[Senate Report 105-250]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 469
105th Congress                                                   Report
                                SENATE

 2d Session                                                     105-250
_______________________________________________________________________


 
                 FEDERAL VACANCIES REFORM ACT OF 1998

                               __________

                              R E P O R T

                                 OF THE

                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                              TO ACCOMPANY

                                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 CERTAIN FEDERAL OFFICES, AND FOR 
                             OTHER PURPOSES





                 July 15, 1998.--Ordered to be printed


                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                   FRED THOMPSON, Tennessee, Chairman
WILLIAM V. ROTH, Jr., Delaware       JOHN GLENN, Ohio
TED STEVENS, Alaska                  CARL LEVIN, Michigan
SUSAN M. COLLINS, Maine              JOSEPH I. LIEBERMAN, Connecticut
SAM BROWNBACK, Kansas                DANIEL K. AKAKA, Hawaii
PETE V. DOMENICI, New Mexico         RICHARD J. DURBIN, Illinois
THAD COCHRAN, Mississippi            ROBERT G. TORRICELLI, New Jersey
DON NICKLES, Oklahoma                MAX CLELAND, Georgia
ARLEN SPECTER, Pennsylvania
             Hannah S. Sistare, Staff Director and Counsel
                   Frederick S. Ansell, Chief Counsel
                 Leonard Weiss, Minority Staff Director
                       Lynn L. Baker, Chief Clerk


                            C O N T E N T S

                              ----------                              
                                                                   Page
  I. Purpose..........................................................1
 II. Summary..........................................................1
III. Need for Legislation.............................................3
 IV. Legislative History of S. 2176...................................9
  V. Committee Action................................................10
 VI. Section-by-Section Analysis.....................................11
VII. Regulatory Impact Statement.....................................22
VIII.Cost Estimate...................................................23

 IX. Changes in Existing Law.........................................23



                                                       Calendar No. 469
105th Congress                                                   Report
                                 SENATE

 2d Session                                                     105-250
_______________________________________________________________________


                  FEDERAL VACANCIES REFORM ACT OF 1998

                                _______
                                

                 July 15, 1998.--Ordered to be printed

_______________________________________________________________________


Mr. Thompson, from the Committee on Governmental Affairs, submitted the 
                               following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 2176]

    The Committee on Governmental Affairs, to which was 
referred the bill (S. 2176) to provide a mechanism for the 
temporary filling of positions that are legally appointed by 
the President, by and with the advice and consent of the 
Senate, and having considered the same, reports favorably on 
the bill as amended and recommends that the bill as amended do 
pass.

                               I. Purpose

    The purpose of S. 2176, the Federal Vacancies Reform Act, 
is to create a clear and exclusive process to govern the 
performance of duties of offices in the Executive Branch that 
are filled through presidential appointment by and with the 
consent of the Senate when a Senate confirmed official has 
died, resigned, or is otherwise unable to perform the functions 
and duties of the office.

                         II. Summary of S. 2176

    S. 2176 provides that upon the death, resignation, or 
inability to serve of an officer of an executive agency 
(including the Executive Office of the President), the first 
assistant to the officer becomes the acting officer, subject to 
the bills time limits. If the President so directs, a person 
who has already received Senate confirmation can be made the 
acting officer in lieu of the first assistant. The bill also 
requires that a first assistant who has not received Senate 
confirmation, but who is nominated to fill the office 
permanently, can be made the acting officeronly if he has been 
the first assistant for at least 180 days in the year preceding the 
vacancy. The acting officer may serve for 150 days beginning on the 
date the vacancy occurs. In the event a first or second nominee is 
withdrawn, rejected or returned, the person may serve as the acting 
official until 150 days after the withdrawal, rejection, or return.
    The bill applies to all vacancies in Senate-confirmed 
positions in executive agencies with a few express exceptions. 
First, those laws that expressly provide that they supersede 
the Vacancies Act will do so. Second, current laws (there are 
approximately 41) that provide for the President or the head of 
an executive department to designate an officer to perform the 
functions and duties of a specified office in an acting 
capacity are maintained, as are those statutes that themselves 
stipulate who shall serve in a specific office in an acting 
capacity. Statutes that generally permit agency heads to 
delegate or reassign duties within their agencies are specified 
not to constitute statutes that provide for the temporary 
filling of particular offices.
    The bill's enforcement mechanism is to make an office 
vacant if, 150 days after the vacancy arises, no presidential 
nominee has been submitted to the Senate for the office. For 
offices other than the heads of agencies, the functions and 
duties specifically to be performed by the vacant officer are 
to be performed only by the head of the agency. Such duties 
include duties established by regulation for the officer during 
any part of the 180 days before the vacancy occurred, 
notwithstanding subsequent regulations that purported to limit 
those duties. The sanction can be ended if the President 
submits a nominee after the 150-day period, whereupon the 
acting officer can resume service. Actions taken in violation 
of the vacant officer provisions are of no effect and are not 
permitted to be ratified by anyone else. The shifting of duties 
to the agency head does not apply to vacancies in the positions 
of general counsel to the National Labor Relations Board and 
Federal Labor Relations Authority or to Senate-confirmed 
inspectors general, given the specific goal Congress 
established for those positions of independence from the agency 
heads.
    The bill also requires heads of agencies to report to the 
General Accounting Office on the existence of vacancies, 
persons serving in an acting capacity, the names of any 
nominees, and dates of disposition of such nominees. The 
Comptroller General then reports to the Congress, the 
President, and the Office of Personnel Management of the 
existence of any violations of the Vacancies Act.
    The 150-day period for submitting nominations is extended 
for an additional 90 days for vacancies that exist when the 
President changes or that arise in the 60 days thereafter. And 
the bill maintains holdover provisions in current law that 
apply to single-member independent agencies, and exempts 
members of multi-member independent agencies altogether, as 
does the present Vacancies Act.
    The bill applies to any office that becomes vacant after 
the date of enactment, as well as to offices that are vacant on 
the date of enactment, except that the bill shall apply to 
those offices as though they first became vacant on the date of 
enactment.

                       III. Need for Legislation

    The need for legislation to govern the performance of the 
functions and duties of vacant offices ultimately derives from 
Article II, Section 2 of the Constitution, which, inter alia, 
vests the President with the authority to appoint all officers 
of the United States, subject to the advice and consent of the 
Senate, but that Congress, by law, may vest the appointment of 
inferior officers in the President alone, in the courts of law, 
or in the heads of departments. Congress has passed legislation 
since the Washington Administration to provide for temporary 
officials to perform the functions and duties of vacant 
positions requiring the advice and consent of the Senate. Over 
the years, the time of temporary service has been lengthened, 
but Congress has always placed time limits on such acting 
officials.
    In recent decades, the Department of Justice has argued 
that its advise and consent positions are not covered by the 
Vacancies Act. It construes its enabling legislation, and now 
the enabling legislation of other departments, as exempting its 
compliance with the Vacancies Act. Specifically, the Department 
of Justice maintains that where a department's organic act 
vests the powers and functions of the department in its head 
and authorizes that officer to delegate such powers and 
functions to subordinate officials or employees as she sees 
fit, such authority supersedes the Vacancies Act's restrictions 
on temporarily filling vacant advice and consent positions, 
allowing for designation of acting officials for an indefinite 
period, even without submitting a nomination to the Senate to 
fill the position on a permanent basis. This interpretation of 
the law is wholly lacking in logic, history, or language, as 
evidenced by repeated opinions of the Comptroller General. 
Opinion B-150136, Feb. 19, 1976; 65 Op. Comp. Gen. 626, 631-33 
(1986); Opinion B-220522.2, Oct. 17, 1986. By May, 1997, seven 
statutory offices in the Justice Department requiring 
presidential nomination and Senate confirmation were vacant. 
One vacancy had existed for twenty-one months, three were 
vacant for more than 120 days, and three positions were 
unfilled for less than 120 days. In at least four instances, 
positions were filled by an order of the Attorney General 
designating a person to act in the vacant position. For 
example, the Solicitor General's position was occupied by an 
acting officer for more than one year without a nomination ever 
being submitted to the Senate.
    Despite attempts to do so through 1988 amendments to the 
Vacancies Act, described below, Congress was not successful in 
gaining the Justice Department's agreement that its advice and 
consent positions are subject to the Vacancies Act. Given the 
growing number of federal departments and agencies that now 
claim exemption from the Vacancies Act, Congress must 
explicitly reject the position that general organic statutes 
for various agencies and departments, such as 28 U.S.C. 
Sec. Sec. 509 and 510, trump the specific provisions of the 
Vacancies Act. Otherwise, the Vacancies Act will be of no 
practical effect, thwarting the constitutional mandate that 
persons serving in advice and consent positions do so through 
the Senate's approval of such service.

                          the 1988 amendments

    The Justice Department's aggressive claims of exemption 
from the Vacancies Act led Congress in 1988 to make the first 
significant changes in the Vacancies Act since 1868. The 1988 
amendments changed the law's coverage to apply to all executive 
departments and agencies, overruling a 1973 court decision that 
had limited the applicability of the Act to executive and 
military departments. The length of time that an acting 
official was permitted to serve was extended to 120 days, 
rather than the previous 30, and the acting officer could 
servemore than 120 days if the President submitted a nominee. An 
additional 120 days of acting service was provided if the Senate 
rejected the nomination or if it was withdrawn. Through this mechanism, 
Congress created an incentive for the President to submit nominations 
in a timely manner, and allowed temporary officials to serve until the 
Senate completed its advice and consent function. This Committee's 
report accompanying the Senate bill stated, ``The Committee also 
believes that the present language, however old, makes clear that the 
Vacancies Act is the exclusive authority for the temporary appointment, 
designation, or assignment of one officer to perform the duties of 
another whose appointment requires Senate confirmation. The exclusive 
authority of the Vacancies Act would only be overcome by specific 
statutory language providing some other means for filling vacancies.'' 
S. Rep. No. 100--317, 100th Cong., 2d Sess. 14 (1988). In 1989, the 
Justice Department's Office of Legal Counsel recognized the Senate's 
view, but continued to interpret the Vacancies Act as not precluding 
the Attorney General's authority to appoint temporary officials under 
the Department's organic statute, characterizing the Senate report as 
an improper and ineffective effort to ``alter the proper construction 
of a statute through subsequent legislative history.'' 13 O.L.C. 173, 
175 (1989). If the Vacancies Act is to function as it is designed--to 
uphold the Senate's prerogative to advise and consent to nominations 
through placing a limit on presidential power to appoint temporary 
officials--the Justice Department's interpretation of the existing 
statute must be ended. Legislation is needed to ensure this result, a 
primary reason for the Committee's reporting of S. 2176.

                The Constitutional Need for Legislation

    The selection of officers is not a presidential power. The 
President may choose whom he wishes to nominate, but the Senate 
has the power to advise and consent before those nominees may 
assume office. The Appointments Clause ``is more than a matter 
of `etiquette or protocol;' it is among the significant 
structural safeguards of the constitutional scheme.'' Edmond v. 
United States, 117 S. Ct. 1573, 1579 (1997). The Appointments 
Clause was adopted against a historical background: ``The 
`manipulation of official appointments' had long been one of 
the American revolutionary generation's greatest grievances 
against executive power because `the power of appointment to 
offices' '' was deemed ``the most insidious and powerful weapon 
of eighteenth century despotism.'' Freytag v. Commissioner of 
Internal Revenue, 501 U.S. 868, 883 (1991) (citations omitted).
    Nonetheless, vacancies occur in such positions, and since 
the President lacks any inherent appointment authority for 
government officers, legislation authorizing some non-Senate 
confirmed persons to perform the functions and duties of vacant 
offices is necessary if the government's operations are to be 
performed. The president's duty is to submit nominees for 
offices to the Senate, not to fill those offices himself. The 
President's power to take care that the laws shall be enforced 
is a duty, and not a source of power, since the President takes 
care that the laws be executed, and has no right to enforce the 
laws himself where Congress vests such responsibility in an 
inferior officer. See, e.g., Kendall ex rel. Stokes v. United 
States, 12 Pet. (37 U.S.) 522, 612-613 (1838); George v. 
Ishimaru, 849 F. Supp. 68 (D.D.C. 1994). In the absence of 
affirmative statutory authority to fill a vacancy, the office 
must remain vacant. The Vacancies Act limits presidential 
authority to make acting appointments, while preserving the 
Senate's power to advise and consent. Therefore, its scope must 
be government-wide unless Congress chooses clearly and 
specifically to exempt specifically identified officers from 
its reach when countervailing considerations apply.
    Because the Justice Department maintains that it is exempt 
for the Vacancies Act, it has permitted positions to be held by 
acting officers for years without the submission to the Senate 
of a nominee. Its contentions are broadly applicable to 
virtually all other departments given the broad language of 
vesting and delegation contained in those departments' organic 
statutes. By early in 1998, 64 of 320 advise and consent 
positions in the executive branch were held by acting 
officials, 43 of whom had served more than 120 days without a 
nominee. Acting officials served in each of the 14 Cabinet 
departments. If the Constitution's separation of powers is to 
be maintained, and officers of the government subjected to the 
scrutiny of the Senate for the benefit of the liberty of the 
people, legislation to address the deficiencies in the 
operation of the current Vacancies Act is necessary. The 1988 
legislation unfortunately has not succeeded in encouraging 
presidents to submit nominees in a timely fashion, and it has 
not resulted in the Justice Department's agreement that is 
covered by the Act. Indeed, given the number of acting 
officials and the growing number of departments that claim not 
to be covered by the Vacancies Act, the Senate's confirmation 
power is being undermined as never before.

                        The ``Doolin'' Decision

    Most recently, the need for new legislation was underscored 
by the decision of the United States Court of Appeals for the 
District of Columbia Circuit in Doolin Security Savings Bank, 
F.S.B. v. Office of Thrift Supervision, 139 F.3d 203 (D.C. Cir. 
1998). In that case, the validity of an Office of Thrift 
Supervision administrative enforcement action was challenged by 
a bank subject to the order on the ground that the absence of a 
lawfully appointed director of the agency rendered the 
enforcement action void. The Senate-confirmed director of OTS 
resigned in December, 1992, and purported to delegate all his 
authority to OTS's Deputy Director for Washington Operations. 
That individual, who was neither the first assistant nor a 
Senate-confirmed individual, served as the acting director 
until October, 1996. Two days later, the President invoked the 
Vacancies Act to designate a Senate-confirmed official from the 
Department of Housing and Urban Development to serve as acting 
director. Within 120 days of the second acting director's 
appointment, the President submitted a permanent nominee to the 
Senate. The new acting director issued the final order against 
the bank in March, 1997.
    The bank maintained that the 120-day limitation on acting 
service contained in the Vacancies Act lapsed long before the 
second acting director was ever named. The court agreed that 
the Vacancies Act may be used only when there is a vacancy 
caused by the departure of an officer appointed in compliance 
with Article II, and that the departure of an appointed acting 
official does not trigger the Vacancies Act. The court found 
that merely because a person temporarily performs the functions 
of an office does not make that individual an ``officer'' for 
purposes of the Vacancies Act. ``Otherwise, Sec. 3348's time 
limitation could be easily avoided by a series of temporary 
resignations, with each resignation triggering a new 120-day 
period.'' 139 F.3d at 208. Thus, the departure of the Senate-
confirmed Director triggered the president's authority under 
Sec. 3347 to designate an acting official, not the departure of 
the acting official. The Committee accepts this reaffirmation 
of the longstanding operation of the Vacancies Act.
    Notwithstanding its recognition that the President's 
designation of the second acting official took place 
approximately four years after the vacancy in the position 
arose, however, the court upheld the second acting director's 
1997 final order. The court agreed with the Justice Department 
that the 120-day time limit contained in Sec. 3348 does not 
begin to run until someone actually takes office pursuant to 
the Vacancies Act, either by detail or by presidential 
directive. Under that interpretation of the statute, the second 
acting director served lawfully at the time the order was 
issued against the bank. The court rejected the bank's position 
that the 120-day period begins immediately upon the death or 
resignation of a constitutionally appointed officer.
    According to the court, ``Nothing in the Act expressly 
deals with the amount of time that may transpire before the 
President exercises his Sec. 3347 authority to designate a 
temporary replacement.'' 139 F.3d at 209. In its view, the 
Vacancies Act governs how long a position may be temporarily 
filled, but does not specify when the President must undertake 
the filling of the position. ``The time limit is placed not on 
Presidential action, but on the tenure of the President's 
designee.'' Id. The 120-day period will commence with the 
vacancy when the first assistant assumes the office or the 
President under Sec. 3347 immediately designates an acting 
official. But if there is no first assistant and the President 
does not immediately act, the vacancy has not been ``filled'' 
and the 120-day period does not run. Id.
    The Committee believes that this portion of the court's 
opinion necessitates legislative action. Whether or not the 
court properly interpreted the existing law, the Committee 
believes that the 120-day time limit must run from the date of 
the vacancy caused by the death or resignation of the Senate-
confirmed official, and not from the date that the President 
designates an acting official. A limit must be placed on the 
President's time to act to fill a position. If the purpose of 
the Vacancies Act is to limit the President's power to 
designate temporary officers, a position requiring Senate 
confirmation may not be held by a temporary appointment for as 
long as the President unilaterally decides. Such a scheme 
obliterates the constitutional requirement that the officer 
serve only after the Senate confirms the nominee. If there is 
no first assistant, the President must designate another 
Senate-confirmed official. By contrast, the Doolin court would 
allow the President to accept a resignation on the second day 
of his term, allow an acting person to assume the functions and 
duties of the office (in this case, an acting officer not 
appointed by the President), and then, so long as there is no 
first assistant, by unilaterally not invoking the Vacancies 
Act, allow that position to be filled by an ``acting'' official 
who has never received Senate confirmation for so long as the 
president holds office. The Committee finds this state of 
affairs to be unacceptable and constitutionally suspect. Nor 
does it believe that the vacancy has not been ``filled'' when 
an acting person has been performing the functions and duties 
of the office for four years.
    Notwithstanding the 1988 Vacancies Act amendments that 
provide for a tolling of the 120-day period when the President 
submits a nomination to the Senate to fill the vacant position, 
the court stated, ``The Vacancies Act was never meant to give 
the President an ``incentive'' to fill vacant positions with 
appointees confirmed by the Senate. The function of the Act is 
to allow some breathing room in the constitutional system for 
appointing officers to vacant positions, to validate the 
actions of those temporarily occupying the positions.'' Id. at 
211. The Committee believes that the reason why in 1988, for 
the first time, the period of acting service was extended 
beyond 120 days if the President submitted a nominee is that, 
in light of the frequent noncompliance with the Vacancies Act 
by presidents who allowed acting officials to serve more than 
120 days, Congress wanted to encourage the President to submit 
a nominee within the Vacancies Act period. If an acting person 
served beyond 120 days, the Senate at that point would bear the 
responsibility for the fact that a Senate-confirmed person for 
that office was not in place.
    The court recognized that under its interpretation of the 
statute, if no one is detailed or directed to fill the 
position, or the 120 days expires without a nomination, the 
position will be vacant or occupied by someone not 
constitutionally entitled to perform the duties of the office. 
But in its view, that situation will create an incentive for 
the President to submit a nomination, for fear that the actions 
of part of his administration will be declared void. The 
Committee believes that this part of the court's opinion also 
shows the need for Congressional corrective action. Under the 
Justice Department's interpretation of the many vesting and 
delegation provisions in the organic statutes of various 
departments, few positions would remain vacant. This fact, 
combined with the lack of an effective enforcement process, 
would give the President no reason to comply with the Vacancies 
Act. The court seems not to understand the fundamental purpose 
of the Vacancies Act, which is not to ensure the legality of 
the actions of acting officials, but rather to limit the power 
of the President to name acting officials, as well as the 
length of service of those officials.
    If the Constitution or Congress requires that an office be 
held only by a person appointed by the President by and with 
the advice and consent of the Senate, then unless legislation 
provides to the contrary, only a person the President has 
nominated for that position and who has received Senate 
confirmation may fill the position. The President has the duty 
to take care that the law be faithfully executed, and that duty 
includes adherence to Article II. He does not have the power to 
execute the law himself when Congress has given statutory 
duties to lower-level officials in the executive branch. Nor 
can he name temporary officers of his unfettered choice. That 
is why the Vacancies Act or other statutes providing for the 
temporary filling of a specific position are the exclusive 
authority setting forth the procedures by which acting 
officials can serve, with the exception only of the President's 
power to make appointments during the recess of the Senate. The 
court's opinion overlooks this central concept. The Vacancies 
Act does recognize that when vacancies arise in those 
positions, it may be necessary, due to time constraints on the 
nomination and confirmation processes, for someone who has not 
received Senate confirmation for that particular post to serve 
temporarily to keep the government functioning. But the 
Vacancies Act requires that those acting officers be either (1) 
first assistants or (2) persons who have already received 
Senate confirmation for some other post and are selected by the 
President to be the acting officer.
    The court did not reach the question whether the OTS 
Director's designation of the first acting director satisfied 
the Vacancies Act. For the court, any error was harmless in 
light of the legality of the second acting director's 
appointment under the Vacancies Act, and the ratification by 
the second acting officer of any actions taken by the first 
acting director. The Committee also finds that this portion of 
the court's position demands legislative response. First, it is 
constitutionally unacceptable for any acting official to serve 
for four years, especially an officer ``appointed'' not by the 
President, nor by a department head, but a mere agency head. 
TheAppointments Clause limits appointing powers to hold 
individuals accountable for their selections. Second, if any subsequent 
acting official or anyone else can ratify the actions of a person who 
served beyond the length of time provided by the Vacancies Act, then no 
consequence will derive from an illegal acting designation. This result 
also undermines the constitutional requirement of advice and consent.
    In short, in light of various administrations' 
noncompliance with the Vacancies Act and a recent court 
decision undermining its operation, it is imperative that 
Congress enact legislation to restore constitutionally mandated 
procedures that must be satisfied before acting officials may 
serve in positions that require Senate confirmation. The issue 
is not simply the prerogative of the Senate. Like other 
structural constitutional provisions, the Appointments Clause 
was designed to protect the liberty of the people. Although the 
President has the sole power to nominate, as a single officer 
may feel a greater sense of duty in selecting an individual for 
consideration to a particular post, the ``the necessity of [the 
Senate's] concurrence would have a powerful, though in general 
a silent operation. It would be an excellent check upon a 
spirit of favoritism in the President, and would tend greatly 
to preventing the appointment of unfit characters from State 
prejudice, from family connection, from personal attachment, or 
from a view to popularity. And, in addition to this, it would 
be an efficacious source of stability in the administration.'' 
Federalist LXXVI (Hamilton). Legislation is needed to restore 
these goals of the Founders.

                   IV. Legislative History of S. 2176

    The Federal Vacancies Reform Act of 1998 was introduced as 
S. 2176 in the Senate on June 16, 1998 by Senators Fred 
Thompson, Robert C. Byrd, Strom Thurmond, Trent Lott, and 
William Roth. Introduction of S. 2176 followed the March 16, 
1998 introductions of S. 1761, the Federal Vacancies Compliance 
Act, by Senator Byrd and S. 1764, the Vacancies Clarification 
Act, by Senators Thurmond and Lott. The latter two bills sought 
to enforce the Vacancies Act through withholding the pay of any 
acting officer who exceeded the time period provided by the 
Vacancies Act, and S. 1764 specifically provided that the time 
period for acting service ran from the date of the vacancy. In 
addition, both bills made the Vacancies Act supersede other 
laws governing the temporary service of non-confirmed 
officials, ending the argument that statutes vesting in 
department heads the general authority to delegate powers to 
other officials provided an alternative method of empowering 
acting officials apart from the Vacancies Act. Both bills also 
created a reporting mechanism to the President, the General 
Accounting Office, and the Congress on the length of time that 
each acting official had served.
    A hearing was held at the Governmental Affairs Committee on 
oversight of compliance with the Vacancies Act on March 18, 
1998. Senator Thompson chaired the hearing, which addressed the 
general issues of noncompliance with the law, as well as the 
legislative proposals that had by then been introduced. The 
following witnesses provided testimony: Senator Robert C. Byrd, 
State of West Virginia; Joseph N. Onek, Principal Deputy 
Associate Attorney General, Department of Justice, accompanied 
by Daniel Koffsky, Special Counsel, Office of Legal Counsel, 
Department of Justice; Joan M. Hollenback, Associate General 
Counsel, General Accounting Office; Senator Strom Thurmond, 
State of South Carolina; Michael J. Gerhardt, Professor of Law, 
Case Western Reserve University; Morton Rosenberg, Specialist 
in American Public Law, Congressional Research Service; and 
Paul C. Light, Director, Public Policy Program, The Pew 
Charitable Trusts.
    All of the witnesses but Messrs. Onek and Koffsky supported 
legislation that would overturn the Justice Department's 
arguments of exemption from the Vacancies Act and that would 
create an enforcement mechanism. Senator Byrd also pointed out 
the Senate's responsibility to demand strict compliance with 
the Vacancies Act from the Administration. He expressed his 
hope that the Senate would make the Vacancies Act ``so tight, 
so air-tight, that no department can find a crack or crevice 
anywhere through which to creep.'' He expressed his view that 
the Committee could draft legislation to address the problem 
other than S. 1761. Ms. Hollenbeck provided reasons why the 
Justice Department's interpretation of the Vacancies Act is 
contrary to the language and legislative history of both the 
Vacancies Act and the Justice Department's organic statute, and 
pointed out that Congress' passage of statutes governing 
temporary officers in particular governmental positions shows 
that Congress knew how to create specific exceptions to the 
application of the Vacancies Act. She offered GAO's 
recommendation that legislation be passed to explicitly provide 
that the Vacancies Act can be superseded only by a statute 
providing an alternative means for filling a particular 
vacancy. GAO also recommended reporting provisions and the 
withholding of pay of acting officials who served in violation 
of the Vacancies Act. Mr. Koffsky noted that there are no 
statutory duties that are to be performed by assistant 
attorneys general.
    Senator Thurmond testified to the need to rewrite, not 
simply amend, the Vacancies Act. He demonstrated that the 1988 
amendments had not solved the problem of excessive service by 
acting officials. He also stressed the need to prevent the 
Justice Department from arguing that it is exempt from the 
Vacancies Act, which he would accomplish by requiring statutes 
exempting particular positions from the Vacancies Act to 
specifically cite the Vacancies Act. Prof. Gerhardt testified 
to the need to change some of the terms of art used in the 
Vacancies Act, and suggested lengthening the 120-day time 
period. Mr. Rosenberg testified to the errors in the Justice 
Department's exemption argument in light of the language of the 
Vacancies Act, the Department's organic statute, and its 
legislative history. He also spoke of the problem of 
transferring assistant secretaries from one position to another 
without their undergoing Senate reconfirmation. He recommended 
adding an enforcement mechanism to freeze the duties of the 
office as they existed on the date of the vacancy after the 
120-day period has expired. Mr. Light testified that one of the 
problems with noncompliance with the Vacancies Act is the 
unnecessary proliferation of political appointees in the 
government at a time when total federal employment was 
declining.
    Following the hearing, Senator Thompson considered whether 
to introduce his own legislative proposal. After careful 
consideration, he determined to address only the Vacancies Act 
issues involved in the Senate's advise and consent powers. The 
Committee believes that authorizing committees may wish to 
consider whether statutory duties should be given to assistant 
secretaries and assistant attorneys general in those 
departments in which the only current statutory duty of such 
officials is to assist the secretary or the attorney general. 
Stafffrom both parties tried to resolve as many issues as 
possible. Staff also attempted to respond to the suggestions of the 
Justice Department and the White House. S. 2176 reflects these 
discussions. The Committee was told informally that the Justice 
Department recognizes that the legislation offered effectively prevents 
it from arguing that departments with vesting and delegation statutes 
are exempt from the Vacancies Act.

                          V. Committee Action

    On June 17, 1998, the Committee held a business meeting at 
which S. 2176, the Federal Vacancies Reform Act of 1998, was 
considered. Senator Lieberman offered an amendment to retain 
existing statutes that by their own terms provide a process for 
the filling of specific advice and consent positions, as well 
as the statues referenced in S. 2176 as introduced, which 
preserved existing statutes that allow the heads of departments 
to designate an acting official. That amendment was agreed to 
by voice vote.
    Senator Glenn offered two amendments. The first amendment 
would have reduced the length of time that a first assistant 
need serve to be both the acting officer and eligible to be 
nominated permanently to the position from 180 of the 365 days 
preceding the vacancy to 30 days prior to the vacancy. The 
amendment failed on a roll call vote of 6 Yeas (Glenn, Levin, 
Lieberman, Akaka by proxy, Durbin, and Cleland) and 8 Nays 
(Roth by proxy, Stevens, Collins, Brownback by proxy, Domenici, 
Cochran, Nickles by proxy, and Thompson).
    Senator Glenn's second amendment would permit the acting 
officer to serve even after the 150-day period following the 
rejection, withdrawal, or return of the first nomination, once 
a second nomination was made. The amendment was agreed to by 
voice vote.
    Senator Levin offered an amendment to begin the time limit 
on the service of acting officers in vacant positions arising 
on or in the 60 days after a transitional inauguration day 120 
days after the transitional inauguration or the arising of the 
vacancy, whichever is later. After Senator Levin agreed to 
shorten the additional period to 90 days, the amendment was 
agreed to by voice vote.
    With no other amendments being offered, Chairman Thompson 
moved adoption of S. 2176 as amended. The bill was ordered 
favorably reported by a vote of 9 Yeas (Stevens, Collins, 
Domenici, Cochran, Glenn, Levin, Lieberman, Cleland, Thompson) 
and 1 Nay (Durbin). Senators Roth, Brownback, and Nickles voted 
Aye by proxy.

                    VI. Section-by-Section Analysis

    Section 1 states the short title of the legislation--the 
``Federal Vacancies Reform Act of 1998.''
    Section 2 strikes sections 3345 through 3349 of Title 5 and 
replaces the existing law with a reformed version of the 
Vacancies Act. The Committee believes that amending existing 
legislation, given the ineffectiveness of the 1988 amendments, 
may again fail to ensure the exclusivity of the applicability 
of the Vacancies Act. To ensure an effective enforcement 
mechanism and to overturn the recent decision of the United 
States Court of Appeals for the District of Columbia Circuit in 
Doolin Security Savings Bank v. Office of Thrift Supervision, 
139 F.3d 203 (D.C. Cir. 1998), the Committee believes that 
replacement of the existing Vacancies Act is necessary.
    Under current law, section 3345 covers heads of executive 
agencies, and section 3346 affects ``an officer of a bureau of 
an Executive department or military department, whose 
appointment is not vested in the head of the department * * *'' 
Section 2 creates a new section 3345, applicable to all 
officers of executive agencies whose appointment to office is 
required to be made by the President by and with the advice and 
consent of the Senate. References to the term of art ``bureau'' 
have been eliminated. The purpose of this change is to clearly 
make the Vacancies Act applicable to all officers of executive 
agencies whose appointments require Senate confirmation. The 
Vacancies Act would now apply to such officers in all 
departments, regardless of the department or agency's organic 
statute.
    ``Executive agency'' is defined at 5 U.S.C. Sec. 105. 
Because the Department of Defense is a department within the 
meaning of 5 U.S.C. Sec. 101, the military departments, which 
are located in the Department of Defense, are also covered by 
this Act, notwithstanding the omission of the term ``military 
department'' from current sections 3345 and 3346.
    The section applies when an officer in an executive agency 
whose appointment is 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. The 
law applies when any of those factual situations arises, 
regardless of how the situation is characterized. For instance, 
the Vacancies Act would apply in situations such as Doolin, 
when the first acting director of the Office of Thrift 
Supervision was purportedly designated by virtue of the 
departing confirmed director's invocation of a statute 
providing for his duties to be temporarily delegated in the 
director's ``absence.'' Under this legislation, when an acting 
officer is to be designated, as opposed to automatically 
gaining acting status as a first assistant, only the President 
may designate an acting officer in a position that requires 
Senate confirmation.
    When a vacancy arises, the bill provides an exclusive set 
of procedures that may be followed. If the vacant officer has a 
first assistant, the first assistant performs the functions and 
duties of the office temporarily in an acting capacity, subject 
to the time limitations of section 3346. The Committee does not 
establish a definition of ``first assistant.'' That term has a 
long history of use in the Vacancies Act. As under current law, 
the term ``first assistant'' is used to refer to the first 
assistant to the ``officer.'' However, the practice under 
current law, which would be continued by this bill, is that the 
first assistant is actually the first assistant to the vacant 
office. Certain officers have first assistants designated by 
statute. See, e.g., 28 U.S.C. Sec. 508(a) (``for the purpose of 
section 3345 of title 5 the Deputy Attorney General is the 
first assistant to the Attorney General.'') Other departments 
and agencies have established first assistants by regulation. 
The Vacancies Act provides for the automatic performance of the 
functions and duties of the vacant office by the first 
assistant because such person is often a career official with 
knowledge of the office or a Senate-confirmed individual, and 
the Committee believes that the routine functions of the office 
should be allowed to continue for a limited period of time by 
that one person. The provision therefore emphasizes the limit 
on presidential power to select an acting officer without that 
individual having received Senate confirmation, while 
permitting flexibility in the performance of governmental 
operations since, if a first assistant exists, the President 
need not take any action for an acting official to serve.
    If there is no first assistant, or if the President 
following the assumption of acting status by the first 
assistant, but within the time limits prescribed by section 
3346 so chooses, the President (and only the President) may 
direct a person who has already received Senate confirmation 
for another position to perform the functions and duties of the 
office temporarily in an acting capacity, subject to the time 
limits of section 3346. This provision allows the President 
limited flexibility in appointing temporary officers, 
restricting the pool to persons who have already received 
Senate confirmation for their current position. If there is no 
first assistant, no one is permitted by law to become an acting 
officer until the President designates a Senate-confirmed 
individual to be the acting officer.
    In either case, the acting officer's service is limited to 
the time period specified in section 3346. This marks a repeal 
of the current statutory provision in both sections 3345 and 
3346 that the acting officer ``shall perform the duties of the 
office until a successor is appointed or the absence or 
sickness stops,'' language that has been a part of each 
Vacancies Act since 1792.
    Notwithstanding a first assistant on the day of the 
vacancy's automatic functioning as the acting officer, such 
first assistant who has not served as first assistant for 180 
days of the 365 days prior to the vacancy may not serve as the 
acting officer if the President nominates that person for 
appointment to that position. If the President nominates the 
former first assistant, who served for less than 180 of the 365 
days preceding the vacancy, to the permanent position, the 
first assistant must cease performing the functions and duties 
of the office. In that instance, for an acting person to 
continue to perform those duties, the President would be 
required to designate as the acting officer a person who has 
received Senate confirmation to another post, who can serve as 
the acting officer for the remainder of the time period 
established under section 3346 that was not consumed by the 
first assistant.
    A first assistant who is a career person will ordinarily 
have served more than 180 days as first assistant at the time 
the vacancy arises. Such a person will be able to serve both as 
the acting officer and as the permanent nominee. The 180-day 
requirement is not confined to the 180 days immediately 
preceding the vacancy, as, for instance, the first assistant 
may have been ill for part of that period. The President's 
power to nominate is not disturbed in any way; however, if he 
chooses to nominate a brief-serving first assistant, that 
person may no longer serve as the acting officer. The President 
would retain his existing power to designate first assistants 
to those officers where he currently enjoys such power. The 
Committee believes that the length of service of the first 
assistant eligible to be both the nominee and the acting 
officer should be sufficiently long to prevent manipulation of 
first assistants to include persons highly unlikely to be 
career officials.
    With respect to a vacancy in the office of Attorney 
General, 28 U.S.C. Sec. 508 will remain applicable. That 
section ensures that Senate confirmed Justice Department 
officials will be the only persons eligible to serve as Acting 
Attorney General.
    The new section 3346 limits the length of the acting 
officer's service to 150 days, beginning on the date the 
vacancy occurs. The Committee believes that while the 
background check process takes no longer today than in 1988, 
when the Vacancies Act limitation was set at 120 days, the 
vagaries of the vetting and nomination process now make 150 
days a more realistic time limit. Even if there is no first 
assistant, and the President declines to designate a Senate-
confirmed person to be the acting person, the 150-day period 
begins to run. Thus, the designated person would serve for 150 
days less the time that elapsed between the vacancy and the 
designation. If the vacancy arises while the Senate is in 
adjournment sine die, and thus the acting officer begins to 
serve during such period, the 150-day period is to begin on the 
date that the Senate first reconvenes. The only time this 
provision is relevant is when the Senate-confirmed person dies, 
resigns, or becomes ineligible to serve when the Senate is in 
adjournment sine die.
    The 150 days is a maximum period, but an acting officer 
need not serve the full 150 days. Besides the obvious ending of 
service within 150 days if a nominee is confirmed in that time, 
the Vacancies Act also applies to the beginning of an inability 
of the applicable officer to serve. When that officer is again 
eligible to resume service, he or she may return to the office, 
thus ending the service of the acting officer.
    The 150 days runs from the vacancy, ``vacancy'' referring 
to the death, resignation, or beginning of inability to serve 
of the Senate-confirmed officer. This meaning of ``vacancy'' 
applies each time it is used in the legislation. When the 
acting person's 150 days expires, the position again becomes 
vacant, but there is no ``vacancy'' that permits another person 
to serve as acting for another 150 days. Otherwise, a string of 
acting officials could serve for 150 days. That has never been 
the understanding of the functioning of the Vacancies Act, and 
the Committee reaffirms that there is only one vacancy that 
triggers the 150 days.
    An acting officer may die or resign. In that event, the 
first assistant, if there is one, or a new presidential 
designee of a Senate-confirmed officer may become the acting 
officer, limited in service as acting officer to 150 days less 
the time of service of the first acting officer. No one else 
may serve as acting officer. Once again, that means that if 
there is no first assistant, and no presidential designation, 
no one may serve as acting officer. The prohibition on an 
acting officer who was first assistant for less than 180 days 
of the 365 days prior to the vacancy becoming the nominee for 
the position would still be applicable, since the original 
vacancy, not the subsequent departure of the acting officer, is 
the measuring event.
    Under new section 3346(a)(2), and subject to section 
3346(b), an acting officer may serve more than 150 days if a 
first or second nomination is submitted to the Senate, and may 
serve while that nomination is pending from the date the 
nomination is submitted. The acting officer may serve even if 
the nomination is submitted after the 150 days has passed 
although, as discussed below, the acting officer may not serve 
between the 151st day and the day the nomination is submitted. 
The Committee extends the time period for acting service so as 
to create an incentive for the President to submit a 
nomination. The submission of nominations also will lead to a 
reduction in the number of acting officials, a goal the 
Committee finds highly desirable.
    The statutory language refers to ``[t]he person serving as 
an acting officer as described under section 3345.'' The 
Committee chose this wording deliberately. That is the only 
person eligible to be the acting officer, whether during the 
150 days or upon submission of a nomination. The same 
considerations apply to the bill's references to ``the person'' 
in subsections (b) and (c).
    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. ``Return'' refers to Senate Rule XXXI, 
which provides that, ``[I]f the Senate shall adjourn or take a 
recess for more thanthirty days, all nominations pending and 
not finally acted upon at the time of taking such adjournment or recess 
shall be returned by the Secretary to the President, and shall not 
again be considered unless they shall again be made to the Senate by 
the President.'' This provision allows the office to be temporarily 
filled by ``the person'' who was originally eligible to be the acting 
officer at the time the vacancy arose while the President is provided 
150 days to submit a second nomination.
    Notwithstanding the 150-day limit on service of an acting 
officer following the rejection, withdrawal, or return of a 
first nomination, ``the person serving as the acting officer'' 
may serve longer than 150 days if, in the cases of rejection or 
withdrawal of the first nominee, a second nomination of a 
different individual for the office is submitted to the Senate. 
If the second nomination is submitted after more than 150 days 
after the rejection, withdrawal or return of the first 
nomination, the provisions of revised section 3348 will apply 
until the second nomination is submitted. If the second nominee 
is confirmed within 150 days of the nomination, the term of the 
acting officer ceases. In the case of a return, the second 
nomination could be of the same individual first nominated. The 
``person serving as the acting officer'' may serve for 150 days 
following the rejection, withdrawal, or rejection of the second 
nomination. However, after that 150-day period has elapsed, if 
no permanent nominee has been confirmed, the provisions of 
revised section 3348 apply.
    The revised section 3347 provides that the Vacancies Reform 
Act applies to any office of an executive agency (including the 
Executive Office of the President) for which appointment is 
required to be made by the President by and with the advice and 
consent of the Senate. The section does allow temporary 
appointments to be made other than through the Vacancies Reform 
Act in three narrowly delineated exceptions. First, where 
Congress provides that a statutory provision expressly provides 
that it supersedes the Vacancies Reform Act, the other statute 
will govern. But statutes enacted in the future purporting to 
or argued to be construed to govern the temporary filling of 
offices covered by this statute are not to be effective unless 
they expressly provide that they are superseding the Vacancies 
Reform Act.
    Second, the bill retains existing statutes that are in 
effect on the date of enactment of the Vacancies Act of 1998 
that expressly authorize 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, as well as statutes that expressly provide for 
the temporary performance of the functions and duties of an 
office by a particular officer or employee. (This includes 
statutes that provide for an automatic designation, unless the 
President designates another official). The Committee is aware 
of the existence of statutes specifically governing a vacancy 
in 41 specific offices, 40 of which would be retained by this 
bill:
          1. Administrator, Drug Enforcement Administration (5 
        U.S.C. Reorg. Plan No. 2 of 1973) (two alternatives);
          2. Administrator, Environmental Protection Agency (5 
        U.S.C. Appendix 1);
          3. Administrator, Federal Aviation Administration (49 
        U.S.C. Sec. 106(I));
          4. Administrator, General Services Administration (40 
        U.S.C. Sec. 751(c));
          5. Administrator, National Oceanic and Atmospheric 
        Administration (5 U.S.C. Appendix 1);
          6. Administrator, Small Business Administration (15 
        U.S.C. Sec. 633(b)(1));
          7. Archivist, National Archives and Records 
        Administration (44 U.S.C. Sec. 2103(c));
          8. Attorney General (28 U.S.C. Sec. 508(a));
          9. Attorney General (28 U.S.C. Sec. 508(b));
          10. Chairman, Joint Chiefs of Staff (10 U.S.C. 
        Sec. 154(d));
          11. Chairman, Joint Chiefs of Staff (10 U.S.C. 
        Sec. 154(e));
          12. Chief Judge, Court of Veterans Appeals (38 U.S.C. 
        Sec. 7254(d));
          13. Chief of Naval Operations (10 U.S.C. 
        Sec. 5035(d)(2));
          14. Chief of Staff of the Air Force (10 U.S.C. 
        Sec. 8034(d)(2));
          15. Chief of Staff of the Army (10 U.S.C. 
        Sec. 3034(d)(2));
          16. Commandant of the Marine Corps (10 U.S.C. 
        Sec. 5044(d)(2));
          17. Commissioner, Social Security Administration (42 
        U.S.C. Sec. 902(b)(4));
          18. Comptroller General (31 U.S.C. Sec. 703(c));
          19. Director, Office of Management and Budget (31 
        U.S.C. Sec. 502(f));
          20. Director, U.S. Arms Control and Disarmament 
        Agency (22 U.S.C. Sec. 2563);
          21. Director, U.S. Information Agency (5 U.S.C. 
        Appendix 1);
          22. Director, U.S. International Development 
        Cooperation Agency (5 U.S.C. Appendix 1);
          23. General Counsel, Department of the Treasury (31 
        U.S.C. Sec. 301(f)(1));
          24. General Counsel, National Labor Relations Board 
        (29 U.S.C. Sec. 153(d));
          25. President, Export-Import Bank (12 U.S.C. 
        Sec. 635a(b));
          28. Public Printer, Government Printing Office (44 
        U.S.C. Sec. 304);
          29. Secretary of Defense (10 U.S.C. Sec. 132(b));
          30. Secretary of Education (20 U.S.C. Sec. 3412(a)(1) 
        (two alternatives);
          31. Secretary of Energy (42 U.S.C. Sec. 7132(a)) (two 
        alternatives);
          32. Secretary of Health and Human Services (5 U.S.C. 
        Appendix 1) (two alternatives);
          33. Secretary of Labor (29 U.S.C. Sec. 552);
          34. Secretary of Transportation (49 U.S.C. 
        Sec. 102(c)(2));
          35. Secretary of Transportation (49 U.S.C. 
        Sec. 102(e));
          36. Secretary of the Treasury (31 U.S.C. 
        Sec. 301(c)(2));
          37. Secretary of Veterans Affairs (38 U.S.C. 
        Sec. 304);
          38. Special Counsel, Immigration-Related Unfair 
        Employment Practices (8 U.S.C. Sec. 1324b(c)(1));
          39. United States Attorney (28 U.S.C. Sec. 546(a)-
        (d)); and
          40. United States Marshal (28 U.S.C. Sec. 562(a)-
        (b)).
    A statute, 42 U.S.C. Sec. 206(a), provides that the Surgeon 
General shall assign one commissioned officer from the Regular 
Corps to act as Surgeon General in the event of disability or 
vacancy in that office. The language of this bill does not 
retain this statutory means for filling a vacancy in a specific 
position.
    Most of these retained statutes do not place time 
restrictions on the length of an acting officer. The various 
authorizing committees may choose in the future to reexamine 
whether these positions should continue to be filled through 
the existing procedure, or whether it would be advisable to 
repeal those statutes in favor of the procedures contained in 
the Vacancies Reform Act. The Committee believes that some of 
these statutes may have been passed without knowledge of the 
Vacancies Act. In any event, even with respect to the specific 
positions inwhich temporary officers may serve under the 
specific statutes this bill retains, the Vacancies Act would continue 
to provide an alternative procedure for temporarily occupying the 
office.
    The third exception to the applicability of the Vacancies 
Reform Act to all executive agency offices that are appointed 
by the President by and with the advice and consent of the 
Senate is the President's constitutional power under Article 
II, sec. 2, cl. 3 to make appointments during the recess of the 
Senate.
    The bill provides that any statutory provision providing 
general authority to the head of an executive agency to 
delegate or reassign duties within that executive agency is not 
a statutory provision that qualifies within the exception 
contained in section 3347(a)(2) for existing statutes that 
provide for the filling of a vacancy in a specific office. This 
provision forecloses the argument raised by the Justice 
Department that sections 28 U.S.C. Sec. Sec. 509 and 510, 
rather than the Vacancies Act, apply to vacancies in that 
department. This provision also forecloses the argument that 
similar language of vesting and delegation contained in the 
organic statutes of other departments, rather than the 
Vacancies Act, applies to those departments.
    New section 3348 provides an enforcement mechanism for the 
legislation. If the President does not submit a nominee for a 
vacant executive agency position requiring the advice and 
consent of the Senate within 150 days of the vacancy caused by 
the departure of the last Senate-confirmed officer, the 
functions and duties of the office can be performed only by the 
head of that agency until a nomination is forwarded to the 
Senate.
    The bill defines ``function or duty'' of the office as 
those functions or duties that (1) are established by statute 
and are required to be performed only by the applicable 
officer; (2) are established by regulation and are required to 
be performed only by the applicable officer; (3) were 
established by regulation and were required to be performed 
only by the applicable officer at any time in the 180 days 
preceding the vacancy, notwithstanding any regulation issued 
more recently than 180 days before the vacancy occurred that 
limits or eliminates any function or duty required to be 
performed only by the applicable officer. The functions or 
duties of the office that can be performed only by the head of 
the executive agency are therefore defined as the non-delegable 
functions or duties of the officer as they existed at any point 
during the 180 days prior to the death, resignation, or 
inability to serve of the last Senate-confirmed person to hold 
the applicable office, less any such duties subsequently 
limited by statute, but including duties subsequently limited 
or repealed by regulation, and including any such duties 
subsequently imposed by statute or regulation. Since so many 
executive agency positions filled with the advice and consent 
of the Senate lack any meaningful statutory duties, and because 
internal departmental regulations such as those providing 
duties for specific officers can be changed at will without 
undergoing the notice and comment process, 5 U.S.C. 
Sec. 553(b)(3)(A), the Committee defined the functions and 
duties of a particular office to be those that existed at any 
point in the 180 days prior to the vacancy and those 
subsequently added, but not subtracted. Otherwise, agencies and 
departments could avoid the enforcement mechanism of making the 
office vacant by simply issuing regulations providing that the 
office has no non-delegable duties. The Committee believes that 
the duties as established 180 days before the vacancy is the 
appropriate period for freezing the duties because in many 
instances, the administration will know of an upcoming vacancy. 
The bill does not include as duties or functions of the office 
those duties that are limited or eliminated by statute after 
the date 180 days preceding the vacancy. When Congress shifts 
statutory duties from one agency to another, or changes the 
statutory underpinnings of a regulation affecting the duties of 
an officer, this bill does not extend the life of those 
affected regulations. Functions and duties of the office added 
by statute or regulation on or after 180 days preceding the 
vacancy are defined as functions and duties of the office, and 
thus, cannot be performed except by the head of the department 
or agency if the vacant office provisions apply.
    Subject to section 3347 and a special rule discussed below 
when the 150th day is one on which the Senate is not in 
session, if 150 days elapses from a vacancy to which this 
legislation applies without the President having submitted a 
nomination for the vacant office to the Senate, the office 
shall remain vacant until the President submits a nomination to 
the Senate. After the 151st day until the date the nomination 
was made, neither the acting officer nor anyone else could fill 
the vacant office. In addition, except in the case of the head 
of an executive agency, only the head of that agency himself or 
herself could perform any function or duty of the office as 
defined in the legislation. Delegable functions of the office 
could still be performed by other officers or employees, but 
the functions and duties to be performed only by the officer 
whose appointment is by the President by and with the advice 
and consent of the Senate could be performed solely by the head 
of the executive agency. For any such office located within a 
department, that would mean that only the head of the 
department could perform those functions. All the normal 
functions of government thus could still be performed. The 
legislation only limits the person who may perform them. The 
goal is not to punish or to obstruct, nor to inconvenience for 
the purpose of inconveniencing, but, rather, to encourage that 
a nomination be forwarded to the Senate after more than 
sufficient time for doing so has elapsed. Any inconvenience to 
the executive branch can be eliminated instantly by the 
President's unilateral decision to make a nomination, for once 
such a nomination is made, the acting officer can resume 
service, including performing the non-delegable duties of the 
office.
    If the head of the agency position is vacant for more than 
150 days without a nomination being sent to the Senate, the 
office is to remain vacant.
    If the President does not submit a second nomination to the 
Senate within 150 days after the rejection, withdrawal, or 
return of the first nomination, the office will remain vacant, 
and the non-delegable functions and duties of the office can be 
performed only by the head of the executive agency as described 
above. If an office is vacant after 150 days after the 
rejection, withdrawal, or return of the second nomination, then 
the office shall remain vacant until a person is appointed by 
the President by and with the advice and consent of the Senate, 
and only the head of the executive agency may perform any 
function or duty of such office until the Senate has confirmed 
a nominee for the office, as described above. This provision 
tracks other provisions in the bill that allow the acting 
officer to serve once a first or second nomination is made, 
even if more than 150 days have elapsed, but do not permit an 
additional opportunity for the acting officer to serve in the 
event of exceeding the bill's time limits after disposition of 
the second nomination.
    If the 150th day following the vacancy, following 
disposition of a first nomination other than by confirmation, 
or following disposition of a second nomination other than by 
confirmation falls on a date the Senate is not in session, then 
the first day the Senate is next in session and receiving 
nominations shall be deemed to be the last day of such period.
    To enforce section 3348's vacant office and performance of 
duties and functions of the office only by the agency head 
provisions be enforced, any function or duty of the office 
taken by a person who fills that vacancy despite the vacant 
office provision or who, not being the agency head, performs 
such a function duty without filling the office, shall be of no 
force or effect. Such actions cannot be made to have force or 
effect through ratification. For example, the successor in the 
office by virtue of his appointment by the President by and 
with the advice and the consent of the Senate may not ratify 
the actions of a person who filled the office in violation of 
the legislation's provisions or who, not being the agency head, 
performed nondelegable duties of the office. A lawfully serving 
acting officer cannot ratify the actions of a temporary officer 
whose service does not comply with the Vacancies Reform Act. 
The agency head may not ratify an action that is of no force or 
effect under this legislation that was performed by another 
official. Nor under well-established principles of 
constitutional law may the President ratify actions taken by 
officials that the law has provided shall be performed solely 
by lower-level executive branch officials. The Committee 
expects that litigants with standing to challenge purported 
agency actions taken in violation of these provisions will 
raise noncompliance with this legislation in a judicial 
proceeding challenging the lawfulness of the agency action. It 
is concerned that the ratification approach taken by the court 
in Doolin would render enforcement of the Vacancies Reform Act 
a nullity in many instances.
    Section 3348 does not apply to the General Counsel of the 
National Labor Relations Board, the General Counsel of the 
Federal Labor Relations Authority or any inspector general 
appointed by the President, by and with the advice and consent 
of the Senate. Although the Committee believes that it has 
retained the specific statute that governs vacancies in the 
office of general counsel of the National Labor Relations 
Board, the Committee desires to make certain that the vacant 
office provisions do not apply to that position or its 
equivalent at the Federal Labor Relations Authority. These are 
two unusual positions that require appointment by the President 
by and with the advice and consent of the Senate. The positions 
are within multimember commissions but are not members of those 
commissions. Congress provided for Senate confirmation for 
these positions because it demands that these officials be 
independent of the commissioners. Specifically, it wanted to 
separate the official who would investigate and charge 
potential violations of the underlying regulatory statute from 
the officials who would determine whether that statute had 
actually been violated. If the non-delegable duties of these 
general counsel were somehow to be performed by the 
commissioners, that policy would be obliterated. Thus, section 
3345 applies to all advice and consent positions, but section 
3347 retains the existing statutory procedure for filling a 
vacancy in the general counsel of the NLRB. Section 3348 states 
clearly its inapplicability to the general counsel of the NLRB.
    Under current law, the general counsel of the FLRA is not 
covered by the Vacancies Act because of the peculiarity that 
the position requires the advice and consent of the Senate but 
is not the head of an agency. Whereas the Justice Department 
has argued that its non-coverage under the Vacancies Act means 
that other provisions govern acting appointments for its 
offices, the Department has concluded that no statute permits 
an acting general counsel at the FLRA. Accordingly, in recent 
years, when that position has become vacant, no one has 
performed its duties until a permanent successor has been 
confirmed by the Senate. Since one of the duties of that 
position is to institute proceedings, this has resulted 
essentially in the cessation of the agency's functions. S. 2176 
covers the general counsel of the FLRA under sections 3345 and 
3346, permitting an acting officer to serve in case of a 
vacancy, but excludes the position from the enforcement 
mechanisms of section 3348 to preserve the independence of the 
position.
    Similarly, agency inspectors general are to be independent 
of the agencies to which they are assigned. Inspectors general 
are to investigate mismanagement in their agency, and often may 
be critical of the agency head. If an inspector general whose 
appointment was made by the President by and with the advice 
and consent of the Senate were to have his functions performed 
by the agency head, the agency head might be delighted not to 
perform them vigilantly. Thus, section 3348 will not apply to 
this class of inspectors general.
    Revised section 3349 of the bill requires the head of each 
executive agency to submit to the Comptroller General and to 
each house of Congress notification of vacancies in positions 
in their agencies requiring Senate confirmation, the name of 
any person serving in an acting capacity and the date such 
service began as soon as such service began, the name of any 
person nominated to the Senate to fill the vacancy as soon as 
such nomination is submitted, and the date of a rejection, 
withdrawal, or return of any nomination as soon as such 
rejection, withdrawal, or return occurs. If the Comptroller 
General makes a determination that an officer is serving longer 
than the 150-day period, including the applicable exceptions to 
such period in the legislation, the Comptroller General is to 
report such determination to the relevant committees listed in 
the legislation, the President, and the Office of Personnel 
Management. This function is informational only and does not 
provide the Comptroller General with any function properly to 
be performed only by an executive branch official. The 
Committee designated the recipients of the report so that 
appropriate action can be taken by the individuals who are 
informed of possible violations of the law.
    New section 3349a extends the 150-day period in sections 
3346 and 3348 for vacancies that exist on or that arise within 
60 days after a presidential inaugural transition. In effect, 
the 150-day period becomes 240 days in this circumstance, 
running from the later of the date the vacancy arose or the 
transitional inauguration day. The bill defines a presidential 
inaugural transition as a date on which any person swears or 
affirms the oath of office as President, if such person was not 
the President on the date preceding the date of the swearing or 
affirming such oath of office. The time limit is extended in 
this circumstance because a new president will have essentially 
all positions in the executive branch requiring Senate 
confirmation to fill when he assumes office and may require 
additional time to nominate individuals to fill them. By the 
time the 240 days has run, the President would have confirmed 
sufficient of his own Senate-confirmed officials to designate 
as acting officers if he chose to exercise his power under 
section 3346, and that could continue to serve as the acting 
officer if a permanent nominee were submitted to the Senate. 
The provision covers vacancies in positions requiring Senate 
confirmation that arise in the 60 days following the 
presidential inauguration transition because each department 
keeps a Senate-confirmed person into a new administration for a 
short time in case vacancies in that department are not able to 
be filled as quickly as anticipated. The filling of those 
holdover offices should also be subject to the 90-day tolling 
of the 150-day period.
    New section 3349b retains existing statutes that provide, 
with respect to any independent establishment headed by a 
single officer, that that officer can serve after the 
expiration of his term and until a successor is appointed or a 
specified period of time has elapsed. Whereassection 3347 
retains those statutes that provide a means of succession for an acting 
person to perform the duties of a specified office, section 3349b 
retains statutes affecting specific independent establishments headed 
by a single officer that do not provide for an acting officer, but 
which instead permit the officer to serve until his successor is 
appointed or for a specified period of time. These statutes govern the 
Chairman of the National Endowment for the Arts (20 U.S.C. 
Sec. 954(b)(2)), the Chairman of the National Endowment for the 
Humanities (20 U.S.C. Sec. 956(b)(2)), the Special Counsel of the 
Office of Special Counsel (5 U.S.C. Sec. 1211(b)), and the Commissioner 
of the Social Security Administration (42 U.S.C. Sec. 901(a)(3)). 
Independent establishments headed by a single officer previously 
covered by the Vacancies Act continue to be so covered under this 
legislation.
    New section 3349c provides that the Vacancies Reform Act 
shall not apply to any member appointed by the President by and 
with the advice and consent of the Senate to a board, 
commission, or similar entity that is composed of multiple 
members, and governs an independent establishment or Government 
corporation. The Committee believes that this has always been 
the case with the respect to the Vacancies Act and wishes to 
avoid any confusion that might result from the enactment of a 
replacement statute on this point. Thus, vacancies in these 
positions are not covered by this legislation. Section 3349c 
excludes commissioners of the Federal Energy Regulatory 
Commission from the Vacancies Act as well, since it is an 
anomaly: the only multi-member independent agency that Congress 
has not placed in an independent establishment but in a 
department. Subsection (b) of section 3349c makes technical and 
confirming changes.
    Section 3 of the legislation specifies its effective date. 
The legislation takes effect on the date of enactment, and 
shall apply to any office that becomes vacant after the date of 
enactment of this legislation or that is vacant on that date, 
although, as to the latter, its provisions shall apply as 
though such office first became vacant on that date. Thus, the 
150-day period for those offices that are vacant on the date 
the legislation is enacted begins on the date the legislation 
is enacted, rather than the date the vacancy arose.

                    VII. Regulatory Impact Statement

    Paragraph 11(b)(1) of rule XXVI of the Standing Rules of 
the Senate requires that each report accompanying a bill 
evaluate ``the regulatory impact which would be incurred in 
carrying out this bill.''
    The enactment of this legislation will not have significant 
regulatory impact.

                 VIII. Cost Estimate of the Legislation

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, July 1, 1998.
Hon. Fred D. Thompson,
Chairman, Committee on Governmental Affairs, U.S. Senate, Washington, 
        DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2176, the Federal 
Vacancies Reform Act of 1998.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is John R. 
Righter.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

               congressional budget office cost estimate

S. 2176--Federal Vacancies Reform Act of 1998

    S. 2176 would amend the Vacancies Act to clarify 
requirements relating to vacancies in and appointments to 
executive branch positions, including limitations on the amount 
of time that unconfirmed appointees can remain in office. It 
also would require the head of each executive branch agency to 
submit certain information regarding vacancies and appointments 
to the General Accounting Office. CBO estimates that enacting 
S. 2176 would have no significant impact on the federal budget.
    Pay-as-you-go considerations: None.
    Intergovernmental and private-sector impact: S. 2176 
contains no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act and would have no 
impact on state, local, or tribal governments.
    Estimate prepared by: John R. Righter.
    Estimate approved by: Paul N. Van de Water, Assistant 
Director for Budget Analysis.

                      IX. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law with no change 
proposed is shown in roman):

                           UNITED STATES CODE

             TITLE 5, GOVERNMENT ORGANIZATION AND EMPLOYEES

                            TABLE OF CONTENTS


                           PART III--EMPLOYEES


                   Subpart B--Employment and Retention


            CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT

                        [Subchapter III--Details

[3341. Details; within Executive or military departments.
[[3342. Repealed.]
[3343. Details; to international organizations.
[3344. Details; administrative law judges.
[3345. Details; to office of head of Executive agency or military 
          department.
[3346. Details; to subordinate offices.
[3347. Details; Presidential authority.
[3348. Details; limited in time.
[3349. Details; to fill vacancies; restrictions.]

          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.

                          PART III--EMPLOYEES

                  Subpart B--Employment and Retention

           CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT

                       [Subchapter III--Details]

          Subchapter III_Details, Vacancies, and Appointments

[Sec. 3345. Details; to office of head of Executive agency or military 
                    department

    [When the head of an Executive agency (other than the 
General Accounting Office) or military department dies, 
resigns, or is sick or absent, his first assistant, unless 
otherwise directed by the President under section 3347 of this 
title, shall perform the duties of the office until a successor 
is appointed or the absence or sickness stops.]

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 server 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. Details; to subordinate offices

    [When an officer of a bureau of an Executive department or 
military department, whose appointment is not vested in the 
head of the department, dies, resigns, or is sick or absent, 
his first assistant, unless otherwise directed by the President 
under section 3347 of this title, shall perform the duties of 
the office until a successor is appointed or the absence or 
sickness stops.]

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) 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 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. Details; Presidential authority

    [Instead of a detail under section 3345 or 3346 of this 
title, the President may direct the head of another Executive 
department or military department or another officer of an 
Executive department or military department, whose appointment 
is vested in the President, by and with the advice and consent 
of the Senate, to perform the duties of the office until a 
successor is appointed or the absence or sickness stops. This 
section does not apply to a vacancy in the office of Attorney 
General.]

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 the 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--
                  (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 Federal agency, is not a statutory provision 
to which subsection (a)(2) applies.

[Sec. 3348. Details; limited in time

    [(a) A vacancy caused by death or resignation may be filled 
temporarily under section 3345, 3346, or 3347 of this title for 
not more than 120 days, except that--
          [(1) if a first or second nomination to fill such 
        vacancy has been submitted to the Senate, the position 
        may be filled temporarily under section 3345, 3346, or 
        3347 of this title--
                  [(A) until the Senate confirms the 
                nomination; or
                  [(B) until 120 days after the date on which 
                either the Senate rejects the nomination or the 
                nomination is withdrawn; or
          [(2) if the vacancy occurs during an adjournment of 
        the Congress sine die, the position may be filled 
        temporarily until 120 days after the Congress next 
        convenes, subject thereafter to the provisions of 
        paragraph (1) of this subsection.
    [(b) Any person filling a vacancy temporarily under section 
3345, 3346, or 3347 of this title whose nomination to fill such 
vacancy has been submitted to the Senate may not serve after 
the end of the 120-day period referred to in paragraph (1)(B) 
or (2) of subsection (a) of this section, if the nomination of 
such person is rejected by the Senate or is withdrawn.]

Sec. 3348. Vacant office

    (a) In this section--
          (1) the term ``action'' includes any agency actions 
        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 any 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 officer, 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.
    (e) 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. Details; to fill vacancies; restrictions

    [A temporary appointment, designation, or assignment of one 
officer to perform the duties of another under section 3345 or 
3346 of this title may not be made otherwise than as provided 
by those sections, except to fill a vacancy occurring during a 
recess 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 
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.

                            ADDITIONAL VIEWS

    The Committee on Governmental Affairs has a long list of 
legislative accomplishments that have enhanced the efficiency 
and effectiveness of the Federal government. These milestones 
were achieved with bipartisan support in both Democratic and 
Republican controlled Administrations and Congresses. The 
Vacancies Act should be no exception. As the Majority's Report 
well explains, the Vacancies Act is in need of reform. For too 
long, the Executive Branch's interpretation and implementation 
of that law have stripped it of its original intent and, on 
occasion, effectively deprived the Senate of its constitutional 
right to partake in the appointment of a number of Federal 
officers. Nevertheless, although we share the Majority's desire 
to amend the Vacancies Act--and agree with many, if not most, 
of the policy choices contained in S. 2176--we write separately 
to emphasize a number of concerns we have about the current 
draft of the bill. Although these concerns were not sufficient 
to prevent us from voting to report the bill out of Committee, 
they are nonetheless serious and, we believe, need to be 
addressed before the bill is ready for final action on the 
Senate floor.
    Some of our reservations about the bill are largely 
technical, reflecting our concern that the bill, in fact, could 
be misinterpreted and fail to do what the Committee intends it 
to do. Others are more substantive in nature and rest on our 
fear that the Committee's understandable desire to protect the 
Senate's constitutional prerogatives may have led it to create 
a situation that could prevent the Executive Branch from 
efficiently and effectively fulfilling its constitutional 
duties to execute the Congress' laws. We discuss these concerns 
in detail below. We remain hopeful that, in the bipartisan 
spirit in which this legislation has thus far progressed, we 
can work out all of them before moving this bill further in the 
legislative process.
    We are pleased that the Majority included us in the 
discussions leading up to the introduction and markup of S. 
2176, and we believe that, due to those discussions, agreement 
was reached in four significant areas: (1) the time period of 
150 days for service by an acting official absent a nomination, 
(2) the need for a ``cure'' in the case of a nomination made 
subsequent to the expiration of such period to allow an acting 
official to resume the functions and duties of the vacant 
office, (3) the exclusivity of the Act except in cases in which 
Congress makes clear it is specifying an alternative or 
supplemental means for filling vacancies, and (4) the necessity 
of an enforcement mechanism to encourage nominations to be made 
in a timely manner.
    While these four areas are addressed in the bill, we remain 
concerned that Sec. 3348, the enforcement mechanism, as 
drafted, may not operate to achieve our goals. We must be sure 
that the operation of this provision does not cause an 
unintended shutdown of the Federal agency within which the 
vacancy exists due to administrative paralysis and that the 
provision is drafted clearly so that its scope, mainly the 
extent of government functions and duties it would affect, is 
well understood. We must be clear that the non-delegable duties 
we intend to have performed only by the agency head in the 
event of a vacancy beyond the 150 days without a nomination are 
only those expressly vested by law or regulation exclusively in 
the vacant position. In this regard, we acknowledge and 
appreciate the Majority's statement that ``all the normal 
functions ofgovernment thus could still be performed.'' For 
example, where a statute or regulation specifies that an Assistant 
Secretary for Policy Development is responsible for overseeing policy 
development, the development of policy would continue, but if a non-
delegable approval is necessary to implement the policy, that approval 
must be performed by the agency head during a vacancy.
    One other concept in Sec. 3348 bears emphasis. The non-
delegable duties of an agency head are not addressed in this 
legislation because the Committee expects that there will never 
be a case where a nomination for these positions is not timely 
submitted.
    We would like to see serious consideration given to who, 
other than the first assistant or another Presidentially-
appointed, Senate confirmed official designated by the 
President, as a qualifying acting official. We recognize the 
policy of maintaining the continuity and regularity of the 
vacated office by allowing a first assistant to automatically 
succeed to the position and the policy of allowing any 
individual nominated by the President and confirmed by the 
Senate to fill any ``advice and consent'' position. However, we 
believe that more flexibility is advisable and that our 
ultimate goal should be to ensure that the most qualified 
individual available fills the position. One possible 
alternative would be to allow a third category of individuals 
to temporarily fill positions, such as a qualified individuals 
who have worked within the agency in which the vacancy occurs 
for a minimum number of days and who are of a minimum grade 
level.
    On related point, we believe the length of service 
requirement for first assistants who are nominees should be 
reevaluated. Senator Glenn offered an amendment at the 
Committee's June 17, 1998 markup to shorten the period required 
for an acting official who was a first assistant to be a 
nominee. As Senator Glenn noted at markup, this requirement 
would preclude service by a first assistant who naturally 
ascends to that position from within the agency, who might be a 
logical choice to fill the vacancy on a permanent basis. In 
considering shortening this requirement, we should strive to 
ensure the smooth flow of government activity, not penalize the 
individual, the agency or the taxpayers. We reiterate our 
preference for shortening this requirement.
    We would also like to see a ``safety valve'' provision 
considered which would extend the 150-day period for a 
temporary appointment for an additional period of time if the 
President certifies that it is in the national interest to 
suspend or lengthen the period. Such ``interests'' could 
include reasons relating to national security, public health 
and safety, or financial stability. We recommend that 
information be gathered to determine which critical functions 
affect such interests.
    We believe that special consideration should be given to a 
situation in which a new president is being inaugurated. In 
such a case, especially when there is a change in the political 
party of the new president, there is unlikely, in many cases, 
to be a first assistant who, according to the bill's length of 
service requirement, would be eligible to both serve as the 
acting official and be the nominee. This limits a new 
Administration which may want to put its qualified people in 
acting positions and nominate them as well. The Senate should 
consider whether it is advisable to prohibit this type of 
service categorically or whether a more narrow compromise would 
be possible. In addition, we should ensure that the extended 
time period for temporary appointments at the beginning of a 
new Administration \1\ accurately reflects the reality of the 
nomination process when a new President assumes office. We 
would not want to hamper future Administrations' ability to 
become operational as quickly as possible.
---------------------------------------------------------------------------
    \1\ The extended time periods provided in Sec. 3349b total 240 days 
as the period for temporary appointments in a new Administration. This 
time period is applicable to all vacancies that arise from the date of 
the inauguration of the new President and for the subsequent 60 days.
---------------------------------------------------------------------------
    At markup, the Committee also discussed whether nominations 
could be sent up during a recess of the Senate. Specifically, 
we believe it is still unclear whether the bill, as written, 
would allow the Administration to cure a violation by making a 
nomination during recesses of the Senate. While it is clear 
that the Senate regularly authorizes itself to accept 
Presidential messages during its recesses,\2\ and the President 
is permitted to submit nominations to the Senate at any 
time,\3\ in practice, nominations are not sent up during 
recesses. We are concerned with assuring the smooth functioning 
of Government. One of our overriding concerns in reforming the 
Vacancies Act should be to ensure that we are not overburdening 
an agency head with the non-delegable responsibilities of other 
positions where such a situation can be avoided. We urge the 
Senate to consider remedying this situation by allowing the 
President to effectively notice the Senate with a letter of 
intent including the name of a nominee and a statement that he 
intends to nominate that person when the Senate reconvenes. By 
allowing such letter, the Senate would allow the President to 
exercise good faith where he wants to avoid using a recess 
appointment.\4\
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    \2\ See 139 CR 8 (1993), 141 CR S9 (daily ed. Jan. 4, 1995), 143 CR 
S8 (daily ed. Jan. 7, 1997).
    \3\ See Floyd M. Riddick and Alan S. Frumin, Riddick's Senate 
Procedure, p. 949 (Rev. Ed. 1992).
    \4\ President Clinton has exercised his Constitutionally mandated 
recess appointment power 45 times in five years, President Bush made 78 
recess appointments in four years and President Reagan made 239 in 
eight years.
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    Finally, we would hope that consideration will be given to 
increasing the one-day requirement of Sec. 3348(c). While we 
are pleased that a recess will toll the temporary appointment 
period, to guard against an Administration's inadvertently 
missing the one-day window and certain functions and duties 
unnecessarily being delegated to the agency head, we recommend 
adding two days to the requirement that the President submit a 
nomination the day the Senate reconvenes.
    As mentioned above, there are several other issues of 
concern to us which we believe are of a technical nature. While 
they are important issues in that their resolution affects the 
way a new law could be interpreted, because there is agreement 
between Majority and Minority staffs to aim to address these 
issues in a Managers' Amendment as the bill is considered by 
the full Senate, such issues will not be enumerated here. It is 
our hope that all of our concerns will be addressed in future 
discussions before S. 2176 is presented for debate on the 
Senate floor.
    We cannot leave the topic of the process by which the 
President nominates federal officials without touching on the 
process by which the Senate confirms them. It is getting 
increasingly difficult to attract the best and brightest to 
government service, and those who serve in Presidentially-
appointed, Senate confirmed positions are doing so for an 
average of less than two and a half years. And because the time 
period from vacancy through confirmation has become 
increasingly lengthy, we must go through this arduous process 
often multiple times within a single Administration. We agree 
that the Executive Branch too often takes too long to submit 
nominations to the Senate and that this delay not only intrudes 
upon the Senate's constitutional prerogatives but also impedes 
the good functioning of government. At the same time, however, 
we would be truly remiss if we failed to acknowledge that blame 
in this area does not rest in the Executive Branch alone; the 
Senate has frequently declined to exercise its advice and 
consent responsibility in a timely and appropriate manner. Too 
often, nominations die in Committee, languish on the Executive 
Calendar, or simply take months or years to move through this 
Chamber. While the Senate remains free to reject the 
President's nominees when appropriate, it owes it to both the 
Executive, and more importantly, the American people, to 
discharge its constitutional duty to offer--and not withhold--
its advice and, where appropriate, timely consent. We hope that 
in the future the Senate is willing to commit itself to act to 
reform its confirmation process in the same bi-partisan spirit 
we expect it to exhibit in enacting this legislation.

                                   John Glenn.
                                   Carl Levin.
                                   Joe Lieberman.
                                   Max Cleland.
                                   Robert Torricelli.

                             MINORITY VIEWS

    While we associate ourselves with the concerns outlined in 
the Additional Views of Senator John Glenn, our serious 
reservations abut the bill prevents us from supporting this 
legislation in its present form. Revisions to the Vacancies Act 
must reflect the realities of the nomination and confirmation 
process as it have evolved over the last several years. 
Furthermore, it is important to recognize the implication of 
imposing unrealistic expectations or restrictions on the 
process which could force the President to expand the use of 
recess appointment authority.
    We recognize the need to safeguard the Senate's 
constitutional prerogative to advise and consent to nominations 
of executive officers, and do not oppose efforts to clarify and 
bolster the Vacancies Act as the executive mechanism (with 
limited and explicit exception) for the President to designate 
officials to temporarily fill vacancies in positions requiring 
Senate confirmation. Unfortunately, this bill goes well beyond 
that justifiable but limited goals.
    We are concerned that this bill would impede the 
functioning of the Executive Branch. Concerns about the 
inability of Presidents to promptly submit nominees to fill 
positions requiring Senate confirmation has been a driving 
force prompting periodic reevaluation of Vacancies Act 
provisions throughout the last two centuries, including the 
present instance. Yet merely adding 30 days to the time 
permitted under current law for positions to be temporarily 
filled by an acting official is, in our opinion, wholly 
inadequate and impractical.
    While the White House certainly bears some responsibility 
for the time it takes to select and advance nominees, it is a 
responsibility that is shared by the Senate. Given that the 
protracted, arduous, and unduly politicized Senate confirmation 
process contributes to making it increasingly more difficult to 
identify, recruit, and screen candidates for Federal 
appointments, it is imprudent to impose rigid statutory 
deadlines and to limit the persons eligible to serve 
temporarily as acting officers in vacant positions. Within 
substantial changes, we cannot support this bill.
    First, this legislation too narrowly restricts who can 
function in an ``acting'' capacity. Section 3345(a)(1) of the 
bill can be read to provide that, aside from another Senate-
confirmed Presidential appointee designated by the President, 
only the ``first assistant'' to the particular Senate confirmed 
officer who dies, resigns or is other unable to perform the 
functions and duties of the position, can be an acting officer. 
Early in the Administration of a newly-inaugurated President, 
virtually the only person who could serve as acting officers 
would be the first assistants from the prior Administration, 
since transferring another PAS person would merely create a new 
vacancy elsewhere. Moreover, the Senate could prolong the 
tenure of those holdover officers simply by delaying or failing 
to confirm the President's nominee. No President should have to 
accept such a state of affairs.
    Moreover, mandating that only first assistant or Senate-
confirmed officials are eligible to serve as acting officers 
promotes no legitimate public policy. Indeed, this limitation 
prevents a President from naming an experienced career employee 
as an acting official, in favor of a person lacking broad 
experience who was brought into Department by the departing 
official. Consequently, the bill could preclude the President 
from naming the most qualified person to serve as an acting 
officer. In addition, the lack of a first assistant to a 
particular office that becomes vacant would leave the position 
vacant until such time as the President designates a previously 
Senate-confirmed official to temporarily fill that vacancy as 
an acting official. Given the tight time period of the Act, we 
fail to see why this provision should be so narrowly drawn. 
Without any justification based on its institutional interests, 
the Senate would do a great disservice by adopting such a 
restrictive measure. Therefore, we endorse Senator Glenn's 
suggestion that serious consideration be given to establishing 
a third category of individuals eligible to temporarily fill 
vacant positions.
    Second, the unalterable 150 day time limit on service by 
acting officers is far too rigid. Indeed, it could impair the 
national interest. Circumstances may arise under which the 
President is unable to nominate an individual for a particular 
office within 150 days of a vacancy. Under this bill, the 
office would have to remain vacant even if that vacancy would 
undermine national security, impede public health and safety, 
threaten financial stability, or interfere with law 
enforcement. We believe there should be a flexible ``safety 
valve'' available for exceptional situations, whereby the 
President could certify to the Senate that a reasonable amount 
of additional time is needed to designate the appropriate 
nominee and that it is essential for the acting officer to 
continue to perform these critical tasks in the interim without 
interruption.
    Third, while it would not affect this President, experience 
has shown that at the beginning of a new Administration, 
filling positions in the government requires time far longer 
than that specified in this bill. At the outset of a new 
Administration, a President must nominate individuals to at 
least 320 positions in the 14 executive departments in addition 
to appointing hundreds of other employees who do not require 
confirmation. The new President cannot possibly make all 
required nominations within the 240 days allowed by the bill. 
In 1993, when the nominations process was, if anything, simpler 
than it is today, the new Administration was able to forward 
only 68% of nominations within the first 240 days, leaving 32% 
of positions unfilled. Unless this time period is changed, the 
next Administration could effectively be facing departmental 
shutdowns before the new President can even begin to accomplish 
what he was elected to do.
    Finally, our concern about these time limitations and the 
constraints on who can be appointed is magnified many times by 
the enforcement mechanism the bill establishes. It is 
essentially a sanction of administrative immobilization. 
Section 3348 of the bill specifies that if the President fails 
to forward a nomination within the 150-day span following the 
occurrence of a vacancy or the withdrawal, rejection, or return 
of a first nomination, the office in question must remain 
vacant until a nomination is made. No one--apart from the head 
of the agency--can perform the functions and duties of the 
office. It is imperative that the bill unequivocally ensure 
that the affected functions and duties of the office are only 
those that are expressly deemed nondelegable by statute or 
regulation. Absent that clarity, whole components of federal 
agencies would have to stop their work. The potential 
bottleneck created by this provision would prevent the 
Executive Branch from doing its job. The Senate has tried 
before to enforce its policy preferences by shutting down the 
federal government. It was a bad idea then, and its still is 
now.
    As we noted, the Senate bears partial responsibility for 
the time it takes to nominate officials from Senate confirmed 
positions. To further amplify, this Congress has subjected the 
Administration's nominees to unprecedented scrutiny, using 
almost any prior alleged indiscretion--no matter how trivial--
by a nominee as an excuse to delay or prevent a vote. Senators 
have also interjected themselves into the President's 
nominations process to an unparalleled degree. As a result, 
that process--the selection, recruitment, and vetting of 
candidates--takes longer than ever before. While the 
Administration may well bear some responsibility for the slow 
pace of nominations, we find it troublesome that the Senate 
would so severely restrict the ability to fill vacant positions 
temporarily and to conduct the people's business while at the 
same time impeding the nominations process and confirming 
nominees at a snail's pace.
    This President has made every effort to accommodate 
Senators' views about particular positions and nominees. 
Moreover, this President has used his power to make recess 
appointments far less than his predecessors. President Reagan 
made 239 recess appointments in eight years; President Bush 
made 78 recess appointments in four years. President Clinton 
has made only 45 recess appointments in his first five years in 
office. If this bill passes, we anticipate that the President 
will have no alternative but to make more recess appointments. 
That will hardly vindicate the Senate's advise and consent 
function.
    We are anxious to craft a bill that fully protects the 
Senate's advise and consent function, while affording the 
Executive Branch the flexibility it needs to faithfully 
discharge the laws. In its current form, this bill does not do 
that. Without changes to address the problems identified above, 
we cannot support it.

                                   Richard Durbin.
                                   Daniel K. Akaka.

                                
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