3 FAM 1420
TRANSFER OF OFFICE for chiefs of mission and other PRINCIPAL OFFICERS
(Office of Origin: GTM/CDA)
3 FAM 1421 LEGAL AUTHORITY
(Applies to Foreign Service Employees Only)
(1) Chapters 4 and 5 of the Foreign Service Act of 1980, as amended;
(2) Vienna Convention on Diplomatic Relations signed at Vienna April 18, 1961;
(3) Vienna Convention on Consular Relations signed at Vienna April 24, 1963;
(4) E.O 12293, section 1 which delegates the authority in Section 502(c) to the Secretary of State;
(5) Delegation 462, which delegates all delegable management authorities of the Secretary of State to the Under Secretary and Deputy Under Secretary for Management (M); and
(6) Foreign Service Act of 1980, as amended, Section 102(3), which defines “Chief of Mission” as the principal officer in charge of a diplomatic mission of the United States or of a United States office abroad which is designated by the Secretary of State as diplomatic in nature, including any individual assigned under section 502(c) to be temporarily in charge of such a mission or office.
3 FAM 1422 GENERAL POLICY
(CT:PER-1028 ; 02-19-2021)
(Applies to Foreign Service Employees Only)
a. This policy establishes the roles, responsibilities, and processes for ensuring relevant statutory and other requirements are met when designating individuals to serve as Chargé d’Affaires ad interim (CdA a.i.) in the absence of the Chief of Mission (COM). The requirements set forth in this policy apply regardless of the length of time the individual will be serving as CdA, a.i. This policy also addresses transfer of the principal officer at consulates and interest sections.
b. The term “transfer of office”, as used here refers to the permanent or temporary transfer of the authorities and responsibilities vested in the principal officer for the management of the post and the conduct of its operations. A permanent transfer of office occurs whenever an officer relinquishes charge of a post and does not expect to resume charge of that post, or whenever directed by the Department. A temporary transfer occurs whenever an officer relinquishes charge of a post with the expectation of resuming charge of the post.
c. The legal authorities cited in 3 FAM 1421 support the practice of designating principal officers at certain posts as CdA, a.i., Consul General, or principal officer with COM authority. These three categories are referred to as Designated Chiefs of Mission (List available at 2 FAH-2 H-112). Incumbents in Designated COM positions are not appointed by the President with the advice and consent of the Senate and do not have the ambassador title. They also do not receive a Letter of Instruction by the President. The policy in 3 FAM 1420 also applies to individuals serving as Designated COMs and provides guidance to those individuals on their responsibilities. Designated COMs, like other CdAs, a.i. need approval by the Under Secretary for Management (M) and required guidance and briefings, but because Designated COMs are not filling in during the absence of a COM, the transfer of office provisions in 3 FAM 1420 do not apply.
3 FAM 1423 DESIGNATION OF OFFICER IN CHARGE
(Applies to Foreign Service Employees Only)
a. The deputy chief of mission DCM at a diplomatic post or the deputy principal officer at a consular establishment or U.S. interests section generally shall assume charge in the absence or incapacity of the principal officer.
b. In the absence of a DCM or deputy principal officer, the most senior Foreign Service officer (FSO) at a diplomatic mission, at a consular establishment, or at a U.S. interests section should normally assume charge of the post.
c. If there is no DCM or suitable senior FSO at a diplomatic mission, the COM or the regional bureau may nominate an individual from outside post (either from another post or from Washington) to serve as CdA, a.i., in accordance with the criteria outlined in 3 FAM 1425.
d. If there is no deputy principal officer or suitable senior FSO at a consular establishment or a U.S. interests section, the principal officer may designate any diplomatic or consular officer with appropriate commissioned title to act in charge of the post.
e. For temporary or permanent transfers of office (defined in 3 FAM 1422(b)) at diplomatic missions, post must follow the notification procedures outlined in 3 FAH-1 H-1425. Notification should also include confirmation that the COM has provided the guidance in 3 FAM 1427 to the CdA, a.i. and confirmation that the CdA, a.i. has read and understood the guidance. For transfer of the principal officer at consulates, the notification provision at 3 FAH-1 H-1426 must be followed.
3 FAM 1424 NOTIFICATION OF HOST GOVERNMENT
a. There are two types of CdAs under the Vienna Convention on Diplomatic Relations (VCDR): Chargé d’Affaires or Chargé d’Affaires ad interim. The provisions of 3 FAM 1420 apply to both types of CdA; however, the processes for notifying the host country differ:
(1) In order to assign an individual as Chargé d’Affaires, the United States would have to seek agrément under Article 4 of the VCDR before the individual’s arrival and the individual’s credentials would be presented as specified under Article 13 of the VCDR. The Department does not currently have a practice of assigning individuals to posts as CdA; therefore, individuals serving as CdA generally will be CdA, a.i; and
(2) In order to assign an individual as CdA ad interim to act provisionally as head of mission, Article 19 of the VCDR requires that, if the post of head of mission is vacant or if the head of mission is unable to perform his/her functions, the head of the mission, or in case he/she is unable to do so, the Department of State (not the Embassy) notify the host government’s Ministry of Foreign Affairs of the name of the CdA a.i. Notification is required regardless of the expected duration of the service. In instances where no principal officer or suitable senior officer is available to serve as CdA, a.i., and an individual from outside post is assigned, the note from the Department must be cleared by the Office of the Legal Adviser’s Diplomatic Law and Litigation Office (L/DL), and the Office of Presidential Appointments (GTM/PAS).
b. In order to assign an individual as acting head of a consular post, Article 15 of the Vienna Convention on Consular Relations requires that, if the head of the consular post is unable to carry out his/her functions or the position is vacant, the diplomatic mission or, if there is no such mission, the head of the consular post (or, if he/she is unable to so do, the Department of State) shall notify the host government’s Ministry for Foreign Affairs of the name of the acting head of the consular post. Unlike notifications for CdAs, the Embassy may submit notification for the head of a consular post. Notification is required regardless of the expected duration of the service. In instances where there is no other suitable senior officer available, and an individual from outside post is assigned, the diplomatic note from the Embassy must be cleared by the Office of Presidential Appointments (GTM/PAS).
3 FAM 1425 CRITERIA FOR INDIVIDUALS SERVING AS CDA
a. Any individual serving as CdA pursuant to Section 502(c) of the Foreign Service Act must be a career FSO. Retired career FSOs recalled for service under section 308(a) of the Foreign Service Act are eligible to serve as CdA, a.i. Recall appointments are approved by the director general of the Foreign Service and the individual recalled must also be approved by the Under Secretary for Management (M) in order to serve as CdA, a.i. Individuals on a Foreign Service limited non-career appointment or a while actually employed (WAE) appointment, which is an appointment into the Civil Service, do not qualify as career FSOs and therefore may not serve as CdA, a.i.
b. Factors regional bureaus may consider when nominating individuals to serve as CdA, a.i. include: past experience as CdA, a.i. or DCM, experience managing multi-dimensional and complex teams, experience working with the interagency, relevant country and regional experience, number of years of service, and demonstrated ability to mentor and lead staff.
c. Pursuant to Section 502(c) of the Foreign Service Act and Delegation 462, M approval is required in order for an individual other than a DCM or suitable senior officer at post to serve as CdA, a.i. The regional bureau’s assistant secretary must send an action memo to M identifying the individual identified to serve as CdA, a.i. and outlining the individual’s qualifications and the rationale for designating the individual as CdA, a.i.
d. Individuals who serve or are expected to serve as CdA, a.i. for more than 30 consecutive days, including Designated COMs, must also have authorization to access to Sensitive Compartmented Information. Additionally, he/she must receive a briefing on his/her intelligence oversight responsibilities from the Bureau of Intelligence and Research (INR). If already at post, he/she should contact INR/OPS to receive a secure virtual briefing.
e. Regional bureaus must ensure that the individual does not travel to post or assume charge until required briefings have been completed.
f. Prior to departing for post, any individual who will be serving as CdA, a.i. must confirm in writing that he or she has read and understands the Secretary’s guidance to individuals performing the functions of a COM (3 FAM 1427). If already at post, this written confirmation should be part of the notification process outlined in 3 FAH-1 H-1425.
3 FAM 1426 DESIGNATED COMs
a. Designated COM positions are established and approved by the Under Secretary for Management. These can be established for several reasons, including that the other country does not have an ambassador-level representative to the United States or there are other foreign policy reasons. Currently, assignments as CdA a.i. to designated COM positions go to the D Committee for approval and are approved by either the secretary or deputy secretary. See 3 FAH-1 H-2425.8-2(B). The list of designated COM positions is available at 2 FAH 2 H 112.
b. Designated COMs must also receive a briefing on intelligence oversight responsibilities from the Bureau of Intelligence and Research (INR) and confirm in writing that they have read and understood the Secretary’s guidance to individuals performing the functions of a COM (3 FAM 1427).
3 FAM 1427 GUIDANCE FOR INDIVIDUALS PERFORMING COM FUNCTIONS
a. This guidance outlines responsibilities for CdA, a.i.s. Such individuals perform COM functions but do not receive a formal President’s Letter of Instruction. Instead, all CdA, a.i.s must carefully review these FAM instructions to ensure full understanding of the authority vested in COMs and key responsibilities, including security responsibility for U.S. government personnel and dependents, as well as separate responsibilities for U.S. citizens. Prior to assuming COM responsibilities, CdA, a.i.s must confirm receipt of this guidance and that they fully understand their responsibilities as a COM, as defined by U.S. law and presidential directive. COMs must carry out these instructions in compliance with all applicable laws and presidential directives. All individuals performing functions of a COM, whether in permanent or temporary capacity, are empowered to exercise the full extent of COM authority.
b. U.S. law gives COM's authority to direct, coordinate, and supervise all U.S. Government Executive Branch employees in their assigned country or area of responsibility, regardless of employment category or location. This authority extends to U.S. Direct Hire employees and Personal Service Contractors, whether assigned permanently or on temporary duty or an official visit, and all Locally Employed (LE) Staff regardless of hiring mechanism. U.S. law and Presidential directive provide exceptions to COM authority that include: personnel serving under the command of a U.S. Geographic Combatant Commander (GCC); Executive Branch employees officially on the staff of an international organization and performing the functions of that organization; and Voice of America correspondents on official assignment. Additionally, narrowly focused law or directive may provide other limited exceptions when deemed necessary. All executive branch agencies with employees in country must keep the COM fully informed at all times of all current and planned activities and operations, unless exempted by U.S. law or presidential directive.
c. Unless an interagency agreement provides otherwise, COMs must also take direct and full responsibility for the security of all U.S. government personnel on official duty abroad (other than those elements and personnel under the command of a GCC, VOA correspondents on official assignment, or employees on the staff of an international organization) and their authorized accompanying dependents. Additionally, the COM and the GCC must continuously consult on and coordinate planning and responses to address common threats.
d. U.S. law also stipulates that the Secretary of State, and by extension, any individual serving as COM, shall develop and implement policies and programs to provide for the safe and efficient evacuation of U.S. government personnel, dependents, and private U.S. citizens when their lives are endangered.
e. COMs should review programs, personnel, and funding levels regularly and ensure all agencies attached to the Mission do likewise. In order to effectively account for personnel and resources, agencies should submit requests to the COM to abolish positions that have remained vacant for at least two years. Every Executive Branch agency under COM authority must obtain COM approval before changing the size, composition, or mandate of its staff. All United States Government personnel other than those personnel and elements under the command of a GCC must obtain the COM’s approval before entering the country on official business. COMs have the authority to grant, withhold, or limit country clearance.
f. The overarching purpose of COM authority is to direct, supervise, and coordinate all U.S. executive branch operations, activities, and employees that have programs or activities in the assigned country, with limited exceptions. If any personnel charged with performing COM functions have questions or concerns about COM authority, please contact the Office of Management Strategy and Solutions (M/SS) at M_COMAuthority@groups.state.gov for further guidance.
3 FAM 1428 THROUGH 1429 UNASSIGNED