Regulations.gov Thursday, November 19, 2015 Regulatory Plan

Transcription

1 Regulations.gov Thursday, November 19, 2015 Regulatory Plan DEPARTMENT OF HOMELAND SECURITY (DHS) Fall 2015 Statement of Regulatory Priorities The Department of Homeland Security (DHS or Department) was created in 2003 pursuant to the Homeland Security Act of 2002, Public Law DHS has a vital mission: To secure the Nation from the many threats we face. This requires the dedication of more than 225,000 employees in jobs that range from aviation and border security to emergency response, from cybersecurity analyst to chemical facility inspector. Our duties are wide-ranging, but our goal is clear keeping America safe. Our mission gives us six main areas of responsibility: 1. Prevent Terrorism and Enhance Security, 2. Secure and Manage Our Borders, 3. Enforce and Administer Our Immigration Laws, 4. Safeguard and Secure Cyberspace, 5. Ensure Resilience to Disasters, and 6. Mature and Strengthen DHS In achieving these goals, we are continually strengthening our partnerships with communities, first responders, law enforcement, and government agencies at the State, local, tribal, Federal, and international levels. We are accelerating the deployment of science, technology, and innovation in order to make America more secure, and we are becoming leaner, smarter, and more efficient, ensuring that every security resource is used as effectively as possible. For a further discussion of our main areas of responsibility, see the DHS website at The regulations we have summarized below in the Department's fall 2015 regulatory plan and in the agenda support the Department s responsibility areas listed above. These regulations will improve the Department's ability to accomplish its mission. 1

2 Regulations.gov Thursday, November 19, 2015 Regulatory Plan The regulations we have identified in this year s fall regulatory plan continue to address legislative initiatives including, but not limited to, the following acts: The Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Public Law (Aug. 3, 2007); the Consolidated Natural Resources Act of 2008 (CNRA), Public Law (May 8, 2008); the Security and Accountability for Every Port Act of 2006 (SAFE Port Act), Public Law (Oct. 13, 2006); and the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Public Law (Sep. 30, 2008). DHS strives for organizational excellence and uses a centralized and unified approach in managing its regulatory resources. The Office of the General Counsel manages the Department's regulatory program, including the agenda and regulatory plan. In addition, DHS senior leadership reviews each significant regulatory project to ensure that the project fosters and supports the Department s mission. The Department is committed to ensuring that all of its regulatory initiatives are aligned with its guiding principles to protect civil rights and civil liberties, integrate our actions, build coalitions and partnerships, develop human resources, innovate, and be accountable to the American public. DHS is also committed to the principles described in Executive Orders and (as amended). Both Executive Orders direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Finally, the Department values public involvement in the development of its regulatory plan, agenda, and regulations, and takes particular concern with the impact its rules have on small businesses. DHS and each of its components continue to emphasize the use of plain language in our notices and rulemaking 2

3 Regulations.gov Thursday, November 19, 2015 Regulatory Plan documents to promote a better understanding of regulations and increased public participation in the Department s rulemakings. Retrospective Review of Existing Regulations Pursuant to Executive Order Improving Regulation and Regulatory Review (Jan. 18, 2011), DHS identified the following regulatory actions as associated with retrospective review and analysis. Some of the regulatory actions on the below list may be completed actions, which do not appear in The Regulatory Plan. You can find more information about these completed rulemakings in past publications of the Unified Agenda (search the Completed Actions sections) on Some of the entries on this list, however, are active rulemakings. You can find entries for these rulemakings on RIN 1601-AA58 Rule Professional Conduct for Practitioners Rules and Procedures, and Representation and Appearances 1615-AB95 Immigration Benefits Business Transformation, Increment II; Nonimmigrants Classes 1615-AC00 Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants 1625-AB AB80 Updates to Maritime Security Revision to Transportation Worker Identification Credential (TWIC) Requirements for Mariners 1625-AC AA AB AA63 Seafarers' Access to Maritime Facilities Definition of Form I-94 to Include Electronic Format Freedom of Information Act (FOIA) Procedures Adjustments to Limitations on Designated School Official Assignment and Study By F-2 and M-2 Nonimmigrants 3

4 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Promoting International Regulatory Cooperation Pursuant to sections 3 and 4(b) of Executive Order Promoting International Regulatory Cooperation (May 1, 2012), DHS has identified the following regulatory actions that have significant international impacts. Some of the regulatory actions on the below list may be completed actions. You can find more information about these completed rulemakings in past publications of the Unified Agenda (search the Completed Actions sections) on Some of the entries on this list, however, are active rulemakings. You can find entries for these rulemakings on RIN 1625-AB AA AA72 Rule Updates to Maritime Security Importer Security Filing and Additional Carrier Requirements Changes to the Visa Waiver Program To Implement the Electronic System for Travel Authorization (ESTA) Program 1651-AA AA96 Amendments to Importer Security Filing and Additional Carrier Requirements Definition of Form I-94 to Include Electronic Format DHS participates in some international regulatory cooperation activities that are reasonably anticipated to lead to significant regulations. For example, the U.S. Coast Guard is the primary U.S. representative to the International Maritime Organization (IMO) and plays a major leadership role in establishing international standards in the global maritime community. IMO s work to establish international standards for maritime safety, security, and environmental protection closely aligns with the U.S. Coast Guard regulations. As an IMO member nation, the U.S. is obliged to incorporate IMO treaty provisions not already part of U.S. domestic policy into regulations for those vessels affected by the international standards. Consequently, the U.S. Coast Guard initiates rulemakings to harmonize with IMO international standards such as treaty provisions and the codes, conventions, resolutions, and circulars that supplement them. 4

5 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Also, President Obama and Prime Minister Harper created the Canada-U.S. Regulatory Cooperation Council (RCC) in February The RCC is an initiative between both Federal Governments aimed at pursuing greater alignment in regulation, increasing mutual recognition of regulatory practices and establishing smarter, more effective and less burdensome regulations in specific sectors. The Canada- U.S. RCC initiative arose out of the recognition that high level, focused, and sustained effort would be required to reach a more substantive level of regulatory cooperation. Since its creation in early 2011, the U.S. Coast Guard has participated in stakeholder consultations with their Transport Canada counterparts and the public, drafted items for inclusion in the RCC Action Plan, and detailed work plans for each included Action Plan item. The fall 2015 regulatory plan for DHS includes regulations from DHS components including U.S. Citizenship and Immigration Services (USCIS), the U.S. Coast Guard (Coast Guard), U.S. Customs and Border Protection (CBP), the U.S. Immigration and Customs Enforcement (ICE), and the Transportation Security Administration (TSA), which have active regulatory programs. In addition, it includes regulations from the Department s major offices and directorates such as the National Protection and Programs Directorate (NPPD). Below is a discussion of the fall 2015 regulatory plan for DHS regulatory components, offices, and directorates. United States Citizenship and Immigration Services U.S. Citizenship and Immigration Services (USCIS) administers immigration benefits and services while protecting and securing our homeland. USCIS has a strong commitment to welcoming individuals who seek entry through the U.S. immigration system, providing clear and useful information regarding the immigration process, promoting the values of citizenship, and assisting those in need of humanitarian protection. Based on a comprehensive review of the planned USCIS regulatory agenda, USCIS will promulgate several rulemakings to directly support these commitments and goals. Regulations to Facilitate Retention of High-Skilled Workers and Entrepreneurs 5

6 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Employment-Based Immigration Modernization. USCIS will propose to implement certain provisions of the American Competitiveness and Workforce Improvement Act of 1998 and the American Competitiveness in the Twenty-First Century Act of 2000, Public Law , as amended by the Twenty-First Century Department of Justice Appropriations Authorization Act of 2002, Public Law USCIS will seek public feedback in codifying its interpretation of these statutes. Additionally, USCIS will propose to amend its regulations to provide greater stability and job flexibility to certain beneficiaries of approved employment-based immigrant petitions during their transition from nonimmigrant to lawful permanent residence status and to enable U.S. businesses to hire and retain highly-skilled foreign-born workers. Significant Public Benefit Parole for Entrepreneurs. USCIS will propose to establish conditions for paroling foreign entrepreneurs into the United States based on case-by-case discretionary determinations that their entrepreneurial activities in the United States will provide the United States with a significant public benefit. Parole under these conditions would allow individuals who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research to pursue development of startup businesses in the United States. This would provide an opportunity for much needed innovation and job creation in the United States. Enhancing Opportunities for High-Skilled Workers. DHS will issue a final rule following its May 2014, proposed rule designed to encourage and facilitate the employment and retention of certain high-skilled and transitional workers. As proposed, the rule would amend regulations affecting high-skilled workers within the nonimmigrant classifications for specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3), to include these classifications in the list of classes of aliens authorized for employment incident to status with a specific employer, to extend automatic employment authorization extensions with pending extension of stay requests, and to update filing procedures. The rule would also amend regulations regarding continued employment authorization for nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-only Transitional Worker (CW-1) classification. 6

7 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Finally, the rule would amend regulations related to the immigration classification for employment-based first preference (EB-1) outstanding professors or researchers to allow the submission of comparable evidence. These changes would encourage and facilitate the employment and retention of these highskilled workers. Improvements to the Immigration System Provisional Unlawful Presence Waivers. DHS will issue a final rule following its July 2015, proposed rule regarding the provisional unlawful presence waiver process. As proposed, this rule would expand access to the provisional unlawful presence waiver program to additional aliens for whom an immigrant visa is immediately available and who can show extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent. Requirements for Filing Motions and Administrative Appeals. USCIS will propose to revise the procedural regulations governing appeals and motions to reopen or reconsider before its Administrative Appeals Office, and to require that applicants and petitioners exhaust administrative remedies before seeking judicial review of an unfavorable decision. The changes proposed by the rule will streamline the procedures before the Administrative Appeals Office and improve the efficiency of the adjudication process. Regulations Related to the Commonwealth of Northern Mariana Islands. This final rule amends DHS and Department of Justice (DOJ) regulations to comply with the Consolidated Natural Resources Act of 2008 (CNRA). The CNRA extends the immigration laws of the United States to the Consolidated Northern Mariana Islands (CNMI). In 2009, USCIS issued an interim final rule to implement conforming amendments to the DHS and DOJ regulations. This joint DHS-DOJ final rule titled Application of Immigration Regulations to the CNMI would finalize the 2009 interim final rule. Regulatory Changes Involving Humanitarian Benefits 7

8 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Exception to the Persecution Bar for Asylum, Refugee, or Temporary Protected Status, and Withholding of Removal. In a joint rulemaking, DHS and DOJ will propose amendments to existing DHS and DOJ regulations to resolve ambiguity in the statutory language precluding eligibility for asylum, refugee resettlement, temporary protected status, and withholding or removal of an applicant who ordered, incited, assisted, or otherwise participated in the persecution of others. The proposed rule would provide a limited exception for persecutory actions taken by the applicant under duress and would clarify the required level of the applicant's knowledge of the persecution. "T" and "U" Nonimmigrants. USCIS plans additional regulatory initiatives related to T nonimmigrants (victims of trafficking) and U nonimmigrants (victims of criminal activity). USCIS hopes to provide greater consistency in eligibility, application, and procedural requirements for these vulnerable groups, their advocates, and the community through these regulatory initiatives. These rulemakings will contain provisions to adjust documentary requirements for this vulnerable population and provide greater clarity to the law enforcement community. Special Immigrant Juvenile Petitions. This final rule makes procedural changes and resolves interpretive issues following the amendments mandated by Congress. It will enable child aliens who have been abused, neglected, or abandoned and placed under the jurisdiction of a juvenile court or placed with an individual or entity, to obtain classification as Special Immigrant Juvenile. Such classification can regularize immigration status for these aliens and allow for adjustment of status to lawful permanent resident. United States Coast Guard The U.S. Coast Guard (Coast Guard) is a military, multi-mission, maritime service of the United States and the only military organization within DHS. It is the principal Federal agency responsible for maritime safety, security, and stewardship and delivers daily value to the Nation through multi-mission resources, authorities, and capabilities. 8

9 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Effective governance in the maritime domain hinges upon an integrated approach to safety, security, and stewardship. The Coast Guard's policies and capabilities are integrated and interdependent, delivering results through a network of enduring partnerships. The Coast Guard's ability to field versatile capabilities and highly-trained personnel is one of the U.S. Government's most significant and important strengths in the maritime environment. America is a maritime nation, and our security, resilience, and economic prosperity are intrinsically linked to the oceans. Safety, efficient waterways, and freedom of transit on the high seas are essential to our well-being. The Coast Guard is leaning forward, poised to meet the demands of the modern maritime environment. The Coast Guard creates value for the public through solid prevention and response efforts. Activities involving oversight and regulation, enforcement, maritime presence, and public and private partnership foster increased maritime safety, security, and stewardship. The statutory responsibilities of the Coast Guard include ensuring marine safety and security, preserving maritime mobility, protecting the marine environment, enforcing U.S. laws and international treaties, and performing search and rescue. The Coast Guard supports the Department's overarching goals of mobilizing and organizing our Nation to secure the homeland from terrorist attacks, natural disasters, and other emergencies. The rulemaking projects identified for the Coast Guard in the Unified Agenda, and the rules appearing in the fall 2015 Regulatory Plan below, contribute to the fulfillment of those responsibilities and reflect our regulatory policies. Inspection of Towing Vessels. The Coast Guard has proposed regulations governing the inspection of towing vessels, including an optional safety management system. The regulations for this large class of vessels would establish operations, lifesaving, fire protection, machinery and electrical systems and equipment, and construction and arrangement standards for towing vessels. This rulemaking also sets standards for the optional towing safety management system (TSMS) and related third-party organizations, as well as procedures for obtaining a certificate of inspection under either the TSMS or Coast Guard annual-inspection option. This rulemaking would implement section 415 of the Coast Guard 9

10 Regulations.gov Thursday, November 19, 2015 Regulatory Plan and Maritime Transportation Act of The intent of this rulemaking, which would create 46 CFR, subchapter M, is to promote safer work practices and reduce towing vessel casualties. Transportation Worker Identification Credential (TWIC) Reader Requirements. In accordance with the Maritime Transportation Safety Act of 2002 (MTSA) and the Security and Accountability For Every Port Act of 2006 (SAFE Port Act), the Coast Guard is establishing rules requiring electronic TWIC readers at high-risk vessels and facilities. These rules would ensure that prior to being granted unescorted access to a designated secure area at a high-risk vessel or facility: (1) the individual will have his or her TWIC electronically authenticated; (2) the status of the individual s credential will be electronically validated against an up-to-date list maintained by the TSA; and (3) the individual s identity will be electronically confirmed by comparing his or her fingerprint or other biometric sample with a biometric template stored on the credential. By promulgating these rules, the Coast Guard is complying with the statutory requirement in the SAFE Port Act, improving security at the highest risk vessels and facilities, and making full use of the electronic and biometric security features integrated into the TWIC and mandated by Congress in MTSA. United States Customs and Border Protection U.S. Customs and Border Protection (CBP) is the Federal agency principally responsible for the security of our Nation's borders, both at and between the ports of entry and at official crossings into the United States. CBP must accomplish its border security and enforcement mission without stifling the flow of legitimate trade and travel. The primary mission of CBP is its homeland security mission, that is, to prevent terrorists and terrorist weapons from entering the United States. An important aspect of this priority mission involves improving security at our borders and ports of entry, but it also means extending our zone of security beyond our physical borders. CBP is also responsible for administering laws concerning the importation into the United States of goods, and enforcing the laws concerning the entry of persons into the United States. This includes regulating and facilitating international trade; collecting import duties; enforcing U.S. trade, immigration 10

11 Regulations.gov Thursday, November 19, 2015 Regulatory Plan and other laws of the United States at our borders; inspecting imports, overseeing the activities of persons and businesses engaged in importing; enforcing the laws concerning smuggling and trafficking in contraband; apprehending individuals attempting to enter the United States illegally; protecting our agriculture and economic interests from harmful pests and diseases; servicing all people, vehicles and cargo entering the United States; maintaining export controls; and protecting U.S. businesses from theft of their intellectual property. In carrying out its priority mission, CBP's goal is to facilitate the processing of legitimate trade and people efficiently without compromising security. Consistent with its primary mission of homeland security, CBP intends to issue several rules during the next fiscal year that are intended to improve security at our borders and ports of entry. CBP is also automating some procedures that increase efficiencies and reduce the costs and burdens to travelers. We have highlighted two of these rules below. Air Cargo Advance Screening (ACAS). The Trade Act of 2002, as amended, authorizes the Secretary of Homeland Security to promulgate regulations providing for the transmission to CBP through an electronic data interchange system, of information pertaining to cargo to be brought into the United States or to be sent from the United States, prior to the arrival or departure of the cargo. The cargo information required is that which the Secretary determines to be reasonably necessary to ensure cargo safety and security. CBP s current Trade Act regulations pertaining to air cargo require the electronic submission of various advance data to CBP no later than either the time of departure of the aircraft for the United States (from specified locations) or four hours prior to arrival in the United States for all other locations. CBP intends to propose amendments to these regulations to implement the Air Cargo Advance Screening (ACAS) program. To improve CBP s risk assessment and targeting capabilities and to enable CBP to target and identify risky cargo prior to departure of the aircraft to the United States, ACAS would require the submission of certain of the advance electronic information for air cargo earlier in the process. In most cases, the information would have to be submitted as early as practicable but no later than prior to the loading of cargo onto an aircraft at the last foreign port of 11

12 Regulations.gov Thursday, November 19, 2015 Regulatory Plan departure to the United States. CBP, in conjunction with TSA, has been operating ACAS as a voluntary pilot program since 2010 and would like to implement ACAS as a regulatory program. Definition of Form I-94 to Include Electronic Format. DHS issues the Form I-94 to certain aliens and uses the Form I-94 for various purposes such as documenting status in the United States, the approved length of stay, and departure. DHS generally issues the Form I-94 to aliens at the time they lawfully enter the United States. On March 27, 2013, CBP published an interim final rule amending existing regulations to add a new definition of the term Form I-94. The new definition includes the collection of arrival/departure and admission or parole information by DHS, whether in paper or electronic format. The definition also clarified various terms that are associated with the use of the Form I-94 to accommodate an electronic version of the Form I-94. The rule also added a valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport to the list of documents designated as evidence of alien registration. These revisions enabled DHS to transition to an automated process whereby DHS creates a Form I-94 in an electronic format based on passenger, passport and visa information that DHS obtains electronically from air and sea carriers and the Department of State as well as through the inspection process. CBP intends to publish a final rule during the next fiscal year. In addition to the regulations that CBP issues to promote DHS s mission, CBP also issues regulations related to the mission of the Department of the Treasury. Under section 403(1) of the Homeland Security Act of 2002, the former-u.s. Customs Service, including functions of the Secretary of the Treasury relating thereto, transferred to the Secretary of Homeland Security. As part of the initial organization of DHS, the Customs Service inspection and trade functions were combined with the immigration and agricultural inspection functions and the Border Patrol and transferred into CBP. It is noted that certain regulatory authority of the U.S. Customs Service relating to customs revenue function was retained by the Department of the Treasury (see the Department of the Treasury Regulatory Plan). In addition to its plans to continue issuing regulations to enhance border security, CBP, during fiscal year 2016, expects to continue to issue regulatory documents that will facilitate legitimate trade and implement trade benefit 12

13 Regulations.gov Thursday, November 19, 2015 Regulatory Plan programs. CBP regulations regarding the customs revenue function are discussed in the Regulatory Plan of the Department of the Treasury. Federal Emergency Management Agency The Federal Emergency Management Agency (FEMA) does not have any significant regulatory actions planned for fiscal year Federal Law Enforcement Training Center The Federal Law Enforcement Training Center (FLETC) does not have any significant regulatory actions planned for fiscal year United States Immigration and Customs Enforcement ICE is the principal criminal investigative arm of the Department of Homeland Security and one of the three Department components charged with the civil enforcement of the Nation's immigration laws. Its primary mission is to protect national security, public safety, and the integrity of our borders through the criminal and civil enforcement of Federal law governing border control, customs, trade, and immigration. During fiscal year 2016, ICE will focus rulemaking efforts on improvements in the area of student and exchange visitor programs and to advance initiatives related to F-1 nonimmigrant students: Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions. The Department of Homeland Security will propose a rule to enhance opportunities for F-1 nonimmigrant students graduating with a science, technology, engineering, or mathematics (STEM) degree to further their courses of study through an extension of optional practical training (OPT) with employers enrolled in USCIS s E-Verify employment verification program. DHS anticipates that the rule would replace a 2008 interim final rule (IFR) that was recently held to be procedurally invalid, and that is the subject of a temporarily stayed vacatur. The proposed rule would enhance the academic benefit of the STEM extension and would help 13

14 Regulations.gov Thursday, November 19, 2015 Regulatory Plan ensure that the nation s colleges and universities remain globally competitive in attracting international STEM students to study in the United States prior to returning to their home countries. National Protection and Programs Directorate The National Protection and Programs Directorate s (NPPD) vision is a safe, secure, and resilient infrastructure where the American way of life can thrive. NPPD leads the national effort to protect and enhance the resilience of the nation s physical and cyber infrastructure. Chemical Facility Anti-Terrorism Standards. Recognizing both the importance of the nation s chemical facilities to the American way of life and the need to secure high-risk chemical facilities against terrorist attacks, in December 2014 Congress passed and the President signed into law the Protect ing and Securing Chemical Facilities from Terrorist Attacks Act of 2014, Pub. L This legislation provides the Department continuing authority to implement the Chemical Facility Anti-Terrorism Standards (CFATS) regulatory program, a unique regulatory program mandating that high-risk chemical facilities in the United States draft and implement security plans satisfying risk -based performance standards established by DHS. CFATS has been in effect since 2007, and on August 18, 2014, the Department published an Advance Notice of Proposed Rulemaking (ANPRM) in order to seek public comment on ways to make the program more effective. The Department will continue the rulemaking effort that commenced with the publication of that ANPRM, and intends to publish a Notice of Proposed Rulemaking (NPRM) proposing a number of changes to the CFATS program. The NPRM will propose substantive modifications to CFATS based on public comments received on the ANPRM and based on program implementation experience the Department has gained since The NPRM will also propose modifications to CFATS in order to align its regulatory text with the requirements of the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of Accordingly, the Department anticipates that the NPRM will propose both discretionary and non-discretionary modifications to 14

15 Regulations.gov Thursday, November 19, 2015 Regulatory Plan CFATS, with the goals of harmonizing the regulation with its statutory authority and of making the CFATS program more efficient and effective. Transportation Security Administration The Transportation Security Administration (TSA) protects the Nation's transportation systems to ensure freedom of movement for people and commerce. TSA is committed to continuously setting the standard for excellence in transportation security through its people, processes, and technology as we work to meet the immediate and long-term needs of the transportation sector. In fiscal year 2016, TSA will promote the DHS mission by emphasizing regulatory efforts that will allow TSA to better identify, detect, and protect against threats against various modes of the transportation system, while facilitating the efficient movement of the traveling public, transportation workers, and cargo. Passenger Screening Using Advanced Imaging Technology (AIT). TSA intends to issue a final rule to amend its civil aviation regulations to address whether screening and inspection of an individual, conducted to control access to the sterile area of an airport or to an aircraft, may include the use of advanced imaging technology (AIT). TSA published an NPRM on March 26, 2013, to comply with the decision rendered by the U.S. Court of Appeals for the District of Columbia Circuit in Electronic Privacy Information Center (EPIC) v. U.S. Department of Homeland Security on July 15, 2011, (653 F.3d 1 (D.C. Cir. 2011)). The Court directed TSA to conduct notice-and-comment rulemaking on the use of AIT in the primary screening of passengers. Security Training for Surface Mode Employees. TSA will propose regulations to enhance the security of several non-aviation modes of transportation. In particular, TSA will propose regulations requiring freight railroad carriers, public transportation agencies (including rail mass transit and bus systems), passenger railroad carriers, and over-the-road bus operators to conduct security training for front line employees. This regulation would implement sections 1408 (Public Transportation), 1517 (Freight Railroads), and 1534 (Over-the-Road Buses) of the Implementing Recommendations of the 9/11 Commission Act of

16 Regulations.gov Thursday, November 19, 2015 Regulatory Plan (9/11 Act), Public Law , August 3, In compliance with the definitions of frontline employees in the pertinent provisions of the 9/11 Act, the Notice of Proposed Rulemaking (NPRM) would propose to define which employees are required to undergo training. The NPRM would also propose definitions for transportation security-sensitive materials, as required by section 1501 of the 9/11 Act. Standardized Vetting, Adjudication, and Redress Process and Fees. TSA is developing a proposed rule to establish and update fees, and revise and standardize the procedures and adjudication criteria for most of the security threat assessments (STAs) of individuals that TSA conducts. The proposal would improve procedures for conducting STAs for transportation workers from almost all modes of transportation, including those covered under the 9/11 Act. In addition, TSA will propose consistent and equitable fees to cover the cost of the STAs. TSA plans to identify new efficiencies in processing STAs and ways to streamline existing regulations by simplifying language and removing redundancies. As part of this proposed rule, TSA will propose revisions to the Alien Flight Student Program (AFSP) regulations. TSA published an IFR for the AFSP on September 20, TSA regulations require aliens seeking to train at Federal Aviation Administration-regulated flight schools to complete an application and undergo an STA prior to beginning flight training. There are four categories under which students currently fall; the nature of the STA depends on the student's category. TSA is considering changes to the AFSP that would improve equity among fee payers and enable the implementation of new technologies to support vetting. United States Secret Service The United States Secret Service does not have any significant regulatory actions planned for fiscal year DHS Regulatory Plan for Fiscal Year 2016 A more detailed description of the priority regulations that comprise DHS's fall 2015 regulatory plan follows. 16

17 Regulations.gov Thursday, November 19, 2015 Regulatory Plan The 20 Actions Described in the Regulatory Plan Title Regulation Identifier Number Rulemaking Stage Chemical Facility Anti-Terrorism Standards (CFATS) 1601-AA69 Proposed Rule Stage Adjustment of Status to Lawful Permanent Resident for Aliens in T and U Nonimmigrant Status 1615-AA60 Proposed Rule Stage New Classification for Victims of Criminal Activity; Eligibility for the U Nonimmigrant Status 1615-AA67 Proposed Rule Stage Exception to the Persecution Bar for Asylum, Refugee, and Temporary Protected Status, and Withholding of Removal 1615-AB89 Proposed Rule Stage Requirements for Filing Motions and Administrative Appeals 1615-AB98 Proposed Rule Stage Significant Public Benefit Parole for Entrepreneurs 1615-AC04 Proposed Rule Stage Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled H-1B Alien Workers 1615-AC05 Proposed Rule Stage Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for T Nonimmigrant Status 1615-AA59 Final Rule Stage Application of Immigration Regulations to the Commonwealth of the Northern Mariana Islands 1615-AB77 Final Rule Stage Special Immigrant Juvenile Petitions 1615-AB81 Final Rule Stage Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants 1615-AC00 Final Rule Stage Expansion of Provisional Unlawful Presence Waivers of Inadmissibility 1615-AC03 Final Rule Stage Inspection of Towing Vessels 1625-AB06 Final Rule Stage Transportation Worker Identification Credential (TWIC); Card Reader Requirements 1625-AB21 Final Rule Stage Air Cargo Advance Screening (ACAS) 1651-AB04 Proposed Rule Stage Definition of Form I-94 to Include Electronic Format 1651-AA96 Final Rule Stage Security Training for Surface Mode Employees 1652-AA55 Proposed Rule Stage Passenger Screening Using Advanced Imaging Technology 1652-AA67 Final Rule Stage Standardized Vetting, Adjudication, and Redress Services 1652-AA61 Long-term Action Stage Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions 1653-AA72 Proposed Rule Stage Department of Homeland Security (DHS) Office of the Secretary ( OS ) RIN: 1601-AA69 Title: Chemical Facility Anti-Terrorism Standards (CFATS) Abstract: The Department of Homeland Security(DHS) previously invited public comment on an advance notice of proposed rulemaking (ANPRM) for potential revisions to the Chemical Facility Anti-Terrorism Standards (CFATS) regulations. The ANPRM provided an opportunity for the public to provide recommendations for possible program changes. DHS is reviewing the public comments received in response to the ANPRM, after which DHS intends to publish a Notice of Proposed Rulemaking. Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No CFR Citation: 6 CFR 27 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: sec 550 of the Department of Homeland Security Appropriations Act of 2007 Pub. L , as amended Legal Deadline: None Regulatory Plan: Statement of Need: DHS intends to propose several potential program changes to the CFATS regulation. These changes have been identified in the five years since program implementation. In addition, in December 2014, a new law (the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014) was enacted which provides DHS continuing authority to implement CFATS. DHS must make several modifications and additions to conform the CFATS regulation with the new law. 17

18 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Legal Basis: The Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (Pub. L ) added Title XXI to the Homeland Security Act of 2002 (HSA) to authorize in permanent law a Chemical Facility Anti-terrorism Standards (CFATS) program. See 6 U.S.C. 621 et seq. Title XXI supersedes section 550 of the Department of Homeland Security Appropriations Act of 2007, Pub. L , under which the CFATS program was originally established in April Section 2107(a) of the HSA specifically authorizes DHS to "promulgate regulations or amend existing CFATS regulations to implement the provisions under [Title XXI]. 6 U.S.C. 627(a). In addition, section 2107(b)(2) of the HSA requires DHS to repeal any existing CFATS regulation that [DHS] determines is duplicative of, or conflicts with, [Title XXI]. 6 U.S.C. 627(b)(2). Alternatives: Costs and Benefits: The ANPRM provided an opportunity for the public to provide recommendations for possible program changes. DHS is reviewing the public comments received in response to the ANPRM, after which DHS intends to publish a Notice of Proposed Rulemaking (NPRM). Risks: Timetable: Action Date FR Cite ANPRM 08/18/ FR ANPRM Comment Period End 10/17/2014 NPRM 07/00/2016 Regulatory Flexibility Analysis Required: Business Government Levels Affected: Federal; Local; State Federalism: No RIN Information URL: Public Comment URL: Agency Contact: Jon MacLaren Chief, Rulemaking Section Department of Homeland Security Office of the Secretary National Protection and Programs Directorate, Infrastructure Security Compliance Division (NPPD/ISCD), 245 Murray Lane, Mail Stop 0610 Arlington, VA Phone: FAX: jon.m.maclaren@hq.dhs.gov Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services ( USCIS ) RIN: 1615-AA60 Title: Adjustment of Status to Lawful Permanent Resident for Aliens in T and U Nonimmigrant Status Abstract: This rule sets forth measures by which certain victims of severe forms of trafficking who have been granted T nonimmigrant status and victims of certain qualifying criminal activity who have been granted U nonimmigrant status may apply for adjustment of status to lawful permanent resident in accordance with Public Law , Victims of Trafficking and Violence Protection Act of 2000; and Public Law , Violence Against Women and Department of Justice Reauthorization Act of The Trafficking Victims Protection Reauthorization Act of 2008, Public Law , made amendments to the T nonimmigrant status provisions of the Immigration and Nationality Act (INA). The Violence Against Women's Reauthorization Act of 2013, Public Law 113-4, made amendments to the T and U nonimmigrant status and the T and U adjustment of status provisions of the Immigration and Nationality Act. The Department of Homeland Security (DHS) will issue a proposed rule to propose the changes required by recent legislation. 18

19 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No CFR Citation: 8 CFR 204; 8 CFR 214; 8 CFR 245 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 8 U.S.C to 1104; 8 U.S.C. 1182; 8 U.S.C. 1184; 8 U.S.C. 1187; 8 U.S.C. 1201; 8 U.S.C to 1227; 8 U.S.C to 1252a; 8 U.S.C. 1255; 22 U.S.C. 7101; 22 U.S.C. 7105; Pub. L Legal Deadline: None Regulatory Plan: Statement of Need: This regulation is necessary to permit aliens in lawful T or U nonimmigrant status, including derivatives, to apply for adjustment of status to that of lawful permanent residents. Legal Basis: This regulation is necessary to permit aliens in lawful T or U nonimmigrant status to apply for adjustment of status to that of lawful permanent residents. T nonimmigrant status is available to aliens who are victims of a severe form of trafficking in persons and who have assisted or are assisting law enforcement in the investigation or prosecution of the acts of trafficking. U nonimmigrant status is available to aliens who are victims of certain qualifying criminal activity crimes and have been, are being, or are likely to be helpful to the investigation or prosecution of those crimes. Alternatives: DHS did not consider alternatives to managing T and U applications for adjustment of status. Ease of administration dictates that adjustment of status applications from T and U nonimmigrants would be best handled on a first in, first out basis, because that is the way applications for T and U status are currently handled. Costs and Benefits: DHS uses fees to fund the cost of processing applications and associated support benefits. In the 2008 interim final rule, DHS estimated the fee collection resulting from this rule at approximately $3 million in the first year, $1.9 million in the second year, and an average about $32 million in the third and subsequent years. DHS is in the process of updating these cost estimates. The anticipated benefits of these expenditures include: Continued assistance to trafficked and other qualifying crime victims and their families, increased investigation and prosecution of traffickers in persons and other qualifying crimes, and the elimination of abuses caused by trafficking and criminal activities. Risks: While there is a limit of 5,000 adjustments based on T nonimmigrant status per fiscal year, there is no such limit on those applying for adjustment based on U nonimmigrant status. Eligible applicants for adjustment of status based on T nonimmigrant status will be placed on a waiting list maintained by U.S. Citizenship and Immigration Services (USCIS). Timetable: Action Date FR Cite Interim Final Rule 12/12/ FR Interim Final Rule Effective 01/12/2009 Interim Final Rule Comment Period End 02/10/2009 NPRM 10/00/2016 Additional Information: CIS No Transferred from RIN 1115-AG21 Regulatory Flexibility Analysis Required: No Government Levels Affected: Federal; Local; State Small Entities Affected: No Federalism: No RIN Information URL: Public Comment URL: Agency Contact: Maureen A. Dunn Chief, Family Immigration and Victim Protection Division Department of Homeland Security U.S. Citizenship and Immigration Services Office of Policy and Strategy, 20 Massachusetts Avenue, NW., Suite 1200 Washington, DC Phone:

20 Regulations.gov Thursday, November 19, 2015 Regulatory Plan FAX: Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services ( USCIS ) RIN: 1615-AA67 Title: New Classification for Victims of Criminal Activity; Eligibility for the U Nonimmigrant Status Abstract: This rule proposes new application and eligibility requirements for U nonimmigrant status. The U classification is for non-u.s. citizen/lawful permanent resident victims of certain crimes who cooperate with an investigation or prosecution of those crimes. There is a limit of 10,000 principals per fiscal year. This rule would propose to establish new procedures to be followed to petition for the U nonimmigrant classifications. Specifically, the rule would address the essential elements that must be demonstrated to receive the nonimmigrant classification, procedures that must be followed to file a petition and evidentiary guidance to assist in the petitioning process. Eligible victims would be allowed to remain in the United States if granted U nonimmigrant status. The Trafficking Victims Protection Reauthorization Act of 2008, Public Law , and the Violence Against Women Reauthorization Act (VAWA) of 2013, Public Law 113-4, made amendments to the U nonimmigrant status provisions of the Immigration and Nationality Act. The Department of Homeland Security had issued an interim final rule in Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No CFR Citation: 8 CFR 103; 8 CFR 204; 8 CFR 212; 8 CFR 214; 8 CFR 299 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 8 U.S.C. 1101; 8 U.S.C (note); 8 U.S.C. 1102; Pub. L Legal Deadline: None Regulatory Plan: Statement of Need: This regulation is necessary to allow alien victims of certain crimes to petition for U nonimmigrant status. U nonimmigrant status is available to eligible victims of certain qualifying criminal activity who: (1) have suffered substantial physical or mental abuse as a result of the qualifying criminal activity; (2) the alien possesses information about the crime; (3) the alien has been, is being, or is likely to be helpful in the investigation or prosecution of the crime; and (4) the criminal activity took place in the United States, including military installations and Indian country, or the territories or possessions of the United States. This rule addresses the eligibility requirements that must be met for classification as a U nonimmigrant alien and implements statutory amendments to these requirements, streamlines the procedures to petition for U nonimmigrant status, and provides evidentiary guidance to assist in the petition process. Legal Basis: Congress created the U nonimmigrant classification in the Battered Immigrant Women Protection Act of 2000 (BIWPA) to provide immigration relief for alien victims of certain qualifying criminal activity and who are helpful to law enforcement in the investigation or prosecution of these crimes. Alternatives: To provide victims with immigration benefits and services and keeping in mind the purpose of the U visa as a law enforcement tool, DHS is considering and using suggestions from stakeholders in developing this regulation. These suggestions came in the form of public comment from the 2007 interim final rule as well as USCIS' six years of experience with the U nonimmigrant status program, including regular meetings and outreach events with stakeholders and law enforcement. Costs and Benefits: DHS estimated the total annual cost of the interim rule to petitioners to be $6.2 million in the interim final rule published in This cost included the biometric services fee, the opportunity cost of time needed to submit the required forms, the opportunity cost of time required and cost of traveling to visit a USCIS Application Support Center. DHS is currently in the process of updating our cost estimates since U nonimmigrant visa petitioners are no longer required to pay the biometric services fee. The anticipated benefits of these expenditures include assistance to victims of qualifying criminal activity and their families and increases in arrests and prosecutions of criminals nationwide. Additional benefits include heightened awareness by law enforcement of victimization of aliens in their community, and streamlining the petitioning process so that victims may benefit from this immigration relief. 20

21 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Risks: There is a statutory cap of 10,000 principal U nonimmigrant visas that may be granted per fiscal year at 8 U.S.C. 1184(p)(2). Eligible petitioners who are not granted principal U-1 nonimmigrant status due solely to the numerical limit will be placed on a waiting list maintained by U.S. Citizenship and Immigration Services (USCIS). To protect U-1 petitioners and their families, USCIS will use various means to prevent the removal of U-1 petitioners and their eligible family members on the waiting list, including exercising its authority to allow deferred action, parole, and stays of removal, in cooperation with other DHS components. Timetable: Action Date FR Cite Interim Final Rule 09/17/ FR Interim Final Rule Effective 10/17/2007 Interim Final Rule Comment Period End 11/17/2007 NPRM 10/00/2016 Additional Information: Transferred from RIN 1115-AG39 Regulatory Flexibility Analysis Required: No Government Levels Affected: Federal; Local; State Small Entities Affected: No Federalism: No RIN Information URL: Public Comment URL: Agency Contact: Maureen A. Dunn Chief, Family Immigration and Victim Protection Division Department of Homeland Security U.S. Citizenship and Immigration Services Office of Policy and Strategy, 20 Massachusetts Avenue, NW., Suite 1200 Washington, DC Phone: FAX: maureen.a.dunn@uscis.dhs.gov Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services ( USCIS ) RIN: 1615-AB89 Title: Exception to the Persecution Bar for Asylum, Refugee, and Temporary Protected Status, and Withholding of Removal Abstract: This joint rule proposes amendments to Department of Homeland Security (DHS) and Department of Justice (DOJ) regulations to describe the circumstances under which an applicant will continue to be eligible for asylum, refugee, or temporary protected status, special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act, and withholding of removal, even if DHS or DOJ has determined that the applicant's actions contributed, in some way to the persecution of others when the applicant's actions were taken under duress. Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No CFR Citation: 8 CFR 1; 8 CFR 207; 8 CFR 208; 8 CFR 240; 8 CFR 244; 8 CFR 1001; 8 CFR 1208; 8 CFR 1240 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 8 U.S.C. 1158; 8 U.S.C. 1254a; Pub. L Legal Deadline: None Regulatory Plan: Statement of Need: This rule resolves ambiguity in the statutory language precluding eligibility for asylum, refugee, and temporary protected status of an applicant who ordered, incited, assisted, or otherwise participated in the persecution of others. The proposed amendment would provide a limited exception for actions taken by the applicant under duress and clarify the required levels of the applicant's knowledge of the persecution. Legal Basis: In Negusie v. Holder, 129 S. Ct (2009), the Supreme Court addressed whether the persecutor bar should apply when an alien's actions were taken under duress. DHS believes that this is an appropriate subject for rulemaking and proposes to amend 21

22 Regulations.gov Thursday, November 19, 2015 Regulatory Plan the applicable regulations to set out its interpretation of the statute. In developing this regulatory initiative, DHS has carefully considered the purpose and history behind enactment of the persecutor bar, including its international law origins and the criminal law concepts upon which they are based. Alternatives: DHS did consider the alternative of not publishing a rulemaking on these issues. To leave this important area of the law without an administrative interpretation would confuse adjudicators and the public. Costs and Benefits: The programs affected by this rule exist so that the United States may respond effectively to global humanitarian situations and assist people who are in need. USCIS provides a number of humanitarian programs and protection to assist individuals in need of shelter or aid from disasters, oppression, emergency medical issues, and other urgent circumstances. This rule will advance the humanitarian goals of the asylum/refugee program, and other specialized programs. The main benefits of such goals tend to be intangible and difficult to quantify in economic and monetary terms. These forms of relief have not been available to individuals who engaged in persecution of others under duress. This rule will allow an exception to this bar from protection for applicants who can meet the appropriate evidentiary standard. Consequently, this rule may result in a small increase in the number of applicants for humanitarian programs. To the extent a small increase in applicants occurs, there could be additional fee costs incurred by these applicants. Risks: If DHS were not to publish a regulation, the public would face a lengthy period of confusion on these issues. There could also be inconsistent interpretations of the statutory language, leading to significant litigation and delay for the affected public. Timetable: Action Date FR Cite NPRM 10/00/2016 Regulatory Flexibility Analysis Required: No Small Entities Affected: No Energy Affected: No Related Agencies: Joint : DOJ Agency Contact: Ronald W. Whitney Deputy Chief, Refugee and Asylum Law Division Department of Homeland Security U.S. Citizenship and Immigration Services Office of Chief Counsel, 20 Massachusetts Avenue, NW. Washington, DC Phone: FAX: ronald.w.whitney@uscis.dhs.gov Government Levels Affected: No Federalism: No Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services ( USCIS ) RIN: 1615-AB98 Title: Requirements for Filing Motions and Administrative Appeals Abstract: This proposed rule proposes to revise the requirements and procedures for the filing of motions and appeals before the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), and its Administrative Appeals Office (AAO). The proposed changes are intended to streamline the existing processes for filing motions and appeals and will reduce delays in the review and appellate process. This rule also proposes additional changes necessitated by the establishment of DHS and its components. The proposed changes are intended to promote simplicity, accessibility, and efficiency in the administration of USCIS appeals. The Department also solicits public comment on proposed changes to the AAO s appellate jurisdiction. Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No CFR Citation: 8 CFR 103; 8 CFR 204; 8 CFR 205; 8 CFR 210; 8 CFR 214; 8 CFR 245a; 8 CFR 320; 8 CFR 105 (new);... (To search for a specific CFR, visit the Code of Federal Regulations ) 22

23 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Legal Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 8 U.S.C. 1101; 8 U.S.C. 1103; 8 U.S.C. 1304; 6 U.S.C. 112 Legal Deadline: None Regulatory Plan: Statement of Need: This rule proposes to make numerous changes to streamline the current appeal and motion processes which: (1) Will result in cost savings to the Government, applicants, and petitioners; and (2) will provide for a more efficient use of USCIS officer and clerical staff time, as well as more uniformity with Board of Immigration Appeals appeal and motion processes. Legal Basis: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 8 U.S.C and notes 1102, 1103, 1151, 1153, 1154, 1182, 1184, 1185 note (sec of Pub. L ; title VII of Pub. L ), 1186a, 1187, 1221,1223, 1225 to 1227, 1255a, and 1255a note, 1281, 1282, 1301 to 1305, 1324a,1356, 1372, 1379, 1409(c), 1443 to 1444, 1448, 1452, 1455, 1641, 1731 to 1732; 31 U.S.C. 9701; 48 U.S.C. 1901, 1931 note; section 643, Public Law , 110, Stat ; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau; title VII of Public Law ; Public Law , 116 Stat (6 U.S.C. 1 et seq.); Public Law , 66 Stat. 173, 238, 254, 264; title VII of Public Law ; Executive Order Alternatives: The alternative to this rule would be to continue under the current process without change. Costs and Benefits: As a result of streamlining the appeal and motion process, DHS anticipates quantitative and qualitative benefits to DHS and the public. We also anticipate cost savings to DHS and applicants as a result of the proposed changes. Risks: Timetable: Action Date FR Cite NPRM 10/00/2016 Additional Information: Previously 1615-AB29 (CIS ), which was withdrawn in Regulatory Flexibility Analysis Required: Governmental Jurisdictions Federalism: No Energy Affected: No Related RINs: Duplicate of 1615-AB29 Agency Contact: Charles "Locky" Nimick Deputy Chief Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office, 20 Massachusetts Avenue, NW. Washington, DC Phone: charles.nimick@usics.dhs.gov Government Levels Affected: No Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services ( USCIS ) RIN: 1615-AC04 Title: Significant Public Benefit Parole for Entrepreneurs Abstract: The Department of Homeland Security (DHS) is proposing to establish a program that would allow for consideration of parole into the United States, on a case-by-case basis, of certain inventors, researchers, and entrepreneurs who will establish a U.S. start-up entity, and who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and 23

24 Regulations.gov Thursday, November 19, 2015 Regulatory Plan job creation through the development of new technologies or the pursuit of cutting edge research. Based on investment, jobcreation, and other factors, the entrepreneur may be eligible for temporary parole. Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: Undetermined Unfunded Mandates: No CFR Citation: 8 CFR (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 8 U.S.C. 1182(d)(5)(A) Legal Deadline: None Regulatory Plan: Statement of Need: The Immigration and Nationality Act (INA) authorizes the Secretary, in the exercise of discretion, to parole arriving aliens into the United States on a case-by-case basis for urgent humanitarian reasons or significant public benefit. INA section 212(d)(5), 8 U.S.C. 1182(d)(5). No existing regulation explains how DHS determines what provides a significant public benefit to the U.S. economy. This regulation clarifies this standard with respect to entrepreneur parolees. This regulation focuses specifically on the significant economic public benefit provided by foreign entrepreneurs because of the particular benefit they bring to the U.S. economy. However, the full potential of foreign entrepreneurs to benefit the U.S. economy is limited by the fact that many foreign entrepreneurs do not qualify under existing nonimmigrant and immigrant classifications. Given the technical nature of entrepreneurship, and the limited guidance to date on what constitutes a significant public benefit, DHS believes that it is necessary to establish the conditions of such an economically-based significant public benefit parole by regulation. Combined with a unique application process, the goal is to ensure that the high standard set by the statute authorizing significant public benefit parole is uniformly met across adjudications. In this rule, DHS is proposing to establish the conditions for significant public benefit parole with respect to certain entrepreneurs and start-up founders backed by U.S. investors or grants. DHS believes that this proposal, once implemented, would encourage entrepreneurs to create and develop start-up entities in the United States with high growth potential to create jobs for U.S. workers and benefit the U.S. economy. U.S. competitiveness would increase by attracting more entrepreneurs to the United States. This proposal provides a fair, transparent, and predictable framework by which DHS will exercise its discretion to adjudicate, on a case-by-case basis, such parole requests under the existing statutory authority at INA section 212(d)(5), 8 U.S.C. 1182(d)(5). Lastly, this proposed rule provides a pathway, based on authority currently provided to the Secretary, for entrepreneurs to develop businesses in the United States, create jobs for U.S. workers, and, at the same time, establish a track record of experience and/or accomplishments. Such a track record may lead to meeting eligibility requirements for existing nonimmigrant or immigrant classifications. Legal Basis: The Secretary s authority for this proposed regulatory amendment can be found in the Homeland Security Act of 2002, Public Law , section 102, 116 Stat. 2135, 6 U.S.C. 112, and INA section 103, 8 U.S.C. 1103, which give the Secretary the authority to administer and enforce the immigration and nationality laws, as well as INA section 212(d)(5), 8 U.S.C. 1182(d)(5), which refers to the Secretary s discretionary authority to grant parole and provides DHS with regulatory authority to establish terms and conditions for parole once authorized. Alternatives: Costs and Benefits: DHS estimates the costs of the rule are directly linked to the application fee and opportunity costs associated with requesting significant public benefit parole. DHS does not estimate there will be any negative impacts to the U.S. economy as a result of this rule. Economic benefits can be expected from this rule, because some number of new ventures and research endeavors will be conducted in the United States that otherwise would not. It is reasonable to assume that investment and research spending on new firms associated with this proposed rule will directly and indirectly benefit the U.S. economy and job creation. In addition, innovation and research and development spending are likely to generate new patents and new technologies, further enhancing innovation. Some portion of the immigrant entrepreneurs likely to be attracted to this parole program may develop high impact firms that can be expected to contribute disproportionately to job creation. Risks: Timetable: Action Date FR Cite NPRM 12/00/

25 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Regulatory Flexibility Analysis Required: No Government Levels Affected: No Federalism: No Energy Affected: No International Impacts: This regulatory action will be likely to have international trade and investment effects, or otherwise be of international interest. Agency Contact: Kevin J. Cummings Chief, Business and Foreign Workers Division Department of Homeland Security U.S. Citizenship and Immigration Services Office of Policy and Strategy, 20 Massachusetts Avenue, NW. Washington, DC Phone: FAX: Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services ( USCIS ) RIN: 1615-AC05 Title: Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled H-1B Alien Workers Abstract: The Department of Homeland Security (DHS) is proposing to amend its regulations affecting certain employment-based immigrant and nonimmigrant classifications. This rule proposes to amend current regulations to provide stability and job flexibility for the beneficiaries of approved employment-based immigrant visa petitions while they wait to become lawful permanent residents. DHS is also proposing to conform its regulations with the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) as amended by the Twenty-First Century Department of Justice Appropriations Authorization Act (the 21 st Century DOJ Appropriations Act), as well as the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). The rule also seeks to clarify several interpretive questions raised by ACWIA and AC21 regarding H-1B petitions, and incorporate relevant AC21 policy memoranda and an Administrative Appeals Office precedent decision, and would ensure that DHS practice is consistent with them. Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: Yes Unfunded Mandates: No CFR Citation: 8 CFR 204 to 205; 8 U.S.C. 214; 8 CFR 245; 8 CFR 274a (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 6 U.S.C. 112; 8 U.S.C and 1155; 8 U.S.C. 1184; 8 U.S.C. 1255; 8 U.S.C. 1324a Legal Deadline: None Regulatory Plan: Statement of Need: This rule provides needed stability and flexibility to certain employment-based immigrants while they wait to become lawful permanent residents. These amendments would support U.S. employers by better enabling them to hire and retain highly skilled and other foreign workers. DHS proposes to accomplish this, in part, by implementing certain provisions of ACWIA and AC21, as amended by the 21st Century DOJ Appropriations Act. The 21st Century DOJ Appropriations Authorization Act, which will impact certain foreign nationals seeking permanent residency in the United States, as well as H-1B workers. Further, by clarifying interpretive questions related to these provisions, this rulemaking would ensure that DHS practice is consistent with statute. Legal Basis: The authority of the Secretary of Homeland Security (Secretary) for these regulatory amendments can be found in section 102 of the Homeland Security Act of 2002, Public Law , 116 Stat. 2135, 6 U.S.C. 112, and section 103(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1103(a), which authorize the Secretary to administer and enforce the immigration and nationality laws. In pertinent part, ACWIA authorized the Secretary to impose a fee on certain H-1B petitioners which would be used to train American workers, and AC21 provides authority to increase access to foreign workers as well as to train U.S. workers. In addition, section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), recognizes the Secretary s authority to extend employment to noncitizens in the United States, and section 205 of the INA, 8 U.S.C. 1155, recognizes the Secretary s authority to exercise discretion in determining the revocability of any petition approved by him under section 204 of the INA. 25

26 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Alternatives: The alternative would be to continue under current procedures without change. Costs and Benefits: The proposed amendments would increase the incentive of highly-skilled and other foreign workers who have begun the immigration process to remain in and contribute to the U.S. economy as they complete the process to adjust status to or otherwise acquire lawful permanent resident status, thereby minimizing disruptions to petitioning U.S. employers. Attracting and retaining highly-skilled persons is important when considering the contributions of these individuals to the U.S. economy, including advances in entrepreneurial and research and development endeavors, which are highly correlated with overall economic growth and job creation. Risks: Timetable: Action Date FR Cite NPRM 12/00/2015 Additional Information: 1615-AB97 will be merged under this rule, 1615-AC05. Regulatory Flexibility Analysis Required: Undetermined Government Levels Affected: No Federalism: No Energy Affected: No International Impacts: This regulatory action will be likely to have international trade and investment effects, or otherwise be of international interest. Related RINs: Related to 1615-AB97 Agency Contact: Kevin Cummings Branch Chief, Business and Foreign Workers Division Department of Homeland Security U.S. Citizenship and Immigration Services Second Floor, Office of Policy and Strategy, 20 Massachusetts Avenue NW. Washington, DC Phone: FAX: Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services ( USCIS ) RIN: 1615-AA59 Title: Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for T Nonimmigrant Status Abstract: The T nonimmigrant classification was created by the Victims of Trafficking and Violence Protection Act of 2000, Public Law The classification was designed for eligible victims of severe forms of trafficking in persons who aid law enforcement with their investigation or prosecution of the traffickers, and who can establish that they would suffer extreme hardship involving unusual and severe harm if they were removed from the United States. The rule streamlines application procedures and responsibilities for the Department of Homeland Security (DHS) and provides guidance to the public on how to meet certain requirements to obtain T nonimmigrant status. Several reauthorizations, including the Violence Against Women Reauthorization Act of 2013, Public Law 113-4, have made amendments to the T nonimmigrant status provisions in the Immigration and Nationality Act. This rule implements those amendments. Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No CFR Citation: 8 CFR 103; 8 CFR 212; 8 CFR 214; 8 CFR 274a; 8 CFR 299 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 8 U.S.C to 1104; 8 U.S.C. 1182; 8 U.S.C. 1184; 8 U.S.C. 1187; 8 U.S.C. 1201; 8 U.S.C to 1227; 8 U.S.C to 1252a; 22 U.S.C. 7101; 22 U.S.C. 7105; Pub. L Legal Deadline: None Regulatory Plan: Statement of Need: 26

27 Regulations.gov Thursday, November 19, 2015 Regulatory Plan This rule addresses the essential elements that must be demonstrated for classification as a T nonimmigrant alien and implements statutory amendments to these elements, streamlines the procedures to be followed by applicants to apply for T nonimmigrant status, and provides evidentiary guidance to assist in the application process. Legal Basis: Section 107(e) of the Victims of Trafficking and Violence Protection Act of 2000 Public Law , as amended, established the T classification to provide immigration relief for certain eligible victims of severe forms of trafficking in persons who assist law enforcement authorities in investigating and prosecuting the perpetrators of these crimes. Alternatives: To provide victims with immigration benefits and services, keeping in mind the purpose of the T visa to also serve as a law enforcement tool, DHS is considering and using suggestions from stakeholders in developing this regulation. These suggestions came in the form of public comment to the 2002 interim final rule, as well as from over 10 years of experience with the T nonimmigrant status program, including regular meetings with stakeholders and regular outreach events. Costs and Benefits: Applicants for T nonimmigrant status do not pay application or biometric fees. The anticipated benefits of this rule include: assistance to trafficked victims and their families; an increase in the number of cases brought forward for investigation and/or prosecution of traffickers in persons; heightened awareness by the law enforcement community of trafficking in persons; and streamlining the application process for victims. Risks: There is a 5,000-person limit to the number of individuals who can be granted T-1 status per fiscal year. Eligible applicants who are not granted T-1 status due solely to the numerical limit will be placed on a waiting list maintained by U.S. Citizenship and Immigration Services (USCIS). To protect T-1 applicants and their families, USCIS will use various means to prevent the removal of T-1 applicants on the waiting list, and their family members who are eligible for derivative T status, including its existing authority to grant deferred action, parole, and stays of removal, in cooperation with other DHS components. Timetable: Action Date FR Cite Interim Final Rule 01/31/ FR 4784 Interim Final Rule Effective 03/04/2002 Interim Final Rule Comment Period End 04/01/2002 Interim Final Rule 06/00/2016 Additional Information: Transferred from RIN 1115-AG19 Regulatory Flexibility Analysis Required: No Government Levels Affected: Federal; Local; State Small Entities Affected: No Federalism: No Agency Contact: Maureen A. Dunn Chief, Family Immigration and Victim Protection Division Department of Homeland Security U.S. Citizenship and Immigration Services Office of Policy and Strategy, 20 Massachusetts Avenue, NW., Suite 1200 Washington, DC Phone: FAX: maureen.a.dunn@uscis.dhs.gov Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services ( USCIS ) RIN: 1615-AB77 Title: Application of Immigration Regulations to the Commonwealth of the Northern Mariana Islands Abstract: This final rule amends the Department of Homeland Security (DHS) and the Department of Justice (DOJ) regulations to comply with the CNRA. The CNRA extends the immigration laws of the United States to the CNMI. This rule finalizes the interim rule 27

28 Regulations.gov Thursday, November 19, 2015 Regulatory Plan and implements conforming amendments to their respective regulations. Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No CFR Citation: 8 CFR 212.4(k)(1) and (2); 8 CFR (a), (b), (c) and (d); 8 CFR 245.1(d)(1)(v) and (vi); 8 CFR 274a.12(b)(24); 8 CFR (d)(1)(v), (vi), and (vii); 8 CFR 2 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: Pub. L ; 8 U.S.C and note; 8 U.S.C. 1102; 8 U.S.C. 1103; 8 U.S.C and note; 8 U.S.C. 1184; 8 U.S.C. 1187; 8 U.S.C. 1223; 8 U.S.C. 1225; 8 U.S.C. 1226; 8 U.S.C. 1227; 8 U.S.C. 1255; 8 U.S.C note; 8 U.S.C. 48; U.S.C. 1806; 8 U.S.C. 1186a; 8 U.S.C. 1187; 8 U.S.C. 1221; 8 U.S.C. 1281; 8 U.S.C. 1282; 8 U.S.C to 1305 and 1372; Pub. L ; Pub. L ; Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, sec 141; 48 U.S.C note and 1931 note; Pub. L ; Pub. L ; 8 U.S.C. 1324a Legal Deadline: Public Law , the Consolidated Natural Resources Act of 2008 (CNRA), was enacted on May 8, Title VII of this statute extended the provisions of the Immigration and Nationality Act (INA) to the Commonwealth of the Northern Mariana Islands (CNMI). Action Source Description Date Other Statutory Consolidated Natural Resources Act (CNRA) of /28/2009 Regulatory Plan: Statement of Need: This rule finalizes the interim rule to conform existing regulations with the CNRA. Some of the changes implemented under the CNRA affect existing regulations governing both DHS immigration policy and procedures and proceedings before the immigration judges and the Board. Accordingly, it is necessary to make amendments both to the DHS regulations and to the DOJ regulations. The Secretary and the Attorney General are making conforming amendments to their respective regulations in this single rulemaking document. Legal Basis: Congress extended the immigration laws of the United States to the CNMI. The stated purpose of the CNRA is to ensure effective border control procedures, to properly address national security and homeland security concerns by extending U.S. immigration law to the CNMI (phasing-out the CNMI's nonresident contract worker program while minimizing to the greatest extent practicable the potential adverse economic and fiscal effects of that phase-out), to maximize the CNMI's potential for future economic and business growth, and to assure worker protections from the potential for abuse and exploitation. Alternatives: Costs and Benefits: Costs: The interim rule established basic provisions necessary for the application of the INA to the CNMI and updated definitions and existing DHS and DOJ regulations in areas that were confusing or in conflict with how they are to be applied to implement the INA in the CNMI. As such, that rule made no changes that had identifiable direct or indirect economic impacts that could be quantified. Benefits: This final rule makes regulatory changes in order to lessen the adverse impacts of the CNRA on employers and employees in the CNMI and assist the CNMI in its transition to the INA. Risks: Timetable: Action Date FR Cite Interim Final Rule 10/28/ FR Interim Final Rule Comment Period End 11/27/2009 Correction 12/22/ FR Final Action 10/00/2016 Additional Information: CIS Regulatory Flexibility Analysis Required: No Small Entities Affected: No Energy Affected: No RIN Information URL: Related RINs: Related to 1615-AB76; Related to 1615-AB75 Agency Contact: Kevin J. Cummings Government Levels Affected: No Federalism: No 28 Public Comment URL:

29 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Chief, Business and Foreign Workers Division Department of Homeland Security U.S. Citizenship and Immigration Services Office of Policy and Strategy, 20 Massachusetts Avenue, NW. Washington, DC Phone: FAX: Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services ( USCIS ) RIN: 1615-AB81 Title: Special Immigrant Juvenile Petitions Abstract: The Department of Homeland Security (DHS) is amending its regulations governing the Special Immigrant Juvenile (SIJ) classification and related applications for adjustment of status to permanent resident. Special Immigrant Juvenile classification is a humanitarian-based immigration protection for children who cannot be reunified with one or both parents because of abuse, neglect, abandonment, or a similar basis found under State law. This final rule implements updates to eligibility requirements and other changes made by the Trafficking Victims Protection Reauthorization Act of 2008, Pub. L DHS received comments on the proposed rule in 2011 and intends to issue a final rule in the coming year. Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No CFR Citation: 8 CFR 204; 8 CFR 205; 8 CFR 245 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 8 U.S.C. 1151; 8 U.S.C. 1153; 8 U.S.C Legal Deadline: None Regulatory Plan: Statement of Need: This rule would address the eligibility requirements that must be met for SIJ classification and related adjustment of status, implement statutory amendments to these requirements, and provide procedural and evidentiary guidance to assist in the petition process. Legal Basis: Congress established the SIJ classification in the Immigration Act of 1990 (IMMACT). The 1998 Appropriations Act amended the SIJ classification by limiting eligibility to children declared dependent on a juvenile court because of abuse, abandonment, or neglect and creating consent functions. The Trafficking Victims Protection Reauthorization Act of 2008 made many changes to the SIJ classification including: (1) creating a requirement that the petitioner's reunification with one or both parents not be viable due to abuse, abandonment, neglect, or a similar basis under State law; (2) expanding the population of children who may be eligible to include those placed by a juvenile court with an individual or entity; (3) modifying the consent functions; (4) providing age-out protection; and (5) creating a timeframe for adjudications. Alternatives: DHS is considering and using suggestions from stakeholders to keep in mind the vulnerable nature of abused, abandoned and neglected children in developing this regulation. These suggestions came in the form of public comment from the 2011 proposed rule. Costs and Benefits: In the 2011 proposed rule, DHS estimated there would be no additional regulatory compliance costs for petitioning individuals or any program costs for the Government as a result of the proposed amendments. Qualitatively, DHS estimated that the proposed rule would codify the practices and procedures currently implemented via internal policy directives issued by USCIS, thereby establishing clear guidance for petitioners. DHS is currently in the process of updating our final cost and benefit estimates. Risks: 29

30 Regulations.gov Thursday, November 19, 2015 Regulatory Plan The failure to promulgate a final rule in this area presents significant risk of further inconsistency and confusion in the law. The Government's interests in fair, efficient, and consistent adjudications would be compromised. Timetable: Action Date FR Cite NPRM 09/06/ FR NPRM Comment Period End 11/07/2011 Final Rule 10/00/2016 Regulatory Flexibility Analysis Required: No Government Levels Affected: Federal; State Small Entities Affected: No Federalism: No Energy Affected: No RIN Information URL: Public Comment URL: Agency Contact: Maureen A. Dunn Chief, Family Immigration and Victim Protection Division Department of Homeland Security U.S. Citizenship and Immigration Services Office of Policy and Strategy, 20 Massachusetts Avenue, NW., Suite 1200 Washington, DC Phone: FAX: maureen.a.dunn@uscis.dhs.gov Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services ( USCIS ) RIN: 1615-AC00 Title: Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants Abstract: The Department of Homeland Security (DHS) is updating the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer, to clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. DHS is also amending the regulations to provide authorization for continued employment with the same employer if the employer has timely filed for an extension of the nonimmigrant's stay. DHS is also providing for this same continued work authorization for Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) nonimmigrants if a Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form I 129CW, is timely filed to apply for an extension of stay. In addition, DHS is updating the regulations describing the filing procedures for extensions of stay and change of status requests to include the principal E-3 and H-1B1 nonimmigrant classifications. These changes harmonize the regulations for E-3, H-1B1, and CW-1 nonimmigrant classifications with existing regulations for other, similarly situated nonimmigrant classifications. Finally, DHS is expanding the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations. This harmonizes the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. DHS is amending the regulations to benefit these high-skilled workers and CW-1 transitional workers by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications. Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No CFR Citation: 8 CFR 204.5(i)(3)(ii)-(iv); 8 CFR 214.1(c)(1); 8 CFR 248.3(a); 8 CFR 274a.12(b)(9), (b)(20), (b)(23)-(25); 8 CFR 2 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 8 U.S.C. 1151; 8 U.S.C. 1153; 8 U.S.C. 1154; 8 U.S.C. 1182; 8 U.S.C. 1184; 8 U.S.C. 1186a; 8 U.S.C. 1255; 8 U.S.C. 1641; 8 U.S.C. 1187; 8 U.S.C. 1221; 8 U.S.C. 1281; 8 U.S.C. 1282; 8 U.S.C and 1372; Pub. L , sec 643; Pub. L ; Compacts of Free Association with the Federated States of Micronesia and the Republic of Marshall Islands, and with the Government of Palau, sec 141; 48 U.S.C note and 1931 note; Pub. L ; 8 U.S.C. 1258; 8 U.S.C. 1324a; 48 U.S.C. 1806; 8 U.S.C Legal Deadline: None Regulatory Plan: Statement of Need: As proposed, this rule would improve the programs serving the E-3, H-1B1, and CW-1 nonimmigrant classifications and the EB-1 immigrant classification for outstanding professors and researchers. The proposed changes harmonize the regulations governing these classifications with regulations governing similar visa classifications by removing unnecessary hurdles that place E-3, H-1B1, CW-1 and certain EB-1 workers at a disadvantage. 30

31 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Legal Basis: The Homeland Security Act of 2002, Public Law , section 102, 116 Stat (Nov. 25, 2002), 6 U.S.C. 112, and the Immigration and Nationality Act of 1952 (INA), charge the Secretary of Homeland Security (Secretary) with administration and enforcement of the immigration and nationality laws. See INA section 103, 8 U.S.C Alternatives: A number of the changes are part of DHS's Retrospective Review Plan for Existing Regulations. During development of DHS's Retrospective Review Plan, DHS received a comment from the public requesting specific changes to the DHS regulations that govern continued work authorization for E-3 and H-1B1 nonimmigrants when an extension of status petition is timely filed, and to expand the types of evidence allowable in support of immigrant petitions for outstanding researchers or professors. This rule is responsive to that comment, and with the retrospective review principles of Executive Order Costs and Benefits: The E-3 and H-1B1 provisions do not impose any additional costs on petitioning employers, individuals or Government entities, including the Federal government. The regulatory amendments provide equity for E-3 and H-1B1 nonimmigrants relative to other employment-based nonimmigrants listed in 8 CFR 274a.12.(b)(20). This provision may also allow employers of E-3 or H- 1B1 nonimmigrant workers to avoid the cost of lost productivity resulting from interruptions of work while an extension of stay petition is pending. The regulatory changes that clarify principal E-3 and H-1B1 nonimmigrant classifications are employment authorized incident to status with a specific employer and that these nonimmigrant classifications must file a petition with USCIS to make an extension of stay or change of status request, simply codify current practice and impose no additional costs. Likewise, the regulatory amendments governing CW-1 nonimmigrants would not impose any additional costs for petitioning employers or for CW-1 nonimmigrant workers. The benefits of the rule are to provide equity for CW-1 nonimmigrant workers whose extension of stay request is filed by the same employer relative to other CW-1 nonimmigrant workers. Additionally, this provision mitigates any potential distortion in the labor market for employers of CW-1 nonimmigrant workers created by current inconsistent regulatory provisions which currently offer an incentive to file for extensions of stay with new employers rather than current employers. The portion of the rule addressing the evidentiary requirements for the EB-1 outstanding professor and researcher employment-based immigrant classification allows for the submission of comparable evidence (achievements not listed in the criteria such as important patents or prestigious, peer-reviewed funding grants) for that listed in 8 CFR 204.5(i)(3)(i)(A) through (F) to establish that the EB-1 professor or researcher is recognized internationally as outstanding in his or her academic field. Harmonizing the evidentiary requirements for EB-1 outstanding professors and researchers with other comparable employment-based immigrant classifications provides equity for EB-1 outstanding professors and researchers relative to those other employment-based visa categories. Risks: Timetable: Action Date FR Cite NPRM 05/12/ FR NPRM Comment Period End 07/11/2014 Final Action 01/00/2016 Additional Information: Includes Retrospective Review under Executive Order Regulatory Flexibility Analysis Required: No Government Levels Affected: No Small Entities Affected: Business; Organizations Federalism: No Energy Affected: No International Impacts: This regulatory action will be likely to have international trade and investment effects, or otherwise be of international interest. RIN Information URL: Public Comment URL: Agency Contact: Kevin J. Cummings Chief, Business and Foreign Workers Division Department of Homeland Security U.S. Citizenship and Immigration Services Office of Policy and Strategy, 20 Massachusetts Avenue, NW. Washington, DC Phone: FAX: kevin.j.cummings@uscis.dhs.gov 31

32 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services ( USCIS ) RIN: 1615-AC03 Title: Expansion of Provisional Unlawful Presence Waivers of Inadmissibility Abstract: The Department of Homeland Security (DHS) is amending its regulations to expand eligibility for the provisional unlawful presence waiver of certain grounds of inadmissibility based on the accrual of unlawful presence to all aliens who are statutorily eligible for a waiver of such grounds, are seeking such a waiver in connection with an immigrant visa application, and meet other conditions. In relation to the statutory requirement that a waiver applicant must demonstrate that the denial of the waiver would result in extreme hardship to a qualifying relative, DHS is eliminating the restrictions currently contained in the provisional unlawful presence regulation that limits the qualifying relative to U.S. citizen spouses and parents. This rule permits an applicant for a provisional waiver to establish the eligibility requirement of showing extreme hardship to any qualifying relative named in the statutory waiver provision namely a U.S. citizen or lawful permanent resident spouses and parents. Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No CFR Citation: 8 CFR (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 8 U.S.C. 1103; 8 U.S.C Legal Deadline: None Regulatory Plan: Statement of Need: Currently, DHS allows certain immediate relatives who are in the United States to request a provisional unlawful presence waiver before departing for consular processing of their immigrant visas. Currently, this waiver process is only available to those immediate relatives whose sole ground of inadmissibility would be unlawful presence under section 212(a)(9)(B)(i) of the Immigration and Nationality Act (INA)and who can demonstrate that the denial of the waiver would result in extreme hardship to their U.S. citizen spouse or parent. All other aliens seeking an immigrant visa through consular process who require a waiver of inadmissibility to overcome the bars in INA section 212(a)(9)(B)(i) must file the waiver at the end of the consular processing and after the consular immigrant visa interview. Obtaining the waiver through this process can be lengthy. These aliens typically have to wait abroad for at least several months for a decision on their waiver applications and until a visa can be issued. During this period, applicants must endure separation from the U.S. citizen and lawful permanent resident family members in the United States, which, in turn, often results in emotional and financial hardships to some U.S. citizens, lawful permanent residents, and their families. Inefficiencies in this waiver process also create costs for the Federal Government. As proposed, USCIS may grant a provisional unlawful presence waiver to aliens if they are statutorily eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence. As proposed, this rule also would expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents. The changes are made in the interest of family unity and customer service. This rule also removes from the affected regulations all unnecessary procedural instructions regarding office names and locations, position titles and responsibilities, and form numbers. These instructions are often unnecessary, and unrestricted USCIS' ability to better utilize its resources and serve its customers. Legal Basis: 5 U.S.C. 301; 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; Public Law , 116 Stat. 2135; 6 U.S.C. 1 et seq.; E.O , 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2; Public Law U.S.C and note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C note (section 7209 of Pub. L ); 8 CFR part 2. Section 212.1(q) also issued under section 702, Public Law , 122 Stat. 754, 854. Alternatives: The alternative to this rule would be to continue under the current process without change. Costs and Benefits: As a result of expanding the population of aliens who would benefit from a streamlined immigrant visa process, DHS believes that both the affected population and the Federal Government will benefit. In addition to reducing the emotional hardship that U.S. citizen and lawful permanent resident families experience as a result of separation from their alien relatives, DHS anticipates these families would experience fewer financial burdens associated with traveling abroad. Finally, this rule would 32

33 Regulations.gov Thursday, November 19, 2015 Regulatory Plan increase USCIS and DOS efficiencies by streamlining the waiver process for unlawful presence for the expanded group. Risks: Timetable: Action Date FR Cite NPRM 07/22/ FR NPRM Comment Period End 09/21/2015 Final Action 04/00/2016 Regulatory Flexibility Analysis Required: No Federalism: No Energy Affected: No Related RINs: Related to 1615-AB99 Agency Contact: Mark Phillips Chief, Residence and Naturalization Division Department of Homeland Security U.S. Citizenship and Immigration Services Office of Policy and Strategy, 20 Massachusetts Avenue NW. Washington, DC Phone: Government Levels Affected: No Department of Homeland Security (DHS) U.S. Coast Guard ( USCG ) RIN: 1625-AB06 Title: Inspection of Towing Vessels Abstract: This rulemaking would implement a program of inspection for certification of towing vessels, which were previously uninspected. It would prescribe standards for safety management systems and third-party auditors and surveyors, along with standards for construction, operation, vessel systems, safety equipment, and recordkeeping. Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No CFR Citation: 46 CFR 2; 46 CFR 15; 46 CFR 136 to 144 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 46 U.S.C. 3103; 46 U.S.C. 3301; 46 U.S.C. 3306; 46 U.S.C. 3308; 46 U.S.C. 3316; 46 U.S.C. 3703; 46 U.S.C. 8104; 46 U.S.C. 8904; DHS Delegation No Legal Deadline: On October 15, 2010, the Coast Guard Authorization Act of 2010 was enacted as Public Law It requires that a proposed rule be issued within 90 days after enactment and that a final rule be issued within 1 year of enactment. Action Source Description Date NPRM Statutory 01/13/2011 Other Statutory 10/15/2011 Regulatory Plan: Statement of Need: This rulemaking would implement section 415 of the Coast Guard and Maritime Transportation Act of The intent of the proposed rule is to promote safer work practices and reduce casualties on towing vessels by ensuring that towing vessels adhere to prescribed safety standards. This proposed rule was developed in cooperation with the Towing Vessel Safety Advisory Committee. It would establish a new subchapter dedicated to towing vessels, covering vessel equipment, systems, operational standards, and inspection requirements. Legal Basis: Proposed new subchapter authority: 46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904; 33 CFR 1.05; DHS Delegation The Coast Guard and Maritime Transportation Act of 2004 (CGMTA 2004), Public Law , 118 Stat. 1028, (Aug. 9, 2004), established new authorities for towing vessels as follows: section 415 added towing vessels, as defined in section 2101 of title 46, United States Code (U.S.C.), as a class of vessels that are subject to safety inspections under chapter 33 of that title (Id. at 1047). Section 415 also added new section 3306(j) of title 46, authorizing the Secretary of Homeland Security to establish, by regulation, a safety management system appropriate for the characteristics, methods of operation, and nature of 33

34 Regulations.gov Thursday, November 19, 2015 Regulatory Plan service of towing vessels (Id.). Section 409 added new section 8904(c) of title 46, U.S.C., authorizing the Secretary to establish, by regulation, "maximum hours of service (including recording and recordkeeping of that service) of individuals engaged on a towing vessel that is at least 26 feet in length measured from end to end over the deck (excluding the sheer)." (Id. at ) Alternatives: We considered the following alternatives for the notice of proposed rulemaking (NPRM): One regulatory alternative would be the addition of towing vessels to one or more existing subchapters that deal with other inspected vessels, such as cargo and miscellaneous vessels (subchapter I), offshore supply vessels (subchapter L), or small passenger vessels (subchapter T). We do not believe, however, that this approach would recognize the often "unique" nature and characteristics of the towing industry in general and towing vessels in particular. The same approach could be adopted for use of a safety management system by requiring compliance with title 33, Code of Federal Regulations, part 96 (Rules for the Safe Operation of Vessels and Safety Management Systems). Adoption of these requirements, without an alternative safety management system, would also not be "appropriate for the characteristics, methods of operation, and nature of service of towing vessels." The Coast Guard has had extensive public involvement (four public meetings, over 100 separate comments submitted to the docket, as well as extensive ongoing dialogue with members of the Towing Safety Advisory Committee (TSAC)) regarding development of these regulations. Adoption of one of the alternatives discussed above would likely receive little public or industry support, especially considering the TSAC efforts toward development of standards to be incorporated into a separate subchapter dealing specifically with the inspection of towing vessels. An approach that would seem to be more in keeping with the intent of Congress would be the adoption of certain existing standards from those applied to other inspected vessels. In some cases, these existing standards would be appropriately modified and tailored to the nature and operation of certain categories of towing vessels. The adopted standards would come from inspected vessels that have demonstrated "good marine practice" within the maritime community. These regulations would be incorporated into a subchapter specifically addressing the inspection for certification of towing vessels. The law requiring the inspection for certification of towing vessels is a statutory mandate, compelling the Coast Guard to develop regulations appropriate for the nature of towing vessels and their specific industry. Costs and Benefits: We estimate that, as a result of this rulemaking, owners and operators of towing vessels would incur additional annualized costs, discounted at 7 percent, in the range of $14.3 million to $17.1 million. The cost of this rulemaking would involve provisions for safety management systems, standards for construction, operation, vessel systems, safety equipment, and recordkeeping. Our cost assessment includes existing and new vessels. The Coast Guard developed the requirements in the proposed rule by researching both the human factors and equipment failures that caused towing vessel accidents. We believe that the proposed rule would address a wide range of causes of towing vessel accidents and supports the main goal of improving safety in the towing industry. The primary benefit of the proposed rule is an increase in vessel safety and a resulting decrease in the risk of towing vessel accidents and their consequences. We estimate an annualized benefit of $28.5 million from this rule. Risks: This regulatory action would reduce the risk of towing vessel accidents and their consequences. Towing vessel accidents result in fatalities, injuries, property damage, pollution, and delays. Timetable: Action Date FR Cite NPRM 08/11/ FR Notice of Public Meetings 09/09/ FR NPRM Comment Period End 12/09/2011 Final Rule 02/00/2016 Additional Information: Docket ID USCG Regulatory Flexibility Analysis Required: Business; Government Levels Affected: State Governmental Jurisdictions; Organizations Federalism: No Energy Affected: No RIN Information URL: Public Comment URL: Agency Contact: LCDR William Nabach Project Manager, Office of Operating & Environmental Standards, CG-OES-2 Department of Homeland Security U.S. Coast Guard 2703 Martin Luther King Jr. Avenue, SE., STOP 7509 Washington, DC Phone:

35 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Department of Homeland Security (DHS) U.S. Coast Guard ( USCG ) RIN: 1625-AB21 Title: Transportation Worker Identification Credential (TWIC); Card Reader Requirements Abstract: The Coast Guard is establishing electronic card reader requirements for maritime facilities and vessels to be used in combination with TSA's Transportation Worker Identification Credential (TWIC). Congress enacted several statutory requirements within the Security and Accountability for Every (SAFE) Port Act of 2006 to guide regulations pertaining to TWIC readers, including the need to evaluate TSA's final pilot program report as part of the TWIC reader rulemaking. During the rulemaking process, we will take into account the final pilot data and the various conditions in which TWIC readers may be employed. For example, we will consider the types of vessels and facilities that will use TWIC readers, locations of secure and restricted areas, operational constraints, and need for accessibility. Recordkeeping requirements, amendments to security plans, and the requirement for data exchanges (i.e., Canceled Card List) between TSA and vessel or facility owners/operators will also be addressed in this rulemaking. Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No CFR Citation: 33 CFR, subchapter H (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 33 U.S.C. 1226; 33 U.S.C. 1231; 46 U.S.C. 701; 50 U.S.C. 191; 50 U.S.C. 192; E.O Legal Deadline: The final rule is required two years after the commencement of the pilot program. Action Source Description Date Other Statutory SAFE Port Act, codified at 46 U.S.C (k). The final rule is required two years after the commencement of the pilot program. 08/20/2010 Regulatory Plan: Statement of Need: The Maritime Transportation Security Act (MTSA) of 2002 explicitly required the issuance of a biometric transportation security card to all U.S. merchant mariners and to workers requiring unescorted access to secure areas of MTSA-regulated facilities and vessels. On May 22, 2006, the Transportation Security Administration (TSA) and the Coast Guard published a notice of proposed rulemaking (NPRM) to carry out this statute, proposing a Transportation Worker Identification Credential (TWIC) Program where TSA conducts security threat assessments and issues identification credentials, while the Coast Guard requires integration of the TWIC into the access control systems of vessels, facilities, and Outer Continental Shelf facilities. Based on comments received during the public comment period, TSA and the Coast Guard split the TWIC rule. The final TWIC rule, published in January 2007, addressed the issuance of the TWIC and use of the TWIC as a visual identification credential at access control points. In an ANPRM, published in March 2009, and a NPRM, published in March 2013, the Coast Guard proposed a risk-based approach to TWIC reader requirements and included proposals to classify MTSA-regulated vessels and facilities into one of three risk groups, based on specific factors related to TSI consequence, and apply TWIC reader requirements for vessels and facilities in conjunction with their relative risk-group placement. This rulemaking is necessary to comply with the SAFE Port Act and to complete the implementation of the TWIC Program in our ports. By requiring electronic card readers at vessels and facilities, the Coast Guard will further enhance port security and improve access control measures. Legal Basis: The statutory authorities for the Coast Guard to prescribe, change, revise, or amend these regulations are provided under 33 U.S.C. 1226, 1231; 46 U.S.C. chapter 701; 50 U.S.C. 191, 192; Executive Order 12656, 3 CFR 1988 Comp., p. 585; 33 CFR , , 6.14, 6.16, and 6.19; Department of Homeland Security Delegation No Alternatives: The implementation of TWIC reader requirements is mandated by the SAFE Port Act. We considered several alternatives in the formulation of this proposal. These alternatives were based on risk analysis of different combinations of facility and vessel populations facing TWIC reader requirements. The preferred alternative selected allowed the Coast Guard to target the highest risk entities while minimizing the overall burden. Costs and Benefits: The main cost drivers of this rule are the acquisition and installation of TWIC readers and the maintenance of the affected entity's TWIC reader system. Initial costs, which we would distribute over a phased-in implementation period, consist 35

36 Regulations.gov Thursday, November 19, 2015 Regulatory Plan predominantly of the costs to purchase, install, and integrate approved TWIC readers into their current physical access control system. Recurring annual costs will be driven by costs associated with canceled card list updates, opportunity costs associated with delays and replacement of TWICs that cannot be read, and maintenance of the affected entity's TWIC reader system. As reported in the NPRM Regulatory Analysis, the total 10-year total industry and government cost for the TWIC is $234.3 million undiscounted and $186.1 discounted at 7 percent. We estimate the annualized cost of this rule to industry to be $26.5 million at a 7 percent discount rate. The benefits of the rulemaking include the enhancement of the security of vessel ports and other facilities by ensuring that only individuals who hold valid TWICs are granted unescorted access to secure areas at those locations. Risks: USCG used risk-based decision-making to develop this rulemaking. Based on this analysis, the Coast Guard has proposed requiring higher-risk vessels and facilities to meet the requirements for electronic TWIC inspection, while continuing to allow lower-risk vessels and facilities to use TWIC as a visual identification credential. Timetable: Action Date FR Cite ANPRM 03/27/ FR Notice of Public Meeting 04/15/ FR ANPRM Comment Period End 05/26/2009 Notice of Public Meeting Comment Period End 05/26/2009 NPRM 03/22/ FR NPRM Comment Period Extended 05/10/ FR NPRM Comment Period Extended End 06/20/2013 Final Rule 02/00/2016 Additional Information: Docket ID USCG Regulatory Flexibility Analysis Required: Business; Government Levels Affected: No Governmental Jurisdictions Federalism: No Energy Affected: No RIN Information URL: Public Comment URL: Related RINs: Related to 1625-AB02 Related Agencies: Common: TSA Agency Contact: LT Mason Wilcox Project Manager Department of Homeland Security U.S. Coast Guard Commandant (CG-FAC-2), 2703 Martin Luther King Jr Avenue, SE., STOP 7501 Washington, DC Phone: mason.c.wilcox@uscg.mil Department of Homeland Security (DHS) U.S. Customs and Border Protection ( USCBP ) RIN: 1651-AB04 Title: Air Cargo Advance Screening (ACAS) Abstract: U.S. Customs and Border Protection (CBP) is proposing to amend the implementing regulations of the Trade Act of 2002 regarding the submission of advance electronic information for air cargo and other provisions to provide for the Air Cargo Advance Screening (ACAS) program. ACAS would require the submission of certain advance electronic information for air cargo. This will allow CBP to better target and identify dangerous cargo and ensure that any risk associated with such cargo is mitigated before the aircraft departs for the United States. CBP, in conjunction with Transportation Security Administration, has been operating ACAS as a voluntary pilot program since 2010 and would like to implement ACAS as a regulatory program. Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No CFR Citation: 19 CFR 122 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 19 U.S.C note Legal Deadline: None Regulatory Plan: Statement of Need: 36

37 Regulations.gov Thursday, November 19, 2015 Regulatory Plan DHS has identified an elevated risk associated with cargo being transported to the United States by air. This rule will help address this risk by giving DHS the data it needs to improve targeting of the cargo prior to takeoff. Legal Basis: Alternatives: In addition to the proposed rule, CBP analyzed two alternatives - Requiring the data elements to be transmitted to CBP further in advance than the proposed rule requires; and requiring fewer data elements. CBP concluded that the proposal rule provides the most favorable balance between security outcomes and impacts to air transportation. Costs and Benefits: To improve CBP's risk assessment and targeting capabilities and to enable CBP to target and identify risk cargo prior to departure of the aircraft to the United States, ACAS would require the submission of certain of the advance electronic information for air cargo earlier in the process. In most cases, the information would have to be submitted as early as practicable, but no later than prior to the loading of cargo onto an aircraft at the last foreign port of departure to the United States. CBP, in conjunction with TSA, has been operating ACAS as a voluntary pilot program since CBP believes this pilot program has proven successful by not only mitigating risks to the United States, but also minimizing costs to the private sector. As such, CBP is proposing to transition the ACAS pilot program into a permanent program. Costs of this program to carriers include one-time costs to upgrade systems to facilitate transmission of these data to CBP and recurring per transmission costs. Benefits of the program include improved security that will result from having these data further in advance. Risks: Timetable: Action Date FR Cite NPRM 03/00/2016 Regulatory Flexibility Analysis Required: Undetermined Government Levels Affected: Undetermined Federalism: No Energy Affected: No International Impacts: This regulatory action will be likely to have international trade and investment effects, or otherwise be of international interest. Agency Contact: Craig Clark Program Manager, Vessel Manifest & Importer Security Filing, Office of Cargo and Conveyance Security Department of Homeland Security U.S. Customs and Border Protection 1300 Pennsylvania Avenue, NW. Washington, DC Phone: craig.clark@cbp.dhs.gov Department of Homeland Security (DHS) U.S. Customs and Border Protection ( USCBP ) RIN: 1651-AA96 Title: Definition of Form I-94 to Include Electronic Format Abstract: The Form I-94 is issued to certain aliens upon arrival in the United States or when changing status in the United States. The Form I-94 is used to document arrival and departure and provides evidence of the terms of admission or parole. Customs and Border Protection (CBP) is transitioning to an automated process whereby it will create a Form I-94 in an electronic format based on passenger, passport, and visa information currently obtained electronically from air and sea carriers and the Department of State as well as through the inspection process. Prior to this rule, the Form I-94 was solely a paper form that was completed by the alien upon arrival. After the implementation of the Advance Passenger Information System (APIS) following 9/11, CBP began collecting information on aliens traveling by air or sea to the United States electronically from carriers in advance of arrival. For aliens arriving in the United States by air or sea, CBP obtains almost all of the information contained on the paper Form I-94 electronically and in advance via APIS. The few fields on the Form I-94 that are not collected via APIS are either already collected by the Department of State and transmitted to CBP or can be collected by the CBP officer from the individual at the time of inspection. This means that CBP no longer needs to collect Form I-94 information as a matter of course 37

38 Regulations.gov Thursday, November 19, 2015 Regulatory Plan directly from aliens traveling to the United States by air or sea. At this time, the automated process will apply only to aliens arriving at air and sea ports of entry. Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No CFR Citation: 8 CFR 1.4; 8 CFR 264.1(b) (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 8 U.S.C. 1201; 8 U.S.C. 1301; 8 U.S.C to 1305; 5 U.S.C. 301; Pub. L , 116 stat 2135; 6 U.S.C. 1 et seq. Legal Deadline: None Regulatory Plan: Statement of Need: This rule makes the necessary changes to the regulations to enable CBP to transition to an automated process whereby CBP will create an electronic Form I-94 based on the information in its databases. Legal Basis: Section 103(a) of the Immigration and Nationality Act (INA) generally authorizes the Secretary of Homeland Security to establish such regulations and prescribe such forms of reports, entries, and other papers necessary to carry out his or her authority to administer and enforce the immigration and nationality laws and to guard the borders of the United States against illegal entry of aliens. Alternatives: CBP considered two alternatives to this rule: eliminating the paper Form I 94 in the air and sea environments entirely and providing the paper Form I 94 to all travelers who are not B 1/B 2 travelers. Eliminating the paper Form I 94 option for refugees, applicants for asylum, parolees, and those travelers who request one would not result in a significant cost savings to CBP and would harm travelers who have an immediate need for an electronic Form I-94 or who face obstacles to accessing their electronic Form I 94. A second alternative to the rule is to provide a paper Form I 94 to any travelers who are not B 1/B 2 travelers. Under this alternative, travelers would receive and complete the paper Form I 94 during their inspection when they arrive in the United States. The electronic Form I 94 would still be automatically created during the inspection, but the CBP officer would need to verify that the information appearing on the form matches the information in CBP's systems. In addition, CBP would need to write the Form I 94 number on each paper Form I 94 so that their paper form matches the electronic record. As noted in the analysis, 25.1 percent of aliens are non-b 1/B 2 travelers. Filling out and processing this many paper Forms I 94 at airports and seaports would increase processing times considerably. At the same time, it would only provide a small savings to the individual traveler. Costs and Benefits: With the implementation of this rule, CBP will no longer collect Form I 94 information as a matter of course directly from aliens traveling to the United States by air or sea. Instead, CBP will create an electronic Form I 94 for foreign travelers based on the information in its databases. This rule makes the necessary changes to the regulations to enable CBP to transition to an automated process. Both CBP and aliens would bear costs as a result of this rule. CBP would bear costs to link its data systems and to build a website so aliens can access their electronic Forms I 94. CBP estimates that the total cost for CBP to link data systems, develop a secure website, and fully automate the Form I 94 fully will equal about $1.3 million in calendar year CBP will incur costs of $0.09 million in subsequent years to operate and maintain these systems. Aliens arriving as diplomats and students would bear costs when logging into the website and printing electronic I 94s. The temporary workers and aliens in the ''Other/Unknown'' category bear costs when logging into the website, traveling to a location with public internet access, and printing a paper copy of their electronic Form I 94. Using the primary estimate for a traveler's value of time, aliens would bear costs between $36.6 million and $46.4 million from 2013 to Total costs for this rule for 2013 would range from $34.2 million to $40.1 million, with a primary estimate of costs equal to $36.7 million. CBP, carriers, and foreign travelers would accrue benefits as a result of this rule. CBP would save contract and printing costs of $15.6 million per year of our analysis. Carriers would save a total of $1.3 million in printing costs per year. All aliens would save the eight-minute time burden for filling out the paper Form I 94 and certain aliens who lose the Form I 94 would save the $330 fee and 25-minute time burden for filling out the Form I 102. Using the primary estimate for a traveler's value of time, aliens would obtain benefits between $112.6 million and $141.6 million from 2013 to Total benefits for this rule for 2013 would range from $110.7 million to $155.6 million, with a primary estimate of benefits equal to $129.5 million. Overall, this rule results in substantial cost savings (benefits) for foreign travelers, carriers, and CBP. CBP anticipates a net benefit in 2013 of between $59.7 million and $98.7 million for foreign travelers, $1.3 million for carriers, and $15.5 million for CBP. Net benefits to U.S. entities (carriers and CBP) in 2013 total $16.8 million. CBP anticipates the total net benefits to both domestic and foreign entities in 2013 range from $76.5 million to $115.5 million. In our primary analysis, the total net benefits are $92.8 million in For the primary estimate, annualized net benefits range from $78.1 million to $80.0 million, depending on the discount rate used. More information on costs and benefits can be found in the interim final rule. 38

39 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Risks: N/A Timetable: Action Date FR Cite Interim Final Rule 03/27/ FR Interim Final Rule Comment Period End 04/26/2013 Interim Final Rule Effective 04/26/2013 Final Action 02/00/2016 Additional Information: Includes Retrospective Review under E.O Regulatory Flexibility Analysis Required: No Government Levels Affected: No Federalism: No Energy Affected: No International Impacts: This regulatory action will be likely to have international trade and investment effects, or otherwise be of international interest. RIN Information URL: Public Comment URL: Agency Contact: Suzanne Shepherd Director, Electronic System for Travel Authorization Department of Homeland Security U.S. Customs and Border Protection 1300 Pennsylvania Avenue, NW. Washington, DC Phone: Department of Homeland Security (DHS) Transportation Security Administration ( TSA ) RIN: 1652-AA55 Title: Security Training for Surface Mode Employees Abstract: This rule would require security awareness training for front-line employees for potential terrorism-related security threats and conditions pursuant to the 9/11 Act. This rule would apply to higher-risk public transportation, freight rail, and over-the-road bus owner/operators and take into consideration the many actions higher-risk owner/operators have already taken since 9/11 to enhance the baseline of security through training of their employees. The rulemaking will also propose extending security coordinator and reporting security incident requirements applicable to rail operators under current 49 CFR part 1580 to the nonrail transportation components of covered public transportation agencies and over-the-road buses. Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No CFR Citation: 49 CFR 1520; 49 CFR 1570; 49 CFR 1580; 49 CFR 1582 (new); 49 CFR 1584 (new) (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 49 U.S.C. 114; Pub. L , secs 1408, 1517, and 1534 Legal Deadline: According to sec 1408 of Pub. L , Implementing Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121 Stat. 266), interim final regulations for public transportation agencies are due 90 days after the date of enactment (Nov. 1, 2007), and final regulations are due 1 year after the date of enactment of this Act. According to sec 1517 of the same Act, final regulations for railroads and over-the-road buses are due no later than 6 months after the date of enactment. Action Source Description Date Other Statutory Interim Rule for public transportation agencies is due 90 days after date of enactment. 11/01/2007 Other Statutory Rule for railroads and over-the-road buses is due six months after date of enactment. 02/03/2008 Other Statutory Rule for public transportation agencies is due one year after date of enactment. 08/03/2008 Regulatory Plan: Statement of Need: 39

40 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Employee training is an important and effective tool for averting or mitigating potential attacks by those with malicious intent who may target surface transportation and plan or perpetrate actions that may cause significant injuries, loss of life, or economic disruption. Legal Basis: 49 U.S.C. 114; sections 1408, 1517, and 1534 of Public Law , Implementing Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121 Stat. 266). Alternatives: TSA is required by statute to publish regulations requiring security training programs for these owner/operators. As part of its notice of proposed rulemaking, TSA will seek public comment on the alternative ways in which the final rule could carry out the requirements of the statute. Costs and Benefits: TSA is in the process of determining the costs and benefits of this rulemaking. Risks: The Department of Homeland Security aims to prevent terrorist attacks within the United States and to reduce the vulnerability of the United States to terrorism. By providing for security training for personnel, TSA intends in this rulemaking to reduce the risk of a terrorist attack on this transportation sector. Timetable: Action Date FR Cite NPRM 09/00/2016 Regulatory Flexibility Analysis Required: Business Government Levels Affected: Local Federalism: No Energy Affected: No Related RINs: Related to 1652-AA56; Merge with AA57; Merge with 1652-AA59 Agency Contact: Chandru (Jack) Kalro Deputy Director, Surface Division, Office of Security Policy and Industry Engagement Department of Homeland Security Transportation Security Administration 601 South 12th Street Arlington, VA Phone: FAX: surfacefrontoffice@tsa.dhs.gov Agency Contact: Monica Grasso Ph.D. Manager, Economic Analysis Branch-Cross Modal Division Department of Homeland Security Transportation Security Administration Office of Security Policy and Industry Engagement, 601 South 12th Street Arlington, VA Phone: monica.grasso@tsa.dhs.gov Agency Contact: Traci Klemm Assistant Chief Counsel for Multi-Modal Security Standards Department of Homeland Security Transportation Security Administration Office of the Chief Counsel, 601 South 12th Street Arlington, VA Phone: traci.klemm@tsa.dhs.gov Department of Homeland Security (DHS) 40

41 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Transportation Security Administration ( TSA ) RIN: 1652-AA67 Title: Passenger Screening Using Advanced Imaging Technology Abstract: The Transportation Security Administration (TSA) intends to issue a final rule to address whether screening and inspection of an individual, conducted to control access to the sterile area of an airport or to an aircraft, may include the use of advanced imaging technology (AIT). The notice of proposed rulemaking (NPRM) was published on March 26, 2013, to comply with the decision rendered by the U.S. Court of Appeals for the District of Columbia Circuit in Electronic Privacy Information Center (EPIC) v. U.S. Department of Homeland Security on July 15, F.3d 1 (D.C. Cir. 2011). The Court directed TSA to conduct notice and comment rulemaking on the use of AIT in the primary screening of passengers. Priority: Economically Significant Agenda Stage of Rulemaking: Final Rule Major: Yes Unfunded Mandates: No CFR Citation: 49 CFR (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 49 U.S.C Legal Deadline: None Regulatory Plan: Statement of Need: TSA is issuing this rulemaking to respond to the decision of the U.S. Court of Appeals for the District of Columbia Circuit in EPIC v. DHS 653 F.3d 1 (D.C. Cir. 2011). Legal Basis: In its decision in EPIC v. DHS 653 F.3d 1 (D.C. Cir. 2011), the Court of Appeals for the District of Columbia Circuit found that TSA failed to justify its failure to conduct notice and comment rulemaking and remanded to TSA for further proceedings. Alternatives: As alternatives to the preferred regulatory proposal presented in the NPRM, TSA examined three other options. These alternatives include a continuation of the screening environment prior to 2008 (no action), increased use of physical pat-down searches that supplements primary screening with walk through metal detectors (WTMDs), and increased use of explosive trace detection (ETD) screening that supplements primary screening with WTMDs. These alternatives, and the reasons why TSA rejected them in favor of the proposed rule, are discussed in detail in chapter 3 of the AIT NPRM regulatory evaluation impact analysis. Costs and Benefits: TSA reports in the NPRM that the net cost of AIT deployment from has been $841.2 million (undiscounted) and that TSA has borne over 99 percent of all costs related to AIT deployment. TSA projects that from net AIT related costs will be approximately $1.5 billion (undiscounted), $1.4 billion at a three percent discount rate, and $1.3 billion at a seven percent discount rate. During , TSA estimates it will also incur over 98 percent of AIT-related costs with equipment and personnel costs being the largest categories of expenditures. The operations described in this rule produce benefits by reducing security risks through the deployment of AIT that is capable of detecting both metallic and non-metallic weapons and explosives. Terrorists continue to test security measures in an attempt to find and exploit vulnerabilities. The threat to aviation security has evolved to include the use of non-metallic explosives. AIT is a proven technology based on laboratory testing and field experience and is an essential component of TSA's security screening because it provides the best opportunity to detect metallic and nonmetallic anomalies concealed under clothing. More information about costs and benefits can be found in the Notice of Proposed Rulemaking. TSA is in the process of determining the costs and benefits of the final rule. Risks: DHS aims to prevent terrorist attacks and to reduce the vulnerability of the United States to terrorism. By screening passengers with AIT, TSA will reduce the risk that a terrorist will smuggle a non-metallic threat on board an aircraft. Timetable: Action Date FR Cite NPRM 03/26/ FR NPRM Comment Period End 06/24/2013 Final Rule 01/00/

42 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Regulatory Flexibility Analysis Required: Governmental Government Levels Affected: No Jurisdictions Federalism: No Energy Affected: No RIN Information URL: Public Comment URL: Agency Contact: Chawanna Carrington Project Manager, Passenger Screening Program Department of Homeland Security Transportation Security Administration Office of Security Capabilities, 601 South 12th Street Arlington, VA Phone: FAX: Agency Contact: Monica Grasso Ph.D. Manager, Economic Analysis Branch-Cross Modal Division Department of Homeland Security Transportation Security Administration Office of Security Policy and Industry Engagement, 601 South 12th Street Arlington, VA Phone: Agency Contact: Linda L. Kent Assistant Chief Counsel for Regulations and Security Standards Department of Homeland Security Transportation Security Administration Office of the Chief Counsel, 601 South 12th Street Arlington, VA Phone: FAX: Department of Homeland Security (DHS) Transportation Security Administration ( TSA ) RIN: 1652-AA61 Title: Standardized Vetting, Adjudication, and Redress Services Abstract: The Transportation Security Administration (TSA) intends to propose new regulations to revise and standardize the procedures, adjudication criteria, and fees for most of the security threat assessments (STA) of individuals for which TSA is responsible. The scope of the rulemaking will include transportation workers who are required to undergo an STA, including surface, maritime, and aviation workers. TSA will comply with certain vetting-related requirements of the Implementing Recommendations of the 9/11 Commission Act, Pub. L (Aug.3, 2007). TSA will propose fees to cover the cost of all STAs. TSA plans to improve the processing of STAs and streamline existing regulations by simplifying language and removing redundancies. TSA will propose revisions to the Alien Flight Student Program (AFSP) regulations. TSA published an interim final rule for AFSP on September 20, TSA regulations require aliens seeking to train at Federal Aviation Administration-regulated flight schools to complete an application and undergo an STA prior to beginning flight training. There are four categories under which students currently fall; the nature of the STA depends on the student's category. TSA is considering changes to the AFSP that would improve the equity among fee payers and enable the implementation of new technologies to support vetting. Priority: Economically Significant Agenda Stage of Rulemaking: Long-term Action Major: Yes Unfunded Mandates: Undetermined CFR Citation: Not Yet Determined (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 49 U.S.C. 114, 5103A, and 44936; 46 U.S.C ; 6 U.S.C. 469; Pub. L , secs 1411, 1414, 1520, 1522 and 1531 Legal Deadline: None Regulatory Plan: Statement of Need: TSA proposes to meet the requirements of 6 U.S.C. 469, which requires TSA to fund security threat assessment and credentialing activities through user fees. The proposed rulemaking should reduce reliance on appropriations for certain vetting services; minimize redundant background checks; and increase transportation security by enhancing identification and immigration verification standards. 42

43 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Legal Basis: 49 U.S.C. 114(f): Under the Aviation and Transportation Security Act (ATSA) (Pub. L , Nov. 19, 2001, 115 Stat. 597), TSA assumed responsibility to assess security in all modes of transportation and minimize threats to national and transportation security. TSA is required to vet certain aviation workers pursuant to statute. TSA is required to vet individuals with unescorted access to maritime facilities pursuant to the Maritime Transportation Security Act (MTSA) (Pub. L , sec. 102, Nov. 25, 2002, 116 Stat. 2064), codified at 46 U.S.C Pursuant to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) (Pub. L , Oct. 25, 2001, 115 Stat. 272), TSA vets individuals seeking hazardous materials endorsements (HME) for commercial drivers licensed by the States. TSA is required to vet certain public transportation, railroad, and over-the-road bus workers under the Implementing Recommendations of the 9/11 Commission Act, Pub. L (Aug. 3, 2007). In 6 U.S.C. 469, Congress directed TSA to fund vetting and credentialing programs in the field of transportation through user fees. Alternatives: TSA considered a number of viable alternatives to the proposed regulation. These alternatives are discussed in detail in the proposed rule and regulatory impact analysis. Costs and Benefits: TSA is in the process determining the costs and benefits of this proposed rulemaking. Risks: Timetable: Action Date FR Cite NPRM 12/00/2016 Regulatory Flexibility Analysis Required: Business Government Levels Affected: Undetermined Federalism: Undetermined Energy Affected: No Related RINs: Related to 1652-AA35 Agency Contact: Chang Ellison Branch Manager, Program Initiatives Branch Department of Homeland Security Transportation Security Administration Office of Intelligence and Analysis, TSA-10, HQ E6, 601 South 12th Street Arlington, VA Phone: chang.ellison@tsa.dhs.gov Agency Contact: Monica Grasso Ph.D. Manager, Economic Analysis Branch-Cross Modal Division Department of Homeland Security Transportation Security Administration Office of Security Policy and Industry Engagement, 601 South 12th Street Arlington, VA Phone: monica.grasso@tsa.dhs.gov Agency Contact: John Vergelli Senior Counsel, Regulations and Security Standards Division Department of Homeland Security Transportation Security Administration Office of the Chief Counsel, 601 South 12th Street Arlington, VA Phone: FAX: john.vergelli@tsa.dhs.gov Department of Homeland Security (DHS) U.S. Immigration and Customs Enforcement ( USICE ) RIN: 1653-AA72 43

44 Regulations.gov Thursday, November 19, 2015 Regulatory Plan Title: Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions Abstract: The Department of Homeland Security is proposing a new rule to enhance opportunities for F-1 nonimmigrant students graduating with a science, technology, engineering, or mathematics (STEM) degree from an accredited school certified by U.S. Immigration and Custom Enforcement (ICE) Student and Exchange Visitor Program (SEVP), and to further their courses of study through optional practical training (OPT) with employers enrolled in the U.S. Citizenship and Immigration Services (USCIS ) E-Verify employment verification program. The proposed rule would replace a 2008 interim final rule (IFR) that was invalidated and will be vacated on February 12, 2016, per a ruling by the U.S. District Court for the District of Columbia on August 12, 2015, in the Washington Alliance of Technology Workers v. U.S. Department of Homeland Security litigation. Priority: Economically Significant Agenda Stage of Rulemaking: Proposed Rule Major: Yes Unfunded Mandates: No CFR Citation: 8 CFR 214; 8 CFR 274a (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 8 U.S.C. 1182; 8 U.S.C. 1184; 8 U.S.C. 1221; 8 U.S.C and 1282; 8 U.S.C to 1305 Legal Deadline: None Regulatory Plan: Statement of Need: This proposed rule would enhance the academic experience of STEM OPT students, increase the overall competitiveness of U.S. educational institutions, and provide important benefits to the U.S. economy. Legal Basis: Alternatives: Costs and Benefits: Not yet determined Risks: Timetable: Action Date FR Cite NPRM 10/19/ FR NPRM Comment Period End 11/18/2015 Final Rule 01/00/2016 Regulatory Flexibility Analysis Required: Undetermined Government Levels Affected: No Federalism: No Energy Affected: No International Impacts: This regulatory action will be likely to have international trade and investment effects, or otherwise be of international interest. Agency Contact: Katherine H. Westerlund Acting Unit Chief, SEVP Policy, Student and Exchange Visitor Program Department of Homeland Security U.S. Immigration and Customs Enforcement Potomac Center North, th Street, SW., STOP 5600 Washington, DC Phone: sevp@ice.dhs.gov Agency Contact: Molly Stubbs ICE Regulatory Coordinator Department of Homeland Security U.S. Immigration and Customs Enforcement Office of the Director, PTN - Potomac Center North, th Street, SW Washington, DC Phone: molly.stubbs@ice.dhs.gov 44

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55 Lame Duck Sessions of Congress, (74 th -112 th Congresses) Richard S. Beth Specialist on Congress and the Legislative Process Jessica Tollestrup Analyst on Congress and the Legislative Process September 19, 2014 Congressional Research Service RL33677

56 Lame Duck Sessions of Congress Summary A lame duck session of Congress occurs whenever one Congress meets after its successor is elected, but before the term of the current Congress ends. Under present conditions, any meeting of Congress after election day in November, but before the following January 3, is a lame duck session. Prior to 1933, when the 20 th Amendment changed the dates of the congressional term, the last regular session of Congress was always a lame duck session. Today, however, the expression is used not only for a separate session of Congress that convenes after a sine die adjournment, but also for any portion of a regular session that falls after an election. A lame duck session can occur in several ways. (1) Congress has usually provided for its existing session to resume after a recess spanning the election. (In 1954, only the Senate returned in this way, while the House adjourned sine die.) (2) In 1940, 1942, and also most recently in 2008, 2010, and 2012, at least one house continued meeting in intermittent, or pro forma, sessions during the period spanning the election (in these most recent years, the Senate used this means to forestall recess appointments). (3) Congress can reconvene after an election pursuant to contingent authority granted to the leadership in a recess or adjournment resolution (the House followed this course in 1998 and 2008). Two other possibilities have not been realized: (4) Congress could set a statutory date for a new session to convene after the election, then adjourn its existing session sine die. (5) While Congress is in recess or sine die adjournment, the President could call it into extraordinary session at a date after the election. Congress has held 19 lame duck sessions from 1940 through In these years, election breaks usually have begun by mid-october, and typically lasted between one and two months. Congress has typically reconvened in mid-november and adjourned before Christmas, so that the lame duck session lasted about a month. Yet election breaks have begun as early as August 7 or as late as November 3, and ended as early as November 7 or as late as December 31. Lame duck sessions have ended as early as November 22 and as late as January 3, and have extended over as few as one, and as many as 145, calendar days. Usually, however, each house has actually met on 8-24 days during these lame duck sessions (including pro forma sessions). Although between 1994 and 2006, each house met in session for fewer than 12 days, the three most recent lame duck sessions were considerably longer, lasting an average of 17 days in the House and 27 days in the Senate. Some lame duck sessions were held largely for pro forma reasons (e.g., 1948), on a standby basis (1940, 1942), or to deal with a single specific matter (1954, 1994, 1998, 2008). Some deferred major matters to the next Congress (e.g., 1944, 1982, 2004), especially when the same party would have an increased majority. The President has sometimes presented an extensive agenda to a lame duck session, often with success when it was controlled by his own party (e.g., 1950, 2002, 2004), but less so under conditions of divided government, when he has often vetoed measures (e.g., 1970, 1974, 1982). In recent years, as well, most lame duck sessions have had to complete action on appropriations and the budget. In 1974, 1980, 1982, 2000, and 2004, this effort was at least partially successful, but in 1970, 2002, 2006, 2010, and 2012, a final resolution was largely left to the next Congress. This report will be updated after any additional lame duck session occurs. Congressional Research Service

57 Lame Duck Sessions of Congress Contents What Makes a Lame Duck Session... 1 Meaning of Lame Duck... 1 Lame Duck Sessions in the Modern Congress... 1 Lame Duck Sessions Before the 20 th Amendment... 2 How Lame Duck Sessions May Occur... 3 Sine Die Adjournment and its Effects... 3 Recess of the Session... 4 Contingent Authority to Reconvene... 4 Pro Forma Sessions... 5 Sessions Called by the President... 6 Characteristics of Lame Duck Sessions Since Dates and Lengths of Lame Duck Sessions and Election Breaks... 6 Defining Pro Forma Sessions... 7 When Lame Duck Sessions Have Occurred... 8 Form of Election Break Start of Election Breaks Start of Lame Duck Sessions (End of Election Breaks) Length of Election Breaks End of Lame Duck Sessions Calendar Length of Lame Duck Sessions Days of Session After Election Holidays During Lame Duck Sessions Lame Duck Sessions Since th Congress, 3 rd Session ( ) th Congress, 2 nd Session (1942) th Congress, 2 nd Session (1944) th Congress, 2 nd Session (1948) st Congress, 2 nd Session ( ) rd Congress, 2 nd Session (1954) st Congress, 2 nd Session ( ) rd Congress, 2 nd Session (1974) th Congress, 2 nd Session (1980) th Congress, 2 nd Session (1982) rd Congress, 2 nd Session (1994) th Congress, 2 nd Session (1998) th Congress, 2 nd Session (2000) th Congress, 2 nd Session (2002) th Congress, 2 nd Session (2004) th Congress, 2 nd Session (2006) th Congress, 2 nd Session ( ) th Congress, 2 nd Session (2010) th Congress, 2 nd Session ( ) Tables Table 1. Lame Duck Sessions of Congress, (74 th -112 th Congresses)... 9 Congressional Research Service

58 Lame Duck Sessions of Congress Table 2. Length of Election Breaks and of Lame Duck Sessions, (74 th -112 th Congresses) Table 3. Days of Session After Election and Holiday Breaks in Lame Duck Sessions, (74 th -112 th Congresses) Contacts Author Contact Information Acknowledgments Congressional Research Service

59 Lame Duck Sessions of Congress What Makes a Lame Duck Session A lame duck session of Congress is one that takes place after the election for the next Congress has been held, but before the current Congress has reached the end of its constitutional term. 1 Under contemporary conditions, the constitutional term of a Congress begins on January 3 of each odd-numbered year and ends on January 3 of the next odd-numbered year. As a result, any meeting of Congress that occurs between the congressional election in November of an evennumbered year and the following January 3 is a lame duck session. The significant characteristic of a lame duck session is that its participants are the sitting Members of the existing Congress, not those who will be entitled to sit in the new Congress. Meaning of Lame Duck The expression lame duck was originally applied in 18 th century Britain to bankrupt businessmen, who were considered as lame in the sense that the impairment of their powers rendered them vulnerable, like a game bird injured by shot. By the 1830s, the usage had been extended to officeholders whose service already had a known termination date. In current American usage, for instance, a President is considered a lame duck not only after his successor has been elected, but also whenever he cannot be, or is known not to be, a candidate for reelection. 2 Members of Congress in similar circumstances are also considered lame ducks. The expression may accordingly be applied to Members who are known not to be seeking re-election as well as to those who have been defeated. In particular, however, after an election of Congress, all the Members who did not gain reelection can be described as lame ducks until the term of the new Congress starts. When the previously sitting Congress, which includes these Members, meets in a post-election session, this session is called a lame duck session as well. 3 Lame Duck Sessions in the Modern Congress The possibility of a lame duck session of Congress in the modern sense began in 1935, when the 20 th Amendment to the Constitution took effect. Under this amendment, ratified in 1933, the terms of Members begin and end on January 3 of odd-numbered years. Congress convenes in a regular session on January 3 of each year, unless in the previous session it passes a law changing the date. Under these arrangements, any meeting of Congress after election day (in November of even-numbered years), but before the following January 3, is a lame duck session. From 1935 through 2012, there were 19 lame duck sessions. The most recent one occurred at the end of the 112 th Congress in This report examines only the specific lame duck sessions that have occurred since 1935, not those that, as explained in the following section, occurred routinely before then. 1 For general information on much of the technical terminology used in this report related to congressional sessions, see CRS Report R42977, Sessions, Adjournments, and Recesses of Congress, by Richard S. Beth and Jessica Tollestrup. 2 William Safire, Safire s Political Dictionary (New York: Oxford University Press), pp See Raymond W. Smock, Lame Duck Session, in Donald C. Bacon, Roger H. Davidson, and Morton Keller, eds., The Encyclopedia of the United States Congress (New York: Simon & Schuster, 1995), vol. 3, pp Congressional Research Service 1

60 Lame Duck Sessions of Congress Lame Duck Sessions Before the 20 th Amendment The Constitution originally provided that the regular sessions of Congress begin annually on the first Monday in December. In the process of initiating the government under the Constitution, it was established that the term of Congress would begin and end of March 4 of odd-numbered years. 4 As today, however, congressional elections were generally held in November of evennumbered years. The result was that after being elected in (an even-numbered) November, a new Congress did not begin its term until the following (odd-numbered) March, and normally did not even convene its first session until the following December, 13 months after it was first elected. This session of Congress typically continued until sometime in the summer of the following (even-numbered) year. Congress would then adjourn until the time for the next regular session prescribed by the Constitution, the following (even-numbered) December. When this session convened, however, the next Congress would already have been elected, in the intervening (even-numbered) November. Yet the term of this newly elected Congress would not begin until the following March. The Congress that convened in an even-numbered December, accordingly, could not be the newly elected one, but could only be the one already sitting. Under these arrangements, as a result, the last session of every Congress was always a lame duck session. 5 One purpose of the 20 th Amendment was to change these arrangements that routinely required every Congress to hold its last session as a lame duck session. 6 Sometimes a Congress would convene its first session earlier, even as early as the March commencement of its constitutional term, especially when a new President was concurrently entering office. As described in following sections, this extra session could occur pursuant either to a presidential call or a law passed by the previous Congress. This extra session would normally adjourn some time before the following (odd-numbered) December, and in that case Congress would normally reconvene, in a new session, pursuant to the Constitutional mandate, when December arrived. Under these conditions the extra session became the first session of a Congress, and the first regular (December) session became its second session. The final session of the Congress, beginning in the following December, then became the third session. This final session, however, would still be a lame duck session of the old Congress, for it would convene at a time when the new Congress had already been elected in November, but had not yet begun its term of office. 4 See Johnny H. Killian, George A. Costello, and Kenneth R. Thomas, eds., The Constitution of the United States of America: Analysis and Interpretation, prepared by the Congressional Research Service, Library of Congress (Washington: GPO, 2004), p [commentary on the 20 th Amendment]. 5 This session, beginning in the even-numbered December, could last only last until the term of the sitting Congress expired early in the following March, when the new Congress came into office. For this reason, it was colloquially known as the short session. 6 See P. Orman Ray, Lame-Duck Amendment, in Stanley I. Kutler, ed., Dictionary of American History, 3d ed. (New York: Scribner, 2003), vol. 5, p. 24. For more information on the adoption of the 20 th Amendment, see Alan P. Grimes, Democracy and the Amendments to the Constitution (Lexington, Mass.: Lexington Books, D.C. Heath, (c) 1978), pp Congressional Research Service 2

61 Lame Duck Sessions of Congress How Lame Duck Sessions May Occur Under the 20 th Amendment, lame duck sessions can still occur, but only as a result of specific actions undertaken either by the Congress already sitting or by the President. The possible means by which a lame duck session may occur are (1) pursuant to a previously enacted law prescribing an additional session of Congress; (2) following a recess within a session, but spanning the election; (3) under authority granted to the leadership at the time of a contingent adjournment or recess of the session; (4) by continuing to meet, perhaps in pro forma sessions, throughout the period spanning the election; and (5) in response to a presidential proclamation calling an extraordinary session. Although some of these methods have been used rarely and others not at all, each helps to illuminate the constitutional arrangements that make lame duck sessions possible and the conditions in which they may operate. The following sections describe each method and indicate its implications. Sine Die Adjournment and its Effects Although the lame duck sessions that have occurred before and after 1935 are both lame duck in the same sense, they are not sessions in the same sense. Formally, a session of Congress ends when Congress adjourns sine die. 7 The Latin phrase, literally translated as without day, is used to mean that Congress has adjourned without setting a day for its next meeting. An adjournment sine die, therefore, means that Congress is not scheduled to meet again until the day set by the Constitution (or by law) for its next session to convene. When Congress adjourns sine die in an election year, it is not scheduled to meet again before the term of the new Congress begins. The next meeting, instead, will be that of the new Congress, convening pursuant to the Constitution (or to a law altering the constitutional date, if the previous Congress passed one). This meeting will therefore begin the first session of the new Congress. The Constitution authorizes Congress to set its own adjournment date without the involvement of the President, unless the two houses cannot agree. 8 Congress therefore authorizes a sine die adjournment by concurrent resolution. Inasmuch as this form of measure requires adoption by both houses, but no action by the President, it permits Congress to act without involving the executive branch in the prerogatives of the legislative. Previous to 1935, Congress would normally adjourn its previous session sine die sometime in advance of the November elections. When it returned for its prescribed meeting in December, accordingly, a new session began. Under these conditions, the lame duck session of each Congress was actually a session in its own right, numerically distinct from the previous session (or sessions) of the same Congress. Accordingly, each of the lame duck sessions that occurred routinely before 1935 was convened as a separate session of the Congress already sitting. Congress today could achieve an equivalent result by adjourning its session sine die before an election, after first providing by law that an additional session of the old Congress convene on a date after the election. This additional, post-election session (probably the third session of the old 7 In congressional usage, the phrase is generally pronounced sign a dye. 8 U.S. Constitution, Article I, Section 3. Congressional Research Service 3

62 Lame Duck Sessions of Congress Congress) would be a lame duck session in same sense as those that occurred routinely before It would be a new, separately numbered session of the old Congress. Subsequent to the implementation of the 20 th Amendment in 1935, however, Congress has never made use of this means of bringing about a lame duck session. Recess of the Session Instead, when a Congress has decided to continue meeting after an election, its usual practice has been not to adjourn sine die, but simply to recess its existing session for a period spanning the election, and then to reconvene at a date still within the constitutional term of the sitting Congress. Since 1935, this second means of bringing about a lame duck session has been used on 12 occasions, as detailed in Table 1 and the section on Means of Calling Sessions. Congress authorizes a session recess in the same way it authorizes a sine die adjournment, by adopting a concurrent resolution. This form of authorization is appropriate for the purpose because the Constitution provides that Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days... 9 Inasmuch as the concurrent resolution requires action by both houses, it permits each to consent to the adjournment of the other. Unlike a sine die adjournment, however, a recess of the session does not terminate the existing session of Congress; it is, instead, technically an adjournment within a session. When Congress reconvenes at the conclusion of a session recess, no new session begins; instead, the previously existing session resumes. Under these conditions, the post-election meeting of Congress is not a separate, new session of the old Congress, but a continuation of its existing session (probably its second session). Nevertheless, the phrase lame duck session has persisted as a way of referring to any post-election meeting of the old Congress, even though it now normally does not designate a separate session of Congress, but rather refers simply to the post-election portion of an ongoing existing session. Contingent Authority to Reconvene The two sequences of events just discussed (a recess of an existing session and an adjournment sine die after providing for a new session) are not the only ones that can lead to a lame duck session. A third such course of events becomes possible if, when Congress recesses before an election, it grants contingent authority to its leadership to reconvene it, or either house, if the public interest shall require. In the period since ratification of the 20 th Amendment, it has become common for Congress to include this contingent authority, in some form, in concurrent resolutions providing for either a session recess or a sine die adjournment. If Congress included this contingent authority in a resolution providing for a recess spanning an election, the leadership might use the authority to reconvene Congress before the scheduled expiration of the recess. It might do so either before or after the election itself, but in either case, any portion of the reconvened session that occurred after the election would be considered a lame duck session. During the time since the 20 th Amendment took effect, however, this course of action has not been taken. 9 U.S. Constitution, Article I, Section 5. Congressional Research Service 4

63 Lame Duck Sessions of Congress If Congress adjourns sine die with contingent reconvening authority, on the other hand, the sine die character of the adjournment becomes final only if the leadership does not exercise this authority by the time the next session of Congress is slated to convene, pursuant to either the Constitution or law. If the authority is exercised, the existing session of the old Congress resumes, and the previous adjournment turns out not to have been sine die. Any post-election portion of this continuation of the previous session of Congress would be considered a lame duck session. The Speaker of the House has twice used authority of this kind to reconvene the chamber in a post-election continuation of a session that had previously been terminated by a conditional sine die adjournment. These lame duck sessions of the House occurred in 1998 (105 th Congress) and 2008 (110 th Congress). 10 No lame duck session of the Senate has been reconvened pursuant to authority of this kind. In 2008, the Senate implemented its lame duck session through pro forma sessions, as described in the following section. Pro Forma Sessions A fourth way in which a lame duck session can occur arises if Congress chooses not to authorize a recess spanning an election, but simply continues to meet throughout the pre-election period and afterwards. Any portion of the continuing session of Congress that takes place after the election would be considered a lame duck session. When Congress takes this course of action, each house typically convenes only on two or three days per week during the period spanning the election, and schedules little or no business to occur during these intermittent meetings. In the absence of a formal recess, each house must convene at least intermittently in order to satisfy the constitutional requirement that neither house adjourn for more than three consecutive days without the consent of the other. 11 Inasmuch as it is known that little business will occur during these intermittent sessions, however, this arrangement permits most Members to remain in their constituencies during the campaign period preceding the election. Sessions held under these conditions are often called pro forma sessions, meaning that they are held only for the sake of formality. In this case, the formality being satisfied is the constitutional prohibition on adjourning for more than three days without consent. The question is sometimes raised whether pro forma sessions during which no business occurs count as meeting this constitutional requirement. The answer is that they do; the Constitution sets no conditions about the occurrence of business, but only about the occurrence of the session itself. Indeed, the reason for holding pro forma sessions at all is precisely that they do satisfy the formal requirement. As Table 1 and the accompanying discussion show, there have been six occasions since 1935 on which at least one house of Congress has implemented a break spanning the election by meeting in pro forma sessions rather than taking a recess. On four other occasions, at least one house 10 Notification of Reassembling of Congress, proceedings in the House, Congressional Record, vol. 144, December 17, 1998, p See H.Con.Res. 353, 105 th Cong., 112 Stat at Notification of Reassembly, proceedings in the House, Congressional Record, vol. 154, December 9, 2008, p. H See H.Con.Res. 440, 110 th Cong., agreed to October 3, See Walter Kravitz, Congressional Quarterly s American Congressional Dictionary, 3 rd ed. (Washington: CQ Press, 2001), p Congressional Research Service 5

64 Lame Duck Sessions of Congress recessed for a period spanning the election, but also used pro forma sessions to extend the effective length of the election break. Sessions Called by the President A final means by which a lame duck session could occur arises from the constitutional authorization for the President to convene Congress, on extraordinary occasions, by calling a special session. 12 If Congress convenes, pursuant to this call, after a sine die adjournment and before the next session is scheduled to begin, a new session of the existing Congress begins. This course of events has not occurred since On the other hand, if the President calls Congress back during a recess of an existing session, the existing session resumes. This course of events occurred in both 1947 and 1948, when President Harry Truman called Congress back for an extraordinary session in the middle of a recess, in the latter case a recess for the national political conventions. These extraordinary sessions called by President Truman did not constitute lame duck sessions, because they both convened and recessed before the election for the following Congress. By the same means, however, a President might call an extraordinary session to convene at a date after the election and before the term of the sitting Congress ends. He could do so whether Congress had only recessed its previous session or had adjourned it sine die. In either case, the post-election meeting of Congress would be considered a lame duck session. 14 No lame duck session since 1935 has occurred through this means. In the past few years, as noted in the following sections, Congress has sometimes provided for breaks in its session by using pro forma sessions rather than recesses. It appears to be an unsettled question whether the President could use his power to call extraordinary sessions to call Congress back during a period when it was recessing only for three or fewer days at a time between pro forma sessions. It does not appear that any President has attempted such action. Characteristics of Lame Duck Sessions Since 1935 Dates and Lengths of Lame Duck Sessions and Election Breaks Since the 20 th Amendment became effective in 1935, there have been 19 lame duck sessions. For each of them, Table 1 provides information on when the pre-election portion of the session ended; when the post-election, or lame duck, portion of the session began; and when Congress adjourned the post-election session sine die. 12 U.S. Constitution, Article II, Section In 1937 and 1939, however, President Franklin D. Roosevelt called Congress into special second sessions after sine die adjournment of the first session. U.S. Congress, House, Deschler s Precedents of the United States House of Representatives, H. Doc , 94 th Cong., 2 nd sess., vol. 1, by Lewis Deschler, Parliamentarian of the House (Washington: GPO, 1977), chapter 1, secs. 2 and Ibid., chapter 1, sec Congressional Research Service 6

65 Lame Duck Sessions of Congress It also shows whether, during the period spanning the election, Congress recessed, met in a series of pro forma sessions, adjourned sine die (and then reconvened subject to authority granted to the leadership); or used some combination of these procedures. In cases when the two houses took differing actions, or took the same action on different dates, Table 1 provides separate data for each house. Also, if the last session preceding an election break, or the session during which a sine die adjournment occurred, extended past midnight, the table reports not the calendar day on which the session convened, but that on which the adjournment actually occurred. On the basis of these data, the following sections present some generalizations about the occurrence, form, timing, and length of the 19 lame duck sessions that have occurred since 1935, including especially mean and median starting dates, ending dates, and lengths of election breaks and lame duck sessions. 15 In these discussions, all averages for a chamber exclude from consideration the year in which the respective chamber did not return after the election (1954 for the House; 1998 for the Senate). Defining Pro Forma Sessions In years when Congress either (1) takes an election recess or (2) reconvenes subject to call after a conditional sine die adjournment, the dates on which each house begins its recess or adjournment, and the dates on which each reconvenes, are explicitly specified. Under these conditions, consequently, the beginning, end, and length of both the election recess (or conditional adjournment) and the lame duck session can be readily and unambiguously determined. When either house implements a break spanning the election by holding pro forma sessions, on the other hand, it is not always clear which sessions should be counted as occurring pro forma rather than as part of the regular session, especially because business is sometimes transacted in the course of the intermittent sessions that span the period of the election. The same ambiguity arises even more acutely when either house extends the effective length of an election break by holding one or more pro forma sessions, either leading up to a recess or adjournment or at the end of it. To make meaningful comparisons among election breaks implemented in whole or part through pro forma sessions and those implemented solely through a recess or adjournment, some appropriate way must be found of distinguishing between sessions held for the purpose of conducting business and those held with the intent of providing an equivalent of a recess. Absent such a distinction, for example, the longest possible election break in a year with pro forma sessions would be given as three days, even if the pro forma sessions were evidently being held in order to permit Members to return to their constituencies for the same length of time as a recess would have allowed. Under these conditions, also, the time between the start of the lame duck 15 The mean, or average, is the sum of the lengths of the recesses divided by the number of recesses. The median is the midpoint, from which half the recesses were longer and half shorter. Congressional Research Service 7

66 Lame Duck Sessions of Congress session and the sine die adjournment would appear comparably longer than in years with the same adjournment date, but in which a recess was taken. Resolving these difficulties of comparison requires adopting some means for identifying pro forma sessions that permits specifying the beginning and end of election-spanning break (and therefore also the beginning of the lame duck session) in a way best comparable with the figures given for recesses and conditional sine die adjournments. For this purpose, the most straightforward approach seems to be to count any session of a chamber as pro forma if there is no session of that chamber on either the preceding or following day. Conversely, under this criterion, all daily sessions are counted as part of the regular schedule of a chamber if another session of the same chamber occurs on the day either immediately preceding or following it. It proved necessary to modify this criterion only when the day of a sine die adjournment is consecutive with no other sessions, in which case it is counted as a day of regular session. This approach provides a simple way of bringing a common perspective to the wide variety of schedules Congress has followed. It may be supported by the presumption that even if substantial business occurs during a daily session, under normal circumstances it may be difficult to ascertain why it should be isolated by at least a day from every other daily session, unless its purpose is at least in part to meet constitutional restrictions on recesses. Except as otherwise noted, accordingly, all dates and figures provided in this report use this way of specifying lame duck sessions and election breaks. When Lame Duck Sessions Have Occurred Lame duck sessions were frequent in the years surrounding World War II, occurring in six of eight Congresses (76 th through 83 rd ) between 1940 and Thereafter, none occurred from 1956 through There were two in each of the next three decades, but there was also another relatively long gap from 1984 through Beginning with 1994, however, lame duck sessions have occurred in nine of the last 10 Congresses (103 rd through 112 th ), including the last eight Congresses in a row. On one occasion, in 1954, only the Senate returned, and only to consider the censure of Senator Joseph McCarthy; and once, in 1998, only the House returned, principally to consider the impeachment of President William J. Clinton. Congressional Research Service 8

67 Lame Duck Sessions of Congress Table 1. Lame Duck Sessions of Congress, (74 th -112 th Congresses) Year of Election Congress a Last Day of Consecutive Sessions Before Election b,c Form of Break Spanning Election First Day of Consecutive Sessions After Election b,d Sine Die Adjournment c th th th Sept. 21 House: Oct. 10 Pro forma House: Nov. 18 House: Jan. 2, 1941 Senate: Oct. 15 sessions Senate: Nov. 7 Senate: Jan. 3, 1941 House: Oct. 27 Pro forma House: Nov. 9 Senate: Oct. 24 sessions Senate: Nov. 12 Recess and pro forma sessions Dec. 16 Nov. 20 Dec th Aug. 7 Recess Dec. 31 Dec st Sept rd Aug. 20 House: Recess and pro forma sessions House: Nov. 30 Senate: Recess Senate: Nov. 27 House: Adjourned sine die Jan. 2, 1951 Senate: Recess Senate: Nov. 8 Senate: Dec st Oct. 14 Recess Nov. 16 Jan. 2, rd Oct. 17 Recess Nov. 18 Dec th House: Oct. 2 House: Dec. 16 Recess Nov. 12 Senate: Oct. 2 Senate: Dec th Oct. 2 Recess Nov rd Oct. 8 Recess th Oct th Adjourned sine die House: Nov. 3 House: Recess House: Nov. 13 Senate: Nov. 2 Senate: th Oct th th Sept. 30 Recess and pro forma sessions Pro forma sessions House: Dec. 21 Senate: Dec. 23 House: Nov. 29 House: Nov. 29 Senate: Nov. 30 Senate: Dec. 1 House: Dec. 17 e House: Dec. 19 Senate: Dec. 5 Nov. 7 Dec. 15 House: Nov. 22 Senate: Nov. 20 House: Oct. 9 House: Dec. 7 Recess Nov. 16 Senate: Oct. 11 Senate: Dec. 8 Recess and pro forma sessions Nov. 13 House: Dec. 9 Senate: Dec. 9 Congressional Research Service 9

68 Lame Duck Sessions of Congress Year of Election Congress a Last Day of Consecutive Sessions Before Election b,c Form of Break Spanning Election First Day of Consecutive Sessions After Election b,d Sine Die Adjournment c th th th House: Oct. 3 House: Senate: Oct. 7 Senate: Adjourned sine die Pro forma sessions House: Sept. 30 House: Recess Senate: Sept. 29 Senate: Pro forma sessions House: Nov. 19 e House: Jan. 3, 2009 Senate: Nov. 19 Senate: Jan. 2, 2009 Nov. 15 Dec. 22 House: Sept. 21 Pro forma House: Jan. 3, 2013 Nov. 13 Senate: Sept. 22 sessions Senate: Jan. 2, 2013 Sources: Journals of the House and Senate; Daily Digest of the Congressional Record; and Final Calendars of the House and Senate. a. Second session, except 3 rd session of the 76 th Congress (1940). b. For explanation of this criterion for the start and end of the break spanning the election and of the lame duck session, see Definition of Pro Forma Sessions in the text. c. The date given is the calendar day on which the specified daily session ended. Bold face entries indicate that this calendar day was later than that on which this daily session began. d. If no consecutive days of session occurred during the lame duck session, the date displayed in this column is that of the sine die adjournment. e. Reconvened pursuant to contingent authority granted to leadership in the adjournment resolution. Form of Election Break Between 1935 and 2012, the two chambers have used three means of providing for a break before a lame duck session: recesses spanning the election, pro forma sessions, and contingent adjournments sine die. While in most instances, the form of the election break was the same for both chambers, the House and Senate used different forms on four occasions. In addition, one or both chambers have used a combination of recesses spanning the election and pro forma sessions in four instances. 16 After a Congress adjourns sine die, no lame duck session can occur unless the adjournment resolution makes the adjournment conditional by authorizing the leadership to call Congress back (or unless the President were to proclaim an extraordinary session). If Congress only recesses for the election, on the other hand, a lame duck session is certain to take place even if the recess resolution provides no authority to reconvene. In five of the 13 years in which election recesses occurred (1950, 1954, 1970, 1980, and 1982), Congress authorized the recess without providing authority for the leadership to reconvene before the recess was to end. In the remaining eight recess years (1944, 1948, 1974, 1994, 2000, 2004, 2006, and 2010), the recess resolution provided this authority, but it was not exercised. 16 Although a lame duck session could be carried out as a separate session of Congress, each of 19 of the lame duck sessions since 1935 has instead occurred as the post-election portion of a regular session. Congressional Research Service 10

69 Lame Duck Sessions of Congress Since 1935, recesses of both chambers spanning the election have preceded lame duck sessions in eleven instances (1944, 1948, 1950, 1970, 1974, 1980, 1982, 1994, 2000, 2004, and 2006). In one additional instance (2010), although both the House and Senate participated in a lame duck session, only the House opted to recess before the election, while the Senate engaged in pro forma sessions until the post election session began. Another election-spanning recesses, as well, involved a lame duck session of only one chamber. In 1954, the House adjourned sine die, and only the Senate recessed (with no contingent reconvening authority), allowing it alone to return to deal with the censure of Senator McCarthy. A schedule in which both houses continued to meet in pro forma sessions throughout the election period was used for the first two lame duck sessions after adoption of the 20 th Amendment, which occurred in 1940 and 1942, shortly before and during World War II. Both chambers simultaneous use of this arrangement again appeared only in 2002 and In addition, the House alone engaged in pro forma sessions during the election break preceding the lame duck session on one occasion shortly after World War II (1950). In contrast, the use of pro forma sessions prior to lame duck sessions by the Senate alone has been a more recent development, occurring in 2000, 2008, and Pro forma sessions have also been used in conjunction with recesses spanning the election, effectively extending the election break before the lame duck session began, on a total of four occasions. In 1944 and 2006, both chambers used a combination of pro forma sessions and recesses for this purpose; the House alone did so in 1950, and the Senate alone in The Senate has never convened in a lame duck session after a contingent adjournment sine die; both instances of this procedure have involved only the House, and in both instances the call to reconvene was expected in advance. In 1998, both chambers adjourned sine die with contingent reconvening authority, but only the House returned, chiefly to address the impeachment of President Clinton. In 2008, when the House was called back principally to address dislocations in the financial system, the Senate had not adjourned sine die, but continued to meet in pro forma sessions. In addition to this 2008 instance, the House and Senate have observed different forms of election break preceding a lame duck session on three other occasions. In 1950, the House used a combination of a recess spanning the election and pro forma sessions prior to the start of the lame duck session while the Senate only recessed. The reverse occurred in 2000, with the Senate using pro forma sessions and a recess while the House only recessed. Finally, in 2010, the House recessed before the lame duck session while the Senate engaged exclusively in pro forma sessions during the break spanning the election. Start of Election Breaks Election breaks preceding lame duck sessions have most commonly begun in early to mid- October; 10 of the 19 began between September 30 and October 17. This schedule, which affords Members at least a few weeks to return to their constituencies during the campaign period, has been especially common in years when the election break occurs in the form of a recess. It was used in seven of the 13 years when an election-spanning recess occurred, none of which, however, occurred before In relation to this pattern, the four most recent election breaks have begun relatively early. Before 2006, election breaks that began earlier than September 30 occurred only preceding the four lame Congressional Research Service 11

70 Lame Duck Sessions of Congress duck sessions held from 1944 through The break in all four years, which was either constituted by or included a recess, began either earlier in September or even in August. The earliest start of any break spanning an election was August 7, 1948 (80 th Congress). In this case, Congress recessed its regular session on June 20, scheduling itself to reconvene on December 31. President Truman called Congress back into extraordinary session on July 26, but Congress soon put itself back into recess. In 2006 (109 th Congress), however, the last consecutive sessions of both houses before their recess was on September 30, and in 2008 (110 th Congress), the House adjourned sine die on October 3 and the last consecutive sessions of the Senate ended on October 7. In 2010 (111 th Congress), the last consecutive sessions of the Senate ended on September 29 and the House recessed for the election early in the morning the following day. The 112 th Congress (2012) was the earliest to depart since the 83 rd Congress (1954), when its period of pro forma sessions began in the House on September 21, and in the Senate on September 22. On the other hand, some election breaks during the period since 1998, when lame duck sessions have been universal, have begun significantly later than mid-october. In 1998 (105 th Congress), both chambers adjourned sine die on October 21 before the House was called back to consider the Clinton impeachment. Two years later (106 th Congress), the election recess (extended in the Senate by pro forma sessions) did not begin until November 2 for the Senate and November 3 for the House. The only other election break ever to begin so late occurred in 1942, when consecutive sessions continued in the Senate until October 24 and in the House until October 27. Start of Lame Duck Sessions (End of Election Breaks) A recess or other form of break in session spanning the election is terminated by the reconvening of Congress for a lame duck session after the election. Lame duck sessions have most commonly convened in mid- to late November; of the 19 sessions, 12 began between November 12 and 30. This pattern has been most common in years when the lame duck session followed a recess, occurring in 9 of the 13 such years. In four other years, at least one house resumed its session earlier in November, and three of these years were ones in which the election was spanned by pro forma sessions in both chambers. In three years, at least one house did not reconvene until December, in two of these cases after a recess. The latest date for both houses to reconvene after an election occurred in the 80 th Congress on December 31, 1948 (which was also the day of sine die adjournment). The only other lame duck session to begin in December occurred when the House alone was called back after the sine die adjournment of Congress on December 17, 1998 (105 th Congress). In 2000 (106 th Congress), the Senate did not return from its recess until December 5, but the House had already done so on November 13. Lame duck sessions have tended to begin earlier in years when Congress used pro forma sessions, rather than a recess, to span the election. The earliest reconvening of both houses occurred in 2002, when the 97 th Congress resumed consecutive sessions on November 7, but the other examples of early starts occurred near the beginning of the historical period under discussion. In 1954 (83 rd Congress), when the Senate alone returned, it did so on November 8. The Senate also resumed consecutive sessions after the election break on November 7, 1940 (76 th Congress), although the House did not do so until the 18 th. Conversely, the House resumed consecutive sessions on November 9, 1942 (77 th Congress), although the Senate did not do so until the 12 th. The earliest reconvening after an election recess was 1980, when the 97 th Congress returned on November 12. Congress also reconvened after a recess on relatively early dates in 2000 (106 th Congressional Research Service 12

71 Lame Duck Sessions of Congress Congress), when the House returned on November 13 and the Senate on November 14, and in 1944 (78 th Congress), when both houses returned on November 14. Length of Election Breaks The first two data columns of Table 2 display the length of election breaks for each chamber, measured in calendar days between the last day of consecutive sessions before the election and the first day of consecutive sessions thereafter. These breaks have typically lasted between one and two months. In only four years did longer intervals between the pre- and post-election session occur, and in only four years did shorter ones take place. This degree of consistency in the length of election breaks indicates that normally, when Congress left later for the break, it also tended to return later after the election, and conversely, when it left earlier it typically returned earlier. In most years, in addition, the two chambers followed generally similar schedules. Only in the three years in which both houses spanned the election with pro forma sessions did the length of the break differ between the two houses by more than four days, and the differences occurred largely because of the points at which consecutive sessions occurred in the two chambers. In 1940 the break for the House was 16 days longer, in 1942 the Senate break was six days longer, and in 2000 the Senate break was 23 days longer. For similar reasons, the years in which only pro forma sessions spanned the election are also those in which most of the shortest breaks occurred. For these years, the mean interval between periods of consecutive sessions was 30 days in the House and 33 days in the Senate. For years with recesses or conditional sine die adjournments, by contrast, the mean was 49 days in the House and 59 in the Senate. Specifically, the interval between periods of consecutive sessions in 1940 (76 th Congress) was 22 days in the Senate (but 38 in the House); in 1942 (77 th Congress), it was 12 days in the House and 18 in the Senate; and in 2002 (107 th Congress), it was 20 days in both chambers. In 2008, only the Senate made use of pro forma sessions to span its break of 42 days, while the House reconvened 46 days after a contingent sine die adjournment. The only other notably short break occurred in 2000 (106 th Congress), in this case apparently because Congress did not recess for the election until early November, so that the House could return after nine days, although the Senate did not come back until after 32 days, in early December. For the House, the median length of the election break has been 44 days; for the Senate, it has been 42 days. The mean length is greater for both chambers (House: 47 days; Senate: 48 days), because it is affected by the unusually long recess of 145 days between August 7 and the sine die adjournment on December 31 in 1948 (80 th Congress). 17 Excluding this instance, nearly twice as long as any other, the mean length of election breaks is 41 days for the House and 42 for the Senate. The only two other election breaks longer than 60 days also occurred in earlier years. The recess before the Senate alone returned in 1948 (83 rd Congress) lasted 79 days, and in 1950 (81 st Congress), the House recessed for 67 days and the Senate for The mean, or average, is the sum of the lengths of the recesses divided by the number of recesses. The median is the midpoint, from which half the recesses were longer and half shorter. Congressional Research Service 13

72 Lame Duck Sessions of Congress End of Lame Duck Sessions Lame duck sessions have most often finally adjourned sine die in about mid-december, or at least before Christmas. The average date has been December 20 for the House, December 19 for the Senate. Two of the three most recent Congresses with lame duck sessions adjourned sine die on some of the latest days during this period. In both the 110 th (2008) and 112 th (2012) Congresses, the Senate adjourned sine die on January 2, 2009, and the House on January 3. Prior to this recent period, in the 76 th Congress, the House adjourned on January 2, and the Senate on January 3. Other late terminations occurred in the 81 st and 91 st Congresses, both of which adjourned sine die on January 2 (1951 and 1971, respectively), and, as already noted, in the 80 th Congress, when both houses adjourned sine die on December 31, 1948, after a one-day lame duck session. Table 2. Length of Election Breaks and of Lame Duck Sessions, (74 th -112 th Congresses) Year of Election Congress Length in Calendar Days of Break Spanning Election a Length in Calendar Days of Lame Duck Session b House Senate House Senate th th th th st rd st rd th th rd th th th th th th th th Source: Table 1. a. Includes all calendar days between the last day of consecutive sessions before the election and the first day of consecutive sessions after the election. b. Includes all calendar days from the first day of consecutive sessions after the election through final sine die adjournment. Congressional Research Service 14

73 Lame Duck Sessions of Congress The earliest end of a lame duck session occurred in 2002 (107 th Congress), when the House adjourned sine die on November 22, the Senate having done so two days earlier. Other relatively early conclusions occurred in 1994 (103 rd Congress), when the House adjourned on November 29 and the Senate on December 1, and in 1954 (83 rd Congress), when the Senate (being the only chamber that had reconvened) adjourned on December 2. In recent years, the 109 th Congress adjourned sine die on December 9, Calendar Length of Lame Duck Sessions From the beginning of consecutive sessions after an election to a final sine die adjournment of Congress, lame duck sessions have typically lasted about a month, as shown by the last two columns of Table 2. The mean length of the 18 House lame duck sessions since 1935 has been 29 calendar days and the median 38 calendar days; the mean length of the 18 Senate lame duck sessions has been 30 calendar days and the median 31 calendar days. 18 In 12 of the 19 total lame duck sessions, at least one chamber has remained in session for between 16 and 38 days. As has been the case with election breaks, the two houses have almost always followed similar schedules for the lame duck session itself. Among the 17 lame duck sessions in which both houses returned, only two exhibit a difference in length between the two houses of more than three days. In the two exceptional cases, however, the difference between the houses was marked. In 1940 (76 th Congress), the Senate remained in session for 58 days, but the House adjourned sine die after 46 days. In this instance, however, both houses remained in pro forma sessions throughout much of the post-election period, so that the difference in length depends largely on when each house held its first consecutive sessions after the election. In 2000 (106 th Congress), the House returned earlier than the Senate from its election recess and remained in session for 37 days, whereas the Senate adjourned sine die after but 11 days. In this case the major task of the session was the completion of action on appropriations bills, and the House was the focus of the major conflicts over the matter. Lame duck sessions between 1980 and 2006 tended to be shorter than those that occurred either before or since. Among the nine lame duck sessions from 1940 through 1980, only two were shorter than 30 days: the one-day session of the 80 th Congress (1948) and the session of the Senate alone to address the censure of Senator McCarthy in the 83 rd Congress (1948), which lasted 25 days. Among the seven lame duck sessions from 1982 through 2006, by contrast, only one exceeded 27 days in length. The three most recent lame duck sessions, however, may indicate an emerging trend toward greater length. In 2008 (110 th Congress), the House remained in session for 46 calendar days and the Senate for 45; in 2010 (111 th Congress), both chambers remained in session for 38 days; and in 2012 (112 th Congress), the House remained in session for 52 days, while the Senate remained in session for 51 days. The longest of all lame duck sessions since the 20 th Amendment took effect has been the first (76 th Congress), when both houses remained in session between November 7, 1940, and January 3, 1941, although they each met usually only every third day. Inasmuch as this session included essentially the entire time between election day and the expiration of the constitutional term of the Congress, it approaches the theoretical maximum length. A longer lame duck session could occur only in a year when election day was earlier. 18 Ibid. Congressional Research Service 15

74 Lame Duck Sessions of Congress Only three other lame duck sessions have lasted more than 38 days. Two were those, just mentioned, which occurred in the 110 th and 112 th Congress, when economic recovery and budgetary issues were the principal object of attention. The other occurred in the 91 st Congress (1970), when the lame duck session continued for 48 calendar days, working not only on appropriations but also on major elements of President Nixon s legislative program. The shortest lame duck sessions have, in general, been those held for special or limited purposes, including the two occasions on which only one house returned. The shortest of all, of course, was that of the 80 th Congress (1948), when both houses returned solely to close the session on December 31, In 1994, when the 103 rd Congress implemented the new General Agreement on Tariffs and Trade (GATT), the Senate met for just two days and the House for but one. In the 105 th Congress (1998), the House alone returned for only two days to address the impeachment of President Clinton. Except for these three instances, no lame duck session of either chamber has lasted for fewer than 11 days. The fourth lame duck session with a limited agenda lasted somewhat longer, as the Senate alone considered the McCarthy censure for 25 days in 1954 (83 rd Congress). Days of Session After Election Using periods of consecutive session to identify the beginnings of lame duck sessions has the advantage of affording some uniform basis for comparison between years in which pro forma sessions were used and other years. In some respects, however, comparisons in terms of calendar days counted in this way may be misleading. Part of the reason is that some Congresses have used pro forma sessions not only to effect the break spanning the election, but also in the course of the lame duck session itself. In addition, some lame duck sessions have contained internal recesses, authorized by concurrent resolution. The two houses have used both these means, for example, to create breaks in session for the Thanksgiving and Christmas holidays. In some respects, as a result, the extent of activity of a lame duck session may be better stated in terms of the number of actual daily sessions held after the election, rather than in calendar days between convening and adjourning. This way of counting includes not only those pro forma sessions that occurred after each chamber resumed consecutive sessions after the election, but all sessions held between the election day and the sine die adjournment, whether consecutive or not. Table 3 presents these figures, together with an identification of the holiday arrangements made in each lame duck session. The pattern of lame duck sessions revealed by this approach does not differ radically from that in terms of calendar days, but shows less variation among years. In years with lame duck sessions, the House held a mean of 15 sessions after the election; the Senate a mean of 18. In all but six of the 19 lame duck sessions, each chamber convened on at least 5 and no more than 24 days. The three shorter sessions include those with limited agendas already discussed (1948, 1994, and 1998). The first longer session was that of 1970, when much of President Nixon s initial legislative agenda remained at issue. The other longer sessions occurred in 2010 and 2012, both of which addressed chiefly fiscal and budgetary issues. Congressional Research Service 16

75 Lame Duck Sessions of Congress Table 3. Days of Session After Election and Holiday Breaks in Lame Duck Sessions, (74 th -112 th Congresses) Year of Election Congress Days of Session a Form of Break b House Senate Thanksgiving Christmas th Pro forma sessions Pro forma sessions th Pro forma sessions [After adjournment] th Pro forma sessions [After adjournment] th 1 1 [Before convening] [Before convening] st [Before convening] Pro forma sessions rd 13 Recess (Senate) [After adjournment (Senate)] st Recess Recess rd Recess [After adjournment] th Recess [After adjournment] th [Before convening] [After adjournment] rd 1 2 [Before convening] [After adjournment] th 3 [Before convening (House)] [After adjournment (House)] th 11 8 Recess [After adjournment] th 8 9 [After adjournment] [After adjournment] th 8 9 Recess [After adjournment] th 9 11 Recess [After adjournment] th 5 22 Recess (House) Pro forma sessions (Senate) Recess (House) Pro forma sessions (Senate) th Recess [After adjournment] th Recess Pro forma sessions Sources: Journals of the House and Senate; Daily Digest of the Congressional Record; and Final Calendars of the House and Senate. a. Includes all days on which the chamber was actually in session, including pro forma sessions, between election day and the expiration of the term of the Congress. b. Entries for holidays that fell before a lame duck session convened (or resumed consecutive sessions) or after it reached a final sine die adjournment are shown in [brackets]. Measured by days of session as well as by calendar days, after lame duck sessions started to become routine, they tended to be brief. In the six lame duck sessions starting in 1994, the House convened on a mean of seven days and the Senate on a mean of eight days. In contrast, the three most recent lame duck sessions were convened for a mean of 17 days in the House and 27 days in the Senate. In the 2008 session, the House convened on five days and the Senate on 22. The unusual frequency of the Senate s post-election sessions is accounted for by its use of pro forma sessions as a means of avoiding recesses or adjournments, so as to limit the opportunity for President Bush to make recess appointments. The Senate actually transacted business only on approximately as Congressional Research Service 17

76 Lame Duck Sessions of Congress many days as did the House. From this perspective the 2008 lame duck session might be viewed as another example of a lame duck session with a limited agenda (of addressing dislocations in the financial system) that was consequently unusually brief. During the 2010 lame duck session, the House convened on 19 days and the Senate on 29. In contrast to the 2008 session, however, the Senate transacted business on all but four days of session. The high number of days in session for both the House and the Senate was due in part to the prolonged negotiations over appropriations and extending certain revenue provisions that occurred at that time. For the most recent lame duck session, in 2012, the House convened on 28 days and the Senate on 30. Business was transacted on 19 of those 28 days in the House and 27 of those 30 days in the Senate. Holidays During Lame Duck Sessions The information in Table 3 on the forms taken by breaks for holidays within lame duck sessions shows that in all but six instances, Congress has reached a final adjournment sine die before Christmas. In all but five years of lame duck session, on the other hand, Congress has reconvened (or resumed consecutive sessions) before Thanksgiving. On none of the 17 occasions on which a lame duck session has been in progress for one or both chambers at the time of either holiday did Congress meet on that holiday. Through 1950, it was the practice of both houses to schedule one or more pro forma sessions in the period spanning the holiday; thereafter, both houses almost always have recessed over the holiday. Only in 2008 did each house adopt a different practice, when the House recessed over Thanksgiving and again over Christmas, while the Senate remained in pro forma sessions, in order, as explained in the previous section, to forestall presidential recess appointments. In 2012, both chambers recessed for Thanksgiving, but engaged in pro forma sessions over the Christmas holiday. Lame Duck Sessions Since 1935 Following are summaries of the 19 lame duck sessions held since Primary sources, including the Congressional Record and Congressional Directory, and secondary sources, including the Congressional Quarterly Weekly Report, CQ Almanac, and, for the earlier years, the New York Times, constituted the basis for these descriptions. Internet-based sources were also used. 76 th Congress, 3 rd Session ( ) After the first session of the 76 th Congress adjourned in August 1939, President Franklin D. Roosevelt called Congress into extraordinary session in September to deal with the threat of war in Europe, and this session lasted into November. Thus, the annual session that began on January 3, 1940, was the third session of the 76 th Congress. It, too, was dominated by the international situation. The President requested the largest peacetime defense program to that point in American history, and, by the end of the summer, Congress had enacted $13 billion in defense authorizations and appropriations, a military draft, income tax revisions, an excess profits tax, and related measures. Congressional Research Service 18

77 Lame Duck Sessions of Congress In June, July, and again in September 1940, the President offered the view that Congress need not remain in session any longer. Some congressional leaders, however, held that Congress should stand by in session, in case of emergency. Congress met regularly through mid-october, then limited itself to two or three meetings per week until January 3, 1941; there was no extended recess for the November 1940 elections. The session thus became the longest in history to that point. During the lame duck period following the election, little was undertaken; the Congressional Record from November 4, 1940 through January 3, 1941 covers fewer than 500 pages, and quorums were often hard to raise. The administration declined to send major new proposals (such as a defense production board, aid to Britain, new taxes, and an increase in the debt limit) to Capitol Hill until the 77 th Congress would convene in January. Work also was impeded because both the House and Senate had to meet in substitute quarters while their chambers in the Capitol underwent repairs. Among the more notable actions of this lame duck period were the decision to sustain the veto of a measure to limit regulatory agency powers, and the publication of a committee report on sabotage of the defense effort. 77 th Congress, 2 nd Session (1942) In the wartime year of 1942, Congress again remained in session continuously through the election, adjourning sine die on December 16. Congress generally followed a regular schedule of daily meetings throughout the period, except near the election, when it met every third day. Activities in the lame duck portion of the 77 th Congress were affected by the knowledge that the 78 th Congress, to begin in January, would contain a much narrowed Democratic majority. Congress declined to take final action to approve the Third War Powers Bill 19 or a bill to expand the Reconstruction Finance Corporation, including an agricultural parity rider attached to the latter. Other questions left to the next Congress included comprehensive national service legislation, placing a ceiling on net personal income through the tax code, curbing the powers of regulatory agencies, and planning for censorship of communications with U.S. territories. A measure to abolish poll taxes passed the House, but came to no resolution because of a filibuster in the Senate. Congress did pass legislation to adjust overtime pay for government workers, and to provide for the military draft of 18- and 19-year-old men (although Congress deferred deciding whether to require a full year s training before sending them into combat). By mid-december, quorums became difficult to obtain and leaders of both parties agreed that nothing further could be brought up before the start of the 78 th Congress in January th Congress, 2 nd Session (1944) Two years later, with World War II still in progress, Congress recessed for the national party conventions and recessed again for the elections. The latter recess began on September 21, Congress returned on November 14 and remained in session until December 19. Accordingly, 19 This legislation related to the conduct of World War II, and has no connection with the War Powers Resolution (P.L , 87 Stat. 555, 50 U.S.C ) enacted in 1973 to regulate commitments of U.S. armed forces abroad. Congressional Research Service 19

78 Lame Duck Sessions of Congress 1944 marks the first instance after ratification of the 20 th Amendment of a separate and distinct meeting of Congress during its lame duck period. Among the issues facing the post-election session were questions of peacetime universal military training; extension of the War Powers Act 20 and the reciprocal trade system; a scheduled increase in Social Security taxes; and a rivers and harbors appropriations bill. Congress also debated congressional reform issues, including restructuring the committee system and increasing congressional pay. Postwar reconstruction and a renewal of domestic programs were also mentioned as possible subjects for action. Ultimately, Congress deferred several issues until the start of the 79 th Congress, including universal military training, the Bretton Woods monetary agreements, the Reciprocal Trade Act, and changes to the Social Security system. Several other measures could not be completed, including a rivers and harbors bill, a Senate-passed bill making major changes in congressional procedures; and a pay increase for postal workers. A bill delaying the Social Security tax increase was enacted, however, as were a renewal of the War Powers Act and a bill increasing the congressional clerk-hire allowance. In addition, the Senate confirmed the nomination of Edward R. Stettinius as Secretary of State. 80 th Congress, 2 nd Session (1948) Congress recessed in August 1948, before the national party conventions, with the intention of returning only on December 31 to bring the 80 th Congress to a formal conclusion, unless earlier called back by congressional leaders. During the convention recess, however, President Harry S Truman called Congress back in extraordinary session to deal with a series of legislative priorities he considered urgent. This occurrence represents the only time since the adoption of the 20 th Amendment that the President has convened Congress in an extraordinary session. Congress met pursuant to this call from July 27 to August 7, but then recessed again under the same terms as before. The leadership did not exercise its option to reconvene Congress during this new recess, and Congress met again only on December 31. This session, the shortest lame duck session under the 20 th Amendment, met for just under an hour and a half, then adjourned sine die. During the brief session, both chambers approved a measure extending for 60 days the life of the Commission on Organization of the Executive Branch of Government (Hoover Commission). The Senate also extended for 30 days the life of the Special Small Business Committee, and both houses swore in new Members elected or appointed to full unexpired terms. 81 st Congress, 2 nd Session ( ) With the Korean War at a critical juncture in the fall of 1950, congressional leaders announced in late September that after the election Congress would reconvene in late November. Until November, Congress would be available to meet should the President call an emergency session. Congress recessed on September 23 and convened for the lame duck session on November Like the measure referred to in the previous note, this legislation related to the conduct of World War II, and has no connection with the contemporary War Powers Resolution. Congressional Research Service 20

79 Lame Duck Sessions of Congress As the lame duck session met, Chinese troops crossed into Korea, and General Douglas A. MacArthur warned Congress that the United Nations faced an entirely new war in the region. The Korean War and the possible use of atomic weapons dominated congressional attention through the session. Nevertheless, President Truman presented congressional leaders with a list of 18 proposals, including five he described as of greatest urgency. The five included several measures favored by congressional leaders: aid to Yugoslavia and supplemental appropriations for defense and atomic energy. The President also asked Congress to act on an excess profits tax, an extension of federal rent controls, and statehood for Hawaii and Alaska. 21 Congress stayed in session through the New Year. It approved the rent control extension and a $38 million famine relief bill for Yugoslavia. In the week before the Christmas holidays, it completed work on an $18 billion defense supplemental appropriations bill, the excess profits tax, and a civil defense program. Efforts to obtain a vote on statehood for Alaska were abandoned after a week of intermittent Senate debate on a motion to take up the measure. The 81 st Congress adjourned sine die on January 2, 1951, and the 82 nd Congress convened the next day. 83 rd Congress, 2 nd Session (1954) Prior to the 1954 congressional election, the House adjourned sine die on August 20, but the Senate recessed on that date and then reconvened on November 8. The Senate met for the sole purpose of considering the recommendation of a select committee to censure Senator Joseph R. McCarthy for improprieties committed in the course of his investigations into allegations of communist influence in the federal government. Made over a period of more than five years, Senator McCarthy s allegations had eventually led to investigations of McCarthy himself, and the Senate had assigned the issue to a select committee chaired by Senator Arthur V. Watkins. This lame duck session was the first time since passage of the 20 th Amendment that only one chamber returned to session after an election. The Senate select committee submitted its censure resolution on November 9, The first count of the two-count resolution was approved on December 1, and final action was completed the following day. Press reports speculated that the Senate might consider matters other than the McCarthy censure resolution, including a number of pending treaties and nominations, but the Senate took action only on the McCarthy censure resolution and adjourned finally on December st Congress, 2 nd Session ( ) Congressional leaders called a post-election session in 1970 for the first time in more than 16 years to complete action on a list of pending legislation, including electoral reform, the Family Assistance Plan (the Nixon Administration s principal welfare reform proposal), occupational safety and health, equal rights for women, manpower training, and funds for the supersonic transport plane (SST). Seven regular appropriations bills also remained to be enacted. Congress convened the lame duck session on November 16, See Congress Returns, Faces New War, Congressional Quarterly Weekly Report, vol. 8, week ending December 1, 1950, p Congressional Research Service 21

80 Lame Duck Sessions of Congress Congress stayed in session until January 2, 1971, less than 24 hours before the constitutional deadline of noon on January 3, when the 92 nd Congress convened. It kept largely to the agenda the congressional leadership had set before the recess in October, 22 but failed to approve many administration proposals, including the Family Assistance Plan. That bill, with other controversial measures, had been attached to a Social Security bill in the Senate. The SST received only interim funding. President Richard M. Nixon strongly criticized what he termed major failures of the lame duck session. Congress did complete work on two of the seven regular appropriations bills and a measure dealing with foreign aid and foreign military sales. It also passed the Clean Air Act Amendments of 1970, which established deadlines for the reduction of certain pollutants from new automobiles, and a major housing bill, which included a new program of federal crime insurance and created the Community Development Corporation. President Nixon vetoed four measures during the lame duck session, including a $9.5 billion federal manpower training and public service employment bill. Congress did not override any of these vetoes. 93 rd Congress, 2 nd Session (1974) Delayed in the consideration of major legislation by the extraordinary events of 1973 and 1974 the Watergate investigations, the resignation of Vice President Spiro T. Agnew, the nomination and confirmation of Gerald R. Ford to be Vice President, and the resignation of President Nixon and succession of President Ford Congress reconvened on November 18, 1974, in an effort to clear a long list of important items. Although congressional leaders had indicated that only the most critical bills would be considered, including approval of the nomination of Nelson A. Rockefeller to be Vice President, President Ford greeted the returning Congress with a 10-page list of legislation he wanted passed before the session expired. 23 In the end, Congress did consider a wide range of issues before it adjourned on December 20, 1974, but its actions were not always to President Ford s liking. The Rockefeller nomination was approved by mid-december, but Congress overrode presidential vetoes of both a vocational rehabilitation bill and a measure amending the Freedom of Information Act. Congress also approved, and the President signed, a bill that nullified a prior agreement giving former President Nixon control over the tapes and papers of his administration. In other actions, Congress approved a long-delayed trade reform bill giving the President broad authority to negotiate trade agreements, act on trade barriers, and provide import relief to workers, industries, and communities; 22 Much Unfinished Business Faces Lame Duck Session, Congressional Quarterly Weekly Report, vol. 28, October 23, 1970, pp ; Nixon Support to be Targeted in Lame Duck Session, Congressional Quarterly Weekly Report, vol. 28, November 13, 1970, pp U.S. President (Ford), Repeating Desire of the President of the United States for Partnership with the Congress Message from the President of the United States (H.Doc. No ), Congressional Record, vol. 120, November 18, 1974, pp See Congress Gets Ford Request, Overrides Vetoes, Congressional Quarterly Weekly Report, vol. 32, November 23, 1974, pp Congressional Research Service 22

81 Lame Duck Sessions of Congress established a federal policy for research on development of non-nuclear sources of energy; and cleared legislation making continuing appropriations for federal agencies whose regular appropriations had not been enacted. 96 th Congress, 2 nd Session (1980) In 1980, some observers contended that postponing final congressional action on a lengthy agenda of major issues until a post-election session would accomplish two goals: first, it would delay potentially difficult pre-election votes on budget matters, and second, it would allow incumbents extra time to campaign. The large Republican gains on election day were thought to complicate the prospects for a productive lame duck program, however, especially with such important issues as budget reconciliation, several major appropriations bills, and landmark environmental legislation still left for consideration. In fact, during the lame duck session, from November 12 to December 16, 1980, Congress completed action on many of the issues that had been left unfinished in the regular session, including the following: a budget resolution and a budget reconciliation measure; five regular appropriations bills, although one was subsequently vetoed; a second continuing resolution was approved to continue funding for other parts of the government; an Alaska lands bill and a superfund bill to help clean up chemical contamination; a measure extending general revenue sharing for three years; a measure that made disposal of low-level nuclear waste a state responsibility; and changes to military pay and benefits, and authority for the President to call 100,000 military reservists to active duty without declaring a national emergency. 97 th Congress, 2 nd Session (1982) In 1982, with urging from President Ronald W. Reagan, congressional leaders called for the second session of the 97 th Congress to reconvene after the congressional election. 24 The Senate met from November 30 to December 23, 1982, and the House from November 30 to December 21. Congress recessed for the election on October 1. In calling for Congress to return, President Reagan expressed concern that only three of 13 appropriations bills had been cleared for his signature at the time Congress recessed. Dominated by economic concerns particularly those related to budget and deficit issues the second 24 Dale Tate, Reagan Requests Lame-Duck Session on 83 Spending Bills, Congressional Quarterly Weekly Report, vol. 40, September 18, 1982, p Congressional Research Service 23

82 Lame Duck Sessions of Congress session of the 97 th Congress was notable for the political tension between the Republican President and Senate, on the one hand, and the Democratic House, on the other. Congressional leaders indicated they would finish nine of 10 outstanding money bills. But by the end of December, Congress had completed only four, and needed to enact a large continuing resolution to fund remaining government operations for FY1983. Concerned about recession and rising unemployment, House Democrats added a $5.4 billion jobs program to the continuing resolution, but agreed to remove it when the President threatened a veto. The lame duck session was acrimonious in both chambers, but especially in the Senate, where frequent filibusters caused some all night sessions. The Senate voted on eight cloture motions in December. The most contentious filibuster came late in the month over a measure to increase the gasoline tax. The measure was approved just two days before Christmas. In addition to completing work on some appropriations bills and the continuing resolution, the House approved a controversial 15% pay raise for itself. An immigration reform bill, favored by the White House and the congressional leadership, stalled when opponents filed hundreds of amendments designed to slow chamber action. The leadership was eventually forced to pull the bill from the floor. In other decisions, Congress refused to fund production and procurement of the first five MX intercontinental missiles, the first time in recent history that either house of Congress had denied a President s request to fund production of a strategic weapon. Congress also passed a longsought nuclear waste disposal bill. 103 rd Congress, 2 nd Session (1994) In 1994, Congress recessed on October 8 and then reconvened on November 28 for the sole purpose of passing a bill implementing a new General Agreement on Tariffs and Trade (GATT). Although the bill received strong support in both chambers during the regular session, opponents in the Senate had kept the measure from reaching a vote on the floor. In the short lame duck session, the House passed the bill on November 29 and the Senate on December 1. Both chambers then adjourned sine die. 105 th Congress, 2 nd Session (1998) In 1998, both the House and Senate adjourned sine die on October 21, The adjournment resolution (H.Con.Res. 353) gave contingent authority not only to the bicameral leadership to reconvene Congress, but also to the Speaker to reconvene the House alone. This last authority was granted in anticipation of action to impeach President William J. Clinton. Pursuant to this authority, the House convened on December 17, 1998, to consider a resolution of impeachment (H.Res. 611). On December 19, the House adopted Articles I and III of the resolution by votes of and It then, by a vote of , adopted a resolution appointing and authorizing House managers for the Senate impeachment trial. The House then adjourned sine die. On December 17, 1998, the House agreed, as well, to a resolution expressing support for the men and women engaged in a military action in the Persian Gulf. Congressional Research Service 24

83 Lame Duck Sessions of Congress 106 th Congress, 2 nd Session (2000) Because final action on several appropriations bills had not been completed, Congress remained in session into the first days of November, the closest to an election that it had worked since On November 3, Congress adopted S.Con.Res. 160, authorizing recesses of the House until November 13 and the Senate until November 14. When the two houses returned, with the presidential election undecided, they approved a short-term continuing resolution and the District of Columbia Appropriations Act, and then agreed to a further recess until December 5. After reconvening on December 5, Congress agreed to a series of five short-term continuing resolutions while final decisions on the remaining appropriations were being negotiated. During this sequence of events, the Senate recessed on December 11 after providing, by unanimous consent, that when the fourth in this series of continuing resolutions was received from the House, it would automatically be deemed passed in the Senate. Finally, on December 15, both chambers completed action on FY2001 appropriations measures by agreeing to the conference report on the omnibus appropriations bill. Congress then adjourned sine die pursuant to H.Con.Res During the lame duck session, Congress also cleared the Presidential Threat Protection Act, the Striped Bass Conservation Act, and the Intelligence Authorization Act. It also sent President Clinton a bankruptcy reform measure, which the President subsequently pocket vetoed. 107 th Congress, 2 nd Session (2002) Congress met intermittently in pro forma sessions during the pre-election period in 2002, but returned to a full schedule of business on November 12 with two priorities: finish work on 11 appropriations bills and consider creation of a Department of Homeland Security (DHS), the latter being a measure at the top of President George W. Bush s legislative agenda. A bill to create the DHS had passed the House in late July 2002, but the Senate did not act until after the election. The Senate passed a similar version of the measure on November 19, and the House agreed to the Senate amendment on November 22. President George W. Bush signed the bill into law on November 25. Congress, however, was unable to resolve its appropriations differences. The House passed the fifth in a series of continuing resolutions on November 13, and the Senate agreed to the measure on November 19. This measure funded the government at FY2002 levels through January 11, The Defense Appropriations bill and Military Construction Appropriations bill were the only appropriations measures completed by Congress in In addition to the DHS, Congress completed action on, and the President signed into law, several other significant measures, including the Defense Authorization Act, the Intelligence Authorization Act, and measures regulating terrorism insurance and seaport security. The Senate adjourned sine die on November 20 and the House on November 22, th Congress, 2 nd Session (2004) A lame duck session was considered necessary in 2004 because many appropriation bills had not yet even received Senate action and Congress had not cleared an increase in the debt limit. Congressional Research Service 25

84 Lame Duck Sessions of Congress Conferees also had reached no agreement over legislation to consolidate intelligence activities under a new national director, as recommended by the 9/11 Commission. The post-election environment was viewed as favorable to action on an omnibus appropriations measure, inasmuch as it would facilitate adherence to caps on domestic discretionary spending, on which the administration insisted. The administration also sought the elimination of many authorizing provisions. Congress initially cleared the omnibus measure on November 20, but, because it subsequently had to direct corrections in the enrollment of the bill, President Bush was able to sign it only on December 8, the day of the sine die adjournment. Similarly, although Congress could reach no final agreement on a congressional budget resolution, which would have advanced action to increase the debt limit, post-election conditions enabled the increase to be enacted as a freestanding measure. During the lame duck period, the administration intensified efforts to persuade House conferees on the intelligence bill to accept modifications in provisions to (1) maintain military control over its own intelligence, (2) keep intelligence funding confidential, and (3) control immigration. The conference report cleared Congress on December 8 and was signed into law on December 17. Post-election conditions also permitted the resolution of conference deadlocks over several other reauthorizations, including the Individuals with Disabilities Education Act, a moratorium on Internet taxation, and authority for satellite television systems to carry network programming. The last of these was enacted as one of the few legislative riders to be included in the omnibus appropriation bill. Failure to resolve policy disagreements, however, doomed several other reauthorizations, including the 1996 welfare reform and a highway bill, although the latter had been delayed also by demands in the Senate for assurances about the role to be played by minority conferees. Finally, a ban on assault weapons expired when the House declined to act on a measure renewing it. 109 th Congress, 2 nd Session (2006) The 109 th Congress reconvened on November 13, 2006, largely because it had only cleared two FY2007 appropriations bills prior to the election, funding the Department of Defense and the Department of Homeland Security. A continuing resolution funding the rest of the government was set to expire on November 17. Another top priority for the session was addressing a number of expiring tax benefits. Democrats had gained control of both houses in the November election, and the President and Democratic party leaders expressed hopes of cooperation and bipartisanship leading into the lame duck session. 25 Despite this optimism and several instances of cooperation, the Congress ultimately did not achieve its primary goal of passing further appropriations measures. Congress opted to fund the government through two successive extensions of the continuing resolution, with H.J.Res. 100 continuing funding through December 8 th and H.J.Res. 102 continuing funding through February 15, Congress also cleared a package of tax benefit extensions, including those for research and development and for education, which was paired with a trade package that included benefits for undeveloped countries and agreements with Vietnam. 25 Steven T. Dennis and John M. Donnelly, A Few Miles to Go Before the 109 th Sleeps, Congressional Quarterly Weekly Report, vol. 64, November 13, 2006, p Congressional Research Service 26

85 Lame Duck Sessions of Congress Other notable legislation included a bill that allowed President George W. Bush to negotiate an agreement with India permitting cooperation on its development of nuclear power for the first time in thirty years. In addition, Congress passed a bill to overhaul the United States Postal Service and a Veterans Affairs package authorizing funds for major medical projects and information technology upgrades. Finally, the Senate confirmed Robert M. Gates as Secretary of Defense to replace Donald Rumsfeld, who stepped down the day following the elections. 110 th Congress, 2 nd Session ( ) The 110 th Congress reconvened on November 6, 2008, just two days after the election that gave Democrats wider majorities in both the House and Senate, and ushered in a new Democratic President. The November 6 session, however, along with 14 other sessions from then through January 2, 2009, continued a series of pro forma sessions of the Senate that began in October and were intended to foreclose opportunities for outgoing President George W. Bush to make recess appointments to Federal offices. 26 The Senate met for substantive business on only seven days during the post-election period. The House, which had adjourned sine die, reconvened on November 19, pursuant to authority granted to its leadership in the adjournment resolution, but met on only five days during the post-election period. The main legislative business of the lame duck session involved further responses to spreading disruptions of the financial system that had become evident during the campaign period. Before the election, Congress had enacted P.L , establishing a $700 billion package of aid to the financial services industry. In the lame duck session, Congress considered legislation to assist America s three largest auto-making companies which were in danger of bankruptcy. On December 10, the House passed H.R. 7321, which provided $14 billion in loans to automakers by using funds from an existing program. However, opposition in the Senate effectively prevented a vote on the measure. The President subsequently provided $13.4 billion in loans to the automakers out of funds from the financial industry aid package. Among the few other major measures that came up for a vote was a pension bill that postponed employee pension funding rules for companies and granted a moratorium on the annual distributions for retirement accounts as part of an effort to stave off lay-offs and assist retirees. 111 th Congress, 2 nd Session (2010) Prior to November 15, 2010, which was the first day of the 2010 lame duck session on which business was transacted, the House recessed for a total of 45 days beginning on September 30. During this same period, the Senate engaged in a total of 14 pro forma sessions, both to prevent President Obama from making recess appointments and to prevent pending nominations from being returned to the White House. 27 Between November 15 and December 22, the House and Senate met for a total of 19 and 15 days of session, respectively. On all of those days of session, the House and Senate transacted business. 26 Kathleen Hunter, Senators Maintain Vigil Against Recess Appointments, CQ Today, December 12, 2008, p Brian Friel, Senate to Block Recess Appointments, CQ Today Online News, September 29, Congressional Research Service 27

86 Lame Duck Sessions of Congress Relative to the lame duck session for the 110 th Congress, there was a much larger agenda for the lame duck session for the 111 th Congress that resulted in the enactment of a number of pieces of significant legislation, such as the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (H.R. 6523), the FDA Food Safety Modernization Act (H.R. 2751), and the Don't Ask, Don't Tell Repeal Act of 2010 (H.R. 2965). Also during the lame duck session, the Senate confirmed a total of 19 federal judges. Perhaps the most significant issue that was negotiated throughout the lame duck session was the extension of certain revenue provisions, including the 2001 and 2003 income tax cuts (P.L and P.L ), that were set to expire at the end of In the final week of the session, a compromise was enacted (H.R. 4853) that extended these revenue provisions for two years, instituted a temporary payroll tax reduction, and provided jobless benefits for 13 additional months. A related issue, the completion of FY2011 appropriations, was not resolved during the lame duck session. Instead, a series of three continuing resolutions (P.L , P.L , and P.L ) was enacted to provide funding through March 4, On December 22, 2010, the final day of the lame duck session, the Senate and House passed H.R. 847, the James Zadroga 9/11 Health and Compensation Act of 2010, to provide health benefits to certain first responders who were exposed to toxic materials as a result of the September 11, 2011 terrorist attacks on the World Trade Center. 28 In addition, the Senate voted to approve ratification of New START (H.R. 4853), an arms control treaty with Russia th Congress, 2 nd Session ( ) The House and Senate both used pro forma sessions to provide for the break spanning the election on November 6, The dates on which Congress began this break September 21 in the House and September 22 in the Senate were the earliest since This break ended on November 13, when both chambers reconvened for the lame duck period. Between November 13 and January 3, when the 112 th Congress adjourned sine die, the House transacted business on 19 of the 28 days it was in session; the Senate transacted business on 27 of the 30 days it was in session. The lame duck session saw the completion of some major pieces of legislation that had been considered earlier in the Congress. These included the FISA Amendments Act Reauthorization Act of 2012 (P.L ), the National Defense Authorization Act for Fiscal Year 2013 (P.L ), and the Intelligence Authorization Act for Fiscal Year 2013 (P.L ). 30 The Senate also confirmed a total of 66 civilian nominations, 16 of which were federal judges. Much of the lame duck session was devoted to negotiations over expiring tax and spending policies, as well as the sequestration that was scheduled to occur pursuant to the Budget Control Act of 2011 (BCA; P.L ) on January 2, This so-called fiscal cliff was addressed by 28 For further information on this bill, see CRS Report R41292, Comparison of the World Trade Center Medical Monitoring and Treatment Program and the World Trade Center Health Program Created by Title I of P.L , the James Zadroga 9/11 Health and Compensation Act of 2010, by Scott D. Szymendera and Sarah A. Lister. 29 For further information on this treaty, see CRS Report R41219, The New START Treaty: Central Limits and Key Provisions, by Amy F. Woolf. 30 Partisan Combat Prevailed in 112 th, Fiscal Cliff Narrowly Avoided. In CQ Almanac 2012, 68 th ed., , (Washington, DC: CQ-Roll Call Group, 2013). Congressional Research Service 28

87 Lame Duck Sessions of Congress the enactment of the American Taxpayer Relief Act of 2012 (ATRA; P.L ) on January 2. The expiring revenue provisions that were addressed by ATRA included the 2001 and 2003 income tax cuts (P.L and P.L ), provisions related to the estate tax, certain tax provisions enacted or expanded as part of the American Recovery and Reinvestment Act of 2009 (P.L ), the Alternative Minimum Tax, and a number of temporary tax provisions (also known as tax extenders ). The spending provisions in ATRA included an extension of certain unemployment benefits through 2013, a postponement in the reduction in Medicare payments to physicians under the Sustainable Growth Rate system through the same period, and extension of the 2008 farm bill through ATRA also postponed the scheduled BCA sequestration until March 1, None of the FY2013 regular appropriations bills were enacted prior to the lame duck session. 33 However, because the first continuing resolution of the fiscal year (P.L ) did not expire until March 27, 2013, the enactment of such appropriations was not addressed during that session. 34 There was, however, significant congressional debate and action with regard to supplemental appropriations to assist with Hurricane Sandy recovery efforts. 35 Although the Senate passed such supplemental appropriations on December 28 (H.R. 1), the House declined to take it up during the remainder of the session, opting to postpone consideration of those appropriations until the beginning of the 113 th Congress. 36 Author Contact Information Richard S. Beth Specialist on Congress and the Legislative Process rbeth@crs.loc.gov, Jessica Tollestrup Analyst on Congress and the Legislative Process jtollestrup@crs.loc.gov, Acknowledgments Earlier versions of this report were prepared by Richard S. Beth in collaboration with Richard C. Sachs, then-specialist in American National Government in CRS, and Momoko Soltis, then- 31 For information on these revenue and spending elements of ATRA, see CRS Report R42884, The Fiscal Cliff and the American Taxpayer Relief Act of 2012, coordinated by Mindy R. Levit. 32 For information on the BCA-related provisions in ATRA, see CRS Report R42949, The American Taxpayer Relief Act of 2012: Modifications to the Budget Enforcement Procedures in the Budget Control Act, by Bill Heniff Jr.. 33 For information on appropriations action during the 2012 and other recent lame duck sessions, see CRS Report RL34597, The Enactment of Appropriations Measures During Lame Duck Sessions, by Jessica Tollestrup. 34 For information on continuing resolutions and FY2013 appropriations, see CRS Report R42647, Continuing Resolutions: Overview of Components and Recent Practices, by Jessica Tollestrup. 35 For information on enacted supplemental appropriations to address Hurricane Sandy, see CRS Report R42991, Analysis of the Sandy Recovery Improvement Act of 2013, by Jared T. Brown, Francis X. McCarthy, and Edward C. Liu. 36 For a discussion of these events, see Kerry Young and Emily Holden, Senate-Passed Sandy Aid Stalls in House, CQ Weekly, December 31, 2012, p Congressional Research Service 29

88 Lame Duck Sessions of Congress analyst on Congress and the Legislative Process in CRS. In particular, Mr. Sachs and Ms. Soltis were responsible for much of the text describing individual lame duck sessions. Congressional Research Service 30

89 Presidential Transition Act: Provisions and Funding Henry B. Hogue Analyst in American National Government April 12, 2016 Congressional Research Service RS22979

90 Presidential Transition Act: Provisions and Funding Summary The Presidential Transition Act of 1963 (PTA) authorizes funding for the General Services Administration (GSA) to provide suitable office space, staff compensation, and other services associated with the presidential transition process (3 U.S.C. 102 note). The act has been amended a number of times since 1963 in response to evolving understandings of the proper role of the government in the transition process. Since the transition, the PTA has been amended twice. The Pre-Election Presidential Transition Act of 2010 (P.L ) did so by authorizing additional support to eligible candidates for pre-election transition planning. The 2010 act also included related provisions that were not included as part of the PTA at that time. The Edward Ted Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015 (P.L ), enacted on March 18, 2016, incorporated some provisions of the 2010 law, with modifications, into the PTA. It also further amended the PTA with additional provisions for pre-election transition support for eligible presidential candidates. As amended, the PTA directs the President and the incumbent Administration to establish a specified transition-related infrastructure, with some features ongoing and others during a presidential election year only. It also authorizes the provision by the incumbent administration of certain pre-election transition support for eligible candidates. In addition, the PTA authorizes eligible candidates to fund pre-election transition activities through their campaigns. The statute also establishes a process for designating and preparing career officials who will act as agency leaders during the transition process. It further provides for the negotiation, before the election, of memoranda of understanding between the incumbent President and eligible candidates concerning post-election transition matters. Once the President-elect and Vice President-elect have been ascertained by the GSA Administrator, the PTA authorizes the Administrator to provide, to each President-elect and Vice President-elect, certain facilities, funds, and services, such as office space and payment for office staffs and travel expenses. In order to receive services and funds under the act, eligible candidates, Presidents-elect, and Vice Presidents-elect are required to adhere to certain transition-related contribution limits and disclosure requirements. Other provisions of the PTA provide for expedited security clearance processes for transition team members and the incoming President s top appointees. In general, presidential transition activities under these statutes are coordinated by the General Services Administration (GSA) and the Office of Management and Budget (OMB). The President s FY2016 budget proposal for GSA included a request for $ million in funding for activities authorized by the Pre-Election Presidential Transition Act of 2010 in anticipation of the presidential transition. These requests were endorsed by Congress and included in the Consolidated Appropriations Act, 2016, which was enacted on December 18, 2015 (P.L ). The President s FY2017 budget proposal for GSA included a request for $9.5 million for PTA-related activities. Of this sum, not more than $1 million was to be used for training and orientation activities under specified provisions of the act. From enactment of the PTA in 1964 (P.L ) through the presidential transition of , much of the PTA-authorized and funded support was provided after the election of the incoming President and Vice President. The pre-election-related provisions enacted in 2010 had effect for the first time during the 2012 presidential election cycle, and those provisions enacted in 2016 will come into effect during the presidential transition. Congressional Research Service

91 Presidential Transition Act: Provisions and Funding Contents Introduction... 1 Funding Authorization... 2 Ascertaining the Apparent Successful Candidates... 2 Inter-Term Transition for an Incumbent President... 3 Outgoing Administration... 3 Funding for Transition Support: Services, Facilities, and Funds... 4 Pre-Election Services and Activities... 4 Transition-Related Infrastructure... 5 Pre-Election Direct Transition Support... 6 Funding of Pre-Election Transition Activities by Campaigns... 7 Designation of Career Officials to Lead During the Transition... 7 Memoranda of Understanding on Transition... 8 Post-election Support... 8 Transition-Related Security Clearances... 9 Disclosure Requirements Contacts Author Contact Information Congressional Research Service

92 Presidential Transition Act: Provisions and Funding Introduction The constitutional transfer of power and authority from an incumbent American President to a successor is a momentous occasion in American government. In the present day, this transfer of authority is a complex and multi-faceted undertaking, as the outgoing Administration concludes its affairs and the incoming Administration gets organized. In recent decades, presidential transition activities have begun informally months before the general election; the major candidates usually have asked individuals or small groups to begin to formulate transition plans in the event of an electoral victory. Preparations generally have accelerated after the election, as the attention of the President-elect and his supporters has turned from campaigning to governing. The President-elect and his team have approximately 11 weeks between election day and inauguration day to organize the new Administration, and to make plans for pursuing its policy agenda. 1 The incoming President must also prepare to assume national security and homeland security responsibilities from the incumbent among a host of other duties and expectations. While a formal transition process is essential to ensure continuity in the conduct of the affairs of the executive branch, the concept of a federally funded, institutionalized transition process is relatively new. Before enactment of the PTA in 1964, 2 the methods for transferring information and responsibility between administrations were developed in an ad hoc fashion. In addition, the political party organization of the incoming President was the primary source of funding for transition expenses. 3 Many facets of presidential transitions continue to be developed anew, according to the preferences and priorities of each outgoing and, in particular, each incoming President. Now, however, the PTA provides a basic framework for funding and support of this process. From enactment of the PTA in 1964 through the presidential transition of , most PTAauthorized support was provided after the election of the incoming President and Vice President. In the years since, Congress has expanded support for the presidential transition process to include authorization and funding for pre-election activities and support. The Pre-Election Presidential Transition Act of 2010 amended the PTA and included several other provisions to provide additional support to eligible candidates for pre-election transition planning. 4 These provisions had effect for the first time during the 2012 presidential election. The Edward Ted Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015 (PTIA) enacted on March 18, 2016 incorporated some provisions of the 2010 law, with modifications, into the PTA. 5 It also further amended the PTA with provisions for pre-election transition support for presidential candidates. 1 The election day for President falls on the first Tuesday following the first Monday of November of every fourth year, and inauguration falls on January 20 of the year that follows. 2 This statute was enacted March 7, 1964, but it retained the title Presidential Transition Act of For a detailed discussion of presidential transitions preceding this act, see Laurin L. Henry, Presidential Transitions (Washington: Brookings Institution, 1960). 3 U.S. President s Commission on Campaign Costs, Financing Presidential Campaigns, April 1962, pp P.L ; 124 Stat P.L See S (114 th Congress; enrolled version.) Congressional Research Service 1

93 Presidential Transition Act: Provisions and Funding Funding Authorization Since the PTA was passed in 1964, the funding authorized for its implementation has grown. As originally enacted, the PTA authorized funding not to exceed $900,000 for any one transition for carrying out the purposes of the act. 6 In 1976, this provision was amended to authorize not more than $2,000, for the purposes of providing services and facilities to the President-elect and Vice President-elect and not more than $1,000, for the purposes of providing services and facilities to the former President and former Vice President. 7 In 1988, this provision was amended once again, and the authorized amounts were increased to $3.5 million and $1.5 million, respectively. 8 The 1988 amendments also directed that the amounts authorized to be appropriated [by these provisions] be increased by an inflation adjusted amount, based on increases in the cost of transition services and expenses which have occurred in the years following the most recent Presidential transition. 9 Section 4 of the Pre-Election Transition Act of 2010 authorized such sums as may be necessary to carry out the provisions of that act. 10 A general provision of the PTA authorizes the General Services Administration (GSA) Administrator (Administrator) to spend PTA-authorized funds for the provision of most of the specified services and facilities... in connection with... obligations incurred by the Presidentelect or Vice-President-elect between the day following the general election and 180 days after the inauguration. 11 As discussed in detail below, a number of exceptions to this general provision authorize expenditures for specified pre-election transition-related services and facilities for eligible candidates. The President-elect, Vice President-elect, or eligible candidate (as defined below) may designate an assistant to act on his or her behalf in connection with the support provided by the Administrator under the PTA. Up to 10% of the expenditures under the PTA may be made upon certification by the President-elect, Vice President-elect, or the designated assistant that such expenditures are classified and are essential to the national security, and that they are consistent with PTA provisions. 12 Ascertaining the Apparent Successful Candidates For the purposes of the PTA, the President-elect and Vice-President-elect are defined as the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the Administrator following the general elections. 13 In the immediate aftermath of the contested November 7, 2000, presidential election, neither candidate was provided with the resources that would be available for the President-elect and Vice President-elect. In testimony before the House Committee on Government Reform, Subcommittee on Government Management, Information, and Technology, Administrator David J. Barram testified: In this 6 P.L , 5; 78 Stat. 153, P.L , a; 90 Stat P.L , 2; 102 Stat Ibid. 10 P.L , 4; 124 Stat U.S.C. 102 note; Presidential Transition Act of 1963 [hereinafter cited as PTA], 3(b) U.S.C. 102 note; PTA, 3(e) U.S.C. 102 note; PTA, 3(c). Congressional Research Service 2

94 Presidential Transition Act: Provisions and Funding unprecedented, incredibly close and intensely contested election, with legal action being pursued by both sides, it is not apparent to me who the winner is. That is why I have not ascertained a President-elect. 14 In his testimony, the Administrator drew on a 1963 House floor debate concerning the PTA, during which a sponsor of the legislation stated that, in a close contest, the Administrator simply would not make the decision. 15 The GSA Deputy Administrator reportedly provided PTA facilities and funds to the Bush-Cheney transition team on December 14, 2000, the day following Vice President Al Gore s concession speech. 16 Inter-Term Transition for an Incumbent President In the event the President-elect is the incumbent President, or the Vice President-elect is the incumbent Vice President, the PTA prohibits the expenditure of funds for the provision to the incumbent of most services and facilities specified under the act. Any funds appropriated for what turn out to be unneeded purposes are to be returned to the general funds of the Treasury. 17 An exception to this general prohibition was added by PTIA, however. Under such circumstances, certain activities related to training and orientations of key prospective Presidential appointees are authorized to be funded. 18 Outgoing Administration The Administrator is also authorized, under the PTA, to provide services and facilities to each outgoing President and Vice President, for use in connection with winding up the affairs of his office, for a period not to exceed seven months from 30 days before the date of the expiration of his term of office. 19 In the event that the outgoing Vice President is becoming President, the PTA limits the authorized expenditures in this area. 20 Funding for The President s FY2016 budget request for GSA included $ million in funding for activities authorized by the Pre-Election Presidential Transition Act of 2010 in anticipation of the 14 U.S. Congress, House Committee on Government Reform, Subcommittee on Government Management, Information, and Technology, Transitioning to a New Administration: Can the Next President Be Ready? hearings, 106 th Cong., 2 nd sess., December 4, 2000, (Washington: GPO, 2001), p Rep. Dante Fascell, Presidential Transition Act of 1963, remarks in the House, Congressional Record, vol. 109, July 25, 1963, p Ben White, White House Transition; Transition Officials Moving to D.C. Office; Team Gets $5.3 Million To Ready Administration, Washington Post, December 15, 2000, p. A U.S.C. 102 note; PTA, 3(g). 18 These activities are provided for in 3 U.S.C. 102 note; PTA, 3(a)(8)(A) U.S.C. 102 note; PTA, 5. Other provisions of law provide each former President with an annual lifetime pension, Secret Service protection, and staff and office allowances after the transition period expires. See CRS Report RL34631, Former Presidents: Pensions, Office Allowances, and Other Federal Benefits, by Wendy Ginsberg. Other CRS reports related to departing Presidents include CRS Report R40238, The Presidential Records Act: Background and Recent Issues for Congress, by Wendy Ginsberg; and CRS Report R41513, The Presidential Libraries Act and the Establishment of Presidential Libraries, by Wendy Ginsberg, Erika K. Lunder, and Daniel J. Richardson U.S.C. 102 note; PTA, 7(a)(2). The provision stipulates that not more than $1,500,000 may be appropriated for the purposes of providing services and facilities to the former President and former Vice President..., except that any amount appropriated... in excess of $1,250,000 shall be returned to the general fund of the Treasury in the case where the former Vice President is the incumbent President. Congressional Research Service 3

95 Presidential Transition Act: Provisions and Funding presidential transition. 21 These recommendations were endorsed by Congress and included in the Consolidated Appropriations Act, 2016, which was enacted on December 18, The President s FY2017 budget request for GSA included $9.5 million for PTA-related activities. 23 Of this sum, not more than $1 million was to be used for training and orientation activities under specified provisions of the act. A Congressional Budget Office cost estimate for the Senate version of the bill that became the Edward Ted Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015 estimated that its implementation would cost less than $500,000 over the next five years. 24 Transition Support: Services, Facilities, and Funds Pre-Election Services and Activities As discussed below, the PTA, as amended, includes a number of provisions related to the preelection portion of the presidential transition. It directs the President and the incumbent Administration to establish a specified transition-related organizational infrastructure, with some features ongoing and others operational during a presidential election year only. The PTA also authorizes the incumbent administration to provide certain pre-election transition support for eligible candidates (as defined below). In addition, the PTA authorizes eligible candidates to fund pre-election transition activities through their campaigns. The statute also establishes a process for designating and preparing career officials who will likely act as agency leaders during the transition process. It further provides for the negotiation, before the election, of memoranda of understanding between the incumbent President and eligible candidates concerning post-election transition matters. For purposes of the act, eligible candidate is defined as a candidate of a major party [as defined in 26 U.S.C. 9002(6)] for President or Vice-President of the United States; and... any other candidate who has been determined by the Administrator to be among the principal contenders for the general election to such offices. 25 In general, pre-election transition support is to be provided equally to eligible candidates, without regard to political affiliation U.S. Office of Management and Budget, Budget of the U.S. Government, Fiscal Year 2016 Appendix (Washington: GPO, 2015), pp P.L See H.R (114 th Congress; enrolled version), pp U.S. Office of Management and Budget, Budget of the U.S. Government, Fiscal Year 2017 Appendix (Washington: GPO, 2016), pp U.S. Congressional Budget Office, S Edward Ted Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015, cost estimate, June 16, 2015, p. 1, at U.S.C. 102 note; PTA, 3(h)(4). The U.S. Code section cited, 26 U.S.C. 9002(6), states: The term major party means, with respect to any presidential election, a political party whose candidate for the office of President in the preceding presidential election received, as the candidate of such party, 25 percent or more of the total number of popular votes received by all candidates for such office. This section of the PTA also provides further guidance to the Administrator about how he or she would identify such an other candidate... among the principal contenders U.S.C. 102 note; PTA, 4(h). Congressional Research Service 4

96 Presidential Transition Act: Provisions and Funding Transition-Related Infrastructure The PTA directs the President, in general, to take such actions as the President determines necessary and appropriate to plan and coordinate activities by the Executive branch... to facilitate an efficient transfer of power. 27 More specifically, the law directs the President to establish and operate, as specified, a White House transition coordinating council and an agency transition directors council (described in detail below). The statute directs the Administrator to designate a senior career GSA official to be the Federal Transition Coordinator (FTC). The FTC is to carry out transition-related functions assigned to GSA, to coordinate transition planning across federal agencies, to ensure agency compliance with transition-related planning and reporting requirements, and to act as liaison to eligible candidates. 28 The President is to establish the White House transition coordinating council no later than early May of the presidential election year. This council is tasked with providing guidance to federal agencies and the FTC on transition preparations, facilitating communication between eligible candidates representatives and senior officials in the agencies and in the Executive Office of the President (EOP), and preparing and hosting interagency emergency preparedness and response exercises. The members of this council are to include senior executive branch officials, the FTC, eligible candidates representatives (in an advisory capacity), and others, as the President deems appropriate. 29 The agency transition directors council established by the President is required to meet not less than once per year but on a regular basis as necessary beginning in early May of a presidential election year. The PTA tasks this council with a number of duties, including assisting the FTC, facilitating the assembly of transition-related briefing materials, and ensuring preparation of career officials to lead federal agencies on an interim basis during the transition. The FTC and the Deputy Director for Management of the Office of Management and Budget (OMB) are to serve as co-chairpersons of the council. Other members include senior EOP officials, senior representatives of federal agencies, and during a presidential election year eligible candidates representatives. 30 The Administrator is also directed to prepare a report not later than a year before a presidential election summarizing modern presidential transition activities. This report is to include a bibliography of transition-related resources. It is to be released to the public, generally, as well as to eligible candidates, specifically. 31 The incumbent President, acting through the FTC, is required to report to Congress on preelection presidential transition preparations twice: once at six and again at three months before the election U.S.C. 102 note; PTA, 4(b) U.S.C. 102 note; PTA, 4(c) U.S.C. 102 note; PTA, 4(d) U.S.C. 102 note; PTA, 4(e) U.S.C. 102 note; PTA, 3(h)(1)(C). The Administrator is required to release this report to eligible candidates together with a notice regarding available services and facilities. In general, this notice is to be provided within three business days of the last nominating convention. 3 U.S.C. 102 note; PTA, 3(h)(1)(B). The Administrator is to make the report generally available to the public promptly U.S.C. 102 note; PTA, 4(i). Congressional Research Service 5

97 Presidential Transition Act: Provisions and Funding Pre-Election Direct Transition Support The PTA, as amended, authorizes the incumbent Administration to provide certain pre-election support transition support to eligible candidates. The statute provides for consultation between the Administrator and any President-elect, Vice President-elect, or eligible candidate... to develop a systems architecture plan for the computer and communications systems of the candidate, including human resource management system software compatible with that of the incumbent and likely to be used by the President-elect and Vice President-elect. 33 The aim of this consultation is to coordinate a transition to Federal systems if the candidate is elected. Other services and facilities authorized for eligible candidates include office space, appropriate furnishings, office equipment, communications services, and printing and binding. 34 The Administrator is required to notify eligible candidates of the availability of these resources. 35 Where services and facilities are provided to an eligible candidate, certain conditions apply. The Administrator shall (1) determine the location of any office space, (2) ensure the security of computers or communications services, and (3) offer information and other assistance equally to all eligible candidates. Candidates may use these resources only to prepare for a potential transition. 36 A candidate is entitled to these services and facilities up to the date the apparent successful candidates for the office of President and Vice President have been determined. 37 (See Funding Authorization above, for discussion of this determination process.) The PTA requires the Administrator also to notify eligible candidates of certain services made available under the Intelligence Reform and Terrorism Prevention Act of The 2004 act directs the Office of Personnel Management to provide a list of presidentially appointed positions to each major party candidate not later than 15 days after his or her nomination. The same list is to go to other eligible candidates thereafter. 39 A second provision of the 2004 act pertains to expedited security clearances for transition team members. 40 The PTA also authorizes the Administrator to fund, during the transition, orientation activities, primarily for individuals the President-elect or eligible candidate... for President intends to nominate as department heads or appoint to key positions in the Executive Office of the President or executive agencies. 41 The purpose of these activities is to acquaint the incoming leadership with the types of problems and challenges that most typically confront new political appointees when they make the transition from campaign and other prior activities to assuming the 33 3 U.S.C. 102 note; PTA, 3(a)(10) U.S.C. 102 note; PTA, 3(h)(2) U.S.C. 102 note; PTA, 3(h)(1). In general, this notice is to be provided within three business days of the last nominating convention U.S.C. 102 note; PTA, 3(h)(2)(A), 3(h)(2)(C) U.S.C. 102 note; PTA, 3(h)(2)(D) U.S.C. 102 note; PTA, 3(h)(1)(A) U.S.C note. 40 This provision, which was amended by the Pre-Election Presidential Transition Act of 2010 (P.L ; 124 Stat. 3046), allows each eligible candidate to submit, before the general election, security clearance requests for prospective transition team members who will have a need for access to classified information in the course of their work. The law directs that resulting investigations and eligibility determinations be completed, as much as possible, by the day after the general election (50 U.S.C. 3342) U.S.C. 102 note; PTA, 3(a)(8)(B). Congressional Research Service 6

98 Presidential Transition Act: Provisions and Funding responsibility for governance. 42 Personnel who may assist in the transition process include individuals who (I) held similar leadership roles in prior administrations; (II) are department or agency experts from the Office of Management and Budget or an Office of Inspector General of a department or agency; or (III) are relevant staff from the Government Accountability Office. 43 The orientation activities specified in the statute include training or orientation in records management... including training on the separation of Presidential records and personal records, as well as training or orientation in human resources management and performance-based management. 44 The PTA directs the Administrator to work with the Archivist of the United States to create, in support of the orientation activities, a transition directory compiling Federal publications and materials with supplementary materials developed by the Administrator. The directory is to include information on the officers, organization, and statutory and administrative authorities, functions, duties, responsibilities, and mission of each department and agency. 45 Funding of Pre-Election Transition Activities by Campaigns The PTA enables eligible presidential candidates to fund pre-election transition activities through their campaigns. 46 As described in the Senate report on the amendment that established this provision, In order to supplement the services and access to facilities provided by the Administrator, an eligible candidate may, under the provisions of this subsection, establish a separate fund qualifying for the purposes of section 501(c)(4) of the Internal Revenue Code of 1986 to pay for transition services and facilities. An eligible candidate may transfer into this fund contributions received for his or her general election campaign and may also solicit and accept donations directly into it. 47 The statute places limits on donations as a condition for receiving services and funds under the act. Under these limitations, the eligible candidate shall not accept more than $5,000 from any person, organization, or other entity for the purposes of carrying out activities authorized by the PTA. 48 Designation of Career Officials to Lead During the Transition The PTA requires that agency heads designate, by early May of a presidential election year, senior career officials to oversee transition-related activities. Such a designation is to be made for the agency and each of its major components and subcomponents U.S.C. 102 note; PTA, 3(a)(8)(A)(i) U.S.C. 102 note; PTA, 3(a)(8)(A)(ii). 44 Ibid U.S.C. 102 note; PTA, 3(a)(9) U.S.C. 102 note; PTA, 3(h)(3). 47 S.Rept , p. 7. The entities identified in section 501(c)(4) of the Internal Revenue Code include those typically referred to as social welfare organizations. For more, see CRS Report , Frequently Asked Questions About Tax-Exempt Organizations, by Erika K. Lunder U.S.C. 102 note; PTA, 6(c). This provision is applied to funds collected during campaigns by Section 3(h)(3)(B)(iii) U.S.C. 102 note; PTA, 4(f)(1). Congressional Research Service 7

99 Presidential Transition Act: Provisions and Funding The PTA also provides for interim leadership of agencies during the transition by career officials. It directs agency heads to designate, by September 15 of a presidential election year, a senior career official to serve in an acting capacity in each vacated noncareer position deemed critical. 50 In the case of advice and consent positions, such designations are to be consistent with the Vacancies Reform Act of Memoranda of Understanding on Transition The PTA directs the President, acting through the FTC, to negotiate a memorandum of understanding (an MOU) with each eligible candidate s representative prior to November 1 of a presidential election year. The MOU is to address at a minimum, the conditions of access to employees, facilities, and documents of agencies by transition staff. As much as possible, these MOUs are to be based on MOUs from previous presidential transitions. 52 Post-election Support Once the President-elect and Vice President-elect have been ascertained by the Administrator, the PTA authorizes the Administrator to provide to the President-elect and Vice President-elect certain facilities, funds, and services to prepare for future duties, including the following: Suitable office space appropriately equipped with furniture, furnishings, office machines and equipment, and office supplies; Payment of the compensation of members of office staffs designated by the President-elect or Vice President-elect; Payment of expenses for the procurement of services of experts or consultants or organizations thereof for the President-elect or Vice President-elect; Payment of travel expenses and subsistence allowances, including rental of Government or hired motor vehicles; When requested by [one of the incoming officers or a designee], and approved by the President, Government aircraft... for transition purposes on a reimbursable basis; [W]hen requested by [one of the incoming officers or a designee], aircraft... chartered for transition purposes; Communications services; and Payment of expenses for printing and binding U.S.C. 102 note; PTA, 4(f)(2). 51 Advice and consent positions are those filled through appointment by the President, with the advice and consent of the Senate. For more on the Vacancies Reform Act of 1998, see CRS Report RS21412, Temporarily Filling Presidentially Appointed, Senate-Confirmed Positions, by Henry B. Hogue U.S.C. 102 note; PTA, 4(g). For examples of such MOUs, see Memorandum of Understanding Between the Obama-Biden Transition Project and the General Services Administration and Memorandum of Understanding between the General Services Administration and the Romney Readiness Project, available at U.S.C. 102 note; PTA, 3(a). Some of these resources would have been authorized to be provided while the President-elect was an eligible candidate, as well. See Pre-Election Direct Transition Support, above. Congressional Research Service 8

100 Presidential Transition Act: Provisions and Funding In addition, the PTA authorizes funding for the use of the U.S. Postal Service by the Presidentelect and Vice President-elect in connection with [their] preparations for the assumption of official duties. 54 As discussed in greater detail above ( Pre-Election Direct Transition Support ), the PTA also authorizes the Administrator to fund incoming leadership orientation activities for the intended nominees of the President-elect during the transition. The purpose of these activities is to acquaint members of the new Administration with governance issues they are likely to face as they take office. The statute specifies the personnel who may assist in the transition process, 55 and it also identifies orientation activities that may be included. 56 The statute also provides that these orientation activities shall include the preparation of a detailed classified, compartmented summary... of specific operational threats to national security; major military or covert operations; and pending decisions on possible uses of military force. 57 This summary is to be conveyed to the President-elect as soon as possible after the general election. 58 As noted above ( Pre-Election Direct Transition Support ), the PTA provides for consultation between the Administrator and any President-elect, Vice President-elect, or eligible candidate... to develop a systems architecture plan for the computer and communications systems of the candidate to coordinate a transition to Federal systems if the candidate is elected including... human resource management system software compatible with that of the incumbent and likely to be used by the President-elect and Vice President-elect. 59 Transition-Related Security Clearances Appointees: The PTA recommends that the President-elect submit the names of candidates for high level national security positions through the level of undersecretary of cabinet departments to the agency with national security clearance functions. It further recommends that this action be taken as soon as possible after the presidential election, and it requires the responsible agency or agencies to carry out background investigations of these candidates for high-level national security positions as expeditiously as possible... before the date of the inauguration U.S.C. 102 note; PTA, 3(a)(7) and 3(d) U.S.C. 102 note; PTA, 3(a)(8). Personnel who may assist in the transition process include individuals who (I) held similar leadership roles in prior administrations; (II) are department or agency experts from the Office of Management and Budget or an Office of Inspector General of a department or agency; or (III) are relevant staff from the Government Accountability Office. 56 Ibid. The orientation activities specified in the statute include training or orientation in records management... including training on the separation of Presidential records and personal records, as well as training or orientation in human resources management and performance-based management. As noted above, the PTA directs the Administrator and the Archivist to create a related transition directory (3 U.S.C. 102 note; PTA, 3(a)(9)). See Pre- Election Direct Transition Support U.S.C. 102 note; PTA, 3(a)(8)(A)(v). 58 Ibid U.S.C. 102 note; PTA, 3(a)(10) U.S.C. 102 note; PTA, 3(f). Congressional Research Service 9

101 Presidential Transition Act: Provisions and Funding Transition team members: A separate transition-related provision of law that is not included in the PTA is worth noting here. The Intelligence Reform and Terrorism Prevention Act of included a provision that facilitates pre-election security clearances for transition team members. This provision, which was amended by the Pre-Election Presidential Transition Act of 2010, 62 allows each eligible candidate to submit, before the general election, security clearance requests for prospective transition team members who will have a need for access to classified information in the course of their work. The law directs that resulting investigations and eligibility determinations to permit appropriate prospective transition team members to have access to classified information shall be completed, to the fullest extent practicable, by the day after the date of the general election. 63 Disclosure Requirements The PTA requires that the President-elect and Vice President-elect disclose certain financial and personnel information as a condition for receiving services and funds under the act. They must disclose to the Administrator the date of contribution, source, amount, and expenditure thereof of all non-federal funds (such as private contributions) received before or after the general election, for use in the preparation of the President-elect or Vice-President-elect for the assumption of [their] official duties. 64 They must submit a report with such disclosures to the Administrator not later than 30 days after inauguration; these disclosures are then to be released to the public by the Administrator. In addition, the PTA requires, as a condition for receiving services and funds, that the President-elect and Vice-President-elect make available to the Administrator and the Comptroller General all information concerning such contributions as may be required for auditing both the public and private funding used in PTA-authorized activities. As noted earlier, the PTA also sets limitations on transition-related donations as a condition for receiving services and funds under the act. Under these limitations, the President-elect and Vice President-elect shall not accept more than $5,000 from any person, organization, or other entity for the purposes of carrying out activities authorized by the PTA. 65 The PTA also requires that the incoming team disclose to the public (1) the names and most recent employment of all transition personnel... who are members of the President-elect or Vice-President-elect s Federal department or agency transition teams ; and (2) information regarding the sources of funding which support the transition activities of each transition team member. These disclosures, which must be kept up to date, are to be completed before the team contacts applicable departments or agencies P.L ; 118 Stat P.L ; 124 Stat U.S.C U.S.C. 102 note; PTA, 6(a) U.S.C. 102 note; PTA, 6(c) U.S.C. 102 note; PTA, 6(b). Congressional Research Service 10

102 Presidential Transition Act: Provisions and Funding Author Contact Information Henry B. Hogue Analyst in American National Government Acknowledgments This report draws upon and supersedes CRS Report RS20709, Presidential Transitions: Background and Federal Support, by Stephanie Smith. Congressional Research Service 11

103 Order Code RL34722 Presidential Transitions: Issues Involving Outgoing and Incoming Administrations Updated November 25, 2008 L. Elaine Halchin Coordinator Government and Finance Division

104 Presidential Transitions: Issues Involving Outgoing and Incoming Administrations Summary The smooth and orderly transfer of power can be a notable feature of presidential transitions, and a testament to the legitimacy and durability of the electoral and democratic processes. Yet, at the same time, a variety of events, decisions, and activities contribute to what some may characterize as the unfolding drama of a presidential transition. Interparty transitions in particular might be contentious. Using the various powers available, a sitting President might use the transition period to attempt to secure his legacy or effect policy changes. Some observers have suggested that, if the incumbent has lost the election, he might try to enact policies in the waning months of his presidency that would tie his successor s hands. On the other hand, a President-elect, eager to establish his policy agenda and populate his Administration with his appointees, will be involved in a host of decisions and activities, some of which might modify or overturn the previous Administration s actions or decisions. Both the incumbent and the newly elected President can act unilaterally, through executive orders, recess appointments, and appointments to positions that do not require Senate confirmation. Additionally, a President can appoint individuals to positions that require Senate confirmation, and a presidential administration can influence the pace and substance of agency rulemaking. The disposition of government records (including presidential records and vice presidential records), the practice of burrowing in (which involves the conversion of political appointees to career status in the civil service), and the granting of pardons are three activities associated largely with the outgoing President s Administration. The incumbent President may also submit a budget to Congress, or he may defer to his successor on this matter. In light of the terrorist attacks of September 11, 2001, national security is an overarching issue for presidential transitions, and national security concerns may be heightened during the transfer of power from the sitting President to his successor. Depending upon the particular activity or function, the extent and type of Congress s involvement in presidential transitions may vary. As an example of direct involvement, the Senate confirms the President s appointees to certain positions. On the other hand, Congress is not involved in the issuance of executive orders, but it may exercise oversight, or take some other action regarding the Administration s activities. This report will be updated as events warrant.

105 Subject Areas and CRS Staff Area of Expertise Name Div. Telephone Agency Rulemaking Rick Beth G&F Curtis Copeland Executive Clemency Garrett Hatch G&F Executive Orders Elaine Halchin G&F Government Records Harold Relyea G&F National Security John Rollins FDT Personnel Political to Career Conversions Barbara Schwemle G&F Political Appointments Henry Hogue G&F Submission of the President s Budget Robert Keith G&F

106 Contents Introduction...1 Agency Rulemaking...4 Midnight Rulemaking...4 Card Memorandum...5 Bolten Memorandum...5 Congressional Disapproval of Midnight Rules...6 Executive Clemency...8 Background...8 Possible Congressional Concerns...9 Acts of Clemency Might Restrict Oversight of the Executive Branch...9 Acts of Clemency Might Have Implications for U.S. Foreign Relations...9 Executive Orders...10 Timing and Volume of Executive Orders...12 Content of Executive Orders...13 Government Records...14 Agency Records...14 Presidential Records Presidential Transition: National Security Considerations and Options...17 Considerations and Options Unique to Each Phase of the Presidential Transition Period...18 Phases 1 and 2: Campaigning by Presidential Candidates to the Day of Election...18 Phase 3: Election Day...19 Phase 4: Selection of a President-Elect to Inauguration Day...19 Phase 5: Presidential Inauguration to the Establishment of a New National Security Team and Policies...20 Personnel Political to Career Conversions ( Burrowing In )...22 Political Appointments into the Next Presidency...26 Appointment Authority for Officers of the United States...26 Tenure During a Transition for a Confirmed Appointee...27 Tenure During a Transition for a Recess Appointee...28 Senate Pro Forma Sessions to Block Recess Appointments...29 Submission of the President s Budget in Transition Years...30 Is the Outgoing or Incoming President Required to Submit the Budget?.. 31 Transition Budgets in Recent Years: Timing and Form...32

107 List of Tables Table 1. Average Monthly Clemency Petitions Granted, Prior to and During the Final Four Months of Selected Administrations...9 Table 2. Number of Executive Orders Issued During Presidential Transitions, Present...12

108 Presidential Transitions: Issues Involving Outgoing and Incoming Administrations Introduction As both an administrative and a symbolic event in American politics, presidential transitions can be notable for the smooth and orderly transfer of power from an incumbent Administration to the next President and a shift in focus from campaigning to governing by the incoming Administration. Yet, as William Galston and Elaine Kamarck point out, The peaceful transfer of power from one President to the next is an enduring and gripping drama of American democracy. 1 A variety of events and actions contribute to the unfolding drama of a presidential transition. For a sitting President who is not re-elected (and barring any electoral disputes), or is serving a second term, election day marks the beginning of the end of his presidency. While some commentators would argue that a lame duck President can accomplish little during the 11 weeks between election day and inauguration day, William G. Howell and Kenneth R. Mayer offer an alternative perspective: Portraits of outgoing presidents going quietly into the night overlook an important feature of American politics, and of executive power namely, the president s ability to unilaterally set public policy... Using executive orders, proclamations, executive agreements, national security directives, memoranda, and other directives, presidents have at their disposal a wide variety of means to effectuate lasting and substantive policy changes, both foreign and domestic. 2 1 William A. Galston and Elaine Ciulla Kamarck, The Transition: Reasserting Presidential Leadership, in Mandate for Change, ed. Will Marshall and Martin Schram (New York: Berkley Books, 1993), p William G. Howell and Kenneth R. Mayer, The Last One Hundred Days, Presidential Studies Quarterly, vol. 35 (2005), p Notable examples of last-minute presidential actions include the following: It was President John Adams s Midnight appointments, which [his successor Thomas] Jefferson refused to honor, that prompted the landmark Marbury v. Madison Supreme Court decision. Grover Cleveland created a twenty-onemillion-acre forest reserve to prevent logging, an act that lead to an unsuccessful impeachment attempt and the passage of legislation annulling the action. Then, in response to the congressional uprising, Cleveland issued a pocket veto and left office... Jimmy Carter negotiated for the release of Americans held hostage in Tehran, implementing an agreement on his last day in office with ten separate executive orders, many of which sharply restricted the rights of private parties to sue the Iranian government for expropriation of their property... In late December 1992, George Bush pardoned six Reagan administration officials who were involved in the Iran-Contra scandal, a step that ended Independent Counsel Lawrence Walsh s criminal investigation. [In] a single stroke, Mr. (continued...)

109 CRS-2 Howell and Mayer also note that an outgoing President s level of activity during his final months in office is influenced by the party of his successor. An outgoing President whose successor is from the same political party has little cause to hurry through a slew of last-minute directives. 3 When the opposing party is poised to regain control of the White House, however, the sitting President might exercise these powers with exceptional zeal, making final impressions on public policy in the short time available before inauguration day. 4 Moreover, the incumbent might use the transition period to enact policies and effect changes that might stymie his successor. A curious thing happens during the last one hundred days of a presidential administration: political uncertainty shifts to political certitude. The president knows exactly who will succeed him his policy positions, his legislative priorities, and the level of partisan support he will enjoy within the new Congress. And if the sitting president (or his party) lost the election, he has every reason to hurry through last-minute public policies, doing whatever possible to tie his successor s hands. 5 During the 20 th and 21 st centuries, and beginning with Theodore Roosevelt, who took office in 1901, there have been 17 presidential transitions, 10 of which were interparty transitions: Woodrow Wilson, Warren G. Harding, Franklin D. Roosevelt, Dwight D. Eisenhower, John F. Kennedy, Richard M. Nixon, Jimmy Carter, Ronald W. Reagan, William J. Clinton, and George W. Bush. Regardless of an incumbent President s intentions, however, his decisions and actions in several areas as well as the activities of his Administration could affect his successor, and could be a cause for congressional concern. Acting unilaterally, a President can issue executive orders, appoint individuals to positions that do not require Senate confirmation (PA positions), and make recess appointments. Additionally, the President can appoint individuals to positions which require Senate approval (PAS positions); the Administration can influence the pace of agency rulemaking; significant decisions regarding presidential and vice 2 (...continued) Bush swept away one conviction, three guilty pleas, and two pending cases, virtually decapitating what was left of Mr. Walsh s effort, which began in [D]uring his final days in office Clinton issued scads of executive orders on issues ranging from protecting the Hawaiian Islands Coral Reef Ecosystem Reserve to prohibiting the importation of rough cut diamonds from Sierra Leone to curbing tobacco use both domestically and abroad. (Ibid., pp ) 3 Ibid., p Ibid. 5 Ibid., p On the other hand, the incumbent Administration might be a significant resource for the President-elect and his team: One of the most important transition opportunities an incoming President and his team has is the outgoing administration. They are a source of valuable information on personnel positions and can be used to take some actions smoothing the path of the incoming administration. (Martha Joynt Kumar et al., Meeting the Freight Train Head On: Planning for the Transition to Power, The White House 2001 Project, White House Interview Program, Report No. 2, Aug. 18, 2000, p. 9.)

110 CRS-3 presidential records may be made; and some political appointees might be converted to civil service positions (in a practice known as burrowing in ). Depending upon the timing, frequency, content (in the case of executive orders and regulations), and other salient features of certain presidential or Administration actions or decisions, some may question the propriety of an outgoing Administration s actions during the presidential transition period. Certain decisions or actions could affect the incoming President, forcing [him] to choose between accepting objectional policies as law or paying a steep political price for trying to change them. 6 In addition to the possibility of having to address certain actions taken by the outgoing Administration, a new President, and his staff, have to deal with the challenges of moving from a campaign to a governing stance, which can include handling the issues of staffing, management, agenda setting, and policy formulation... 7 Eager to hit the ground running, an incoming President can use the same tools his predecessor did during the transition period for example, executive orders, agency rulemaking, and political appointments to establish his policy agenda, populate the executive branch with his appointees, and possibly overturn or modify some of his predecessor s policies and actions. If the sitting President defers to his successor regarding the submission of a budget, this is an additional task for the newly elected President. Alternatively, if the incumbent submits a budget, his successor may revise it. The significance of the transition period for the Presidentelect cannot be overstated: Since the advent of the modern presidency under Franklin Delano Roosevelt (FDR), the actions that presidents-elect undertake before inauguration day have been seen by scholars, journalists, other observers, and even presidents themselves as critical in determining their successes and failures once in office. 8 The Congress has a role to play in presidential transitions, though the extent and type of its involvement varies. It is most directly involved in the confirmation of presidential appointees (that is, individuals appointed to PAS positions), the budget process, and, under certain circumstances, agency rulemaking. Other Administration activities, such as the issuance of executive orders, the disposition of presidential records and vice presidential records, and the granting of pardons, may be of interest to Congress, and, in some cases, might become the subject of congressional oversight or other congressional action. Even the practice of burrowing in, some would suggest, might warrant congressional interest. Finally, an overarching issue for presidential transitions, in light of the terrorist attacks of September 11, 2001, and continued concerns about terrorism, is national security. While this is an ongoing issue for the nation, national security concerns might be heightened during presidential transitions. 6 Howell and Mayer, The Last One Hundred Days, p Ibid. 8 John P. Burke, Becoming President: The Bush Transition, (Boulder, CO: Lynne Rienner Publishers, 2004), p. 1.

111 CRS-4 Each of the following sections of this report focuses on a particular aspect of presidential transitions: agency rulemaking, executive orders, government records, national security considerations, personnel (political to career conversions), political appointments, and submission of the President s budget. Agency Rulemaking Federal regulation, like taxing and spending, is one of the basic tools of government used to implement public policy. Regulations generally start with an act of Congress, and are the means by which statutes are implemented and specific requirements are established. Federal agencies issue more than 4,000 final rules each year on topics ranging from the timing of bridge openings to the amount of arsenic and other contaminants that is permitted in drinking water. The (off-budget) costs and benefits associated with all federal regulations have been a subject of great controversy. Some have estimated those regulatory costs as more than a trillion dollars greater than all federal domestic discretionary spending. Estimates of the benefits of federal regulations are even higher. 9 Midnight Rulemaking At the conclusion of most recent presidential administrations, the number of final rules issued by federal agencies increases noticeably a phenomenon that has been characterized as midnight rulemaking. 10 As one observer stated, putting rules into effect before the end of a presidency is a way for an administration to have life after death, 11 for the only way that a subsequent administration can change or eliminate the rule is by going back through the often lengthy rulemaking processes that are required by the Administrative Procedure Act (5 U.S.C. 551 et seq.) and various other statutes and executive orders. 12 When there has been a change in party control of the presidency, recent incoming Presidents have responded to this phenomenon by stopping or delaying new agency rulemaking, and by attempting to reverse certain rules. For example, a few weeks after he took office, President Reagan issued Executive Order which, among other things, generally required covered agencies to suspend or 9 The Office of Management and Budget produces an annual report for Congress on this issue. See [ to view those reports. 10 See, for example, Jay Cochran, III, The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters, Mercatus Center, George Mason University, March 8, 2001; and Jason M. Loring and Liam R. Roth, After Midnight: The Durability of the Midnight Regulations Passed by the Two Previous Outgoing Administrations, Wake Forest Law Review, vol. 40 (2005), pp John M. Broder, A Legacy Bush Can Control, New York Times, Sept. 9, 2007, p. WK 3, quoting Phillip Clapp, president of the National Environmental Trust. 12 For more information on these statutes and executive orders, see CRS Report RL32240, The Federal Rulemaking Process: An Overview, by Curtis W. Copeland.

112 CRS-5 postpone the effective dates of all major rules that they have promulgated in final form as of the date of this Order, but that have not yet become effective. 13 President Clinton also imposed a moratorium on rules issued at the end of the first Bush Administration. As discussed below, the current Bush Administration delayed the implementation of many rules issued in the last months of the Clinton Administration and ultimately reduced the number that took effect. It has also attempted to protect rules issued in its own last months from the possibility of similarly being rendered ineffective by establishing an effective date prior to the advent of the new Administration. Card Memorandum. During the final months of the Clinton Administration, federal agencies issued hundreds of final rules, many of which were expected to have a substantial impact on regulated entities. In response to this action, on January 20, 2001, the Chief of Staff and Assistant to the new President, Andrew H. Card, Jr., sent a memorandum to the heads of all executive departments and agencies generally directing them to (1) not send proposed or final regulations to the Office of the Federal Register (OFR), (2) withdraw regulations that had been sent to the OFR but not published in the Federal Register, and (3) postpone for 60 days the effective date of regulations that had been published in the Federal Register but had not yet taken effect. 14 The memorandum cited the desire to ensure that the President s appointees have the opportunity to review any new or pending regulations. In 2002, GAO reported that 90 final rules had their effective dates delayed as a result of the Card memorandum, and 15 rules still had not taken effect one year after the memorandum was issued. 15 Bolten Memorandum. The Bush Administration has also taken action in anticipation of possible midnight rules at the end of the current President s term. On May 9, 2008, White House Chief of Staff Joshua B. Bolten issued a memorandum to the heads of executive departments and agencies stating that the Administration needed to resist the historical tendency of administrations to increase regulatory activity in their final months. Therefore, Bolten said that, except in extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final regulations should be issued 13 Executive Order 12291, Federal Regulation, 46 Federal Register 13193, Feb. 17, See [ for a copy of this memorandum. Federal courts have generally considered any delay in a rule s effective date to require notice and comment rulemaking. See Natural Resources Defense Council, Inc. v. EPA, 683 F.2d 752, 761 (3d Cir. 1982); and Council of the Southern Mountains v. Donovan, 653 F.2d 573 (D.C. Cir. 1981). Although some agencies used notice and comment rulemaking to delay effective dates pursuant to the Card memorandum, most agencies simply published the changes and invoked the Administrative Procedure Act s good cause exception. One such action was rejected by the court. See Natural Resources Defense Council v. Abraham, 355 F.3d 179, (2d Cir 2004). 15 U.S. General Accounting Office, Regulatory Review: Delay of Effective Dates of Final Rules Subject to the Administration s January 20, 2001, Memorandum, GAO R, Feb. 15, 2002.

113 CRS-6 no later than November 1, He also said that the Administrator of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget would coordinate an effort to complete Administration priorities in this final year, and the OIRA Administrator would report on a regular basis regarding agency compliance with this memorandum. 17 Congressional Disapproval of Midnight Rules The Congressional Review Act (CRA, 5 U.S.C ) requires federal agencies to submit all of their final rules to both houses of Congress and the Government Accountability Office (GAO) before they can take effect, and also delays the effective date of major rules (e.g., those with a $100 million impact on the economy) until 60 calendar days after submission and publication. 18 Under this requirement, any regulation published in the Federal Register, in accordance with the Bolten memorandum, by November 1, 2008, will have taken effect before the 111 th Congress begins and the next President takes office in January As a result, the Bolten memorandum may also have the effect of preventing the next presidential administration from doing what was done via the Card memorandum forestalling the implementation of rules published during the previous administration by delaying their effective dates or withdrawing them before they can take effect. However, even if they have taken effect, many rules submitted before the Bolten memorandum deadline will be subject to congressional disapproval in the 111 th Congress. 19 The CRA established a special set of expedited or fast track legislative procedures, primarily in the Senate, through which Congress may enact joint resolutions disapproving agencies final rules. Although the general powers of Congress permit it to overturn agency rules by legislation, the CRA is unique in permitting the use of expedited procedures for this purpose. If a rule is disapproved through the CRA procedures, the act specifies not only that the rule shall not take effect (or shall not continue, if it has already taken effect), but also that the rule may 16 Between June 1 and August 8, 2008, however, federal agencies sent more than 40 proposed rules to the Office of Management and Budget for review prior to publication in the Federal Register. (Ralph Lindeman, Agencies Continue to Proposed New Rules After White House-Imposed June Deadline, BNA Daily Report for Executives, Aug. 11, 2008, p. A-9.) 17 OIRA reviews all significant rules before they are published in the Federal Register, and is the President s chief representative in the rulemaking process. See CRS Report RL32397, Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs, by Curtis W. Copeland. 18 For an in-depth discussion of the CRA disapproval process, see CRS Report RL31160, Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act, by Richard S. Beth. For a discussion of how the CRA has been implemented, see CRS Report RL30116, Congressional Review of Agency Rulemaking: An Update and Assessment of the Congressional Review Act After a Decade, by Morton Rosenberg. 19 For a more complete discussion of the CRA s carryover provisions and how they may apply to rules issued at the end of the 110 th Congress, see CRS Report RL34633, Congressional Review Act: Disapproval of Rules in a Subsequent Session of Congress, by Curtis W. Copeland and Richard S. Beth.

114 CRS-7 not be reissued in a substantially similar form without subsequent statutory authorization. Once a rule has been submitted to Congress, Members have 60 days of continuous session to introduce a resolution of disapproval. 20 The CRA also provides that, if Congress adjourns its annual session sine die less than 60 legislative days (House of Representatives) or session days (Senate) after a rule is submitted to it, then the rule is carried over to the next session of Congress and treated as if it had been published in the Federal Register on the 15 th legislative or session day after Congress reconvenes. 21 The purpose of this provision is to ensure that both houses of Congress have sufficient time to consider disapproving rules submitted during this end-of-session carryover period. In any given year, the carryover period begins after the 60 th legislative day in the House or session day in the Senate before the sine die adjournment, whichever date is earlier. The renewal of the CRA process in the following session occurs even if no resolution to disapprove the rule had been introduced during the session when the rule was submitted. Although the exact starting point for the CRA carryover period in the second session of the 110 th Congress can be determined only after sine die adjournment has taken place, the likely date or range of dates may be illuminated by examining congressional activity in prior years. Across all sessions of Congress since the CRA was enacted in 1996 (the second session of the 104 th Congress), the starting point for the carryover period was always determined by the schedule of the House of Representatives, and was always earlier in the second session of Congress (i.e., during election years) than in the first session. In those second sessions of Congress, the starting points ranged from May 12 to June 23, with the median starting point being June 7 (i.e., half occurring before, half after). If Congress follows this general pattern in the second session of the 110 th Congress, the data suggest that any final rule submitted to Congress after June 2008 may be carried over to the first session of the 111 th Congress, and may be subject to a resolution of disapproval during that session. However, the starting point for the carryover period could slip to late September or early October if an unprecedented level of congressional activity occurs late in the session. Even without the CRA, though, Congress can stop agency rulemaking in other ways. For example, each year, Congress includes provisions in appropriations legislation prohibiting rulemaking within particular policy areas, preventing particular proposed rules from becoming final, and prohibiting or affecting the implementation or enforcement of rules. 22 However, unlike disapprovals under the 20 Days of continuous session includes all calendar days except those in which either house of Congress is adjourned for more than three days during a session. 21 Legislative days end each time a chamber adjourns and begin each time it convenes after an adjournment. Session days include only calendar days on which a chamber is in session. 22 CRS Report RL34354, Congressional Influences on Rulemaking Through Appropriations (continued...)

115 CRS-8 CRA, the regulatory requirements that have been put into effect are not rescinded, and the agency is not prohibited from issuing a substantially similar regulation in the future. Background Executive Clemency Article II of the Constitution provides the President with the explicit authority to grant Reprieves and Pardons for Offences against the United States. The general term for this authority is executive clemency, of which the more commonly used term, presidential pardon, is but one form. Executive clemency may also take the form of commutation, which is the reduction of a prison sentence, remission, which is the reduction of a fine or mandated restitution, or reprieve, which delays the imposition of punishment. 23 The President has few restrictions on how and when executive clemency may be exercised, other than it may only apply to violations of federal laws thereby precluding state criminal or civil proceedings from its scope and it may not be used to interfere with the Congress s power to impeach. 24 Clemency in the form of a pardon, for example, may be granted at any time, even before charges have been filed. 25 In addition, while not frequently done, a President may bestow clemency on groups, as President Lincoln did when he issued a pardon to all persons who participated in the rebellion against the United States (with a number of conditions and exceptions). 26 The President s use of this broad authority may come under increased scrutiny during a period of transition, in part because Presidents have historically granted petitions for clemency at a higher rate in the closing months of their administrations. Table 1 shows that since 1945, every president that completed his term of office, except President Johnson, increased the rate at which he granted clemency in the final four months of his administration, when compared to his previous months in office. 22 (...continued) Provisions, by Curtis W. Copeland. 23 U. S. Department of Justice, Office of the Pardon Attorney, available at [ 24 CRS Report RS20829, An Overview of the Presidential Pardoning Power, by T.J. Halstead. 25 Ibid. 26 United States President (Lincoln), The Proclamation of Amnesty and Reconstruction, Dec. 8, 1863, available at [

116 CRS-9 Table 1. Average Monthly Clemency Petitions Granted, Prior to and During the Final Four Months of Selected Administrations President Prior to Final Four Months of Administration Final Four Months of Administration Harry S. Truman 22 per month 25 per month Dwight D. Eisenhower 10 per month 53 per month Lyndon B. Johnson 21 per month 0 per month Gerald R. Ford 11 per month 34 per month James E. Carter 11 per month 20 per month Ronald W. Reagan 4 per month 8 per month George H.W. Bush 1 per month 10 per month William J. Clinton 2 per month 65 per month Source: United States Department of Justice, Office of the Pardon Attorney, available at [ Notes: Clemency statistics include pardons, commutations, and remissions of fines. Figures have been rounded to the nearest whole number. Controversial acts of clemency may be among those granted in the final months of an administration, such as President George H.W. Bush s pardon of key figures in the Iran-Contra affair on Christmas Eve, 1992 less than four weeks before the end of his term and President Bill Clinton s pardon of commodities trader Mark Rich, which was issued on President Clinton s last day in office. Possible Congressional Concerns Acts of Clemency Might Restrict Oversight of the Executive Branch. Ongoing investigations into the conduct of executive branch officials may be impeded or effectively ended by acts of clemency. As previously noted, President George H. W. Bush pardoned six former officials from President Ronald Reagan s Administration for their roles in the Iran-Contra affair, including two officials who had been indicted but had not yet been to trial. These pardons essentially ended the Independent Counsel s criminal investigation, which had begun six years earlier. The ongoing criminal investigation into the firing of nine United States attorneys in 2006 which has attracted considerable interest among Members of the 110 th Congress might be affected if President George W. Bush issues pardons to members of his administration for any role they may have played in the matter. Acts of Clemency Might Have Implications for U.S. Foreign Relations. President George W. Bush has received many requests from the public and elected officials to provide clemency to two United States Border Patrol agents who are serving sentences in federal prisons for shooting a Mexican citizen who had

117 CRS-10 crossed illegally into Texas. 27 The Mexican government, however, has been highly critical of what it deems the excessive use of force by American border authorities, and may protest strongly should the border patrol agents be issued pardons or commutations. 28 Similarly, it has been suggested President Bush may consider clemency for soldiers convicted of crimes committed while serving at Abu Ghraib prison in Iraq. 29 Acts of clemency related to Abu Ghraib would likely be poorly received by Muslim populations and governments around the world, and possibly nations that have expressed opposition to the War in Iraq. Executive Orders Concerns about the volume, timing, and content of executive orders may be heightened during presidential transitions, particularly during the months leading up to the inauguration. The perception, if not necessarily the reality, exists that an outgoing President s inclination to act unilaterally increases during the transition period. A President s decision to use executive orders may be based on practical, political, or personal reasons, or any combination thereof. Executive orders are a significant vehicle for unilateral action by the President: they have the force and effect of law unless voided or revoked by congressional, presidential, or judicial action and they combine the highest levels of substance, discretion, and direct presidential involvement. 30 Being able to act unilaterally enables a President to establish control over policymaking. Presidents are sometimes aided in this endeavor by the proliferation and ambiguity of statutes, which increase their opportunities for justifying presidential action. 31 Another appealing feature of executive orders is that they allow Presidents to act quickly, forcefully, and (if they like) with no advance 27 To cite just two examples, H.Con.Res. 267 (110 th Cong.), which had 81 cosponsors and bipartisan support, called on the President to commute the sentences of the two border patrol agents. H.Con.Res. 267 is at [ 110_cong_bills&docid=f:hc267ih.txt.pdf]; and the American Federation of Government Employees (AFGE), which has a membership of over 600,000, sent President Bush a letter in 2007 also asking him to pardon the border patrol agents. The AFGE letter is at [ 28 Mexico slams border shooting, US Congress for failing to pass immigration bill, New York Times Global Edition, Aug. 9, 2008, available at [ 08/10/america/LA-GEN-Mexico-Immigration.php]. 29 Keith Koffler, Stevens Case Puts Spotlight on Pardons, Roll Call Newspaper Online, Oct. 28, 2008, available at [ 30 Joel L. Fleishman and Arthur H. Aufses, Law and Orders: The Problem of Presidential Legislation, Law and Contemporary Problems, vol. 40 (1976), p. 5. Executive orders disposition tables, which list each President s executive orders from Franklin D. Roosevelt through the current President, are available at [ executive-orders/disposition.html]. 31 Terry M. Moe and William J. Howell, The Presidential Power of Unilateral Action, Journal of Law, Economics, and Organization, vol. 15 (1999), pp. 141and 143.

118 CRS-11 notice. 32 Capitalizing on these features enables Presidents to seize the initiative on an issue, shape the national agenda, and force others to respond. For practical or political reasons, Presidents may choose to use executive orders to circumvent a Congress that they perceive as hostile to their policies, after considering whether the Congress is likely to overturn a particular executive order, 33 or as moving too slowly. 34 Executive orders suit the needs of an outgoing President who wants to establish or change policy, or is striving to secure his legacy. Howell and Mayer have noted that when a President s successor belongs to the opposition political party, he has every reason to hurry through last-minute public policies, doing whatever possible to tie his successor s hands. 35 An outgoing President s use of unilateral directives, such as executive orders, might be greeted with criticism from some quarters. Some scholars note that the directives lack the sort of legitimacy that pre-election activity has, because by definition they are issued after a president (and, in many cases, his party) has been repudiated at the polls. Moreover, there are no opportunities for democratic accountability, because, again, voters do not have a subsequent chance to express their approval or disapproval. 36 An incoming President, who is eager to act quickly on his policy agenda, seeking to modify or overturn certain of his predecessor s actions, or distinguish himself from his predecessor, particularly when they are from different parties, would find executive orders an effective way to accomplish these objectives. 37 He might be stymied, though, in his efforts to amend his predecessor s actions: Occasionally, presidents cannot alter orders set by their predecessors without paying a considerable political price, undermining the nation s credibility, or confronting serious legal obstacles Ibid., p Christopher J. Deering and Forrest Maltzman, The Politics of Executive Orders: Legislative Constraints on Presidential Power, Political Research Quarterly, vol. 52 (1999), pp. 2 and Paul C. Light, The President s Agenda: Domestic Policy Choice from Kennedy to Reagan (Baltimore: Johns Hopkins University Press, 1991), p Howell and Mayer, The Last One Hundred Days, p Ibid., p Kenneth R. Mayer, Executive Orders and Presidential Power, Journal of Politics, vol. 61 (1999), p For example, President Clinton signed E.O on Jan. 20, 1993, which required his senior political appointees to take an ethics pledge that would prohibit them from lobbying federal government officials for five years. President George W. Bush launched a major initiative early in his term with the signing of E.O and E.O on Jan. 29, 2001, which directed the Attorney General and four cabinets secretaries to establish offices of faith-based and community initiatives, and which established a White House Office of Faith-Based and Community Initiatives, respectively. 38 Howell and Mayer, The Last One Hundred Days, p On the other hand, as the following examples show, several recent Presidents revoked, partly or completely, one or more executive orders issued by their immediate predecessor. President Reagan revoked two (continued...)

119 CRS-12 Timing and Volume of Executive Orders Table 2 presents the number of executive orders issued by Presidents George W. Bush, William J. Clinton, George Bush, Ronald Reagan, and Jimmy Carter in each of three transition periods. 39 These three periods are comparable, but not equal, in duration, which means it is more meaningful to compare data within each column rather than across columns. Table 2. Number of Executive Orders Issued During Presidential Transitions, Present President Incoming (First term) Jan. 20-Apr. 30 Pre-election Aug. 1-Election Lame Duck Election-Jan. 20 George W. Bush (2004) (2001) 7 To be determined (2008) William J. Clinton (1993) (1996) ( ) (2000) George Bush 11 (1989) 7 (1992) 14 ( ) Ronald Reagan 7 18 (1981) (1984) 9 12 ( ) (1988) Jimmy Carter 16 (1977) 20 (1980) 36 ( ) Sources: U.S. National Archives and Records Administration, Executive Orders Disposition Tables, available at [ Notes: Executive orders are categorized according to signing date. As incoming Presidents, G.W. Bush, Clinton, Bush, Reagan, and Carter issued comparable numbers of executive orders. The range of executive orders issued was 11 (Bush) to 18 (Reagan). During the pre-election period, four of the Presidents also 38 (...continued) executive orders signed by President Carter, thus terminating certain aspects of the government s wage and price program (E.O , Jan. 29, 1981) and disbanding the Tahoe Federal Coordinating Council (E.O , Mar. 12, 1981). President Clinton revoked (E.O , Feb. 1, 1993) two of President Bush s executive orders having to do with labor unions. President G.W. Bush signed four executive orders (Executive Orders 13201, 13202, 13203, and 13204), on Feb. 17, 2001, that dealt with labor issues and that partially or completely revoked executive orders that had been signed by his predecessor. 39 Consistent with how he signed executive orders, the 41 st President is identified in this report as President George Bush or President Bush. His son, the 43 rd President, is identified as President George W. Bush, his signature on executive orders, or President G.W. Bush.

120 CRS-13 issued comparable numbers of executive orders, ranging from 7 (Reagan and Bush) to 11 (Clinton). President Carter issued 20 executive orders during the pre-election period. The lame duck period shows the greatest variation. Reagan and Bush issued comparable numbers of executive orders, 12 and 14, respectively. Clinton issued 22, and Carter issued However, nearly one-third of the executive orders President Carter signed at the end of his term had to do with the hostage crisis in Iran. A study that examined executive orders issued between April 1936 and December 1995 found that, while the start of a new President s term does not result in a higher number of executive orders, the end of a President s term is notable for an increase in the quantity of executive orders issued. 41 Presidents who were succeeded by a member of the other party signed nearly six additional orders... in the last month of their term, nearly double the average level. 42 When party control of the White House did not change following a presidential election, there was no corresponding increase in order frequency The author of this study asserts that these data are evidence that executive orders have a strong policy component, as otherwise presidents would have little reason to issue such last-minute orders. Mayer also found that reelection plays a role in the number of executive orders signed and issued. Presidents who are running for reelection issue approximately 1.4 more executive orders per month 14 during campaign season from January 1 through the end of October than when they are not running for reelection. 44 Content of Executive Orders Executive orders range, in terms of their import for government management and operations and the principle of shared powers, and the scope of their impact, from the somewhat innocuous to the highly significant. Presidents use executive orders to recognize groups and organizations; establish commissions, task forces, and committees; and make symbolic statements. Presidents also use executive orders to establish policy, reorganize executive branch agencies, alter administrative and regulatory processes, [and] affect how legislation is interpreted and implemented. 45 Unilateral action by Presidents during transition periods can, and does, result in a mixture of executive orders in terms of their significance and scope. President Carter established a committee charged with selecting a director for the Federal Bureau of Investigation and closed the federal government on Friday, December 26, 40 The quantity of orders President Carter signed during the pre-election and lame duck periods is consistent with the pace he maintained throughout his four-year term. President G.W. Bush issued an average of 36 executive orders per year; President Clinton 46; President Bush 42; President Reagan 48; and President Carter 80. The figure for President G.W. Bush is an average for the years Mayer, Executive Orders and Presidential Power, p Ibid. 43 Ibid. 44 Ibid., p Ibid., p. 445.

121 CRS President Bush designated the Organization of Eastern Caribbean States as a public international organization and delegated some disaster relief and emergency assistance functions from the President to the director of the Federal Emergency Management Agency. 47 Turning to executive orders with policy implications, President Ronald Reagan brought agency rulemaking under the control of the Office of Management and Budget and required cost-benefit analyses be conducted for proposed rules. 48 Most notable among the executive orders signed by President Carter during a transition period was a package of executive orders relating to the negotiated release of American hostages being held in Iran. 49 Agency Records Government Records Changes of presidential administrations prompt concerns that some government records might be destroyed or removed during the transition. Responsibility for the life cycle management of government records rests with the Archivist of the United States, who is the head of the National Archives and Records Administration (NARA). To address concerns about, and prevent the possible loss of, records, NARA issued a bulletin in each of the past five presidential election years, as well as in 2008, reminding agency heads of the regulations regarding proper records management. As stated in the first line of the 2008 bulletin, NARA Bulletin , which was issued on February 4, its purpose is to remind heads of Federal agencies that official records must remain in the custody of the agency. 50 While departing officials and employees may remove extra copies or photocopies of records when they leave their agency with the approval of a designated official of the agency, such as the agency s records officer or legal counsel, the bulletin reminds readers that, if such materials are otherwise restricted for example, for reasons of personal privacy or security classification they must be maintained in accordance with the appropriate agency requirements. The bulletin provides additional guidance regarding the identification of federal records, the proper storage and disposal of documentary materials, and responding to an unauthorized removal of records. There are criminal penalties for the unauthorized removal or destruction of federal records, their concealment, 51 and for the unauthorized disclosure of protected 46 E.O , Feb. 11, 1977, and E.O , Dec. 5, 1980, respectively. 47 E.O , Feb. 20, 1989, and E.O , Mar. 23, 1989, respectively. 48 E.O , Feb.17, Executive Orders through 12285, Jan. 19, U.S. National Archives and Records Administration, Protecting Federal Records and Other Documentary Materials from Unauthorized Removal, NARA Bulletin (Washington: Feb. 4, 2008), available at [ 2008/ html?template=print] U.S.C

122 CRS-15 records, such as those containing personally identifiable or security classified information. 52 The NARA bulletin also reminds readers that [r]ecords may be in paper, film, tape, disk, or other physical form... [and] may be generated manually, electronically, or by other means. Of particular concern for the 2008 transition are electronic records. Countless federal records are being lost to posterity, by one recent account, because federal employees, grappling with a staggering growth in electronic records, do not regularly preserve the documents they create on government computers, send by and post on the Web. 53 While the transition does not contribute to this development, it has increased awareness of the situation. Many federal officials are reportedly saying they are unsure what electronic materials they are supposed to preserve. This confusion is causing alarm among historians, archivists, librarians, Congressional investigators and watchdog groups that want to trace the decisionmaking process and hold federal officials accountable. With the imminent change in administrations, the concern about lost records has become more acute. 54 The Washington representative of the American Association of Law Librarians, whose members are major users of government records, has stated, We expect to see the wholesale disappearance of materials on federal agency Web sites. 55 At the end of the Clinton Administration, NARA made an effort to preserve a snapshot of each agency s primary website. A NARA memorandum of January 12, 2001, directed the departments and agencies to take a snapshot of their websites and forward it, along with supporting documentation, to NARA. 56 However, NARA decided recently that it would not take such snapshots at the end of the Bush Administration, saying Most Web records do not warrant permanent retention because they do not have long-term historical value. 57 Presidential Records For almost two centuries, Presidents took their official papers with them when they departed from office. That practice changed with the Presidential Records Act of 1978, which, for all presidential records created on or after January 20, 1981, states that such materials shall remain in federal custody and under the control of the 52 5 U.S.C. 552a(i); 18 U.S.C , Robert Pear, In Digital Age, Federal Files Blip into Oblivion, New York Times, Sept. 13, 2008, p. A1. 54 Ibid. 55 Ibid. 56 U.S. National Archives and Records Administration, Memorandum to Chief Information Officers: Snapshot of Agency Public Web Sites, Memorandum NWM (Washington: Jan. 12, 2001), available at [ 57 Pear, In Digital Age, Federal Files Blip into Oblivion, p. A16.

123 CRS-16 Archivist when a President departs. 58 The statute also covers the official records of the Vice President pertaining to the performance of executive duties. 59 Presidential records are defined as documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. 60 The statute states, Nothing in this Act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President. 61 This provision constituted a recognition of the President s historical, constitutionally based privilege to exercise a discretion regarding the provision of information sought by another coequal branch of the federal government the so-called executive privilege. 62 On November 1, 2001, President George W. Bush issued E.O , which, among other interpretations, offered an expansive basis for the invoking of executive privilege by the incumbent President or a former President, the Vice President or a former Vice President, or a representative or group of representatives acting on behalf of a former President. 63 The order also reversed the challenge procedure set out in the statute by forcing persons seeking access to the records of a former President to bring a lawsuit to overcome a claim of executive privilege instead of requiring the former President who is claiming the privilege to obtain judicial concurrence. Attempts in the 107 th and 110 th Congresses to overturn the controversial order through remedial legislation were not successful. The order s application of the Presidential Records Act to the executive records of the Vice President, among other concerns, prompted a group of historians and open government advocates to file a lawsuit in early September 2008 asking a federal court to declare the records of Vice President Richard Cheney to be subject to the requirements of the act and preventing their destruction, removal, or withholding without proper review. In response, a spokesman for the Vice President said, The Office of the Vice President currently follows the Presidential Records Act and will continue to follow the requirements of the law, which includes turning over vice presidential records to the National Archives at the end of the term. 64 On September 20, a federal judge, in response to the lawsuit by historians and open government U.S.C U.S.C U.S.C. 2201(2) U.S.C. 2204(c)(2). 62 See Louis Fisher, The Politics of Executive Privilege (Durham, NC: Carolina Academic Press, 2004); Mark J. Rozell, Executive Privilege: Presidential Power, Secrecy, and Accountability, 2 nd ed., rev. (Lawrence, KS: University Press of Kansas, 2002) C.F.R Comp., pp Christopher Lee, Lawsuit to Ask That Cheney s Papers Be Made Public, Washington Post, Sept. 8, 2008, p. A4.

124 CRS-17 advocates, issued a preliminary injunction ordering Vice President Cheney and NARA to preserve all of his official records Presidential Transition: National Security Considerations and Options 66 While changes in administration during U.S. involvement in national security related activities are not unique to the election cycle, many observers suggest that the current security climate and recent acts of terrorism by individuals wishing to influence national elections and change foreign policies portend a time of increased risk during the current presidential transition period. How the new President recognizes and responds to these challenges will depend heavily on the planning and learning that occurs prior to the inauguration. Actions can be taken by the outgoing President and President-elect that may facilitate better decision-making in the new administration. If an incident of national security significance 67 occurs during the presidential transition period, the actions or inactions of the Congress and the outgoing administration may have a long-lasting effect on the new President s ability to effectively safeguard U.S. interests. 68 Possible Actions by Entities Wishing to Disrupt the Presidential Transition Period It is argued that enemies of the U.S. may see the nation as politically vulnerable during the transition. Threats during the presidential transition can emanate both from within the homeland and internationally. 69 An incident of national security significance occurring anytime during the presidential transition period could have both intended and unintended effects on the incoming Administration s national priorities and resulting policies. 70 Conversely, while some 65 Associated Press, Cheney Is Ordered to Preserve Records, New York Times, Sept. 21, 2008, p. 30; Christopher Lee, Cheney Is Told to Keep Official Records, Washington Post, Sept. 21, 2008, p. A5. 66 Prepared by John Rollins, Specialist in Terrorism and National Security, Foreign Affairs, Defense and Trade Division. For the purpose of discussing national security considerations and issues, the presidential transition period is broken down into five phases. 67 While an incident of national security significance could entail a catastrophic natural disaster, this term, for purposes of this section of the paper, is used to describe any manmade foreign or domestic security-related incident undertaken with the intent to influence the procedural aspects or outcome of the Presidential election. 68 For a fuller explanation of national security considerations and options, see CRS Report RL34456, Presidential Transition: National Security Considerations and Options, by John Rollins. 69 Robert Landers, Dangers in Presidential Transitions, Washington: Editorial Research Reports, Oct. 21, 1988, pp For example, while the terrorist attacks of March 2004 did appear to have an affect on the (continued...)

125 CRS-18 national security experts speculate that Al Qaeda, other extremist groups, and some foreign powers may see the presidential transition period as a desirable time to undertake action against U.S. interests, the mere fact that such activity occurs may not necessarily indicate that the act was committed to test the newly elected President s decision-making ability. The timing of such acts may be solely based on the convergence of an entity attaining a desired capability with a perceived best opportunity to successfully complete its objective. Considerations and Options Unique to Each Phase of the Presidential Transition Period While the time period and phases of a presidential transition are not statutorily derived, for purposes of this discussion, the presidential transition period is comprised of five phases extending from presidential campaigning activities to the new President s establishment of a national security team and accompanying strategies and policies. Each phase identifies issues and options of possible interest to Congress during the presidential transition process. Phases 1 and 2: Campaigning by Presidential Candidates to the Day of Election. 71 Some national security observers view congressional interest in and support of presidential transitions as a crucial aspect of orderly transfers of power in the executive branch. Others argue that Congress should confine its activities to simply providing the funds necessary to support the transfer of presidential authority and act quickly to confirm the President-elect s nominated senior leadership team. Regardless of the level of involvement in the presidential transition desired by the incoming and outgoing administrations, congressional leaders voiced concern about the upcoming election period, and noted a desire to provide continued oversight and resources to support the change of administrations. 72 Some suggest that, without substantive and continuing congressional involvement in presidential transition activities, foreign and domestic security risks may not be addressed in as full a manner as possible. Prior to the presidential election the 110 th Congress requested and may consider continuing to ask the Administration to provide 70 (...continued) election outcome and the Spanish government s support of military actions in Iraq, the new Prime Minister actually increased Spain s commitment to counterterrorism military efforts in Afghanistan. (Helene Zuber, Spain and NATO: More Troops for Afghanistan, Spiegel Online International, Mar. 29, 2008, at [ 0,1518,544189,00.html], visited Nov. 19, 2008.) 71 For purposes of this section of the paper, Phase 1 of the Presidential transition time period spans from announcements by individuals vying for the Presidency to Phase 2, selection of nominees by the representative political parties. 72 Senate Committee on Homeland Security and Governmental Affairs, Lieberman Calls on Senate Budget Committee to Adequately Fund FY2009 Homeland Security Needs, press release, Feb. 22, 2008, available at [ PressReleases.Detail&Affiliation=C&PressRelease_id=ba22da11-04b8-43c f2f87 44b717e&Month=2&Year=2008], visited Oct. 10, 2008.

126 CRS-19! the names of agency leaders responsible for making national security related decisions during the presidential transition period,! briefings on the possible risks to the presidential transition process,! information about the significant national security operations that will be ongoing during the transfer of power, and! briefings about the Administration s efforts to engage and collaborate with prospective new Administration senior security officials. 73 An area of apparent ongoing congressional interest is the near-term departure of knowledgeable political appointees and career managers during a presidential transition that may significantly hamper the federal government s ability to prevent and respond to issues of national security importance. In the months leading up to the 2008 presidential election, Congress asked a number of questions posed to current national security leaders about plans to support the presidential transition period and require more specificity with respect to current and future planning efforts. 74 Phase 3: Election Day. From a national security standpoint, election day was uneventful with no voting disruptions attributed to man-made or natural disaster related incidences. Phase 4: Selection of a President-Elect to Inauguration Day. Traditionally, Congress is out of session during much of the eleven weeks that comprise phase 4 of the transition period. However, the 110 th Congress has scheduled a session after the election to address the nation s ongoing financial concerns. Some security experts contend that during this special session Congress may also wish to hold hearings and conduct other legislative inquiry activities to ensure the two Administrations are properly coordinating on national security-related issues. 73 In September, 2008 the Senate Homeland Security and Governmental Affairs Committee held a series of hearings devoted to ascertaining the Executive Branch s progress and challenges regarding presidential transition related issues; some of the issues in this list were addressed. (Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia, Keeping the Nation Safe Through the Presidential Transition, hearing announcement, Sept. 18, 2008, available at [ index.cfm?fuseaction=hearings.detail&hearingid=00174c24-3eef-47d1-bb2c-39c3d27 c26d3].) 74 I am interested to know if you are beginning to make plans as to how you convey a year hence this department to a new Administration. What steps you might take to lay the foundation to have, hopefully, a seamless transition. ( Senate Armed Services Committee Holds Hearing on the Defense Authorization Request for Fiscal Year 2009, CQ.com, Feb. 6, 2008, available at [ transcripts/congressional/110/congressionaltranscripts html@commit tees&metapub=cq-congtranscripts&searchindex=0&seqnum=44].) Question by Senator John Warner to Secretary of Defense Robert Gates. CRS note: the issue of transition-related activities during the upcoming election was not further addressed during this hearing.

127 CRS-20 Once the 111th Congress convenes and the new members are sworn in, little time is available prior to the presidential inauguration to inquire about past transitionrelated actions. 75 Prior to the Presidential inauguration the new Congress may choose to hold hearings to assess the Administration s progress on stated national security transition-related activities. Congressional concerns during this phase might include the status of incoming and outgoing Administrations collaboration efforts, how resources are being expended and toward what purpose, and to ascertain the incoming Administration s national security foreign and domestic policy goals. Phase 5: Presidential Inauguration to the Establishment of a New National Security Team and Policies. Some presidential historians suggest that legislative inquiry and support during the incoming Administration s transition efforts is crucial if Congress is to provide effective oversight during the new presidency. Professor Cindy Williams of the Massachusetts Institute of Technology argues that, the coming transition to a new Administration and Congress opens a window for reform of the organizational structures and processes that surround planning and resource allocation for homeland (and national) security in the executive branch and Congress. 76 While the transition is an opportunity for Members and staff to interact and have substantive discussions regarding the national security policies and goals of the new Administration, some presidential historians note that transitions are hit-and-miss affairs that handicap the new President in shifting from campaigning to governing and create problems for the Congress. 77 As noted by Dwight Ink, President Emeritus of the Institute of Public Administration, new appointees are in danger of stumbling during the first crucial weeks and months of an Administration, not so much from what they are striving to do, but from how they are functioning and a lack of familiarity with the techniques that are most likely to get things done in a complex Washington environment. 78 In overseeing and supporting the new Administration s national security objectives, Congress has a number of activities it might undertake. Prioritize Hearings for Nominated Senior Executive Branch Leaders Who Have Significant National Security Responsibilities. Congress might assist the incoming Administration s national security efforts by quickly considering qualified key political appointees for confirmation. 79 While Congress will also be 75 The Presidential inauguration occurs approximately two weeks after the Congressional swearing-in ceremony. 76 Cindy Williams, Strengthening Homeland Security: Reforming Planning and Resource Allocation, 2008 Presidential Transition Series, (Washington: IBM Center for the Business of Government, 2008), available at [ CindyWilliamsReport.pdf], p U.S. Congress, Senate Committee on Governmental Affairs, Presidential Transition Act of 2000, report to accompany S. 2705, 106 th Cong., 2 nd sess., S.Rept (Washington: GPO, 2000), p Ibid. 79 While there is no proscriptive order in which the incoming President should nominate, or Congress should hold hearings regarding, new senior Administration officials with national (continued...)

128 CRS-21 undergoing a transition having just been sworn in two weeks prior to the presidential inauguration, some analysts see this as the ideal time for the new Congress to meet with the incoming President s national security leadership team and establish a foundation to allow for expedited confirmation hearings soon after the President takes the oath of office. As noted by a recommendation of the 9/11 Commission Report of 2004, 80 Since a catastrophic attack could occur with little or no notice, the federal government should minimize as much as possible the disruption of national security policymaking during the change of Administrations by accelerating the process for national security appointments. We (9/11 Commission) think the process could be improved significantly so transitions can work more effectively and allow new officials to assume their new responsibilities as quicky as possible. Consistent with recommendations contained in the 9/11 Commission report, the Intelligence Reform and Terrorism Prevention Act of provides a sense of the Congress regarding an expedited consideration of individuals nominated by the President-elect to be confirmed by the Senate. The act further holds that the Senate committees to which these nominations are referred and the full Senate should attempt to complete consideration of these nominations within 30 days of submission by the newly elected President. In undertaking this responsibility, many security observers see a healthy tension between Congress desire to act quickly to hold confirmation hearings and the need to ensure that individuals with the relevant national security background and experience have been put forth by the Presidentelect. In many cases, highly qualified career Senior Executive Service personnel will be in an acting capacity for some of these Senate confirmed positions. Thus the perceived urgency to fill these positions quickly may be negated while Congress ensures individuals capable of meeting the demands of the position are selected and confirmed. Congress may also! work with the new Administration to understand its national security priorities and where applicable have the changes in policies and programs reflected in the 2010 budget;! quickly assign new and existing Members of Congress to committees focusing on national security issues to allow these individuals to receive briefings and understand the issues for which they have oversight;! hold hearings comprised of national security experts to gather ideas on prospective U.S. national security policies and goals; and 79 (...continued) security responsibilities, a review of the cabinet positions noted in the Presidential Succession Act of 1947 (3 U.S.C. 19) and the previous Administration s National Security Council and Homeland Security Councils may provide some assistance in prioritizing personnel placement activities. 80 U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (Washington: GPO, 2004), p Sec. 7601(b) of P.L

129 CRS-22! hold hearings soon after the new Administration has produced its national security strategies, policies, and presidential directives to discuss objectives and determine presidential priorities. Personnel Political to Career Conversions ( Burrowing In ) 82 Some individuals, who are serving in appointed (noncareer) positions in the executive branch, convert to career positions in the competitive service, the Senior Executive Service (SES), or the excepted service. 83 This practice, commonly referred to as burrowing in, is permissible when laws and regulations governing career appointments are followed. While such conversions may occur at any time, frequently they do so during the transition period when one Administration is preparing to leave office and another Administration is preparing to assume office. Generally, these appointees were selected noncompetitively and are serving in such positions as Schedule C, noncareer SES, or limited tenure SES 84 that involve policy determinations or require a close and confidential relationship with the department or agency head and other top officials. Many of the Schedule C appointees receive salaries at the GS-12 through GS-15 pay levels. 85 The noncareer and limited tenure members of the SES receive salaries under the pay schedule for senior executives that also covers the career SES. 86 Career employees, on the other hand, are to be selected on the basis of merit and without political influence 82 This text is excerpted from CRS Report RL34706, Federal Personnel: Conversion of Employees From Appointed (Noncareer) Positions to Career Positions in the Executive Branch, by Barbara L. Schwemle. 83 Appointments to career competitive service positions include requirements for approved qualification standards, public announcement of job vacancies, rating of applicants, and completion of a probationary period and three years of continuous service; career SES positions include review by the Office of Personnel Management (OPM) and certification of a candidate s ability by a Qualifications Review Board; and career excepted service positions allow agencies to establish their own hiring procedures, but require those systems to conform to merit system principles and veterans preference. 84 Appointments to SES positions that have a limited term may be for up to 36 months, and those that are to meet an emergency (unanticipated or urgent need) may be for up to 18 months. 85 GS refers to the General Schedule, the pay schedule that covers white-collar employees in the federal government. As of January 2008, the salaries from GS-12, step 1, to GS-15, step 10, in the Washington, DC, pay area ranged from $69,764 to $149, Salaries for members of the SES are determined annually by agency heads under a rigorous performance management system, and range from the minimum rate of basic pay for a senior level (SL) employee (120% of the minimum basic pay rate for GS-15; $114,468, as of January 2008) to either EX Level III ($158,500, as of January 2008), in agencies whose performance appraisal systems have not been certified by OPM as making meaningful distinctions based on relative performance, or EX Level II ($172,200, as of January 2008), in agencies whose performance appraisal systems have been so certified.

130 CRS-23 following a process that is to be fair and open in evaluating their knowledge, skills, and experience against that of other applicants. The tenure of noncareer and career employees also differs. The former are generally limited to the term of the Administration in which they are appointed or serve at the pleasure of the person who appointed them. The latter constitute a work force that continues the operations of government without regard to the change of administrations. Paul Light, a professor of government at New York University, who has studied appointees over the past several administrations, reportedly believes that the pay, benefits, and job security of career positions underlie the desire of individuals in noncareer positions to burrow in. 87 Beyond the fundamental concern that the conversion of an individual from an appointed (noncareer) position to a career position may not have followed the legal and regulatory requirements, burrowing in raises other concerns. When the practice occurs, there may be these perceptions (whether valid or not): that an appointee converting to a career position may limit the opportunity for other employees (who were competitively selected for their career positions, following examination of their knowledge, skills, and experience) to be promoted into another career position with greater responsibility and pay; or that the individual who is converted to a career position may seek to undermine the work of the new Administration whose policies may be at odds with those that he or she espoused when serving in the appointed capacity. Both perceptions may increase the tension between noncareer and career staff, thereby hindering the effective operation of government at a time when the desirability of creating common ground between these staff to facilitate government performance has been emphasized. 88 Appointments to career positions in the executive branch are governed by law and regulations that are codified in Title 5 of the United States Code and Title 5 of the Code of Federal Regulations. For purposes of both, appointments to career positions are among those activities defined as personnel actions, a class of activities that can be undertaken only in accordance with strict procedures. In taking a personnel action, each department and agency head is responsible for preventing prohibited personnel practices; for complying with, and enforcing, applicable civil service laws, rules, and regulations and other aspects of personnel management; and for ensuring that agency employees are informed of the rights and remedies available to them. Such actions must adhere to the nine merit principles and twelve prohibited personnel practices that are codified at 5 U.S.C. 2301(b) and 2302(b), respectively. These principles and practices are designed to ensure that the process for selecting career employees is fair and open (competitive), and without political influence. 87 Christopher Lee, Political Appointees Burrowing In, Washington Post, Oct. 5, 2007, p. A See, for example, Robert Maranto, Beyond a Government of Strangers: How Career Executives and Political Appointees Can Turn Conflict to Cooperation (Lanham: Lexington Books, 2005), and Dana Michael Harsell, Working With Career Executives to Manage for Results, in Judith E. Michaels, Becoming An Effective Political Executive: 7 Lessons from Experienced Appointees, 2 nd ed. (Washington: IBM Center for the Business of Government, Jan. 2005), pp

131 CRS-24 Department and agency heads also must follow regulations, codified at Title 5 of the Code of Federal Regulations, that govern career appointments. These include Civil Service Rules 4.2, that prohibits racial, political, or religious discrimination, and 7.1, that addresses an appointing officer s discretion in filling vacancies. Other regulations provide that Office of Personnel Management (OPM) approval is required before employees in Schedule C positions may be detailed to competitive service positions, public announcement is required for all SES vacancies that will be filled by initial career appointment, and details to SES positions that are reserved for career employees (known as Career-Reserved) may only be filled by career SES or career-type non-ses appointees. 89 During the period June 1, 2008, through January 20, 2009, defined as the Presidential Election Period, certain appointees are prohibited from receiving financial awards. 90 These appointees, referred to as senior politically appointed officers, are (1) individuals serving in noncareer SES positions; (2) individuals serving in confidential or policy determining positions as Schedule C employees; and (3) individuals serving in limited term and limited emergency positions. When a department or agency, for example, converts an employee from an appointed (noncareer) position to a career position without any apparent change in duties and responsibilities, or that appears to be tailored to the individual s knowledge and experience, such actions may invite scrutiny. OPM and the Government Accountability Office (GAO) each conduct oversight related to conversions of employees from noncareer to career positions to ensure that proper procedures have been followed. In addition to its general oversight authority, OPM conducts pre-appointment reviews of certain appointments to career positions in the competitive service and the SES during the transition. The agency announces this review in a memorandum to the heads of departments and agencies early in the year in which the presidential election occurs. OPM released the memorandum covering the 2008 transition on March 17, 2008, and it is effective from that date through January 20, A Pre- Appointment Review Checklist is included as an attachment to the OPM memorandum and lists the documentation that a department s or agency s Director of Human Resources must submit to OPM along with a dated cover letter. OPM cautions departments and agencies not to [C]reate or announce a competitive service vacancy for the sole purpose of selecting a current or former Schedule C or Noncareer SES employee. [R]emove the Schedule C or Noncareer SES elements of a position solely to appoint the incumbent into the competitive service These regulations are codified at 5 C.F.R (c), 5 C.F.R , and 5 C.F.R (c), respectively U.S.C and 5 C.F.R U.S. Office of Personnel Management, Memorandum for Heads of Departments and Agencies, from Linda M. Springer, Director, Appointments and Awards During the 2008 (continued...)

132 CRS-25 To assist departments and agencies, OPM also publishes the Presidential Transition Guide to Federal Human Resources Management every four years. 92 The current edition, released in June 2008, includes detailed guidance on standards of ethical conduct, appointments, and compensation for federal employees. GAO s oversight focuses on review, after the fact, of conversions from noncareer to career positions. The agency has begun to collect data from executive branch departments and agencies on such conversions that have occurred since its last evaluation was published in May The results of that audit covered the period May 2001 through April 2005, and provide the most current retrospective data. The evaluation found that, of 130 conversions at GS-12 or higher, for 37 of these conversions it appears that agencies did not follow proper procedures or agencies did not provide enough information for us to make an assessment. For 18 of the 37 of these conversions, it appears that agencies did not follow proper procedures. Some of the apparent improper procedures included: selecting former noncareer appointees who appeared to have limited qualifications and experience for career positions, creating career positions specifically for particular individuals, and failing to apply veteran s preference in the selection process. 93 As part of its oversight of government operations, Congress also monitors conversions. In the 110 th Congress, staffing at the Departments of Homeland Security (DHS) and Justice (DOJ) has been of particular interest, especially in the wake of the leadership and management deficiencies at DHS during and after Hurricane Katrina, and improper procedures used by DOJ staff in selecting and removing United States attorneys. 94 Both departments received letters from Members of Congress reminding them to examine conversions: the Chairman of the House Committee on Homeland Security, Representative Bennie Thompson, wrote to the 91 (...continued) Presidential Election Period, March 17, U.S. Office of Personnel Management, Presidential Transition Guide to Federal Human Resources Management, June 2008, available at [ Transmittals/Attachments/trans1300.pdf]. 93 U.S. Government Accountability Office, Personnel Practices; Conversions of Employees from Noncareer to Career Positions May 2001-April 2005, GAO , May 2006, pp For a discussion of findings from earlier GAO evaluations, see CRS Report RS20730, Presidential Transitions and Administrative Actions, by L. Elaine Halchin, June 5, 2001, available from CRS. 94 See, for example, U.S. Congress, House Select Bipartisan Committee to Investigate the Preparation For and Response to Hurricane Katrina, A Failure of Initiative: Final Report of the Select Bipartisan Committee to Investigate the Preparation For and Response to Hurricane Katrina, 109 th Cong., 2 nd sess. (Washington: GPO, Feb. 15, 2006); U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Hurricane Katrina: A Nation Still Unprepared. Special Report, 109 th Cong., 2 nd sess., S.Rept (Washington: GPO, 2006); and U.S. Department of Justice, Office of Professional Responsibility and Office of the Inspector General, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, July 28, 2008.

133 CRS-26 DHS Secretary in February 2008, and Senators Dianne Feinstein and Charles Schumer, members of the Senate Committee on the Judiciary, wrote to the Attorney General in July 2008 about this issue. In assessing the current situation, Congress may decide that the existing oversight is sufficient. If Congress determines that additional measures are needed to further ensure that conversions from appointed (noncareer) positions to career positions are conducted according to proper procedures and transparent, Congress could direct OPM, and the departments and agencies, to include information on conversions in the annual performance plans that accompany the submission of their budget justifications to the Hill each February. The Government Accountability Office and OPM could jointly explore options that would result in their recommending and taking, respectively, any remedial actions that are necessary to address improper conversions promptly. OPM also could be directed by Congress to report on whether any changes are needed in the time period covered by the agency s pre-appointment review of conversions, or in the Presidential Election Period, that restricts financial awards to senior politically appointed officers. OPM issued its memorandum on pre-appointment review for 2000 on February 18; for 2004, on March 18; and for 2008, on March 17. As discussed above, the dates of the Presidential Election Period are defined by law, and in a presidential election year, cover the period from June 1 through the following January 20. Political Appointments into the Next Presidency The installation of executive branch political appointees and federal judges is another area of presidential activity that may be of concern to Congress in the last months of an Administration. Under certain circumstances, outgoing Presidents have used the constitutional authority of the office to make recess appointments that lasted into the succeeding presidency. Appointment Authority for Officers of the United States In general, the President and the Senate share the power to fill the top nonelected offices of the United States government. As part of its system of checks and balances, the Constitution provides a general framework for appointments to these positions: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments Art. II, 2, cl. 2.

134 CRS-27 In practice, the appointment process has three phases: 1) the President selects, vets, and nominates an individual, with or without input from Senators; 2) the Senate considers the nomination, with or without further action; and 3) if the nomination is confirmed by the Senate, the President signs a commission, and the appointee is sworn in. The Constitution also empowers the President unilaterally to make a temporary appointment to such a position if it is vacant and the Senate is in recess. 96 Such an appointment, termed a recess appointment, expires at the end of the following session of the Senate. 97 At the longest, a recess appointment made in early January, after the beginning of a new session of the Senate, would last until the Senate adjourns sine die at the end of the following year, a period that could be nearly two years in duration. Tenure During a Transition for a Confirmed Appointee Unless otherwise specified in law, appointees to executive branch positions usually serve at the pleasure of the President. That is, they serve for an indeterminate period of time and can be removed by the President at any time for any reason (or no stated reason). 98 By tradition, appointees to these positions usually step down when the appointing President leaves office, unless asked to stay by the President-elect. Congress has periodically elected to set a specific term of office for a particular position, restrict the President s power of removal for a particular position, or both. Some removal restriction provisions require only that the President inform Congress of his reasons for removing an official, while others require that a certain threshold, such as neglect of duty, or malfeasance in office, or for other good cause shown, be met. 99 The use of fixed terms and removal restrictions has been more common for positions on regulatory and other boards and commissions, for which Congress has elected to establish a greater level of independence from the President, than for 96 Article 2, 2, clause 3 reads, The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. 97 Each Congress covers a two-year period, generally composed of two sessions. 98 It has long been recognized that the power of removal [is] incident to the power of appointment. (Ex Parte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839).) 99 There appears to be no standard clarifying under what circumstances the thresholds set by these statutory terms regarding removal might be met. (See Marshall J. Breger and Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, Administrative Law Review, vol. 52 (2000), p. 1111, at pp ) A Senate committee has asserted, however, that a removal for good cause must be based on some type of misconduct, as opposed to the refusal to carry out a presidential order. (See U.S. Congress, Senate Committee on Governmental Affairs, Independent Counsel Reauthorization Act of 1987, report to accompany S. 1293, 100 th Cong., 1 st sess., S.Rept (Washington: GPO, 1987), pp ).

135 CRS-28 positions in executive departments and agencies. 100 An appointee to a position with a fixed term and protection from removal may serve during more than one presidency; he or she is not required to step down when the appointing President leaves office, and the incoming President may not remove him or her unless the grounds for such removal would meet the threshold established in statute. An appointee to a position with a fixed term but no specified protection from removal may be protected from removal nonetheless, based on case law. 101 Even where an appointee to such a position is not protected from removal, it could be argued that the fixed term establishes the expectation that the incumbent will be able to serve for a certain period. However, removal of such an appointee by the incoming President might entail the expenditure of more political capital than would otherwise be required. Under the Constitution, most federal judges those appointed under Article III hold their Offices during good Behaviour, 102 and this is generally understood to confer lifetime tenure. Consequently, although they, like the executive branch officials discussed above, are appointed to their offices by the President, with the advice and consent of the Senate, they are not subject to removal by the President, and may continue to hold office into the next presidency. These judges may be removed only after conviction on impeachment. 103 Tenure During a Transition for a Recess Appointee Outgoing Presidents have made recess appointments, during their final months in office, to each of the kinds of positions described above. The potential tenure for recess appointees to positions without removal protections is the same as it would be if the appointee had been confirmed by the Senate; they typically leave with the appointing President. Recess appointees to positions with fixed terms and removal protection, however, may serve until the expiration of the term to which they were appointed or the expiration of the recess appointment, whichever occurs earlier. 104 Recess appointees to Article III judgeships may serve until the expiration of the 100 Although fixed terms and removal protections for department and agency positions are unusual, notable examples do exist. The position of Commissioner of Social Security, for example, has a six-year term, and [a]n individual serving in the office of Commissioner may be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office (42 U.S.C. 902(a).) 101 See, for example, S.E.C. v. Blinder, Robinson & Co., Inc., 855 F.2d 677, 681 (10th Cir. 1988), in which the Court of Appeals for the Tenth Circuit stated that it is commonly understood that the President may remove a commissioner only for inefficiency, neglect of duty or malfeasance in office. 102 Article III, See CRS Report RL32935, Congressional Oversight of Judges and Justices, by Elizabeth B. Bazan and Morton Rosenberg ( Section V. Impeachment ). 104 As previously noted, a recess appointment can last for as much as nearly two years. A full fixed term is usually of longer duration, but sometimes individuals are appointed to the final portion of an unexpired term that is already under way (e.g., the final year of a five year term begun by another appointee).

136 CRS-29 recess appointment. 105 A President could, at the end of his presidency, use a recess appointment to bypass the Senate and fill a fixed-term position or federal judgeship for a period that would outlast his time in office by a year or more. As noted above, even an appointee without explicit statutory removal protection might prove difficult or costly for an incoming President to remove. In some cases, recess appointees who serve past the end of an Administration might be consensus appointees, who have the support of the incoming President and the reconstituted Senate. In other cases, however, an outgoing President could install more controversial appointees, who would not be nominated, by the new President, or confirmed, by the reconstituted Senate, to the positions to which they are appointed. It could be argued that the outgoing President carries the full constitutional authority of the office until his term is over, that he must be able to exercise that authority as he sees fit, and that he should not be expected to abstain from implementing his agenda until he leaves office. Furthermore, it might be argued, other recent Presidents have made recess appointments in their final months in office, and some of these recess appointments have been to positions with terms that carry over into the following Presidency. A counter argument might be made that, in making recess appointments to fixed term positions with removal protections, an outgoing President would be effectively circumventing the Senate and undermining the incoming President. Senate Pro Forma Sessions to Block Recess Appointments Beginning in the fall of 2007, the Senate has used parliamentary procedures to prevent the occurrence of a recess during which the President might make recess appointments. Such procedures, if employed during the final months of a presidency, might prevent the President from exercising the authority in the manner described above. The plan to use these procedures during the 110 th Congress was first announced in the Senate on November 16, 2007, when the Senate Majority Leader stated that the Senate would be coming in for pro forma sessions during the Thanksgiving holiday to prevent recess appointments. 106 The Senate recessed later that day and pro forma meetings 107 were convened on November 20, 23, 27, and 29, with no business conducted. The Senate next conducted business after reconvening on December 3, The President made no recess appointments during that period. 105 Recess appointments to Article III judgeships, though not uncommon historically, have become rare, and controversial, in recent decades. (See CRS Report RL32971, Judicial Recess Appointments: A Legal Overview, by T.J. Halstead.) President William J. Clinton made one such appointment less than a month before he left office, on December 27, As of November 24, 2008, President George W. Bush had made two recess appointments to federal judgeships, both in early Sen. Harry Reid, Recess Appointments, remarks in the Senate, Congressional Record, daily edition, vol. 153 (Nov. 16, 2007), p. S A pro forma session is a short meeting of the House or Senate during which it is understood that no business will be conducted.

137 CRS-30 On December 19, 2007, the Senate Majority Leader announced that similar pro forma meetings would be held in the following days, again for the purpose of preventing the President from making recess appointments. 108 Later that day, the Senate agreed, by unanimous consent, to hold a series of pro forma meetings until sine die adjournment of the first session, and to hold another series beginning with the convening of the second session. 109 The Senate recessed on December 19, 2007, and pro forma meetings were held on December 21, 23, 26, 28, and 31. The Senate adjourned sine die on December 31, On January 3, 2008, the Senate convened its second session, but no other business was conducted. Pro forma meetings of the Senate were held on January 7, 9, 11, 15, and 18. On January 22, the Senate reconvened and conducted business. The President made no recess appointments between December 19, 2007, and January 22, Similar procedures were followed during other periods, in 2008, that would otherwise have been Senate recesses of a week or longer in duration. 110 On September 17, 2008, the Senate Majority Leader announced, with regard to the Senate, We are going to have to get some committee hearings underway, which is why we are not going to adjourn. We will be in pro forma session so committees can still meet, though we won t have any activities here on the floor as relates to these markets. 111 On October 2, 2008, the Senate agreed, by unanimous consent, to hold a series of pro forma meetings between that date and November 17, 2008, when they would reconvene and conduct business. 112 Submission of the President s Budget in Transition Years When a new Congress convenes in January, one of its first orders of business is to receive the annual budget submission of the President for the upcoming fiscal 108 Sen. Harry Reid, Order of Business, remarks in the Senate, Congressional Record, daily edition, vol. 153 (Dec. 19, 2007), p. S Sen. Harry Reid, Order of Procedure, remarks in the Senate, Congressional Record, daily edition, vol. 153 (Dec. 19, 2007), p. S See Sen. Harry Reid, Order of Procedure, remarks in the Senate, Congressional Record, daily edition, vol. 154 (Feb. 14, 2008), p. S1085; Sen. Harry Reid, Order of Procedure, remarks in the Senate, Congressional Record, daily edition, vol. 154 (Mar. 14, 2008), p. S219; Sen. Harry Reid, Orders of Procedure, remarks in the Senate, Congressional Record, daily edition, vol. 154 (May 22, 2008), p. S4849; Sen. Carl Levin, Orders for Monday, June 30, and Monday July 7, 2008, remarks in the Senate, Congressional Record, daily edition, vol. 154 (June 27, 2008), p. S6336; and Sen. Harry Reid, Order for Pro Forma Sessions, remarks in the Senate, Congressional Record, daily edition, vol. 154 (Aug. 1, 2008), p. S Sen. Harry Reid, The Economy, remarks in the Senate, Congressional Record, daily edition, vol. 154 (Sept. 17, 2008), p. S Sen. Carl Levin, Orders for Monday, October 6, 2008, through Monday, November 17, 2008, remarks in the Senate, Congressional Record, daily edition, vol. 154 (Oct. 2, 2008), p. S10504.

138 CRS-31 year, which begins on October 1. Following receipt of the President s budget, Congress begins the consideration of the budget resolution and other budgetary legislation. The transition from one presidential Administration to another raises special issues regarding the annual budget submission. Which President the outgoing President or the incoming one is required to submit the budget, and how will the transition affect the timing and form of the submission? This section provides background information that addresses these questions. 113 Is the Outgoing or Incoming President Required to Submit the Budget? The Budget and Accounting Act of 1921, 114 as amended, requires the President to submit a budget annually to Congress toward the beginning of each regular session. This requirement first applied to President Harding for FY1923. The deadline for submission of the budget, first set in 1921 as on the first day of each regular session, has changed several times over the years:! in 1950, to during the first 15 days of each regular session ;! in 1985, to on or before the first Monday after January 3 of each year (or on or before February 5 in 1986) ; and! in 1990, to on or after the first Monday in January but not later than the first Monday in February of each year. The 20 th Amendment to the Constitution, ratified in 1933, requires each new Congress to convene on January 3 (unless the date is changed by the enactment of a law) and provides a January 20 beginning date for a new President s four-year term of office. Therefore, under the legal framework for the beginning of a new Congress, the beginning of a new President s term, and the deadline for the submission of the budget, all outgoing Presidents prior to the 1990 change were obligated to submit a budget. 115 The 1990 change in the deadline made it possible for an outgoing President to leave the annual budget submission to his successor, an option which the outgoing Presidents since then have taken. Incoming Presidents, except for Harding, Clinton, and George W. Bush, assumed their position with a budget of their predecessor in place. Under the 1921 act, Presidents may submit budget revisions to Congress at any time. Six incoming Presidents chose to modify their predecessor s policies by submitting budget revisions shortly after taking office: Eisenhower, Kennedy, Nixon, Ford, Carter, and 113 For additional information on this topic, see CRS Report RS20752, Submission of the President s Budget in Transition Years, by Robert Keith. 114 The 1921 act was P.L (June 10, 1921); 42 Stat. 20; 31 U.S.C The 1990 change was made by Section 13112(c)(1) of the Budget Enforcement Act of 1990 (104 Stat and 609), which was included in the Omnibus Budget Reconciliation Act of 1990 (P.L ).

139 CRS-32 Reagan. 116 Four Presidents Roosevelt, Truman, Johnson, and George H. W. Bush chose not to submit budget revisions. Because President George H. W. Bush chose not to submit a budget for FY1994 (and was not obligated to do so), President Clinton submitted the original budget for FY1994 rather than budget revisions. Similarly, the budget for FY2002 was submitted by the incoming President George W. Bush, rather than by outgoing President Clinton. The Office of Management and Budget (OMB) provided considerable advance notice of the plan for FY President George W. Bush indicated early on that he will not submit a budget for FY2010, which is subject to a deadline of Monday, February 2, In announcing the decision, OMB Director Jim Nussle stated the following: The FY 2010 budget will be submitted by the next President. In order to lay the groundwork for the next Administration, we intend to prepare a budget database that includes a complete current services baseline and to gather information to develop current services program estimates for FY 2010 from which the incoming Administration can develop its budget proposals. 118 Transition Budgets in Recent Years: Timing and Form During the period beginning with the full implementation of the congressional budget process (in 1976 for FY1977), five transitions of presidential administration have occurred. The three outgoing Presidents required to submit a budget during this period (Ford, Carter, and Reagan) did so on or before the statutory deadline. Once the original budget for a fiscal year has been submitted, a President or his successor may submit revisions at any time. Two of the incoming Presidents during this period (Carter and Reagan) submitted budget revisions and one (George H. W. Bush) did not. The FY1978 revisions by President Carter (a 101-page document) were submitted on February 22 and the FY1982 revisions by President Reagan (an initial 159-page document and a subsequent 435-page document) were submitted on March 10 and April 7, respectively. As stated previously, Presidents Clinton and George W. Bush submitted the original budgets for FY1994 and FY2002 as incoming Presidents (on April 8, 1993 and April 9, 2001, respectively). 116 CRS Report GOV, The President s Budget Submission: Format, Deadlines, and Transition Years, by Virginia A. McMurtry and James V. Saturno, pp (The report is archived and may be obtained from the authors.) 117 See U.S. Office of Management and Budget, Memorandum M-00-12, Requirements for Development of the FY2002 Transition Budget, June 2, 2000, available at [ 118 U.S. Office of Management and Budget, Memorandum 08-17, Requirements for the FY 2010 Budget Process, April 7, 2008, p. 1, available at [ memoranda/fy2008/m08-17.pdf].

140 CRS-33 In past years, Congress authorized the submission of a budget for a fiscal year after the statutory deadline by enacting a deadline extension in law (see, for example, the deadline extension for the FY1986 budget in P.L. 99-1). Beginning in the late 1980s, however, several original budgets have been submitted late without authorization; for FY1989 and the transition-year budget for FY1994, for example, the budget was submitted after the deadline (by 45 and 66 days, respectively) without the consideration of any measure granting a deadline extension. Like the budget itself, the revisions may take whatever form the President desires. They have ranged from piecemeal submissions in the earlier instances to consolidated budget messages beginning with President Ford. Although Presidents Reagan, Clinton, and George W. Bush did not submit detailed budget proposals during their transitions until early April, each of them advised Congress regarding the general contours of their economic and budgetary policies in special messages submitted to Congress in February concurrently with a presentation made to a joint session of Congress:! on February 18, 1981, President Reagan submitted a document containing an economic plan and initial budget proposals for FY1982, America s New Beginning: A Program for Economic Recovery, in conjunction with an address to a joint session of Congress;! on February 17, 1993, President Clinton submitted to Congress a budgetary document, A Vision of Change for America, to accompany his address to a joint session of Congress. The 145-page document outlined the President s economic plan and provided initial budget proposals in key areas; and! on February 28, 2001, President George W. Bush submitted a 207- page budget summary to Congress, A Blueprint for New Beginnings: A Responsible Budget for America s Priorities, the day after his address to a joint session of Congress. Although President George H. W. Bush did not submit a revision of President Reagan s FY1990 budget, he submitted a 193-page message to Congress (Building a Better America) in conjunction with a joint address to Congress on February 9, The message included revised budget proposals. To facilitate the development of the budget for the incoming Administration, President George H. W. Bush (on January 6, 1993) and President Clinton (on January 16, 2001) submitted budget documents that provided historical data, revised budget projections, and updated economic and programmatic information.

141 The Enactment of Appropriations Measures During Lame Duck Sessions Jessica Tollestrup Specialist on Congress and the Legislative Process December 2, 2015 Congressional Research Service RL34597

142 The Enactment of Appropriations Measures During Lame Duck Sessions Summary Ten of the past 11 Congresses, covering the 103 rd Congress through the 113 th Congress, have concluded with a lame duck session. (No such session occurred in 1996, during the 104 th Congress.) Under contemporary conditions, any meeting of Congress that occurs between a congressional election in November and the following January 3 is a lame duck session. The significant characteristic of a lame duck session is that its participants are the sitting Members of the existing Congress, not those who will be entitled to sit in the new Congress. The enactment of appropriations measures has been an element of most of these lame duck sessions. Although no regular or continuing appropriations measures were enacted during lame duck sessions held in 1994, 1998, 2008, and 2012, a total of 25 regular and 17 continuing appropriations measures were enacted during the six other lame duck sessions held in 2000, 2002, 2004, 2006, 2010, and Although some (and occasionally all) of the regular appropriations bills for a fiscal year may be enacted before it begins, in recent decades it has been common for at least some of the regular appropriations bills to be enacted after the start of the fiscal year. In the past, this has triggered the necessity for continuing resolutions (CRs) to extend spending authority until the annual appropriations acts have been enacted and led to the consideration of regular appropriations legislation during the last quarter of the calendar year or even during the following session. A lame duck session occurs during the period following Election Day which is the Tuesday after the first Monday in November of each even-numbered year and before the convening of a new Congress about two months later in early January. Several factors may contribute to the occurrence of lame duck sessions, including the need to deal with unfinished appropriations or other budgetary matters. This report provides information on the enactment of annual appropriations acts in the years that lame duck sessions occurred between 1994 and 2014 (FY1995, FY1999, FY2001, FY2003, FY2005, FY2007, FY2009, FY2011, FY2013, and FY2015). Between calendar years 1994 and 2012, lame duck sessions have in some instances afforded Congress an opportunity to complete action on regular appropriations for a fiscal year. In other instances, lame duck sessions played little or no role in this regard, as action on regular appropriations was completed well before or after a lame duck session. In total, 45 of the 124 regular appropriations acts during this period were enacted before the beginning of the applicable lame duck session, 25 were enacted during a lame duck session, and 54 were enacted afterward. Continuing appropriations measures were also an important element in some, but not all, of the lame duck sessions that occurred between calendar years 1994 and In total, 31 of the 58 CRs were enacted before the beginning of the applicable lame duck session, 17 were enacted during the lame duck session, and 10 were enacted afterward. The report will be updated as developments warrant. Congressional Research Service

143 The Enactment of Appropriations Measures During Lame Duck Sessions Contents Background... 1 Overview of the Enactment of Appropriations Measures Before, During, and After Lame Duck Sessions... 2 Regular Appropriations Acts... 3 Continuing Appropriations Acts... 6 Summary of Action on Appropriations Measures in Lame Duck Sessions Held in and 1998 Lame Duck Sessions Lame Duck Session Lame Duck Session Lame Duck Session Lame Duck Session Lame Duck Session Lame Duck Session Lame Duck Session Lame Duck Session Figures Figure 1. Regular Appropriations Acts Enacted Before, During, and After Lame Duck Sessions: Tables Table 1. Duration of Lame Duck Session and Party Control of Government: Table 2. Enactment of Regular Appropriations Acts into Law Before, During, and After Lame Duck Sessions: Table 3. Enactment of Continuing Appropriations Acts into Law Before, During, and After Lame Duck Sessions: Table 4. Annual Appropriations Acts and CRs Enacted During Lame Duck Sessions: Contacts Author Contact Information... 1 Acknowledgments... 1 Congressional Research Service

144 The Enactment of Appropriations Measures During Lame Duck Sessions T he activities of most federal agencies are funded by means of annual appropriations provided in one or more of the regular appropriations acts that are enacted each fiscal year. Although some (and occasionally all) of the regular appropriations bills may be enacted before the fiscal year begins, in recent decades it has been common for most if not all of the regular appropriations bills to be enacted after the start of the fiscal year. 1 In some recent instances including FY2007, FY2009, FY2011, FY2013, and FY2015 the consideration of regular appropriations bills has carried over to the following session of Congress. When action on the regular appropriations acts is delayed beyond the start of the fiscal year, Congress may use one or more continuing appropriations acts (commonly known as continuing resolutions or CRs) to provide stop-gap funding. Ten of the past 11 Congresses, covering the 103 rd Congress through the 114 th Congress, have concluded with a lame duck session. 2 The enactment of appropriations measures has been an important element of most of these sessions. Although no regular or continuing appropriation measures were enacted during lame duck sessions held in 1994, 1998, 2008, and 2012, a total of 25 regular and 17 continuing appropriations measures were enacted during the six other lame duck sessions held in 2000, 2002, 2004, 2006, 2010, and This report provides information on the enactment of regular and continuing appropriations measures in connection with lame duck sessions occurring between 1994 and Background A lame duck session occurs during the period following Election Day, which is the Tuesday after the first Monday in November of each even-numbered year, and before the convening of a new Congress about two months later in early January. Under the 20 th Amendment to the Constitution, Congress is required to convene at noon on January 3 following the election, unless by statute it designates a different day. 3 In recent years, new Congresses have convened during the first week of January in each odd-numbered year but not necessarily on January 3. As pointed out in a CRS report: A lame duck session of Congress is one that takes place after the election for the next Congress has been held, but before the current Congress has reached the end of its constitutional term. Under contemporary conditions, any meeting of Congress that occurs between a congressional election in November and the following January 3 is a lame duck session. The significant characteristic of a lame duck session is that its participants are the sitting Members of the existing Congress, not those who will be entitled to sit in the new Congress. 4 1 Regular appropriations bills may be enacted as freestanding legislative vehicles or as part of an omnibus appropriations act. For further information on the latter, see CRS Report RL32473, Omnibus Appropriations Acts: Overview of Recent Practices, by Jessica Tollestrup. In addition, annual appropriations are sometimes provided by a full-year CR that funds (or covers ) the activities that would normally be funded in a regular appropriations act. For further information, see CRS Report R42647, Continuing Resolutions: Overview of Components and Recent Practices, by Jessica Tollestrup. 2 No such session occurred in 1996 during the 104 th Congress. 3 Section 2 of the 20 th Amendment states: The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. See Constitution Annotated on the CRS website at 4 CRS Report RL33677, Lame Duck Sessions of Congress, (74th-112th Congresses), by Richard S. Beth and Jessica Tollestrup. Congressional Research Service 1

145 The Enactment of Appropriations Measures During Lame Duck Sessions Several factors may contribute to the occurrence of lame duck sessions, including the need to deal with unfinished business or urgent matters that have arisen suddenly. The consideration and enactment of legislative proposals, particularly those with significant budgetary implications, is sometimes postponed until a lame duck session. For example, the American Taxpayer Relief Act of 2012 (P.L ), which addressed a number of fiscal policies, was enacted at the end of the 2012 lame duck session on January 2, Lame duck sessions have been used in recent years for various purposes, including efforts to bring action on regular appropriations bills for a fiscal year to a close. In addition to action on appropriations measures, lame duck sessions have been used for such matters as the consideration of authorization measures for the Department of Defense and intelligence activities, the finalization of a measure establishing the Department of Homeland Security (DHS), and the House impeachment proceedings against President Bill Clinton. Twenty lame duck sessions occurred between 1935 and Ten of the 20 lame duck sessions occurred between 1935 and 1990, an average of one every five years. The use of such sessions, however, has become more common in recent years, occurring about twice as frequently. The remaining 10 lame duck sessions which occurred after the 1994, 1998, 2000, 2002, 2004, 2006, 2008, 2010, 2012, and 2014 elections covered a span of 11 Congresses. As Table 1 shows, lame duck sessions occurred during this period whether party control of the federal government was unified (i.e., the same party controlled the presidency and both chambers of Congress, as in 1994, 2004, 2006, and 2010) or divided. Further, lame duck sessions occurred in presidential election years (2000, 2004, 2008, and 2012) as well as non-presidential election years. Overview of the Enactment of Appropriations Measures Before, During, and After Lame Duck Sessions Between calendar years 1994 and 2014, lame duck sessions have in some instances afforded Congress an opportunity to complete action on regular appropriations for a fiscal year. In other instances, lame duck sessions played little or no role in this regard, as action on regular appropriations was completed well before or after a lame duck session. A total of 124 regular appropriations acts were enacted (or covered by full-year CRs) for the fiscal years that coincided with lame duck sessions. In addition, a total of 58 continuing appropriations measures were enacted for the fiscal years that coincided with lame duck sessions during this same period. As was the case for the regular appropriations bills, the continuing appropriations measures were an important element in some of the lame duck sessions. Further information with regard to the annual appropriations acts and CRs that were enacted before, during, and after each lame duck session is displayed in Table 4 and discussed in the 5 For further information on the American Taxpayer Relief Act of 2012, see CRS Report R42884, The Fiscal Cliff and the American Taxpayer Relief Act of 2012, coordinated by Mindy R. Levit. 6 See CRS Report RL33677, Lame Duck Sessions of Congress, (74th-112th Congresses), by Richard S. Beth and Jessica Tollestrup. According to the report, [t]he possibility of a lame duck session of Congress in the modern sense began in 1935, when the 20 th Amendment to the Constitution took effect. Congressional Research Service 2

146 The Enactment of Appropriations Measures During Lame Duck Sessions report section Summary of Action on Appropriations Measures in Lame Duck Sessions Held in Table 1. Duration of Lame Duck Session and Party Control of Government: Lame Duck Session Party Control Congress Dates Duration (in calendar days) a Presidency b House Senate 103 rd 11/29-12/ D (Clinton) D D 104 th [none] D (Clinton) R R 105 th 12/17-12/ D (Clinton) R R 106 th 11/13-12/ D (Clinton) R R 107 th 11/7-11/ R (GW Bush) R D 108 th 11/16-12/ R (GW Bush) R R 109 th 11/9-12/ c 31 R (GW Bush) R R 110 th 11/ /3/ R (GW Bush) D D 111 th 11/4-12/ D (Obama) D D 112 th 11/9/2012-1/3/ D (Obama) R D 114 th 11/12/2014-1/3/ D (Obama) R D Source: Prepared by the Congressional Research Service using data from the Legislative Information System and CQ Guide to Congress, 6 th ed., vol. II (Washington: CQ Press, 2008), p a. Duration refers to the span of days from the first date to the last date that the House, the Senate, or both were in session. This does not refer to the number of days that one or both chambers were in session during that period. b. D refers to the Democratic Party and R refers to the Republican Party. c. The House and Senate adjourned early in the morning of December 9 (before 5:00 a.m.). Regular Appropriations Acts The variation in the incidence of lame duck sessions and the enactment of regular appropriations bills is shown in Figure 1 and Table 2. As the figure shows, there have been considerable differences in the degree to which regular appropriations have been completed before, during, or after the 10 most recent lame duck sessions held since The count of regular appropriations acts in Figure 1 and Table 2 includes those that were enacted in standalone vehicles, omnibus vehicles, or covered by full year CRs. During the 109 th Congress, covering 2005 and 2006, the number of regular appropriations acts was reduced from 13 to 11 due to reorganization of the Congressional Research Service 3

147 The Enactment of Appropriations Measures During Lame Duck Sessions House and Senate Appropriations Committees. 7 At the beginning of the 110 th Congress, a further reorganization of the appropriations subcommittees took effect, which resulted in an increase in the number of annual appropriations acts to Figure 1. Regular Appropriations Acts Enacted Before, During, and After Lame Duck Sessions: Source: Prepared by the Congressional Research Service using data from the Legislative Information System. Notes: During the 109 th Congress, covering 2005 and 2006, the number of regular appropriations acts was reduced from 13 to 11 due to reorganization of the House and Senate Appropriations Committees. At the beginning of the 110 th Congress, a further reorganization of the appropriations subcommittees took effect, which resulted in an increase in the number of annual appropriations acts to 12. For further information, see CRS Report RL31572, Appropriations Subcommittee Structure: History of Changes from 1920 to 2015, by James V. Saturno and Jessica Tollestrup. Four of the five regular appropriations acts for FY2001 considered during the lame duck session in 2000 were signed into law six days after the session ended but are considered for purposes of this report as having been enacted during the lame duck session. In total, 45 of the 124 regular appropriations acts during this period were enacted before the beginning of the applicable lame duck session, 25 were enacted during a lame duck session, and 54 were enacted afterward. 9 7 Although initial consideration of appropriations legislation in the two chambers differed in both the number and substance of the appropriations acts, the final acts that were agreed to numbered 11. See CRS Report RL31572, Appropriations Subcommittee Structure: History of Changes from 1920 to 2015, by James V. Saturno and Jessica Tollestrup. 8 Ibid. 9 In 2000, the House and Senate completed action on five regular appropriations acts for FY2001 during the lame duck session, but four of them were signed into law on December 21, six days after the session had ended. For purposes of this report, all five acts are regarded as having been enacted during the lame duck session. Congressional Research Service 4