5 USC 3345: Acting officer

5 USC 3345: Acting officer Text contains those laws in effect on January 2, 2001

From Title 5-GOVERNMENT ORGANIZATION AND EMPLOYEESPART III-EMPLOYEESSubpart B-Employment and RetentionCHAPTER 33-EXAMINATION, SELECTION, AND PLACEMENTSUBCHAPTER III-DETAILS, VACANCIES, AND APPOINTMENTS

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§3345. Acting officer

(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the General Accounting Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office-

(1) 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 of section 3346;

(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or

(3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if-

(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and

(B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule.

(b)(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if-

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

(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.

(2) Paragraph (1) shall not apply to any person if-

(A) such person is serving as the first assistant to the office of an officer described under subsection (a);

(B) the office of such first assistant is an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate; and

(c)(1) Notwithstanding subsection (a)(1), the President (and only the President) may direct an officer who is nominated by the President for reappointment for an additional term to the same office in an Executive department without a break in service, to continue to serve in that office subject to the time limitations in section 3346, until such time as the Senate has acted to confirm or reject the nomination, notwithstanding adjournment sine die.

(2) For purposes of this section and sections 3346, 3347, 3348, 3349, 3349a, and 3349d, the expiration of a term of office is an inability to perform the functions and duties of such office.

(Added Pub. L. 105–277, div. C, title I, §151(b), Oct. 21, 1998, 112 Stat. 2681–611 .)

References in Text

The General Schedule, referred to in subsec. (a)(3)(B), is set out under section 5332 of this title.

Prior Provisions

A prior section 3345, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 425 ; Pub. L. 100–398, §7(a)(1), (2), Aug. 17, 1988, 102 Stat. 988 , provided for details to office of head of Executive agency or military department, prior to repeal by Pub. L. 105–277, div. C, title I, §151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611 , 2681-616, effective 30 days after Oct. 21, 1998.

Effective Date

Pub. L. 105–277, div. C, title I, §151(d), Oct. 21, 1998, 112 Stat. 2681–616 , provided that:

"(1) Effective date.-Subject to paragraph (2), this section [enacting this section and sections 3346 to 3349d of this title, repealing former sections 3345 to 3349 of this title, and enacting provisions set out as a note under section 3301 of this title] and the amendments made by this section shall take effect 30 days after the date of enactment of this section [Oct. 21, 1998].

"(2) Application.-

"(A) In general.-This section shall apply to any office that becomes vacant after the effective date of this section.

"(B) Immediate application of time limitation.-Notwithstanding subparagraph (A), for any office vacant on the effective date of this section, the time limitations under section 3346 of title 5, United States Code (as amended by this section) shall apply to such office. Such time limitations shall apply as though such office first became vacant on the effective date of this section.

"(C) Certain nominations.-If the President submits to the Senate the nomination of any person after the effective date of this section for an office for which such person had been nominated before such date, the next nomination of such person after such date shall be considered a first nomination of such person to that office for purposes of sections 3345 through 3349 and section 3349d of title 5, United States Code (as amended by this section)."

Ex. Ord. No. 10513. Designation of Officers To Act as Secretary of Labor

Ex. Ord. No. 10513, Jan. 19, 1954, 19 F.R. 369, provided:

I hereby authorize and direct the Assistant Secretaries of Labor and the Solicitor of Labor, in the order designated as hereinafter provided, to perform the duties of the office of the Secretary of Labor in case of the absence, sickness, resignation, or death of both the Secretary of Labor and the Under [Deputy] Secretary of Labor.

The Assistant Secretaries of Labor and the Solicitor of Labor shall act as Secretary of Labor as herein provided (1) in such order as the Secretary of Labor (or the Under [Deputy] Secretary when acting as Secretary) may by order designate from time to time, or (2) if no such designation order is in effect at the time, in the order of the respective dates of their commissions, or in the event that two or more of their commissions bear the same date, in the order in which they shall have taken their oath of office.

This order supersedes Executive Order No. 9968 of June 17, 1948, entitled "Designation of Certain Officers To Act as Secretary of Labor."

Dwight D. Eisenhower.

Ex. Ord. No. 11274. Order of Succession-Department of Housing and Urban Development

Ex. Ord. No. 11274, Mar. 30, 1966, 31 F.R. 5243, as amended by Pub. L. 101–509, title V, §529 [title I, §112(c)], Nov. 5, 1990, 104 Stat. 1427 , 1454, provided:

By virtue of the authority vested in me by Section 179 of the Revised Statutes (5 U.S.C. 6) and Section 301 of Title 3 of the United States Code, and as President of the United States, it is ordered as follows:

1. In the event of a vacancy in the Office of the Secretary of Housing and Urban Development or during the absence or disability of the Secretary, the Deputy Secretary shall act as Secretary of Housing and Urban Development.

2. During any period when, by reason of absence, disability, or vacancy in office, neither the Secretary nor the Deputy Secretary is available to exercise the powers or perform the duties of the Office of the Secretary, an Assistant Secretary or the General Counsel, in such order as the Secretary may from time to time prescribe, shall act as Secretary of Housing and Urban Development. If no such order of succession is in effect at that time, then they shall act in the order in which they shall have taken office as Assistant Secretaries or General Counsel.

Ex. Ord. No. 11487. Designation of Officers of the Department of the Interior To Act as Secretary of the Interior

Ex. Ord. No. 11487, Oct. 6, 1969, 34 F.R. 15593, as amended by Pub. L. 101–509, title V, §529 [title I, §112(c)], Nov. 5, 1990, 104 Stat. 1427 , 1454, provided:

By virtue of the authority vested in me by [former] section 3347 of title 5 of the United States Code and section 301 of title 3 of the United States Code, and as President of the United States, it is ordered as follows:

Section 1. During any period when by reason of absence, disability, or vacancy in office, neither the Secretary of the Interior nor the Deputy Secretary of the Interior is available to exercise the powers or perform the duties of the office of Secretary, an Assistant Secretary of the Interior or the Solicitor of the Department of the Interior, in such order as the Secretary of the Interior may from time to time prescribe, shall act as Secretary. If no such order of succession is in effect at that time, they shall act as Secretary in the order in which they shall have taken office as Assistant Secretaries or Solicitor.

Sec. 2. This order supersedes Executive Order No. 10753 of February 15, 1958, entitled "Designation of certain officers of the Department of the Interior to act as Secretary of the Interior."

Ex. Ord. No. 11822. Designation of Officers of the Department of the Treasury To Act as Secretary of the Treasury

Ex. Ord. No. 11822, Dec. 10, 1974, 39 F.R. 43275, provided:

By virtue of the authority vested in me by [former] section 3347 of title 5 and section 301 of title 3 of the United States Code and as President of the United States, it is ordered as follows:

Section 1. During any period when, by reason of absence, disability, or vacancy in office, either the Secretary of the Treasury or his Deputy Secretary is not available to exercise the powers or perform the duties of the office of Secretary, an officer from the Department of the Treasury appointed by the President-by and with the advice and consent of the Senate, in such order as the Secretary of the Treasury may from time to time prescribe-shall act as Secretary until the absence or the disability of the incumbent shall cease, or until a successor is appointed. If no such order of succession is in effect at that time, then such officers shall act as Secretary in the descending order of rank, as established by their offices being listed in sections 5314, 5315 or 5316 of title 5 of the United States Code and, at each level of the Executive Schedule, in the order which they shall have taken the oath as such officers.

Sec. 2. Executive Order No. 11680 of August 21, 1972, entitled "Designation of Certain Officers to Act as Secretary of the Treasury" is hereby revoked.

Gerald R. Ford.

Ex. Ord. No. 11880. Designation of Officers of the Department of Commerce To Act as Secretary of Commerce

Ex. Ord. No. 11880, Oct. 2, 1975, 40 F.R. 46089, as amended by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617; Ex. Ord. No. 12998, Apr. 5, 1996, 61 F.R. 15873, provided:

By virtue of the authority vested in me by [former] section 3347 of Title 5 of the United States Code and section 301 of Title 3 of the United States Code, and as President of the United States, it is hereby ordered as follows:

Section 1. During any period when, by reason of absence, disability or vacancy in office, both the Secretary of Commerce and the Deputy Secretary of Commerce are not available to exercise the powers or perform the duties of the Office of Secretary, an Assistant Secretary of Commerce, the General Counsel of the Department of Commerce, or an officer of the Department of Commerce appointed by the President with the advice and consent of the Senate in such order as the Secretary of Commerce may from time to time prescribe, shall act as Secretary. If no such order of succession is in effect at that time, an Assistant Secretary or the General Counsel shall act as Secretary in the order in which they shall have taken office as Assistant Secretaries or General Counsel.

Sec. 2. The President may at any time, pursuant to law but without regard to the foregoing provisions of this order, direct that an officer, as defined in [former] 5 U.S.C. 3347, and specified by the President shall act as Secretary of Commerce.

Sec. 3. This Order supersedes Executive Order No. 11388 of January 15, 1968.

Ex. Ord. No. 11957. Designation of Certain Officers of the Department of Agriculture To Act as Secretary of Agriculture.

Ex. Ord. No. 11957, Jan. 13, 1977, 42 F.R. 3295, provided:

By virtue of the authority vested in me by [former] Section 3347 of Title 5 and section 301 of Title 3 of the United States Code, and as President of the United States of America, it is hereby ordered as follows:

Section 1. During any period when, by reason of absence, disability, or vacancy in office, both the Secretary of Agriculture and the Deputy Secretary of Agriculture are not available to exercise the powers or perform the duties of the Office of Secretary, the officers from the Department of Agriculture whose appointments are vested in the President, by and with the advice and consent of the Senate, shall act as Secretary in such order as the Secretary of Agriculture may from time to time prescribe. If no such order of succession is in effect at that time, then such officers shall act as Secretary in the descending order of rank, as established by the listing of their offices in Sections 5314, 5315 or 5316 of Title 5 of the United States Code and, at each level of the Executive Schedule, in the order in which they shall have taken oath as such officers.

Sec. 2. Executive Order No. 11793 of July 10, 1974, is hereby revoked.

Gerald R. Ford.

Ex. Ord. No. 12343. Designation of Certain Officers To Act as Secretary of State

Ex. Ord. No. 12343, Jan. 27, 1982, 47 F.R. 4225, provided:

By the authority vested in me as President of the United States of America by [former] Section 3347 of Title 5 and Section 301 of Title 3 of the United States Code, it is hereby ordered as follows:

Section 1. During any period when, by reason of absence, disability, or vacancy in office, neither the Secretary of State nor the Deputy Secretary of State, is available to exercise the powers or perform the duties of the Office of the Secretary, an officer from the Department of State who has been appointed by the President, by and with the advice and consent of the Senate, in such order as the Secretary of State may from time to time prescribe, shall act as Secretary. If no such order of succession is in effect at that time, then such officers shall act as Secretary in descending order of rank, as established by the listing of their offices in Sections 5314 or 5315 of Title 5 of the United States Code, and at each level of the Executive Schedule in the order in which they shall have taken the oath as such officers.

Sec. 2. The President may at any time, pursuant to law but without regard to the foregoing provisions of this Order, direct that an officer specified by the President shall act as Secretary of State.

Sec. 3. Executive Order No. 10839 is revoked.

Ronald Reagan.

Ex. Ord. No. 12879. Order of Succession of Officers To Act as Secretary of the Navy

Ex. Ord. No. 12879, Nov. 8, 1993, 58 F.R. 59929, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including [former] section 3347 of title 5, United States Code, it is hereby ordered as follows:

Section 1. Succession to the Authority of the Secretary of the Navy.

(a) In the event of the death, permanent disability, or resignation of the Secretary of the Navy, the incumbents holding the positions designated below, in the order indicated, shall act for and exercise the powers of the Secretary of the Navy:

(1) The Under Secretary of the Navy.

(2) The Assistant Secretaries and General Counsel of the Navy, in the order fixed by their length of services as permanent appointees in such positions.

(3) The Chief of Naval Operations.

(4) The Commandant of the Marine Corps.

(b) In the event of the temporary absence or temporary disability of the Secretary of the Navy, the incumbents holding the Department of the Navy positions designated in paragraph (a) of this section, in the order indicated, shall act for and exercise the powers of the Secretary of the Navy.

(1) In these instances, the designation of an Acting Secretary of the Navy applies only for the duration of the Secretary's absence or disability, and does not affect the authority of the Secretary to resume the powers of his office upon his return.

(2) In the event that the Secretary of the Navy is merely absent from this position, the Secretary of the Navy may continue to exercise the powers and fulfill the duties of his office during his absence, notwithstanding the provisions of this order.

(c) Precedence among those officers designated in paragraph (a) of this section who have the same date of appointment shall be determined by the Secretary of the Navy at the time that such appointments are made.

(d) Notwithstanding paragraph (a) and (b) of this section, an officer shall not act for or exercise the powers of the Secretary of the Navy under this order if that officer serves only in an acting capacity in the position that would otherwise entitle him to do so.

Sec. 2. Temporary Nature of Succession. Succession to act for and exercise the powers of the Secretary of the Navy pursuant to this order shall be on a temporary or interim basis and shall not have the effect of vacating the statutory appointment held by the successor.

William J. Clinton.

Ex. Ord. No. 12908. Order of Succession of Officers To Act as Secretary of the Army

Ex. Ord. No. 12908, Apr. 22, 1994, 59 F.R. 21907, provided:

Section 1. Succession To Act as the Secretary of the Army.

(a) In the event of the death, permanent disability, or resignation of the Secretary of the Army, the incumbents holding the positions designated below, in the order indicated, shall act for and exercise the powers of the Secretary of the Army:

(1) The Under Secretary of the Army.

(2) The Assistant Secretaries and General Counsel of the Army, in the order fixed by their length of service as permanent appointees in such positions.

(3) The Chief of Staff of the Army.

(b) In the event of the absence or temporary disability of the Secretary of the Army, the incumbents holding the Department of the Army positions designated in paragraph (a) of this section, in the order indicated, shall act for and exercise the powers of the Secretary of the Army.

(1) The designation of an Acting Secretary of the Army under this subsection applies only for the duration of the Secretary's absence or disability, and does not affect the authority of the Secretary to resume the powers of the Secretary's office.

(2) When the Secretary of the Army is temporarily absent from the position, the Secretary of the Army may continue to exercise the powers and fulfill the duties of his office during his absence, notwithstanding the provisions of this order.

(c) Precedence among those officers designated in paragraph (a) of this section who have the same date of appointment shall be determined by the Secretary of the Army at the time that such appointments are made.

(d) Notwithstanding paragraphs (a) and (b) of this section, an officer shall not act for or exercise the powers of the Secretary of the Army under this order if that officer serves only in an acting capacity in the position that would otherwise entitle him to do so.

Sec. 2. Temporary Nature of Succession. Succession to act for and exercise the powers of the Secretary of the Army pursuant to this order shall be on a temporary or interim basis and shall not have the effect of vacating the statutory appointment held by the successor.

William J. Clinton.

Ex. Ord. No. 12909. Order of Succession of Officers To Act as Secretary of the Air Force

Ex. Ord. No. 12909, Apr. 22, 1994, 59 F.R. 21909, provided:

Section 1. Succession To Act as the Secretary of the Air Force.

(a) In the event of the death, permanent disability, or resignation of the Secretary of the Air Force, the incumbents holding the positions designated below, in the order indicated, shall act for and exercise the powers of the Secretary of the Air Force:

(1) The Under Secretary of the Air Force.

(2) The Assistant Secretaries and General Counsel of the Air Force, in the order fixed by their length of service as permanent appointees in such positions.

(3) The Chief of Staff of the Air Force.

(b) In the event of the absence or temporary disability of the Secretary of the Air Force, the incumbents holding the Department of the Air Force positions designated in paragraph (a) of this section, in the order indicated, shall act for and exercise the powers of the Secretary of the Air Force.

(1) The designation of an Acting Secretary of the Air Force applies only for the duration of the Secretary's absence or disability, and does not affect the authority of the Secretary to resume the powers of the Secretary's office.

(2) In the event that the Secretary of the Air Force is temporarily absent from the position, the Secretary of the Air Force may continue to exercise the powers and fulfill the duties of his office during the absence, notwithstanding the provisions of this order.

(c) Precedence among those officers designated in paragraph (a) of this section who have the same date of appointment shall be determined by the Secretary of the Air Force at the time that such appointments are made.

(d) Notwithstanding paragraphs (a) and (b) of this section, an officer shall not act for or exercise the powers of the Secretary of the Air Force under this order if that officer serves only in an acting capacity in the position that would otherwise entitle him to do so.

Sec. 2. Temporary Nature of Succession. Succession to act for and exercise the powers of the Secretary of the Air Force pursuant to this order shall be on a temporary or interim basis and shall not have the effect of vacating the statutory appointment held by the successor.

William J. Clinton.

Ex. Ord. No. 13000. Order of Succession of Officers To Act as Secretary of Defense

Ex. Ord. No. 13000, Apr. 24, 1996, 61 F.R. 18483, provided:

Section 1. Succession to Act as the Secretary of Defense. (a) In the event of the death, permanent disability, or resignation of the Secretary of Defense, the incumbents holding the Department of Defense positions designated below, in the order indicated, shall act for and exercise the powers of the Secretary of Defense as Acting Secretary of Defense:

(1) Deputy Secretary of Defense.

(2) Secretary of the Army.

(3) Secretary of the Navy.

(4) Secretary of the Air Force.

(5) Under Secretary of Defense for Acquisition and Technology [now Under Secretary of Defense for Acquisition, Technology, and Logistics].

(6) Under Secretary of Defense for Policy.

(7) Under Secretary of Defense (Comptroller).

(8) Under Secretary of Defense for Personnel and Readiness.

(9) Deputy Under Secretary of Defense for Acquisition and Technology.

(10) Deputy Under Secretary of Defense for Policy.

(11) Director of Defense Research and Engineering.

(12) The Assistant Secretaries of Defense, the Director of Operational Test and Evaluation, and the General Counsel of the Department of Defense, in the order fixed by their length of service as permanent appointees in such positions.

(13) Under Secretaries of the Army, the Navy, and the Air Force, in the order fixed by their length of service as permanent appointees in such positions.

(14) Assistant Secretaries of the Army, the Navy, and the Air Force whose appointments are vested in the President, and General Counsels of the Army, the Navy, and the Air Force, in the order fixed by their length of service as permanent appointees in such positions.

(b) In the event of the temporary absence or temporary disability of the Secretary of Defense, the incumbents holding the Department of Defense positions designated in paragraph (a) of this section, in the order indicated, shall act for and exercise the powers of the Secretary of Defense as Acting Secretary of Defense.

(1) In these instances, the designation of an Acting Secretary of Defense applies only for the duration of the Secretary's absence or disability, and does not affect the authority of the Secretary to resume the powers of his office upon his return.

(2) In the event that the Secretary of Defense is temporarily absent from his position, the Secretary may continue to exercise the powers and fulfill the duties of this office during his absence, notwithstanding the provisions of this order.

(c) Precedence among those officers designated in paragraphs (a)(12)–(14) of this section who have the same appointment date shall be determined by the Secretary of Defense at the time that such appointments are made.

(d) Notwithstanding paragraphs (a) and (b) of this section, an officer shall not act for or exercise the powers of the Secretary of Defense under this order if that officer serves only in an acting capacity in the position that would otherwise entitle him to do so.

Sec. 2. Temporary Nature of Succession. Succession to act for and exercise the powers of the Secretary of Defense pursuant to this order shall be on a temporary or interim basis and shall not have the effect of vacating the statutory appointment held by the successor.

Sec. 3. Revocation of Prior Executive Order. Executive Order No. 12787 of December 31, 1991, is hereby revoked.

William J. Clinton.

Section Referred to in Other Sections

This section is referred to in sections 3346, 3347, 3348, 3349, 3349b, 3349c, 3349d, 5535 of this title; title 7 section 2211; title 28 section 508.