5 U.S.C. § 3349 — Reporting of vacancies

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.) Page 425 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3349d Editorial Notes PRIOR PROVISIONS A prior section 3349, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426, provided for restrictions relating to details to fill vacancies, 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 3347 of this title. AMENDMENTS 2004—Subsec. (a). Pub. L. 108–271 substituted ‘‘Govern- ment Accountability Office’’ for ‘‘General Accounting Office’’ in introductory provisions. Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Gov- ernmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Con- gress, Oct. 9, 2004. Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Rep- resentatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Com- mittee on Oversight and Reform of House of Represent- atives changed to Committee on Oversight and Ac- countability of House of Representatives by House Res- olution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023. 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. § 3349a. Presidential inaugural transitions (a) In this section, the term ‘‘transitional in- auguration 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 af- firming such oath of office. (b) With respect to any vacancy that exists during the 60-day period beginning on a transi- tional inauguration day, the 210-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 inaugura- tion day; or (2) 90 days after the date on which the va- cancy occurs. (Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–615.) 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. § 3349b. Holdover provisions Sections 3345 through 3349a shall not be con- strued 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 speci- fied period of time has expired. (Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–615.) 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. § 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; (2) any commissioner of the Federal Energy Regulatory Commission; (3) any member of the Surface Transpor- tation Board; or (4) any judge appointed by the President, by and with the advice and consent of the Senate, to a court constituted under article I of the United States Constitution. (Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–615.) 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. § 3349d. Notification of intent to nominate during certain recesses or adjournments (a) The submission to the Senate, during a re- cess or adjournment of the Senate in excess of 15 days, of a written notification by the President of the President’s intention to submit a nomina- tion after the recess or adjournment shall be considered a nomination for purposes of sections 3345 through 3349c if such notification contains the name of the proposed nominee and the office for which the person is nominated. (b) If the President does not submit a nomina- tion of the person named under subsection (a) within 2 days after the end of such recess or ad- journment, effective after such second day the notification considered a nomination under sub- section (a) shall be treated as a withdrawn nom- ination for purposes of sections 3345 through 3349c. (Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–615.)