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I. Acting: (See the Federal Vacancies Reform Act (FVRA) of 1998 – 5 U.S.C. §§ 3345-3349d):

A.) Mechanisms: Under the FVRA, on Day 1 of a new administration, PAS vacancies can be filled on an interim basis in one of three different ways.

1.) The default is that whoever is the highest-ranking deputy to the PAS position now vacant will take over the duties on an interim basis.

2.) The President can appoint a PAS holdover from any federal agency to take over as the Acting official in any PAS position in the federal government.

3.) The President can appoint anyone meeting the following criteria to serve as the Acting official in any PAS position in the federal government (see 5 U.S.C. § 3345):

i. The individual appointed to serve as Acting must have served at that federal agency or department for at least 90 days out of the preceding 365 days; and

ii. The individual’s base pay must have been equivalent to that of the base pay of a GS-15, step 1, on the General Schedule (i.e., anyone who is at least a GS-14, step 7, or an FS-02, step 9, would meet this criterion).

B.) Legal Authority of the Position: The Acting official has full legal authority to perform all the duties of the position.

C.) Duration: Under the FVRA, an Acting official can serve for up to 210 days, but there are a number of caveats that can extend this time period.

1.) If a nomination to fill the position permanently is submitted to the Senate, the clock stops and the Acting official can serve during the entire nomination process.

2.) If the nomination is rejected or returned by the Senate or withdrawn by the President, the 210-day clock starts all over again and the Acting official can serve for an additional 210 days. If a second nomination is submitted to the Senate, the clock stops again until such time as the nomination is approved, rejected, returned, or withdrawn. If any of the latter three occur, the Acting official can serve for 210 more days (i.e., the clock restarts). (See 5 U.S.C. § 3346.)

3.) For all PAS vacancies that occur during the first 60 days of a new Administration, a vacancy is deemed not to occur until 90 days after the previous officeholder vacates the position. (See 5 U.S.C. § 3349a.) Thus, for the first 60 days of a new Administration, the 210-day clock is actually a 300-day clock.

See CRS Report from 2022 on the FVRA for more detailed information about how the FVRA works – particularly the section on the "Consequences of Violating the Vacancies Act" (starting on p. 15). BLUF: There is no penalty for staying longer than allowed unless some outside group sues and a court finds that the group was somehow harmed by the violation and thereby grants that group standing to sue (very difficult to establish standing in the area of foreign affairs, particularly as this is the area in which the President arguably has the greatest amount of power under the Constitution). Otherwise, there's almost nothing that can be done about a violation. The worst thing that happens is that a court can remove a person serving in violation of the law and any decisions made by that person while in violation of the law can be deemed illegitimate and annulled by the court.