II

105TH CONGRESS

2D SESSION S. 2176

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 and appointments to certain Federal

offices, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 16, 1998

Mr. THOMPSON (for himself, Mr. BYRD, Mr. THURMOND, Mr. LOTT, and Mr.

ROTH) 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 and appointments to 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 ‘‘Federal Vacancies Re5 form Act of 1998’’.
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1 SEC. 2. FEDERAL VACANCIES AND APPOINTMENTS.

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

3 States Code, is amended by striking sections 3345 through

4 3349 and inserting the following:

5 ‘‘§ 3345. Acting officer

6 ‘‘(a) If an officer of an Executive agency (including

7 the Executive Office of the President, and other than the

8 General Accounting Office) whose appointment to office

9 is required to be made by the President, by and with the

10 advice and consent of the Senate, dies, resigns, or is other11 wise unable to perform the functions and duties of the of12 fice—

13 ‘‘(1) the first assistant of such officer shall per14 form the functions and duties of the office tempo15 rarily in an acting capacity, subject to the time limi16 tations of section 3346; or

17 ‘‘(2) notwithstanding paragraph (1), the Presi18 dent (and only the President) may direct a person

19 who serves in an office for which appointment is re20 quired to be made by the President, by and with the

21 advice and consent of the Senate, to perform the

22 functions and duties of the office temporarily in an

23 acting capacity, subject to the time limitations of

24 section 3346.
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1 ‘‘(b) Notwithstanding section 3346(a)(2), a person

2 may not serve as an acting officer for an office under this

3 section, if—

4 ‘‘(1) on the date of the death, resignation, or

5 beginning of inability to serve of the applicable offi6 cer, such person serves in the position of first assist7 ant to such officer;

8 ‘‘(2) during the 365-day period preceding such

9 date, such person served in the position of first as10 sistant to such officer for less than 180 days; and

11 ‘‘(3) the President submits a nomination of

12 such person to the Senate for appointment to such

13 office.

14 ‘‘(c) With respect to the office of the Attorney Gen15 eral of the United States, the provisions of section 508

16 of title 28 shall be applicable.

17 ‘‘§ 3346. Time limitation

18 ‘‘(a) The person serving as an acting officer as de19 scribed under section 3345 may serve in the office—

20 ‘‘(1) for no longer than 150 days beginning on

21 the date the vacancy occurs; or

22 ‘‘(2) subject to subsection (b), once a first or

23 second nomination for the office is submitted to the

24 Senate, for the period that the nomination is pend25 ing in the Senate.
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1 ‘‘(b)(1) If the first nomination for the office is re2 jected by the Senate, withdrawn, or returned to the Presi3 dent by the Senate, the person may continue to serve as

4 the acting officer for no more than 150 days after the

5 date of such rejection, withdrawal, or return.

6 ‘‘(2) If a second nomination for the office (of a dif7 ferent person than first nominated in the case of a rejec8 tion or withdrawal) is submitted to the Senate during the

9 150-day period after the rejection, withdrawal, or return

10 of the first nomination, the person serving as the acting

11 officer may continue to serve—

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

13 or

14 ‘‘(B) for no more than 150 days after the sec15 ond nomination is rejected, withdrawn, or returned.

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

17 during an adjournment of the Congress sine die, the 150-

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

19 that the Senate first reconvenes.

20 ‘‘§ 3347. Application

21 ‘‘(a) Sections 3345 and 3346 are applicable to any

22 office of an Executive agency (including the Executive Of23 fice of the President, and other than the General Account24 ing Office) for which appointment is required to be made
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1 by the President, by and with the advice and consent of

2 the Senate, unless—

3 ‘‘(1) another statutory provision expressly pro4 vides that such provision supersedes sections 3345

5 and 3346;

6 ‘‘(2) a statutory provision in effect on the date

7 of enactment of the Federal Vacancies Reform Act

8 of 1998 expressly authorizes the President, or the

9 head of an Executive department, to designate an

10 officer to perform the functions and duties of a spec11 ified office temporarily in an acting capacity; or

12 ‘‘(3) the President makes an appointment to fill

13 a vacancy in such office during the recess of the

14 Senate pursuant to clause 3 of section 2 of article

15 II of the United States Constitution.

16 ‘‘(b) Any statutory provision providing general au17 thority to the head of an Executive agency (including the

18 Executive Office of the President, and other than the Gen19 eral Accounting Office) to delegate duties to, or to reas20 sign duties among, officers or employees of such Executive

21 agency, is not a statutory provision to which subsection

22 (a)(2) applies.

23 ‘‘§ 3348. Vacant office

24 ‘‘(a) In this section—
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1 ‘‘(1) the term ‘action’ includes any agency ac2 tion as defined under section 551(13); and

3 ‘‘(2) the term ‘function or duty’ means any

4 function or duty of the applicable office that—

5 ‘‘(A)(i) is established by statute; and

6 ‘‘(ii) is required by statute to be performed

7 by the applicable officer (and only that officer);

8 or

9 ‘‘(B)(i)(I) is established by regulation; and

10 ‘‘(II) is required by such regulation to be

11 performed by the applicable officer (and only

12 that officer); and

13 ‘‘(ii) includes a function or duty to which

14 clause (i) (I) and (II) applies, and the applica15 ble regulation is in effect at any time during

16 the 180-day period preceding the date on which

17 the vacancy occurs, notwithstanding any regula18 tion that—

19 ‘‘(I) is issued on or after the date oc20 curring 180 days before the date on which

21 the vacancy occurs; and

22 ‘‘(II) limits any function or duty re23 quired to be performed by the applicable

24 officer (and only that officer).

25 ‘‘(b) Subject to section 3347 and subsection (c)—
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1 ‘‘(1) if the President does not submit a first

2 nomination to the Senate to fill a vacant office with3 in 150 days after the date on which a vacancy oc4 curs—

5 ‘‘(A) the office shall remain vacant until

6 the President submits a first nomination to the

7 Senate; and

8 ‘‘(B) in the case of an office other than the

9 office of the head of an Executive agency (in10 cluding the Executive Office of the President,

11 and other than the General Accounting Office),

12 only the head of such Executive agency may

13 perform any function or duty of such office,

14 until a nomination is made in accordance with

15 subparagraph (A);

16 ‘‘(2) if the President does not submit a second

17 nomination to the Senate within 150 days after the

18 date of the rejection, withdrawal, or return of the

19 first nomination—

20 ‘‘(A) the office shall remain vacant until

21 the President submits a second nomination to

22 the Senate; and

23 ‘‘(B) in the case of an office other than the

24 office of the head of an Executive agency (in25 cluding the Executive Office of the President,
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1 and other than the General Accounting Office),

2 only the head of such Executive agency may

3 perform any function or duty of such office,

4 until a nomination is made in accordance with

5 subparagraph (A); and

6 ‘‘(3) if an office is vacant after 150 days after

7 the rejection, withdrawal, or return of the second

8 nomination—

9 ‘‘(A) the office shall remain vacant until a

10 person is appointed by the President, by and

11 with the advice and consent of the Senate; and

12 ‘‘(B) in the case of an office other than the

13 office of the head of an Executive agency (in14 cluding the Executive Office of the President,

15 and other than the General Accounting Office),

16 only the head of such Executive agency may

17 perform any function or duty of such office,

18 until an appointment is made in accordance

19 with subparagraph (A).

20 ‘‘(c) If the last day of any 150-day period under sub21 section (b) is a day on which the Senate is not in session,

22 the first day the Senate is next in session and receiving

23 nominations shall be deemed to be the last day of such

24 period.
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1 ‘‘(d)(1) Except as provided under paragraphs (1)(B),

2 (2)(B), and (3)(B) of subsection (b), an action shall have

3 no force or effect if such action—

4 ‘‘(A)(i) is taken by any person who fills a va5 cancy in violation of subsection (b); and

6 ‘‘(ii) is the performance of a function or duty

7 of such vacant office; or

8 ‘‘(B)(i) is taken by a person who is not filling

9 a vacant office; and

10 ‘‘(ii) is the performance of a function or duty

11 of such vacant office.

12 ‘‘(2) An action that has no force or effect under para13 graph (1) may not be ratified.

14 ‘‘(d) This section shall not apply to—

15 ‘‘(1) the General Counsel of the National Labor

16 Relations Board;

17 ‘‘(2) the General Counsel of the Federal Labor

18 Relations Authority; or

19 ‘‘(3) any Inspector General appointed by the

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

21 Senate.

22 ‘‘§ 3349. Reporting of vacancies

23 ‘‘(a) The head of each Executive agency (including

24 the Executive Office of the President, and other than the

25 General Accounting Office) shall submit to the Comptrol-
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1 ler General of the United States and to each House of

2 Congress—

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

4 vacancy occurred immediately upon the occurrence

5 of the vacancy;

6 ‘‘(2) the name of any person serving in an act7 ing capacity and the date such service began imme8 diately upon the designation;

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

10 Senate to fill the vacancy and the date such nomina11 tion is submitted immediately upon the submission

12 of the nomination; and

13 ‘‘(4) the date of a rejection, withdrawal, or re14 turn of any nomination immediately upon such rejec15 tion, withdrawal, or return.

16 ‘‘(b) If the Comptroller General of the United States

17 makes a determination that an officer is serving longer

18 than the 150-day period including the applicable excep19 tions to such period under section 3346, the Comptroller

20 General shall report such determination to—

21 ‘‘(1) the Committee on Governmental Affairs of

22 the Senate;

23 ‘‘(2) the Committee on Government Reform and

24 Oversight of the House of Representatives;
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1 ‘‘(3) the Committees on Appropriations of the

2 Senate and House of Representatives;

3 ‘‘(4) the appropriate committees of jurisdiction

4 of the Senate and House of Representatives;

5 ‘‘(5) the President; and

6 ‘‘(6) the Office of Personnel Management.

7 ‘‘§ 3349a. Presidential inaugural transitions

8 ‘‘(a) In this section, the term ‘transitional inaugura9 tion day’ means the date on which any person swears or

10 affirms the oath of office as President, if such person is

11 not the President on the date preceding the date of swear12 ing or affirming such oath of office.

13 ‘‘(b) With respect to any vacancy that exists during

14 the 60-day period beginning on a transitional inauguration

15 day, the 150-day period under section 3346 or 3348 shall

16 be deemed to—

17 ‘‘(1) begin on the later of—

18 ‘‘(A) the date following such transitional

19 inauguration day; or

20 ‘‘(B) the date the vacancy occurs; and

21 ‘‘(2) be a period of 180 days.

22 ‘‘§ 3349b. Holdover provisions relating to certain

23 independent establishments

24 ‘‘With respect to any independent establishment for

25 which a single officer is the head of the establishment,
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1 sections 3345 through 3349a shall not be construed to af2 fect any statute that authorizes a person to continue to

3 serve in any office—

4 ‘‘(1) after the expiration of the term for which

5 such person is appointed; and

6 ‘‘(2) until a successor is appointed or a speci7 fied period of time has expired.

8 ‘‘§ 3349c. Exclusion of certain officers

9 ‘‘Sections 3345 through 3349b shall not apply to—

10 ‘‘(1) any member who is appointed by the

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

12 Senate to any board, commission, or similar entity

13 that—

14 ‘‘(A) is composed of multiple members; and

15 ‘‘(B) governs an independent establishment

16 or Government corporation; or

17 ‘‘(2) any commissioner of the Federal Energy

18 Regulatory Commission.’’.

19 (b) TECHNICAL AND CONFORMING AMENDMENT.—

20 (1) TABLE OF SECTIONS.—The table of sections

21 for chapter 33 of title 5, United States Code, is

22 amended by striking the matter relating to sub23 chapter III and inserting the following:

‘‘SUBCHAPTER III—DETAILS, VACANCIES, AND APPOINTMENTS

‘‘3341. Details; within Executive or military departments.

‘‘[3342. Repealed.]

‘‘3343. Details; to international organizations.
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‘‘3344. Details; administrative law judges.

‘‘3345. Acting officer.

‘‘3346. Time limitation.

‘‘3347. Application.

‘‘3348. Vacant office.

‘‘3349. Reporting of vacancies.

‘‘3349a. Presidential inaugural transitions.

‘‘3349b. Holdover provisions relating to certain independent establishments.

‘‘3349c. Exclusion of certain officers.’’.

1 (2) SUBCHAPTER HEADING.—The subchapter

2 heading for subchapter III of chapter 33 of title 5,

3 United States Code, is amended to read as follows:

4 ‘‘SUBCHAPTER III—DETAILS, VACANCIES, AND

5 APPOINTMENTS’’.

6 SEC. 3. EFFECTIVE DATE AND APPLICATION.

7 (a) EFFECTIVE DATE.—This Act and the amend8 ments made by this Act shall take effect on the date of

9 enactment of this Act.

10 (b) APPLICATION.—This Act shall apply to any office

11 that—

12 (1) becomes vacant after the date of enactment

13 of this Act; or

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

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

16 amended by this Act), shall apply as though such of17 fice first became vacant on such date.

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