[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1764 Introduced in Senate (IS)]







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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Vacancies Clarification Act of 
1998''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) Congress enacted the Act entitled ``An Act to authorize 
        the temporary supplying of vacancies in the executive 
        departments'', approved July 23, 1868 (commonly referred to as 
        the ``Vacancies Act''), to--
                    (A) preclude the extended filling of a vacancy in 
                an office of an executive or military department 
                subject to Senate confirmation, without the submission 
                of a Presidential nomination;
                    (B) provide an exclusive means to temporarily fill 
                such a vacancy; and
                    (C) clarify the role of the Senate in the exercise 
                of the Senate's constitutional advice and consent 
                powers in the Presidential appointment of certain 
                officers;
            (2) subchapter III of chapter 33 of title 5, United States 
        Code, includes a codification of the Vacancies Act, and 
        (pursuant to an amendment on August 17, 1988, to section 3345 
        of such title) specifically applies such vacancy provisions to 
        all Executive agencies, including the Department of Justice;
            (3) the legislative history accompanying the 1988 amendment 
        makes clear in the controlling committee report that the 
        general administrative authorizing provisions for the Executive 
        agencies, which include sections 509 and 510 of title 28, 
        United States Code, regarding the Department of Justice, do not 
        supersede the specific vacancy provisions in title 5, United 
        States Code;
            (4) there are statutory provisions of general 
        administrative authority applicable to every Executive 
        department and other Executive agencies that are similar to 
        sections 509 and 510 of title 28, United States Code, relating 
        to the Department of Justice;
            (5) despite the clear intent of Congress, the Attorney 
        General of the United States has continued to interpret the 
        provisions granting general administrative authority to the 
        Attorney General under sections 509 and 510 of title 28, United 
        States Code, to supersede the specific vacancy provisions in 
        title 5, United States Code;
            (6) the interpretation of the Attorney General would--
                    (A) virtually nullify the vacancy provisions under 
                subchapter III of chapter 33 of title 5, United States 
                Code;
                    (B) circumvent the clear intention of Congress to 
                preclude the extended filling of certain vacancies and 
                provide for the temporary filling of such vacancies; 
                and
                    (C) subvert the constitutional authority and 
                responsibility of the Senate to advise and consent in 
                certain appointments;
            (7) it is necessary to further clarify the intention of 
        Congress to reject the interpretation of the Attorney General 
        by modernizing the intricate language of the long-standing 
        Vacancies Act; and
            (8) to ensure compliance by the executive branch with the 
        Vacancies Act, the Act needs an express enforcement mechanism.

SEC. 3. FEDERAL VACANCIES.

    (a) In General.--Chapter 33 of title 5, United States Code, is 
amended by striking sections 3345 through 3349 and inserting the 
following:
``Sec. 3345. Acting officer
    ``(a)(1) If an officer of an Executive agency (other than the 
General Accounting Office) whose appointment to office is by the 
President, by and with the advice and consent of the Senate, dies, 
resigns, or is otherwise unable to perform the functions of the office, 
the President may direct a person described under paragraph (2) to 
perform the functions and duties of the office temporarily in an acting 
capacity, subject to the time limitations of section 3346.
    ``(2) The person referred to under paragraph (1) is any person who 
on the date of death, resignation, or the beginning of inability to 
perform serves--
            ``(A) in the position of first assistant to the officer who 
        dies, resigns, or is otherwise unable to perform; or
            ``(B) in an office for which appointment by the President, 
        by and with the advice and consent of the Senate is required.
    ``(b) With respect to the office of the Attorney General of the 
United States, the provisions of section 508 of title 28 shall be 
applicable.
``Sec. 3346. Time limitation
    ``(a) The person serving as an acting officer as described under 
section 3345 may serve in the office--
            ``(1) for no longer than 120 days; or
            ``(2) if any nomination for the office is submitted to the 
        Senate within the 120-day period beginning on the date the 
        vacancy occurs, for the period that the nomination is pending 
        in the Senate.
    ``(b)(1) If the nomination for the office is rejected by the Senate 
or withdrawn, the person may continue to serve as the acting officer 
for no more than 120 days after the date of such rejection or 
withdrawal.
    ``(2) Notwithstanding paragraph (1), if a second nomination for the 
office is submitted to the Senate during the 120-day period after the 
rejection or withdrawal of the first nomination, the person serving as 
the acting officer may continue to serve--
            ``(A) until the second nomination is confirmed; or
            ``(B) for no more than 120 days after the second nomination 
        is rejected or withdrawn.
    ``(c) If a person begins serving as an acting officer during an 
adjournment of the Congress sine die, the 120-day period under 
subsection (a) shall begin on the date that the Senate first 
reconvenes.
``Sec. 3347. Application
    ``Sections 3345 and 3346 are applicable to any office of an 
Executive agency (other than the General Accounting Office) for which 
appointment by the President, by and with the advice and consent of the 
Senate, is required, unless--
            ``(1) another statutory provision expressly provides that 
        such provision supersedes sections 3345 and 3346; or
            ``(2) the President makes an appointment to fill a vacancy 
        in such office during a recess of the Senate.
``Sec. 3348. Vacant office
    ``Subject to section 3347, if an office is not temporarily filled 
under sections 3345 and 3346 within 120 days after the date on which a 
vacancy occurs, the office shall remain vacant until a person is 
appointed by the President, by and with the advice and consent of the 
Senate.
``Sec. 3349. Enforcement
    ``(a)(1) An acting officer who serves in a position in violation of 
section 3345 or 3346 may not receive pay for any day of service in 
violation of section 3345 or 3346.
    ``(2) Pay not received under paragraph (1) shall be forfeited and 
may not be paid as backpay.
    ``(3) Notwithstanding section 1342 of title 31, paragraph (1) shall 
apply regardless of whether such acting officer is performing the 
duties of another office or position in addition to performing the 
duties of the vacant office.
    ``(b) The head of an affected Executive agency (other than the 
General Accounting Office) shall submit to the Comptroller General of 
the United States and to each House of Congress--
            ``(1) notification of a vacancy and the date such vacancy 
        occurred immediately upon the occurrence of the vacancy;
            ``(2) the name of any person serving in an acting capacity 
        and the date such service began immediately upon the 
        designation;
            ``(3) the name of any person nominated to the Senate to 
        fill the vacancy and the date such nomination is submitted 
        immediately upon the submission of the nomination; and
            ``(4) the date of a rejection or withdrawal of any 
        nomination immediately upon such rejection or withdrawal.
    ``(c) If the Comptroller General of the United States makes a 
determination that an officer is serving longer than the 120-day period 
including the applicable exceptions to such period as provided under 
section 3346, the Comptroller General shall report such determination 
to each House of Congress, the President, the Secretary of the 
Treasury, and the Office of Personnel Management.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 33 of title 5, United States Code, is amended by striking the 
items relating to sections 3345 through 3349 and inserting the 
following:

``3345. Acting officer.
``3346. Time limitation.
``3347. Application.
``3348. Vacant office.
``3349. Enforcement.''.

SEC. 4. EFFECTIVE DATE AND APPLICATION.

    This Act shall take effect on the date of enactment of this Act and 
shall apply to any office that--
            (1) becomes vacant after such date; and
            (2) is vacant on such date, except sections 3345 through 
        3349 of title 5, United States Code (as amended by this Act), 
        shall apply as though such office first became vacant on such 
        date.
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