[Congressional Record Volume 144, Number 129 (Thursday, September 24, 1998)]
[Senate]
[Pages S10868-S10869]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  FEDERAL VACANCIES REFORM ACT OF 1998

  The PRESIDING OFFICER. The clerk will report the bill.
  The legislative clerk read as follows:

       A bill (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.

  The Senate proceeded to consider the bill, which had been reported 
from the Committee on Governmental Affairs, with amendments, as 
follows:
  (The parts of the bill intended to be stricken are shown in boldface 
brackets and the parts of the bill intended to be inserted are shown in 
italic,)

                                S. 2176

       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, from 
     the date of such nomination 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] Notwithstanding paragraph (1), 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]
       ``(2) a statutory provision in effect on the date of 
     enactment of the Federal Vacancies Reform Act of 1998 
     expressly--
       ``(A) authorizes the President, a court, or the head of an 
     Executive department, to designate an officer or employee to 
     perform the functions and duties of a specified office 
     temporarily in an acting capacity; or
       ``(B) designates an officer or employee 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

[[Page S10869]]

       ``(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.]
       ``(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 begin on the later of the date occurring--
       ``(1) 90 days after such transitional inauguration day; or
       ``(2) 90 days after the date on which the vacancy occurs.

     ``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.


                             Cloture Motion

  Mr. LOTT. Mr. President, I send a cloture motion to the desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provision of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on S. 2176, the 
     Vacancies Act:
         Trent Lott, Strom Thurmond, Charles Grassley, Thad 
           Cochran, Wayne Allard, Ben Nighthorse Campbell, Don 
           Nickles, Orrin G. Hatch, Pat Roberts, Tim Hutchinson, 
           Richard Shelby, Conrad Burns, Jim Inhofe, Connie Mack, 
           Fred Thompson, Spencer Abraham.
  Mr. LOTT. Mr. President, for the information of all Senators, this 
cloture vote will occur Monday, September 28. I now ask unanimous 
consent that, notwithstanding rule XXII, the cloture vote occur at 5:30 
p.m. on Monday and the mandatory quorum under rule XXII be waived. I 
further ask that at 3:30 p.m. on Monday, the Senate resume the bill for 
debate only, with no action occurring, and that there be 2 hours of 
debate equally divided between the two leaders, or their designees.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________