---
kind: "range"
citation: "5 U.S.C. §§ 3345–3349d"
title: "5"
from: "3345"
to: "3349d"
count: 9
release: "119-102"
url: "https://uscodex.org/usc/5/3345..3349d"
---

# §3345. Acting officer

- (a) If an officer of an [Executive agency](/usc/5/3330d.md?p=a-2-A) (including the Executive Office of the President, and other than the Government Accountability 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 to the office 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](/usc/5/3346.md);
  - (2) notwithstanding [paragraph (1)](#a-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 vacant office temporarily in an acting capacity subject to the time limitations of [section 3346](/usc/5/3346.md); or
  - (3) notwithstanding [paragraph (1)](#a-1), the President (and only the President) may direct an officer or [employee](/usc/5/5361.md?p=1) of such [Executive agency](/usc/5/3330d.md?p=a-2-A) to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of [section 3346](/usc/5/3346.md), if—
    - (A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or [employee](/usc/5/5361.md?p=1) served in a [position](/usc/5/5531.md?p=2) in such [agency](/usc/5/500.md?p=a-1) for not less than 90 days; and
    - (B) the rate of pay for the [position](/usc/5/5531.md?p=2) described under [subparagraph (A)](#a-3-A) is equal to or greater than the minimum rate of pay payable for a [position](/usc/5/5531.md?p=2) at GS–15 of the General Schedule.
- (b)
  - (1) Notwithstanding [subsection (a)(1)](#a-1), a person may not serve as an acting officer for an office under this section, if—
    - (A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—
      - (i) did not serve in the [position](/usc/5/5531.md?p=2) of first assistant to the office of such officer; or
      - (ii) served in the [position](/usc/5/5531.md?p=2) of first assistant to the office of such officer for less than 90 days; and
    - (B) the President submits a nomination of such person to the Senate for appointment to such office.
  - (2) [Paragraph (1)](#b-1) shall not apply to any person if—
    - (A) such person is serving as the first assistant to the office of an officer described under [subsection (a)](#a);
    - (B) the office of such first assistant is an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate; and
    - (C) the Senate has approved the appointment of such person to such office.
- (c)
  - (1) Notwithstanding [subsection (a)(1)](#a-1), the President (and only the President) may direct an officer who is nominated by the President for reappointment for an additional term to the same office in an Executive department without a break in [service](/usc/5/8331.md?p=12), to continue to serve in that office subject to the time limitations in [section 3346](/usc/5/3346.md), until such time as the Senate has acted to confirm or reject the nomination, notwithstanding adjournment sine die.
  - (2) For purposes of this section and sections [3346](/usc/5/3346.md), [3347](/usc/5/3347.md), [3348](/usc/5/3348.md), [3349](/usc/5/3349.md), [3349a](/usc/5/3349a.md), and [3349d](/usc/5/3349d.md), the expiration of a term of office is an inability to perform the functions and duties of such office.

# §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](/usc/5/3345.md) 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)](#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 210 days after the date of such rejection, withdrawal, or return.
  - (2) Notwithstanding [paragraph (1)](#b-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 confirmed; or
    - (B) for no more than 210 days after the second nomination is rejected, withdrawn, or returned.
- (c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under [subsection (a)](#a) shall begin on the date that the Senate first reconvenes.

# §3347. Exclusivity

- (a) Sections [3345](/usc/5/3345.md) and [3346](/usc/5/3346.md) are the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an [Executive agency](/usc/5/3330d.md?p=a-2-A) (including the Executive 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 consent of the Senate, unless—
  - (1) a statutory provision expressly—
    - (A) authorizes the President, a court, or the head of an Executive department, to designate an officer or [employee](/usc/5/5361.md?p=1) to perform the functions and duties of a specified office temporarily in an acting capacity; or
    - (B) designates an officer or [employee](/usc/5/5361.md?p=1) to perform the functions and duties of a specified 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](/usc/5/7103.md?p=a-6) to the head of an [Executive agency](/usc/5/3330d.md?p=a-2-A) (including the Executive Office of the President, and other than the Government Accountability Office) to delegate duties statutorily vested in that [agency](/usc/5/500.md?p=a-1) head to, or to reassign duties among, officers or [employees](/usc/5/5361.md?p=1) of such [Executive agency](/usc/5/3330d.md?p=a-2-A), is not a statutory provision to which [subsection (a)(1)](#a-1) applies.

# §3348. Vacant office

- (a) In this section—
  - (1) the term “action” includes any [agency](/usc/5/500.md?p=a-1) action as defined under [section 551(13)](/usc/5/551.md?p=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](#a-2) to which clause [(i)(I)](#a-2-B-i-I) and [(II)](#a-2-B-i-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.
- (b) Unless an officer or [employee](/usc/5/5361.md?p=1) is performing the functions and duties in accordance with sections [3345](/usc/5/3345.md), [3346](/usc/5/3346.md), and [3347](/usc/5/3347.md), if an officer of an [Executive agency](/usc/5/3330d.md?p=a-2-A) (including the Executive Office of the President, and other than the Government Accountability 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 office shall remain vacant; and
  - (2) in the case of an office other than the office of the head of an [Executive agency](/usc/5/3330d.md?p=a-2-A) (including the Executive Office of the President, and other than the Government Accountability Office), only the head of such [Executive agency](/usc/5/3330d.md?p=a-2-A) may perform any [function or duty](#a-2) of such office.
- (c) If the last day of any 210-day period under [section 3346](/usc/5/3346.md) 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](#a-1) taken by any person who is not acting under section [3345](/usc/5/3345.md), [3346](/usc/5/3346.md), or [3347](/usc/5/3347.md), or as provided by [subsection (b)](#b), in the performance of any [function or duty](#a-2) of a vacant office to which this section and sections [3346](/usc/5/3346.md), [3347](/usc/5/3347.md), [3349](/usc/5/3349.md), [3349a](/usc/5/3349a.md), [3349b](/usc/5/3349b.md), and [3349c](/usc/5/3349c.md) apply shall have no force or effect.
  - (2) An [action](#a-1) that has no force or effect under [paragraph (1)](#d-1) may not be ratified.
- (e) This section shall not apply to—
  - (1) the General Counsel of the National Labor Relations [Board](/usc/5/8401.md?p=5);
  - (2) the General Counsel of the Federal Labor Relations [Authority](/usc/5/7103.md?p=a-6);
  - (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 consent of the Senate; or
  - (5) an office of an [Executive agency](/usc/5/3330d.md?p=a-2-A) (including the Executive Office of the President, and other than the Government Accountability Office) if a statutory provision expressly prohibits the head of the [Executive agency](/usc/5/3330d.md?p=a-2-A) from performing the functions and duties of such office.

# §3349. Reporting of vacancies

- (a) The head of each [Executive agency](/usc/5/3330d.md?p=a-2-A) (including the Executive Office of the President, and other than the Government Accountability Office) shall submit to the Comptroller General of the United States and to each House of Congress—
  - (1) notification of a vacancy in an office to which this section and sections [3345](/usc/5/3345.md), [3346](/usc/5/3346.md), [3347](/usc/5/3347.md), [3348](/usc/5/3348.md), [3349a](/usc/5/3349a.md), [3349b](/usc/5/3349b.md), [3349c](/usc/5/3349c.md), and [3349d](/usc/5/3349d.md) apply 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](/usc/5/8331.md?p=12) 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 210-day period including the applicable exceptions to such period under [section 3346](/usc/5/3346.md) or [section 3349a](/usc/5/3349a.md), the Comptroller General shall report such determination immediately 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.

# §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](#a), the 210-day period under section [3346](/usc/5/3346.md) or [3348](/usc/5/3348.md) shall be deemed to begin on the later of the date occurring—
  - (1) 90 days after such [transitional inauguration day](#a); or
  - (2) 90 days after the date on which the vacancy occurs.

# §3349b. Holdover provisions


[Sections 3345 through 3349a](/usc/5/3345..3349a.md) 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.

# §3349c. Exclusion of certain officers


[Sections 3345 through 3349b](/usc/5/3345..3349b.md) shall not apply to—

- (1) any [member](/usc/5/5531.md?p=1) who is appointed by the President, by and with the advice and consent of the Senate to any [board](/usc/5/8401.md?p=5), commission, or similar entity that—
  - (A) is composed of multiple [members](/usc/5/5531.md?p=1); and
  - (B) governs an independent establishment or [Government corporation](/usc/5/103.md?p=1);
- (2) any commissioner of the Federal Energy Regulatory Commission;
- (3) any [member](/usc/5/5531.md?p=1) of the Surface Transportation [Board](/usc/5/8401.md?p=5); 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.

# §3349d. Notification of intent to nominate during certain recesses or adjournments

- (a) The submission to the Senate, during a recess 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 nomination after the recess or adjournment shall be considered a nomination for purposes of [sections 3345 through 3349c](/usc/5/3345..3349c.md) 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 nomination of the person named under [subsection (a)](#a) within 2 days after the end of such recess or adjournment, effective after such second day the notification considered a nomination under [subsection (a)](#a) shall be treated as a withdrawn nomination for purposes of [sections 3345 through 3349c](/usc/5/3345..3349c.md).