II

105TH CONGRESS

2D SESSION S. 1764

To amend sections 3345 through 3349 of title 5, United States Code (commonly referred to as the ‘‘Vacancies Act’’) to clarify statutory requirements relating to vacancies in certain Federal offices, and for other

purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 16, 1998

Mr. THURMOND (for himself and Mr. LOTT) introduced the following bill;

which was read twice and referred to the Committee on Governmental Affairs

A BILL

To amend sections 3345 through 3349 of title 5, United

States Code (commonly referred to as the ‘‘Vacancies

Act’’) to clarify statutory requirements relating to vacancies in certain Federal offices, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Vacancies Clarification

5 Act of 1998’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—
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1 (1) Congress enacted the Act entitled ‘‘An Act

2 to authorize the temporary supplying of vacancies in

3 the executive departments’’, approved July 23, 1868

4 (commonly referred to as the ‘‘Vacancies Act’’), to—

5 (A) preclude the extended filling of a va6 cancy in an office of an executive or military

7 department subject to Senate confirmation,

8 without the submission of a Presidential nomi9 nation;

10 (B) provide an exclusive means to tempo11 rarily fill such a vacancy; and

12 (C) clarify the role of the Senate in the ex13 ercise of the Senate’s constitutional advice and

14 consent powers in the Presidential appointment

15 of certain officers;

16 (2) subchapter III of chapter 33 of title 5,

17 United States Code, includes a codification of the

18 Vacancies Act, and (pursuant to an amendment on

19 August 17, 1988, to section 3345 of such title) spe20 cifically applies such vacancy provisions to all Execu21 tive agencies, including the Department of Justice;

22 (3) the legislative history accompanying the

23 1988 amendment makes clear in the controlling

24 committee report that the general administrative au25 thorizing provisions for the Executive agencies,
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1 which include sections 509 and 510 of title 28,

2 United States Code, regarding the Department of

3 Justice, do not supersede the specific vacancy provi4 sions in title 5, United States Code;

5 (4) there are statutory provisions of general ad6 ministrative authority applicable to every Executive

7 department and other Executive agencies that are

8 similar to sections 509 and 510 of title 28, United

9 States Code, relating to the Department of Justice;

10 (5) despite the clear intent of Congress, the At11 torney General of the United States has continued

12 to interpret the provisions granting general adminis13 trative authority to the Attorney General under sec14 tions 509 and 510 of title 28, United States Code,

15 to supersede the specific vacancy provisions in title

16 5, United States Code;

17 (6) the interpretation of the Attorney General

18 would—

19 (A) virtually nullify the vacancy provisions

20 under subchapter III of chapter 33 of title 5,

21 United States Code;

22 (B) circumvent the clear intention of Con23 gress to preclude the extended filling of certain

24 vacancies and provide for the temporary filling

25 of such vacancies; and
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1 (C) subvert the constitutional authority

2 and responsibility of the Senate to advise and

3 consent in certain appointments;

4 (7) it is necessary to further clarify the inten5 tion of Congress to reject the interpretation of the

6 Attorney General by modernizing the intricate lan7 guage of the long-standing Vacancies Act; and

8 (8) to ensure compliance by the executive

9 branch with the Vacancies Act, the Act needs an ex10 press enforcement mechanism.

11 SEC. 3. FEDERAL VACANCIES.

12 (a) IN GENERAL.—Chapter 33 of title 5, United

13 States Code, is amended by striking sections 3345 through

14 3349 and inserting the following:

15 ‘‘§ 3345. Acting officer

16 ‘‘(a)(1) If an officer of an Executive agency (other

17 than the General Accounting Office) whose appointment

18 to office is by the President, by and with the advice and

19 consent of the Senate, dies, resigns, or is otherwise unable

20 to perform the functions of the office, the President may

21 direct a person described under paragraph (2) to perform

22 the functions and duties of the office temporarily in an

23 acting capacity, subject to the time limitations of section

24 3346.
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1 ‘‘(2) The person referred to under paragraph (1) is

2 any person who on the date of death, resignation, or the

3 beginning of inability to perform serves—

4 ‘‘(A) in the position of first assistant to the of5 ficer who dies, resigns, or is otherwise unable to per6 form; or

7 ‘‘(B) in an office for which appointment by the

8 President, by and with the advice and consent of the

9 Senate is required.

10 ‘‘(b) With respect to the office of the Attorney Gen11 eral of the United States, the provisions of section 508

12 of title 28 shall be applicable.

13 ‘‘§ 3346. Time limitation

14 ‘‘(a) The person serving as an acting officer as de15 scribed under section 3345 may serve in the office—

16 ‘‘(1) for no longer than 120 days; or

17 ‘‘(2) if any nomination for the office is submit18 ted to the Senate within the 120-day period begin19 ning on the date the vacancy occurs, for the period

20 that the nomination is pending in the Senate.

21 ‘‘(b)(1) If the nomination for the office is rejected

22 by the Senate or withdrawn, the person may continue to

23 serve as the acting officer for no more than 120 days after

24 the date of such rejection or withdrawal.
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1 ‘‘(2) Notwithstanding paragraph (1), if a second

2 nomination for the office is submitted to the Senate during

3 the 120-day period after the rejection or withdrawal of the

4 first nomination, the person serving as the acting officer

5 may continue to serve—

6 ‘‘(A) until the second nomination is confirmed;

7 or

8 ‘‘(B) for no more than 120 days after the sec9 ond nomination is rejected or withdrawn.

10 ‘‘(c) If a person begins serving as an acting officer

11 during an adjournment of the Congress sine die, the 120-

12 day period under subsection (a) shall begin on the date

13 that the Senate first reconvenes.

14 ‘‘§ 3347. Application

15 ‘‘Sections 3345 and 3346 are applicable to any office

16 of an Executive agency (other than the General Account17 ing Office) for which appointment by the President, by

18 and with the advice and consent of the Senate, is required,

19 unless—

20 ‘‘(1) another statutory provision expressly pro21 vides that such provision supersedes sections 3345

22 and 3346; or

23 ‘‘(2) the President makes an appointment to fill

24 a vacancy in such office during a recess of the Sen25 ate.
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1 ‘‘§ 3348. Vacant office

2 ‘‘Subject to section 3347, if an office is not tempo3 rarily filled under sections 3345 and 3346 within 120 days

4 after the date on which a vacancy occurs, the office shall

5 remain vacant until a person is appointed by the Presi6 dent, by and with the advice and consent of the Senate.

7 ‘‘§ 3349. Enforcement

8 ‘‘(a)(1) An acting officer who serves in a position in

9 violation of section 3345 or 3346 may not receive pay for

10 any day of service in violation of section 3345 or 3346.

11 ‘‘(2) Pay not received under paragraph (1) shall be

12 forfeited and may not be paid as backpay.

13 ‘‘(3) Notwithstanding section 1342 of title 31, para14 graph (1) shall apply regardless of whether such acting

15 officer is performing the duties of another office or posi16 tion in addition to performing the duties of the vacant of17 fice.

18 ‘‘(b) The head of an affected Executive agency (other

19 than the General Accounting Office) shall submit to the

20 Comptroller General of the United States and to each

21 House of Congress—

22 ‘‘(1) notification of a vacancy and the date such

23 vacancy occurred immediately upon the occurrence

24 of the vacancy;
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1 ‘‘(2) the name of any person serving in an act2 ing capacity and the date such service began imme3 diately upon the designation;

4 ‘‘(3) the name of any person nominated to the

5 Senate to fill the vacancy and the date such nomina6 tion is submitted immediately upon the submission

7 of the nomination; and

8 ‘‘(4) the date of a rejection or withdrawal of

9 any nomination immediately upon such rejection or

10 withdrawal.

11 ‘‘(c) If the Comptroller General of the United States

12 makes a determination that an officer is serving longer

13 than the 120-day period including the applicable excep14 tions to such period as provided under section 3346, the

15 Comptroller General shall report such determination to

16 each House of Congress, the President, the Secretary of

17 the Treasury, and the Office of Personnel Management.’’.

18 (b) TECHNICAL AND CONFORMING AMENDMENT.—

19 The table of sections for chapter 33 of title 5, United

20 States Code, is amended by striking the items relating to

21 sections 3345 through 3349 and inserting the following:

‘‘3345. Acting officer.

‘‘3346. Time limitation.

‘‘3347. Application.

‘‘3348. Vacant office.

‘‘3349. Enforcement.’’.
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1 SEC. 4. EFFECTIVE DATE AND APPLICATION.

2 This Act shall take effect on the date of enactment

3 of this Act and shall apply to any office that—

4 (1) becomes vacant after such date; and

5 (2) is vacant on such date, except sections 3345

6 through 3349 of title 5, United States Code (as

7 amended by this Act), shall apply as though such of8 fice first became vacant on such date.

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