II Calendar No. 166 114th CONGRESS 1st Session S. 1172 [Report No. 114–94] IN THE SENATE OF THE UNITED STATES April 30, 2015 Mr. Carper (for himself and Mr. Johnson ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs July 27, 2015 Reported by Mr. Johnson , with amendments Insert the part printed in italic A BILL To improve the process of presidential transition.

1. Short title This Act may be cited as the “ Edward ‘Ted’ Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015”. 2. Presidential transition improvements (a) In general The Presidential Transition Act of 1963 ( 3 U.S.C. 102 note) is amended— (1) by redesignating sections 4, 5, and 6 as sections 5, 6, and 7, respectively; and (2) by inserting after section 3 the following: 4. Transition services and activities before election (a) Definitions In this section— (1) the term Administrator means the Administrator of General Services; (2) the term agency means an Executive agency, as defined in section 105 of title 5, United States Code; (3) the term eligible candidate has the meaning given that term in section 3(h)(4); and (4) the term Presidential election means a general election held to determine the electors of President and Vice President under section 1 or 2 of title 3, United States Code. (b) General duties The President shall take such actions as the President determines necessary and appropriate to plan and coordinate activities by the Executive branch of the Federal Government to facilitate an efficient transfer of power to a successor President, including by— (1) establishing and operating a White House transition coordinating council in accordance with subsection (d); and (2) establishing and operating an agency transition directors council in accordance with subsection (e). (c) Federal Transition Coordinator The Administrator shall designate an employee of the General Services Administration who is a senior career appointee to— (1) carry out the duties and authorities of the General Services Administration relating to Presidential transitions under this Act or any other provision of law; (2) serve as the Federal Transition Coordinator with responsibility for coordinating transition planning across agencies, including through the agency transition directors council established under subsection (e); (3) ensure agencies comply with all statutory requirements relating to transition planning and reporting; and (4) act as a liaison to eligible candidates. (d) White house transition coordinating council (1) Establishment Not later than 6 months before the date of a Presidential election, the President shall establish a White House transition coordinating council for purposes of facilitating the Presidential transition. (2) Duties The White House transition coordinating council shall— (A) provide guidance to agencies and the Federal Transition Coordinator regarding preparations for the Presidential transition, including succession planning and preparation of briefing materials; (B) facilitate communication and information sharing between the transition representatives of eligible candidates and senior employees in agencies and the Executive Office of the President; and (C) prepare and host interagency emergency preparedness and response exercises. (3) Membership The members of the White House transition coordinating council shall include— (A) senior employees of the Executive branch selected by the President, which may include the Chief of Staff to the President, any Cabinet officer, the Director of the Office of Management and Budget, the Administrator, the Director of the Office of Personnel Management, the Director of the Office of Government Ethics, and the Archivist of the United States; (B) the Federal Transition Coordinator; (C) the transition representative for each eligible candidate, who shall serve in an advisory capacity; and (D) any other individual the President determines appropriate. (4) Chairperson The Chairperson of the White House transition coordinating council shall be a senior employee in the Executive Office of the President, designated by the President. (e) Agency transition directors council (1) In general The President shall establish and operate an agency transition directors council, which shall— (A) ensure the Federal Government has an integrated strategy for addressing interagency challenges and responsibilities around Presidential transitions and turnover of noncareer appointees; (B) coordinate transition activities between the Executive Office of the President, agencies, and the transition team of eligible candidates and the President-elect and Vice-President-elect; and (C) draw on guidance provided by the White House transition coordinating council and lessons learned from previous Presidential transitions in carrying out its duties. (2) Duties As part of carrying out the responsibilities under paragraph (1), the agency transition directors council shall— (A) assist the Federal Transition Coordinator in identifying and carrying out the responsibilities of the Federal Transition Coordinator relating to a Presidential transition; (B) provide guidance to agencies in gathering briefing materials and information relating to the Presidential transition that may be requested by eligible candidates; (C) ensure materials and information described in subparagraph (B) are prepared not later than November 1 of a year during which a Presidential election is held; (D) ensure agencies adequately prepare career employees who are designated to fill non-career positions under subsection (f) during a Presidential transition; and (E) consult with the President's Management Council, or any successor thereto, in carrying out the duties of the agency transition directors council. (3) Membership The members of the agency transition directors council shall include— (A) the Federal Transition Coordinator, who shall serve as Chairperson of the agency transition directors council; (B) a senior employee serving in the Executive Office of the President, who shall be appointed by the President; (C) a senior representative from each agency described in section 901(b)(1) of title 31, United States Code, the Office of Personnel Management, the Office of Government Ethics, and the National Archives and Records Administration whose responsibilities include leading Presidential transition efforts within the agency; (D) a senior representative from any other agency determined by the Federal Transition Coordinator to be an agency that has significant responsibilities relating to the Presidential transition process; and (E) during a year during which a Presidential election will be held, a transition representative for each eligible candidate, who shall serve in an advisory capacity. (4) Meetings The agency transition directors council shall meet— (A) subject to subparagraph (B), not less than once per year; and (B) during the period beginning on the date that is 6 months before a Presidential election and ending on the date on which the President-elect is inaugurated, on a regular basis as necessary to carry out the duties and authorities of the agency transition directors council. (f) Interim agency leadership for transitions (1) Oversight and implementation of transition Not later than 6 months before the date of a Presidential election, the head of each agency shall designate a senior career employee of the agency and a senior career employee of each major component and subcomponent of the agency to oversee and implement the activities of the agency, component, or subcomponent relating to the Presidential transition. (2) Acting officers Not later than September 15 of a year during which a Presidential election occurs, and in accordance with subchapter III of chapter 33 of title 5, United States Code, for each noncareer position in an agency that the head of the agency determines is critical, the head of the agency shall designate a qualified career employee to serve in the position in an acting capacity if the position becomes vacant. (g) Memorandums of understanding (1) In general Not later than November 1 of a year during which a Presidential election occurs, the President (acting through the Federal Transition Coordinator) shall, to the maximum extent practicable, negotiate a memorandum of understanding with the transition representative of each eligible candidate, which shall include, at a minimum, the conditions of access to employees, facilities, and documents of agencies by transition staff. (2) Existing resources To the maximum extent practicable, the memorandums of understanding negotiated under paragraph (1) shall be based on memorandums of understanding from previous Presidential transitions. (h) Equity in assistance Any information or other assistance provided to eligible candidates under this section shall be offered on an equal basis and without regard to political affiliation. (i) Reports (1) In general The President, acting through the Federal Transition Coordinator, shall submit to the Committee on Oversight and Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate reports describing the activities undertaken by the President and agencies to prepare for the transfer of power to a new President. (2) Timing The reports under paragraph (1) shall be provided 6 months and 3 months before the date of a Presidential election. . (b) Other improvements Section 3 of the Presidential Transition Act of 1963 ( 3 U.S.C. 102 note) is amended— (1) in subsection (a)— (A) in paragraph (8)— (i) in subparagraph (A)(i)— (I) by inserting and during the term of a President after during the transition ; and (II) by striking after inauguration ; and (ii) in subparagraph (B), by inserting or Executive agencies (as defined in section 105 of title 5, United States Code) before the period; and (B) in paragraph (10), by inserting including, to the greatest extent practicable, human resource management system software compatible with the software used by the incumbent President and likely to be used by the President-elect and Vice President-elect before the period; (2) in subsection (b)(2), by striking 30 days and inserting 180 days ; (3) in subsection (g), by inserting except for activities under subsection (a)(8)(A), before there shall be no ; and (4) in subsection (h)(2), by adding at the end the following: (D) An eligible candidate shall have a right to the services and facilities described in this paragraph until the date on which the Administrator is able to determine the apparent successful candidates for the office of President and Vice President. . (c) Technical and conforming amendments (1) Section 3 of the Pre-Election Presidential Transition Act of 2010 ( 3 U.S.C. 102 note) is repealed. (2) The Presidential Transition Act of 1963 ( 3 U.S.C. 102 note) is amended— (A) in section 3— (i) in subsection (a)(4)(B), by striking section 6 and inserting section 7 ; (ii) in subsection (b), in the matter preceding paragraph (1), by striking section 3 of this Act and inserting this section ; and (iii) in subsection (h)(3)(B)(iii), by striking section 5 each place it appears and inserting section 6 ; (B) in section 6, as redesignated by subsection (a) of this section, by striking section 6(a)(1) each place it appears and inserting section 7(a)(1) ; and (C) in section (7)(a)(2), as redesignated by subsection (a) of this section, by striking section 4 and inserting section 5 . (3) Section 8331(1)(K) of title 5, United States Code, is amended by striking section 4 and inserting section 5 . (4) Section 8701(a)(10) of title 5, United States Code, is amended by striking section 4 and inserting section 5 . (5) Section 8901(1)(I) of title 5, United States Code, is amended by striking section 4 and inserting section 5 . 3. National archives Presidential transition Section 2203(g) of title 44, United States Code, is amended— (1) by redesignating paragraph (3) as paragraph (4); and (2) by inserting after paragraph (2) the following: (3) When the President considers it practicable and in the public interest, the President shall include in the President's budget transmitted to Congress, for each fiscal year in which the term of office of the President will expire, such funds as may be necessary for carrying out the authorities of this subsection. . 4. Reports on political appointees appointed to nonpolitical permanent positions (a) Definitions In this section— (1) the term agency has the meaning given the term Executive agency in section 105 of title 5, United States Code; (2) the term covered civil service position means a position in the civil service (as defined in section 2101 of title 5, United States Code) that is not— (A) a temporary position; or (B) a political position; (3) the term former political appointee means an individual who— (A) is not serving in an appointment to a political position; and (B) served as a political appointee during the 5-year period ending on the date of the request for an appointment to a covered civil service position in any agency; (4) the term political appointee means an individual serving in an appointment to a political position; and (5) the term political position means— (A) a position described under sections 5312 through 5316 of title 5, United States Code (relating to the Executive Schedule); (B) a noncareer appointment in the Senior Executive Service, as defined under paragraph (7) of section 3132(a) of title 5, United States Code; or (C) a position in the executive branch of the Government of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations. (b) Reporting on current or recent political appointees appointed to covered civil service positions The Director of the Office of Personnel Management shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a quarterly report regarding requests by agencies to appoint political appointees or former political appointees to covered civil service positions, which shall— (1) for each request by an agency that a political appointee be appointed to a covered civil service position during the period covered by the quarterly report, provide— (A) the date on which the request was received by the Office of Personnel Management; (B) subject to subsection (c), the name of the individual and the political position held by the individual, including title, office, and agency; (C) the date on which the individual was first appointed to a political position in the agency in which the individual is serving as a political appointee; (D) the grade and rate of basic pay for the individual as a political appointee; (E) the proposed covered civil service position, including title, office, and agency, and the proposed grade and rate of basic pay for the individual; (F) whether the Office of Personnel Management approved or denied the request; and (G) the date on which the individual was appointed to a covered civil service position, if applicable; and (2) for each request by an agency that a former political appointee be appointed to a covered civil service position during the period covered by the quarterly report, provide— (A) the date on which the request was received by the Office of Personnel Management; (B) subject to subsection (c), the name of the individual and the political position held by the individual, including title, office, and agency; (C) the date on which the individual was first appointed to any political position; (D) the grade and rate of basic pay for the individual as a political appointee; (E) the date on which the individual ceased to serve in a political position; (F) the proposed covered civil service position, including title, office, and agency, and the proposed grade and rate of basic pay for the individual; (G) whether the Office of Personnel Management approved or denied the request; and (H) the date on which the individual was first appointed to a covered civil service position, if applicable. (c) Names and titles of certain appointees If determined appropriate by the Director of the Office of Personnel Management, a report submitted under subsection (b) may exclude the name or title of a political appointee or former political appointee— (1) who— (A) was requested to be appointed to a covered civil service position; and (B) was not appointed to a covered civil service position; or (2) relating to whom a request to be appointed to a covered civil service position is pending at the end of the period covered by that report. 5. Report on regulations promulgated near the end of presidential terms (a) Definitions In this section— (1) the term covered presidential transition period means— (A) the 120-day period ending on January 20, 1993. (B) the 120-day period ending on January 20, 2001; (C) the 120-day period ending on January 20, 2009; and (D) the 120-day period ending on January 20, 2017; (2) the term covered regulation means a final regulation promulgated by an Executive department; and (3) the term Executive department has the meaning given that term under section 101 of title 5, United States Code. (b) Reports (1) In general The Comptroller General of the United States shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a report regarding covered regulations promulgated during the covered presidential transition periods described in subparagraph (A), (B), or (C) of subsection (a)(1). (2) Next presidential transition The Comptroller General of the United States shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a report regarding covered regulations promulgated during the covered presidential transition period described in subsection (a)(1)(D). (3) Contents of reports The reports required under paragraphs (1) and (2) shall, for each covered presidential transition period covered by the report— (A) compare the number, scope, and cost (if possible) of, and type of rulemaking procedure used for, covered regulations promulgated during the covered presidential transition period to the number, scope, and cost of, and type of rulemaking procedure used for, covered regulations promulgated during the 120-day periods ending on January 20 of each year after 1988, other than 1993, 2001, and 2009; (B) determine the statistical significance of any differences identified under subparagraph (A) and whether and to what extent such differences indicate any patterns; (C) evaluate the size, scope, and effect of the covered regulations promulgated during the covered presidential transition period; and (D) assess the extent to which the regularly required processes for the promulgation of covered regulations were followed during the covered presidential transition period, including compliance with the requirements under— (i) chapter 8 of title 5, United States Code (commonly known as the Congressional Review Act ); (ii) the Small Business Regulatory Enforcement Fairness Act of 1996 ( 5 U.S.C. 601 note); (iii) chapter 6 of title 5, United States Code (commonly known as the Regulatory Flexibility Act ); and (iv) chapter 35 of title 44, United States Code (commonly known as the Paperwork Reduction Act ). 6. Analysis of threats and vulnerabilities (a) In general Not later than February 15, 2016, the Secretary of Homeland Security shall submit to Congress a report analyzing the threats and vulnerabilities facing the United States during a presidential transition, which— (1) shall identify and discuss vulnerabilities related to border security and threats related to terrorism, including from weapons of mass destruction; (2) shall identify steps being taken to address the threats and vulnerabilities during a presidential transition; and (3) may include recommendations for actions by components and agencies within the Department of Homeland Security. (b) Form The report submitted under subsection (a) shall be prepared in unclassified form, but may contain a classified annex.

July 27, 2015 Reported with amendments