[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2176 Introduced in Senate (IS)]







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.

    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 ``Federal Vacancies Reform Act of 
1998''.

SEC. 2. FEDERAL VACANCIES AND APPOINTMENTS.

    (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) If an officer of an Executive agency (including the Executive 
Office of the President, and other than the General Accounting Office) 
whose appointment to office is required to be made by the President, by 
and with the advice and consent of the Senate, dies, resigns, or is 
otherwise unable to perform the functions and duties of the office--
            ``(1) the first assistant of such officer shall perform the 
        functions and duties of the office temporarily in an acting 
        capacity, subject to the time limitations of section 3346; or
            ``(2) notwithstanding paragraph (1), the President (and 
        only the President) may direct a person who serves in an office 
        for which appointment is required to be made by the President, 
        by and with the advice and consent of the Senate, to perform 
        the functions and duties of the office temporarily in an acting 
        capacity, subject to the time limitations of section 3346.
    ``(b) Notwithstanding section 3346(a)(2), a person may not serve as 
an acting officer for an office under this section, if--
            ``(1) on the date of the death, resignation, or beginning 
        of inability to serve of the applicable officer, such person 
        serves in the position of first assistant to such officer;
            ``(2) during the 365-day period preceding such date, such 
        person served in the position of first assistant to such 
        officer for less than 180 days; and
            ``(3) the President submits a nomination of such person to 
        the Senate for appointment to such office.
    ``(c) 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 150 days beginning on the date the 
        vacancy occurs; or
            ``(2) subject to subsection (b), once a first or second 
        nomination for the office is submitted to the Senate, for the 
        period that the nomination is pending in the Senate.
    ``(b)(1) If the first nomination for the office is rejected by the 
Senate, withdrawn, or returned to the President by the Senate, the 
person may continue to serve as the acting officer for no more than 150 
days after the date of such rejection, withdrawal, or return.
    ``(2) If a second nomination for the office (of a different person 
than first nominated in the case of a rejection or withdrawal) is 
submitted to the Senate during the 150-day period after the rejection, 
withdrawal, or return 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 150 days after the second nomination 
        is rejected, withdrawn, or returned.
    ``(c) If a person begins serving as an acting officer during an 
adjournment of the Congress sine die, the 150-day period under 
subsection (a) shall begin on the date that the Senate first 
reconvenes.
``Sec. 3347. Application
    ``(a) Sections 3345 and 3346 are applicable to any office of an 
Executive agency (including the Executive Office of the President, and 
other than the General Accounting Office) for which appointment is 
required to be made by the President, by and with the advice and 
consent of the Senate, unless--
            ``(1) another statutory provision expressly provides that 
        such provision supersedes sections 3345 and 3346;
            ``(2) a statutory provision in effect on the date of 
        enactment of the Federal Vacancies Reform Act of 1998 expressly 
        authorizes the President, or the head of an Executive 
        department, to designate an officer to perform the functions 
        and duties of a specified office temporarily in an acting 
        capacity; or
            ``(3) the President makes an appointment to fill a vacancy 
        in such office during the recess of the Senate pursuant to 
        clause 3 of section 2 of article II of the United States 
        Constitution.
    ``(b) Any statutory provision providing general authority to the 
head of an Executive agency (including the Executive Office of the 
President, and other than the General Accounting Office) to delegate 
duties to, or to reassign duties among, officers or employees of such 
Executive agency, is not a statutory provision to which subsection 
(a)(2) applies.
``Sec. 3348. Vacant office
    ``(a) In this section--
            ``(1) the term `action' includes any agency action as 
        defined under section 551(13); and
            ``(2) the term `function or duty' means any function or 
        duty of the applicable office that--
                    ``(A)(i) is established by statute; and
                    ``(ii) is required by statute to be performed by 
                the applicable officer (and only that officer); or
                    ``(B)(i)(I) is established by regulation; and
                    ``(II) is required by such regulation to be 
                performed by the applicable officer (and only that 
                officer); and
                    ``(ii) includes a function or duty to which clause 
                (i) (I) and (II) applies, and the applicable regulation 
                is in effect at any time during the 180-day period 
                preceding the date on which the vacancy occurs, 
                notwithstanding any regulation that--
                            ``(I) is issued on or after the date 
                        occurring 180 days before the date on which the 
                        vacancy occurs; and
                            ``(II) limits any function or duty required 
                        to be performed by the applicable officer (and 
                        only that officer).
    ``(b) Subject to section 3347 and subsection (c)--
            ``(1) if the President does not submit a first nomination 
        to the Senate to fill a vacant office within 150 days after the 
        date on which a vacancy occurs--
                    ``(A) the office shall remain vacant until the 
                President submits a first nomination to the Senate; and
                    ``(B) in the case of an office other than the 
                office of the head of an Executive agency (including 
                the Executive Office of the President, and other than 
                the General Accounting Office), only the head of such 
                Executive agency may perform any function or duty of 
                such office, until a nomination is made in accordance 
                with subparagraph (A);
            ``(2) if the President does not submit a second nomination 
        to the Senate within 150 days after the date of the rejection, 
        withdrawal, or return of the first nomination--
                    ``(A) the office shall remain vacant until the 
                President submits a second nomination to the Senate; 
                and
                    ``(B) in the case of an office other than the 
                office of the head of an Executive agency (including 
                the Executive Office of the President, and other than 
                the General Accounting Office), only the head of such 
                Executive agency may perform any function or duty of 
                such office, until a nomination is made in accordance 
                with subparagraph (A); and
            ``(3) if an office is vacant after 150 days after the 
        rejection, withdrawal, or return of the second nomination--
                    ``(A) the office shall remain vacant until a person 
                is appointed by the President, by and with the advice 
                and consent of the Senate; and
                    ``(B) in the case of an office other than the 
                office of the head of an Executive agency (including 
                the Executive Office of the President, and other than 
                the General Accounting Office), only the head of such 
                Executive agency may perform any function or duty of 
                such office, until an appointment is made in accordance 
                with subparagraph (A).
    ``(c) If the last day of any 150-day period under subsection (b) is 
a day on which the Senate is not in session, the first day the Senate 
is next in session and receiving nominations shall be deemed to be the 
last day of such period.
    ``(d)(1) Except as provided under paragraphs (1)(B), (2)(B), and 
(3)(B) of subsection (b), an action shall have no force or effect if 
such action--
            ``(A)(i) is taken by any person who fills a vacancy in 
        violation of subsection (b); and
            ``(ii) is the performance of a function or duty of such 
        vacant office; or
            ``(B)(i) is taken by a person who is not filling a vacant 
        office; and
            ``(ii) is the performance of a function or duty of such 
        vacant office.
    ``(2) An action that has no force or effect under paragraph (1) may 
not be ratified.
    ``(d) This section shall not apply to--
            ``(1) the General Counsel of the National Labor Relations 
        Board;
            ``(2) the General Counsel of the Federal Labor Relations 
        Authority; or
            ``(3) any Inspector General appointed by the President, by 
        and with the advice and consent of the Senate.
``Sec. 3349. Reporting of vacancies
    ``(a) The head of each Executive agency (including the Executive 
Office of the President, and 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, withdrawal, or return of any 
        nomination immediately upon such rejection, withdrawal, or 
        return.
    ``(b) If the Comptroller General of the United States makes a 
determination that an officer is serving longer than the 150-day period 
including the applicable exceptions to such period under section 3346, 
the Comptroller General shall report such determination to--
            ``(1) the Committee on Governmental Affairs of the Senate;
            ``(2) the Committee on Government Reform and Oversight of 
        the House of Representatives;
            ``(3) the Committees on Appropriations of the Senate and 
        House of Representatives;
            ``(4) the appropriate committees of jurisdiction of the 
        Senate and House of Representatives;
            ``(5) the President; and
            ``(6) the Office of Personnel Management.
``Sec. 3349a. Presidential inaugural transitions
    ``(a) In this section, the term `transitional inauguration day' 
means the date on which any person swears or affirms the oath of office 
as President, if such person is not the President on the date preceding 
the date of swearing or affirming such oath of office.
    ``(b) With respect to any vacancy that exists during the 60-day 
period beginning on a transitional inauguration day, the 150-day period 
under section 3346 or 3348 shall be deemed to--
            ``(1) begin on the later of--
                    ``(A) the date following such transitional 
                inauguration day; or
                    ``(B) the date the vacancy occurs; and
            ``(2) be a period of 180 days.
``Sec. 3349b. Holdover provisions relating to certain independent 
              establishments
    ``With respect to any independent establishment for which a single 
officer is the head of the establishment, sections 3345 through 3349a 
shall not be construed to affect any statute that authorizes a person 
to continue to serve in any office--
            ``(1) after the expiration of the term for which such 
        person is appointed; and
            ``(2) until a successor is appointed or a specified period 
        of time has expired.
``Sec. 3349c. Exclusion of certain officers
    ``Sections 3345 through 3349b shall not apply to--
            ``(1) any member who is appointed by the President, by and 
        with the advice and consent of the Senate to any board, 
        commission, or similar entity that--
                    ``(A) is composed of multiple members; and
                    ``(B) governs an independent establishment or 
                Government corporation; or
            ``(2) any commissioner of the Federal Energy Regulatory 
        Commission.''.
    (b) Technical and Conforming Amendment.--
            (1) Table of sections.--The table of sections for chapter 
        33 of title 5, United States Code, is amended by striking the 
        matter relating to subchapter 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.
``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.''.
            (2) Subchapter heading.--The subchapter heading for 
        subchapter III of chapter 33 of title 5, United States Code, is 
        amended to read as follows:

       ``SUBCHAPTER III--DETAILS, VACANCIES, AND APPOINTMENTS''.

SEC. 3. EFFECTIVE DATE AND APPLICATION.

    (a) Effective Date.--This Act and the amendments made by this Act 
shall take effect on the date of enactment of this Act.
    (b) Application.--This Act shall apply to any office that--
            (1) becomes vacant after the date of enactment of this Act; 
        or
            (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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