II

Calendar No. 469

105TH CONGRESS

2D SESSION S. 2176

[Report No. 105–250]

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, Mr.

ROTH, Mr. COCHRAN, and Mr. HATCH) introduced the following bill;

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

JULY 15, 1998

Reported by Mr. THOMPSON, with amendments

[Omit the part struck through and insert the part printed in italic]

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.
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•S 2176 RS

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’’.

6 SEC. 2. FEDERAL VACANCIES AND APPOINTMENTS.

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

8 States Code, is amended by striking sections 3345 through

9 3349 and inserting the following:

10 ‘‘§ 3345. Acting officer

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

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

13 General Accounting Office) whose appointment to office

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

15 advice and consent of the Senate, dies, resigns, or is other16 wise unable to perform the functions and duties of the of17 fice—

18 ‘‘(1) the first assistant of such officer shall per19 form the functions and duties of the office tempo20 rarily in an acting capacity, subject to the time limi21 tations of section 3346; or

22 ‘‘(2) notwithstanding paragraph (1), the Presi23 dent (and only the President) may direct a person

24 who serves in an office for which appointment is re25 quired to be made by the President, by and with the
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1 advice and consent of the Senate, to perform the

2 functions and duties of the office temporarily in an

3 acting capacity, subject to the time limitations of

4 section 3346.

5 ‘‘(b) Notwithstanding section 3346(a)(2), a person

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

7 section, if—

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

9 beginning of inability to serve of the applicable offi10 cer, such person serves in the position of first assist11 ant to such officer;

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

13 date, such person served in the position of first as14 sistant to such officer for less than 180 days; and

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

16 such person to the Senate for appointment to such

17 office.

18 ‘‘(c) With respect to the office of the Attorney Gen19 eral of the United States, the provisions of section 508

20 of title 28 shall be applicable.

21 ‘‘§ 3346. Time limitation

22 ‘‘(a) The person serving as an acting officer as de23 scribed under section 3345 may serve in the office—

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

25 the date the vacancy occurs; or
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1 ‘‘(2) subject to subsection (b), once a first or

2 second nomination for the office is submitted to the

3 Senate, from the date of such nomination for the pe4 riod that the nomination is pending in the Senate.

5 ‘‘(b)(1) If the first nomination for the office is re6 jected by the Senate, withdrawn, or returned to the Presi7 dent by the Senate, the person may continue to serve as

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

9 date of such rejection, withdrawal, or return.

10 ‘‘(2) If Notwithstanding paragraph (1), if a second

11 nomination for the office (of a different person than first

12 nominated in the case of a rejection or withdrawal) is sub13 mitted to the Senate during the 150-day period after the

14 rejection, withdrawal, or return of the first nomination,

15 the person serving as the acting officer may continue to

16 serve—

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

18 or

19 ‘‘(B) for no more than 150 days after the sec20 ond nomination is rejected, withdrawn, or returned.

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

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

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

24 that the Senate first reconvenes.
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1 ‘‘§ 3347. Application

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

3 office of an Executive agency (including the Executive Of4 fice of the President, and other than the General Account5 ing Office) for which appointment is required to be made

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

7 the Senate, unless—

8 ‘‘(1) another statutory provision expressly pro9 vides that such provision supersedes sections 3345

10 and 3346;

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

12 of enactment of the Federal Vacancies Reform Act

13 of 1998 expressly authorizes the President, or the

14 head of an Executive department, to designate an

15 officer to perform the functions and duties of a spec16 ified office temporarily in an acting capacity; or

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

18 of enactment of the Federal Vacancies Reform Act of

19 1998 expressly—

20 ‘‘(A) authorizes the President, a court, or

21 the head of an Executive department, to des22 ignate an officer or employee to perform the

23 functions and duties of a specified office tempo24 rarily in an acting capacity; or
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1 ‘‘(B) designates an officer or employee to

2 perform the functions and duties of a specified

3 office temporarily in an acting capacity; or

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

5 a vacancy in such office during the recess of the

6 Senate pursuant to clause 3 of section 2 of article

7 II of the United States Constitution.

8 ‘‘(b) Any statutory provision providing general au9 thority to the head of an Executive agency (including the

10 Executive Office of the President, and other than the Gen11 eral Accounting Office) to delegate duties to, or to reas12 sign duties among, officers or employees of such Executive

13 agency, is not a statutory provision to which subsection

14 (a)(2) applies.

15 ‘‘§ 3348. Vacant office

16 ‘‘(a) In this section—

17 ‘‘(1) the term ‘action’ includes any agency ac18 tion as defined under section 551(13); and

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

20 function or duty of the applicable office that—

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

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

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

24 or

25 ‘‘(B)(i)(I) is established by regulation; and
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1 ‘‘(II) is required by such regulation to be

2 performed by the applicable officer (and only

3 that officer); and

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

5 clause (i) (I) and (II) applies, and the applica6 ble regulation is in effect at any time during

7 the 180-day period preceding the date on which

8 the vacancy occurs, notwithstanding any regula9 tion that—

10 ‘‘(I) is issued on or after the date oc11 curring 180 days before the date on which

12 the vacancy occurs; and

13 ‘‘(II) limits any function or duty re14 quired to be performed by the applicable

15 officer (and only that officer).

16 ‘‘(b) Subject to section 3347 and subsection (c)—

17 ‘‘(1) if the President does not submit a first

18 nomination to the Senate to fill a vacant office with19 in 150 days after the date on which a vacancy oc20 curs—

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

22 the President submits a first nomination to the

23 Senate; and

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

25 office of the head of an Executive agency (in-
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1 cluding the Executive Office of the President,

2 and other than the General Accounting Office),

3 only the head of such Executive agency may

4 perform any function or duty of such office,

5 until a nomination is made in accordance with

6 subparagraph (A);

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

8 nomination to the Senate within 150 days after the

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

10 first nomination—

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

12 the President submits a second nomination to

13 the Senate; and

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

15 office of the head of an Executive agency (in16 cluding the Executive Office of the President,

17 and other than the General Accounting Office),

18 only the head of such Executive agency may

19 perform any function or duty of such office,

20 until a nomination is made in accordance with

21 subparagraph (A); and

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

23 the rejection, withdrawal, or return of the second

24 nomination—
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1 ‘‘(A) the office shall remain vacant until a

2 person is appointed by the President, by and

3 with the advice and consent of the Senate; and

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

5 office of the head of an Executive agency (in6 cluding the Executive Office of the President,

7 and other than the General Accounting Office),

8 only the head of such Executive agency may

9 perform any function or duty of such office,

10 until an appointment is made in accordance

11 with subparagraph (A).

12 ‘‘(c) If the last day of any 150-day period under sub13 section (b) is a day on which the Senate is not in session,

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

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

16 period.

17 ‘‘(d)(1) Except as provided under paragraphs (1)(B),

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

19 no force or effect if such action—

20 ‘‘(A)(i) is taken by any person who fills a va21 cancy in violation of subsection (b); and

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

23 of such vacant office; or

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

25 a vacant office; and
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1 ‘‘(ii) is the performance of a function or duty

2 of such vacant office.

3 ‘‘(2) An action that has no force or effect under para4 graph (1) may not be ratified.

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

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

7 Relations Board;

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

9 Relations Authority; or

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

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

12 Senate.

13 ‘‘§ 3349. Reporting of vacancies

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

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

16 General Accounting Office) shall submit to the Comptrol17 ler General of the United States and to each House of

18 Congress—

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

20 vacancy occurred immediately upon the occurrence

21 of the vacancy;

22 ‘‘(2) the name of any person serving in an act23 ing capacity and the date such service began imme24 diately upon the designation;
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1 ‘‘(3) the name of any person nominated to the

2 Senate to fill the vacancy and the date such nomina3 tion is submitted immediately upon the submission

4 of the nomination; and

5 ‘‘(4) the date of a rejection, withdrawal, or re6 turn of any nomination immediately upon such rejec7 tion, withdrawal, or return.

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

9 makes a determination that an officer is serving longer

10 than the 150-day period including the applicable excep11 tions to such period under section 3346, the Comptroller

12 General shall report such determination to—

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

14 the Senate;

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

16 Oversight of the House of Representatives;

17 ‘‘(3) the Committees on Appropriations of the

18 Senate and House of Representatives;

19 ‘‘(4) the appropriate committees of jurisdiction

20 of the Senate and House of Representatives;

21 ‘‘(5) the President; and

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

23 ‘‘§ 3349a. Presidential inaugural transitions

24 ‘‘(a) In this section, the term ‘transitional inaugura25 tion day’ means the date on which any person swears or
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1 affirms the oath of office as President, if such person is

2 not the President on the date preceding the date of swear3 ing or affirming such oath of office.

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

5 the 60-day period beginning on a transitional inauguration

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

7 be deemed to—

8 ‘‘(1) begin on the later of—

9 ‘‘(A) the date following such transitional

10 inauguration day; or

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

12 ‘‘(2) be a period of 180 days.

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 begin on the later of the date occurring—

17 ‘‘(1) 90 days after such transitional inaugura18 tion day; or

19 ‘‘(2) 90 days after the date on which the vacancy

20 occurs.

21 ‘‘§ 3349b. Holdover provisions relating to certain

22 independent establishments

23 ‘‘With respect to any independent establishment for

24 which a single officer is the head of the establishment,

25 sections 3345 through 3349a shall not be construed to af-
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1 fect any statute that authorizes a person to continue to

2 serve in any office—

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

4 such person is appointed; and

5 ‘‘(2) until a successor is appointed or a speci6 fied period of time has expired.

7 ‘‘§ 3349c. Exclusion of certain officers

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

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

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

11 Senate to any board, commission, or similar entity

12 that—

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

14 ‘‘(B) governs an independent establishment

15 or Government corporation; or

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

17 Regulatory Commission.’’.

18 (b) TECHNICAL AND CONFORMING AMENDMENT.—

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

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

21 amended by striking the matter relating to sub22 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.

‘‘3344. Details; administrative law judges.

‘‘3345. Acting officer.

‘‘3346. Time limitation.
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‘‘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.

Calendar No. 469

105TH CONGRESS

2D SESSION S. 2176

[Report No. 105–250]

A BILL

To amend sections 3345 through 3349 of title 5,

poses.to certain Federal offices, and for other purments relating to vacancies in and appointments‘‘Vacancies Act’’) to clarify statutory requireUnited States Code (commonly referred to as the

JULY 15, 1998

Reported with amendments