, an agency personnel\nmanual may constitute a \xe2\x80\x9cregulation\xe2\x80\x9d that is binding within an agency even if \xe2\x80\x9cit\nwas not promulgated and published in accordance with the requirements of the\nAPA.\xe2\x80\x9d Hamlet v. United States, 63 F.3d 1097, 1103 (Fed. Cir. 1995).\n\n5 C.F.R. \xc2\xa7 2635.105(b). The common law doctrine of bailment also may allow an agency to hold\nemployees liable for damage to property caused by their misuse or neglect. See United States v.\nThomas, 82 U.S. (15 Wall.) 337, 344 (1872); see also 3 General Accounting Office, Principles of\nFederal Appropriations Law 13-160 (2d ed. 1994) (\xe2\x80\x9cRedbook\xe2\x80\x9d) (recognizing that \xe2\x80\x9cthe concept of\nbailment\xe2\x80\x9d provides \xe2\x80\x9cthe legal basis\xe2\x80\x9d for employee liability for damage to government personal\nproperty). There is some question, however, whether recovery on a theory of bailment would be\navailable in the context of an employment relationship. See, e.g., Elwood v. Bolte, 403 A.2d 869 (N.H.\n1979) (explaining that \xe2\x80\x9cbecause [the employer] retained elements of control [over his property], a\nmaster-servant relationship was created rather than a bailment\xe2\x80\x9d); see also Am. Jur. 2d, Bailments \xc2\xa7 17\n(2d ed. 2007) (citing cases). Even if recoupment were appropriate, agencies likely would have to seek\nrecovery through administrative procedures, either through informal agency adjudications or through\nthe assistance of the Office of Personnel Management.\n4\nAs a general matter, regulations that \xe2\x80\x9cdirectly affect the rights and obligations of private parties\xe2\x80\x9d\nor regulate the \xe2\x80\x9ccitizenry at large\xe2\x80\x9d constitute \xe2\x80\x9csubstantive rules\xe2\x80\x9d under the APA and usually must be\npromulgated in accordance with notice and comment procedures. Authority to Prescribe Regulations,\n28 Op. O.L.C. at 107. In contrast, agency rules \xe2\x80\x9cgovern[ing] only the conduct of government\nemployees\xe2\x80\x9d are not substantive rules within the meaning of the APA and are specifically excluded from\npublication and notice and comment requirements. Id. The EPA policies at issue here pertain solely to\nthe conduct of EPA employees and have no application to the \xe2\x80\x9ccitizenry at large.\xe2\x80\x9d Those policies are\ntherefore not \xe2\x80\x9csubstantive rules\xe2\x80\x9d that must be published under the APA.\n\n84\n\n\x0cAuthority of EPA to Hold Employees Liable for Loss or Damage of Property\n\nWhether statements contained within agency policy manuals constitute binding\nagency regulations is a question that has arisen in a variety of contexts. Although\nnot every agency statement constitutes a binding regulation, \xe2\x80\x9cthe general consensus is that an agency statement, not issued as a formal regulation, binds the\nagency . . . if the agency intended the statement to be binding.\xe2\x80\x9d Farrell v. Dep\xe2\x80\x99t of\nInterior, 314 F.3d 584, 590 (Fed. Cir. 2002); see also Thorpe v. Housing Auth. of\nDurham, 393 U.S. 268, 276 (1969) (holding that a circular issued by the Department of Housing and Urban Development constituted an administrative regulation\nwhere it \xe2\x80\x9cwas intended to be mandatory\xe2\x80\x9d); Service v. Dulles, 354 U.S. 363, 376\n(1957) (holding that removal of employee was invalid because it violated procedures for removal set forth in a State Department manual that was binding on the\nDepartment); Doe v. Hampton, 566 F.2d 265, 280\xe2\x80\x9381 (D.C. Cir. 1977) (holding\nthat unpublished provisions within an agency personnel manual may be \xe2\x80\x9cbinding if\nso intended by the Commission\xe2\x80\x9d in question). Applying this standard here, we\nbelieve that the EPA rules in question bind both the agency and its employees. The\nProperty Manual describes itself as constituting the \xe2\x80\x9cauthoritative reference for\nEPA\xe2\x80\x99s management of personal property\xe2\x80\x9d and states that it \xe2\x80\x9cprovid[es] basic\npolicy and procedures governing the personal property management of EPA.\xe2\x80\x9d Id.\nat ES-1 (emphasis added). The Manual also expressly notes that it is a \xe2\x80\x9csupplement to the portions of the Code of Federal Regulations (CFR) and the Federal\nManagement Regulations (FMR)\xe2\x80\x9d that provide the legal framework for the\ntreatment of federal property. Id. at ES-1 to ES-2. Similarly, EPA Order 2100.3\nA1 states that it \xe2\x80\x9cprovides the EPA policy permitting limited personal use of\nGovernment office equipment during non-work time\xe2\x80\x9d and replaces \xe2\x80\x9cany previous\nmemoranda and policies regarding personal use of Government office equipment.\xe2\x80\x9d\n(Emphasis added.) Like the Property Manual, EPA Order 2100.3 A1 describes its\nstatus as on par with other binding legal authorities. Id. (stating that the order\n\xe2\x80\x9csupplements but does not supersede any statutes, regulations, or collective\nbargaining agreements on the authorized use of Government office equipment\xe2\x80\x9d).\nAccordingly, the EPA policies at issue make clear \xe2\x80\x9cthat they were designed to be\nbinding on the agency\xe2\x80\x9d and on employees alike. Farrell, 314 F.3d at 591. Those\npolicies therefore qualify as regulations enforceable by EPA when agency\nproperty is damaged due to employee negligence or additional costs are incurred\ndue to unauthorized use. 5\n5\n\nYou also have asked whether EPA\xe2\x80\x99s authority to impose liability on its employees for the misuse or\nneglect of government property would be consistent with the Comptroller General\xe2\x80\x99s decision in Matter of\nDepartment of Defense\xe2\x80\x94Authority to Impose Pecuniary Liability by Regulation, B-280764, 2000 WL\n812093 (May 4) (\xe2\x80\x9cMatter of DoD\xe2\x80\x9d). We believe that it is, because Matter of DoD addressed the specific\nrules governing \xe2\x80\x9caccountable officers,\xe2\x80\x9d rather than the general standards for other federal employees. (The\ndecisions of the Comptroller General are not binding on the Executive Branch, although we do consider\nthem useful sources on appropriations matters. See Use of General Agency Appropriations to Purchase\nEmployee Business Cards, 21 Op. O.L.C. 150, 151 (1997).) The Comptroller General traditionally has\n\n85\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nIII.\nFor the foregoing reasons, we conclude that EPA\xe2\x80\x99s rules regarding employee\nliability for loss, damage, or destruction of government personal property and for\nthe unauthorized use of government personal property are supported by EPA\xe2\x80\x99s\nhousekeeping authority. 6\nSTEVEN A. ENGEL\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\nrecognized that agencies may adopt regulations holding their employees liable for damage to property\ncaused by employee negligence or misuse. See 3 Redbook at 13-159. At the same time, the Comptroller\nGeneral has recognized the existence of specialized liability standards governing so-called \xe2\x80\x9caccountable\nofficers,\xe2\x80\x9d those federal officers responsible for certifying and disbursing government funds. Id. at 13-157.\nInsofar as accountable officers may be responsible for certifying and disbursing government funds and\ntraditionally have been held to the highest standards of care, GAO has recognized that the specific terms\ngoverning that liability are set by statute.\nIn Matter of DoD, the Comptroller General addressed whether an agency could hold employees who\nare not accountable officers liable for contributing to the wrongful disbursement of government funds. The\nComptroller General explained that, while Congress had singled out certifying officers, 31 U.S.C. \xc2\xa7 3528,\nand disbursing officers, 31 U.S.C. \xc2\xa7 3325, as officials who would be strictly liable for improper payments,\n\xe2\x80\x9csignificantly, [Congress had not] extended liability beyond these officers to governmental employees\nwhose work support[ed] these functions.\xe2\x80\x9d 2000 WL 812093, at *5. The Comptroller General thus reasoned\nthat because Congress had specifically considered which officers could be liable for erroneous disbursements in this context, the omission of certain officers signaled Congress\xe2\x80\x99s intent that those officers not be\nheld liable as accountable officers. In this regard, Matter of DoD expressly repudiated two prior decisions\nof the Comptroller General, both of which involved liability for accountable officers, id. at *5, but gave no\nindication that it intended to overrule the long line of Comptroller General decisions holding, as a general\nmatter, that employees may be held liable for property damage based upon agency regulations. Likewise,\nGAO\xe2\x80\x99s subsequent discussion of Matter of DoD provides no indication that Matter of DoD worked a sea\nchange in GAO\xe2\x80\x99s understanding of agencies\xe2\x80\x99 ability to assess liability against employees absent specific\nstatutory direction. See 2 Redbook at 9-11 (3d ed. 2006) (recognizing that Matter of DoD simply departed\nfrom the view that the government could \xe2\x80\x9cimpose accountable officer status and liability\xe2\x80\x9d by administrative action). Accordingly, we believe that Matter of DoD is consistent with our conclusion that EPA may\nenforce its regulations imposing liability on employees for misuse or neglect of government property.\n6\nBecause EPA\xe2\x80\x99s policy may result in a deprivation of an employee\xe2\x80\x99s property, EPA\xe2\x80\x99s procedures\nfor determining employee negligence or misuse of property and assessing liability also must satisfy the\nconstitutional requirement of due process. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (holding\nthat due process requires balancing an individual\xe2\x80\x99s property interests and the risk of an erroneous\ndeprivation against the government\xe2\x80\x99s interests, \xe2\x80\x9cincluding the function involved and the fiscal and\nadministrative burdens that the additional or substitute procedural requirement would entail\xe2\x80\x9d). We note\nthat as detailed in the Property Manual, EPA\xe2\x80\x99s procedures for assessing liability provide notice and an\nadministrative hearing before a Board of Survey prior to the imposition of any liability, see Property\nManual \xc2\xa7\xc2\xa7 1.3.2, 3.8.3\xe2\x80\x933.8.4, two factors that the Supreme Court has identified as significant to the due\nprocess analysis.\n\n86\n\n\x0c'