Public Law 114-136 | Public Law 114–136: To improve the process of presidential transition.

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PUBLIC LAW 114–136—MAR. 18, 2016

130 STAT. 301

Public Law

114–136

114th Congress

An Act

To improve the process of presidential transition.

Mar. 18, 2016

[S. 1172]

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Edward ‘Ted’ Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015.

5 USC 101 note.

SECTION 1.

SHORT TITLE.

This Act may be cited as the “

Edward ‘Ted’ Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015

”.

SEC. 2.

PRESIDENTIAL TRANSITION IMPROVEMENTS.

(a)

In General.—

The Presidential Transition Act of 1963 (3 U.S.C. 102 note)

is amended

—

(1)

redesignating

sections 4, 5, and 6 as sections 5, 6, and 7, respectively; and

(2)

inserting

after section 3 the following:

“SEC. 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)

Designation.

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;130 STAT. 302

“(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)

Deadline.

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)

Establishment.
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.130 STAT. 303

“(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 and the Deputy Director for Management of the Office of Management and Budget, who shall serve as Co-Chairpersons of the agency transition directors council;

“(B)

other senior employees serving in the Executive Office of the President, as determined 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 Co-Chairpersons 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)

Time periods.

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)

Deadlines.

Interim Agency Leadership for Transitions.—

“(1)

Designation.

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.130 STAT. 304

“(2)

Deadline.

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)

Deadline.

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)

inserting

“and during the term of a President” after “during the transition”; and

(II)

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:130 STAT. 305

“(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

striking

“section 4” and

inserting

“section 5”.

(4)

Section 8701(a)(10) of title 5, United States Code,

is amended

striking

“section 4” and

inserting

“section 5”.

(5)

Section 8901(1)(I) of title 5, United States Code,

is amended

striking

“section 4” and

inserting

“section 5”.

SEC. 3.

NATIONAL ARCHIVES PRESIDENTIAL TRANSITION.

Section 2203(g) of title 44, United States Code,

is amended

—

(1)

redesignating

paragraph (3) as paragraph (4); and

(2)

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.”

SEC. 4.

5 USC 3101 note.

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;130 STAT. 306

(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.—

(1)

Annual report.—

Except as provided in paragraph (2), 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 an annual report regarding requests by agencies to appoint political appointees or former political appointees to covered civil service positions. Each report shall cover one calendar year and shall—

(A)

for each request by an agency that a political appointee be appointed to a covered civil service position during the period covered by the report, provide—

(i)

the date on which the request was received by the Office of Personnel Management;

(ii)

subject to subsection (c), the name of the individual and the political position held by the individual, including title, office, and agency;

(iii)

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;

(iv)

the grade and rate of basic pay for the individual as a political appointee;

(v)

the proposed covered civil service position, including title, office, and agency, and the proposed grade and rate of basic pay for the individual;

(vi)

whether the Office of Personnel Management approved or denied the request; and

(vii)

the date on which the individual was appointed to a covered civil service position, if applicable; and

(B)

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 report, provide—

(i)

the date on which the request was received by the Office of Personnel Management;

(ii)

subject to subsection (c), the name of the individual and the political position held by the individual, including title, office, and agency;

(iii)

the date on which the individual was first appointed to any political position;

(iv)

the grade and rate of basic pay for the individual as a political appointee;130 STAT. 307

(v)

the date on which the individual ceased to serve in a political position;

(vi)

the proposed covered civil service position, including title, office, and agency, and the proposed grade and rate of basic pay for the individual;

(vii)

whether the Office of Personnel Management approved or denied the request; and

(viii)

the date on which the individual was first appointed to a covered civil service position, if applicable.

(2)

Quarterly report in certain years.—

In the last year of the term of a President, or, if applicable, the last year of the second consecutive term of a President, the report required under paragraph (1) shall be submitted quarterly and shall cover each quarter of the year, except that the last quarterly report shall also cover January 1 through 20 of the following year.

(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.

SEC. 5.

REPORT ON REGULATIONS PROMULGATED NEAR THE END OF PRESIDENTIAL TERMS.

(a)

Definitions.—

In this section:

(1)

The term “

covered presidential transition period

” means each of the following:

(A)

The 120-day period ending on January 20, 2001.

(B)

The 120-day period ending on January 20, 2009.

(C)

The 120-day period ending on January 20, 2017.

(2)

The term “

covered regulation

” means a final significant regulatory action promulgated by an Executive department.

(3)

The term “

significant regulatory action

” means any regulatory action that is likely to result in a rule that may—

(A)

have an annual effect on the economy of $100,000,000 or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(B)

create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(C)

materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(D)

raise novel legal or policy issues.

(4)

The term “

Executive department

” has the meaning given that term under section 101 of title 5, United States Code.

(b)

Report.—

130 STAT. 308

(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 each covered presidential transition period.

(2)

Contents of report.—

The report required under paragraph (1) shall, to the extent feasible, for each covered presidential transition period—

(A)

Time periods.

compare the number, scope, and impact of, and type of rulemaking procedure used for, covered regulations promulgated during the covered presidential transition period to the number, scope, and impact of, and type of rulemaking procedure used for, covered regulations promulgated during the 120-day periods ending on January 20 of each year after 1996, other than 2001, 2009, and 2017;

(B)

Determination.

determine the statistical significance of any differences identified under subparagraph (A) and whether and to what extent such differences indicate any patterns;

(C)

Evaluation.

evaluate the size, scope, and effect of the covered regulations promulgated during the covered presidential transition period; and

(D)

Assessment.

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)

sections 202, 203, 204, and 205 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532–1535);

(iv)

chapter 6 of title 5, United States Code (commonly known as the “Regulatory Flexibility Act”); and

(v)

chapter 35 of title 44, United States Code (commonly known as the “Paperwork Reduction Act”).

SEC. 6.

ANALYSIS OF THREATS AND VULNERABILITIES.

(a)

Deadline.

Reports.

In General.—

Not later than February 15, 2016, the Secretary of Homeland Security shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committees on Oversight and Government Reform and Homeland Security of the House of Representatives 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.130 STAT. 309

(b)

Form.—

The report submitted under subsection (a) shall be prepared in unclassified form, but may contain a classified annex.

Approved March 18, 2016.

LEGISLATIVE HISTORY—S. 1172:

HOUSE REPORTS: ┐No. 114–384, Pt. 1 (Comm. on Oversight and Government Reform).

SENATE REPORTS: ┐No. 114–94 (Comm. on Homeland Security and Governmental Affairs).

CONGRESSIONAL RECORD:

Vol. 161 (2015):

July 30, considered and passed Senate.

Vol. 162 (2016):

Feb. 29, considered and passed House, amended.

Mar. 8, Senate concurred in House amendment.

○

Public Law 114–136: To improve the process of presidential transition.

SHORT TITLE.

PRESIDENTIAL TRANSITION IMPROVEMENTS.

In General.—

TRANSITION SERVICES AND ACTIVITIES BEFORE ELECTION.

Definitions.—

General Duties.—

Federal Transition Coordinator.—

White House Transition Coordinating Council.—

Establishment.—

Duties.—

Membership.—

Chairperson.—

Agency Transition Directors Council.—

Establishment.In general.—

Duties.—

Membership.—

Meetings.—

Interim Agency Leadership for Transitions.—

Oversight and implementation of transition.—

Acting officers.—

Memorandums of Understanding.—

In general.—

Existing resources.—

Equity in Assistance.—

Reports.—

In general.—

Timing.—

Other Improvements.—

Technical and Conforming Amendments.—

NATIONAL ARCHIVES PRESIDENTIAL TRANSITION.

REPORTS ON POLITICAL APPOINTEES APPOINTED TO NONPOLITICAL PERMANENT POSITIONS.

Definitions.—

Reporting on Current or Recent Political Appointees Appointed to Covered Civil Service Positions.—

Annual report.—

Quarterly report in certain years.—

Names and Titles of Certain Appointees.—

REPORT ON REGULATIONS PROMULGATED NEAR THE END OF PRESIDENTIAL TERMS.

Definitions.—

Report.—

In general.—

Contents of report.—

ANALYSIS OF THREATS AND VULNERABILITIES.

In General.—

Form.—

LEGISLATIVE HISTORY—S. 1172:

CONGRESSIONAL RECORD:

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Establishment.
In general.—