5 U.S.C. § 3348 — Vacant office

Page 423 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3348 President of the United States, § 3, Dec. 23, 2016, 81 F.R. 96337. Memorandum of President of the United States, Oct. 17, 2008, 73 F.R. 62845, revoked by Memorandum of President of the United States, § 3, Oct. 17, 2014, 79 F.R. 63805. Memorandum of President of the United States, Apr. 17, 2006, 71 F.R. 20333, superseded by Memorandum of President of the United States, § 3, Oct. 17, 2008, 73 F.R. 62845. UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT Memorandum of President of the United States, Dec. 9, 2008, 73 F.R. 75535. UNITED STATES SECTION, INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO Memorandum of President of the United States, Aug. 31, 2009, 74 F.R. 45533. UNITED STATES INTERNATIONAL DEVELOPMENT FINANCE CORPORATION Memorandum of President of the United States, Jan. 8, 2021, 86 F.R. 2949. § 3346. Time limitation (a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office— (1) for no longer than 210 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 nomina- tion 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 (b)(1) If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejec- tion, withdrawal, or return. (2) Notwithstanding paragraph (1), if a second nomination for the office 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until the second nomination is con- firmed; or (B) for no more than 210 days after the sec- ond nomination is rejected, withdrawn, or re- turned. (c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes. (Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–612.) Editorial Notes PRIOR PROVISIONS A prior section 3346, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426, provided for details to subordinate offices, prior to repeal by Pub. L. 105–277, div. C, title I, § 151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681–616, effective 30 days after Oct. 21, 1998. See section 3345 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 30 days after Oct. 21, 1998, and appli- cable to any office that becomes vacant after such ef- fective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title. § 3347. Exclusivity (a) Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting of- ficial to perform the functions and duties of any office of an Executive agency (including the Ex- ecutive Office of the President, and other than the Government Accountability Office) for which appointment is required to be made by the President, by and with the advice and con- sent of the Senate, unless— (1) a statutory provision expressly— (A) authorizes the President, a court, or the head of an Executive department, to des- ignate 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 speci- fied office temporarily in an acting capacity; or (2) 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 Government Accountability Office) to delegate duties statutorily vested in that agency head to, or to reassign duties among, officers or employees of such Executive agency, is not a statutory provision to which subsection (a)(1) applies. (Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–613; amended Pub. L. 106–31, title V, § 5011, May 21, 1999, 113 Stat. 112; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.) Editorial Notes PRIOR PROVISIONS A prior section 3347, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426, provided for Presidential authority relating to details, prior to repeal by Pub. L. 105–277, div. C, title I, § 151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681–616, effective 30 days after Oct. 21, 1998. See section 3345 of this title. AMENDMENTS 2004—Pub. L. 108–271 substituted ‘‘Government Ac- countability Office’’ for ‘‘General Accounting Office’’ in introductory provisions of subsec. (a) and in subsec. (b). 1999—Subsec. (b). Pub. L. 106–31 substituted ‘‘sub- section (a)(1)’’ for ‘‘subsection (a)(2)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 30 days after Oct. 21, 1998, and appli- cable to any office that becomes vacant after such ef- fective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title. § 3348. Vacant office (a) In this section— (1) the term ‘‘action’’ includes any agency action as defined under section 551(13); and Page 424 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3349 (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 offi- cer); 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 applica- ble regulation is in effect at any time during the 180-day period preceding the date on which the vacancy occurs. (b) Unless an officer or employee is performing the functions and duties in accordance with sec- tions 3345, 3346, and 3347, if an officer of an Exec- utive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to of- fice 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 office shall remain vacant; and (2) in the case of an office other than the of- fice of the head of an Executive agency (in- cluding the Executive Office of the President, and other than the Government Account- ability Office), only the head of such Execu- tive agency may perform any function or duty of such office. (c) If the last day of any 210-day period under section 3346 is a day on which the Senate is not in session, the second day the Senate is next in session and receiving nominations shall be deemed to be the last day of such period. (d)(1) An action taken by any person who is not acting under section 3345, 3346, or 3347, or as provided by subsection (b), in the performance of any function or duty of a vacant office to which this section and sections 3346, 3347, 3349, 3349a, 3349b, and 3349c apply shall have no force or ef- fect. (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; (3) any Inspector General appointed by the President, by and with the advice and consent of the Senate; (4) any Chief Financial Officer appointed by the President, by and with the advice and con- sent of the Senate; or (5) an office of an Executive agency (includ- ing the Executive Office of the President, and other than the Government Accountability Of- fice) if a statutory provision expressly pro- hibits the head of the Executive agency from performing the functions and duties of such of- fice. (Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–613; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.) Editorial Notes PRIOR PROVISIONS A prior section 3348, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426; Pub. L. 100–398, § 7(b), Aug. 17, 1988, 102 Stat. 988, provided for time limitations relating to details, prior to repeal by Pub. L. 105–277, div. C, title I, § 151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681–616, effective 30 days after Oct. 21, 1998. See section 3346 of this title. AMENDMENTS 2004—Subsec. (b). Pub. L. 108–271 substituted ‘‘Govern- ment Accountability Office’’ for ‘‘General Accounting Office’’ in two places. Subsec. (e)(5). Pub. L. 108–271 substituted ‘‘Govern- ment Accountability Office’’ for ‘‘General Accounting Office’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 30 days after Oct. 21, 1998, and appli- cable to any office that becomes vacant after such ef- fective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title. § 3349. Reporting of vacancies (a) The head of each Executive agency (includ- ing the Executive Office of the President, and other than the Government Accountability Of- fice) shall submit to the Comptroller General of the United States and to each House of Con- gress— (1) notification of a vacancy in an office to which this section and sections 3345, 3346, 3347, 3348, 3349a, 3349b, 3349c, and 3349d apply and the date such vacancy occurred immediately upon the occurrence of the vacancy; (2) the name of any person serving in an act- ing 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 re- turn 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 210-day period including the applicable exceptions to such period under section 3346 or section 3349a, the Comptroller General shall report such determination imme- diately 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 jurisdic- tion of the Senate and House of Representa- tives; (5) the President; and (6) the Office of Personnel Management. (Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–614; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)