[Senate Report 118-305]
[From the U.S. Government Publishing Office]
Calendar No. 711
118th Congress} { Report
SENATE
2d Session } { 118-305
======================================================================
SECURING CHAIN OF COMMAND
CONTINUITY ACT OF 2024
__________
R E P O R T
OF THE
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
TO ACCOMPANY
H.R. 6972
TO AMEND TITLE 5, UNITED STATES CODE, TO REQUIRE
AN EXECUTIVE AGENCY WHOSE HEAD IS A MEMBER OF THE
NATIONAL SECURITY COUNCIL TO NOTIFY THE EXECUTIVE
OFFICE OF THE PRESIDENT, THE COMPTROLLER GENERAL
OF THE UNITED STATES, AND CONGRESSIONAL LEADERSHIP
OF SUCH HEAD BECOMING MEDICALLY INCAPACITATED WITHIN
24 HOURS, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 17 (legislative day, December 16), 2024.--Ordered to be
printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
WASHINGTON : 2025
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
RICHARD BLUMENTHAL, Connecticut JOSH HAWLEY, Missouri
ADAM SCHIFF, California ROGER MARSHALL, Kansas
David M. Weinberg, Staff Director
Alan S. Kahn, Chief Counsel
Lena C. Chang, Director of Governmental Affairs
Emily I. Manna, Professional Staff Member
William E. Henderson III, Minority Staff Director
Christina N. Salazar, Minority Chief Counsel
Andrew J. Hopkins, Minority Counsel
J. Ryan Arient, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 711
118th Congress} { Report
SENATE
2d Session } { 118-305
======================================================================
SECURING CHAIN OF COMMAND
CONTINUITY ACT OF 2024
_______
December 17 (legislative day, December 16), 2024.--Ordered to be
printed
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 6972]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 6972) to amend
title 5, United States Code, to require an Executive agency
whose head is a member of the National Security Council to
notify the Executive Office of the President, the Comptroller
General of the United States, and congressional leadership of
such head becoming medically incapacitated within 24 hours, and
for other purposes, having considered the same, reports
favorably thereon with an amendment, in the nature of a
substitute, and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
IV. Section-by-Section Analysis of the Bill, as Reported.............5
V. Evaluation of Regulatory Impact..................................6
VI. Congressional Budget Office Cost Estimate........................6
VII. Changes in Existing Law Made by the Bill, as Reported............8
I. Purpose and Summary
H.R. 6972 the Securing Chain of Command Continuity Act adds
additional notification requirements when a member of the
National Security Council who is also an agency head becomes
medically incapacitated. Specifically, the bill requires a
notification to Congress and the President within 24 hours when
the agency head becomes or is reasonably expected to become
medically incapacitated. The notification must include which
individual will temporarily be fulfilling the responsibilities
of the agency head during the official's medical
incapacitation.
Should an agency fail to provide notice to the President
and Congress within 24 hours of the official being medically
incapacitated, the bill requires a lengthier and more
comprehensive notice to be submitted within 72 hours.
II. Background and Need for the Legislation
The Federal Vacancies Reform Act of 1998 (hereafter ``the
Vacancies Act'') prescribes the methods and means by which
officials may temporarily perform the functions and duties of a
vacant office that requires Senate confirmation.\1\ The law
specifies that a vacancy occurs when an official serving in a
position that requires the advice and consent of the Senate
``dies, resigns, or is otherwise unable to perform the
functions and duties of the office.''\2\ This last clause is
rather broad and undefined, but the legislative history
indicates that it encompasses instances of imprisonment,
sickness, dismissal, or the conclusion of a term of office.\3\
The Vacancies Act also generally limits the length of time an
acting official may serve, but explicitly carves out sickness
from these time limitations--further implying that sickness
constitutes an inability to ``perform the functions and
duties.''\4\ The Vacancies Act also requires that the federal
agency head notify the Comptroller General, and both Houses of
Congress when a vacancy occurs and provide the name of any
person serving in acting capacity, the name of a person
nominated to fill the vacancy, and if applicable the date of
any rejection, withdrawal or return of any nomination for the
vacancy.\5\ However, there have been instances where an
official is unable to fulfill the functions and duties of the
office and there is a temporary transfer of authority, but has
not complied with the Vacancies Act notification
requirements.\6\ Additionally, in the case of medical
incapacity it may be hard for the agency head themselves to
provide the required notice.
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\1\5 U.S.C. Sec. 3345 et seq.
\2\5 U.S.C. Sec. 3345.
\3\Statement of Senator Fred Thompson, Congressional Record, S12823
(Oct. 21, 1998); Statement of Senator Robert Byrd, Congressional
Record, S12824 (Oct. 21, 1998).
\4\5 U.S.C. Sec. 3346.
\5\5 U.S.C. Sec. 3349.
\6\Government Accountability Office, Federal Vacancies for Prior
Administrations (https://www.gao.gov/legal/federal-vacancies-reform-
act/federal-vacancies-prior-administration) (accessed Dec 2, 2024);
John Bryson Takes Medical Leave, Politico (Jun. 11, 2012) (https://
www.politico.com/story/2012/06/bryson-to-take-leave-of-absence-077312).
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Recent instances where cabinet level officials have taken
temporary leave without sufficient notice have raised concerns
about the effectiveness of current law. In December 2023,
Defense Secretary Lloyd Austin underwent a medical procedure to
treat prostate cancer.\7\ During his procedure he temporarily
transferred the functions and duties of his office to Deputy
Secretary Kathleen Hicks. Following his procedure, on January
1, Secretary Austin experienced complications and required
hospitalization.\8\ On January 2, Secretary Austin's condition
worsened and in the afternoon he again transferred the
functions and duties of his office to Deputy Secretary
Hicks.\9\ Secretary Austin did not immediately notify the
President or Congress of his condition or his transfer of
authority to Deputy Secretary Hicks. In fact, the National
Security Advisor and the President were not notified until
January 4th about Secretary Austin's hospitalization.\10\ It
was not until January 5th that the Pentagon notified Congress,
and subsequently issued a public press release announcing his
hospitalization.\11\ On the evening of January 5th Secretary
Austin resumed his duties as Secretary of Defense.\12\
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\7\House Committee on Armed Services, Testimony Submitted for the
Record of Secretary Lloyd J. Austin III, Department of Defense, Full
Committee Hearing: A review of Defense Secretary Austin's Unannounced
Absence, 118th Cong. (Feb. 29, 2024).
\8\Id.
\9\Id.; Department of Defense, Unclassified Summary of 30-Day
Review (Feb. 26, 2024) (https://media.defense.gov/2024/Feb/26/
2003400135/-1/-1/1/UNCLASSIFIED-SUMMARY-OF-30-DAY-REVIEW.PDF)
(hereinafter ``Unclassified Summary'').
\10\Pentagon didn't inform Biden, White House for days about
Austin's hospitalization, Politico (Jan. 6, 2024) (https://
www.politico.com/news/2024/01/06/pentagon-took-3-days-to-inform-white-
houses-nsc-of-austins-hospitalization-00134176).
\11\Unclassified Summary; Department of Defense, Statement From
Pentagon Press Secretary Maj. Gen. Pat Ryder on Secretary of Defense
Austin (Jan. 5, 2024) (https://www.defense.gov/News/Releases/Release/
Article/3633270/statement-from-pentagon-press-secretary-maj-gen-pat-
ryder-on-secretary-of-defen/).
\12\Id.
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Following this incident, multiple reviews were conducted to
inform and improve the security of the chain of command.
Secretary Austin directed a 30-day review to identify the
relevant facts surrounding the hospitalization and evaluate
processes and procedures used to notify the Deputy
Secretary.\13\ On January 9th the White House Chief of Staff
issued a Memorandum that directed a review of all agency
delegation-of-authority protocols and required all cabinet
agencies to notify the White House when any delegation of
authority occurs and establish contact between the Acting
principal and their White House counterpart.\14\ The 30-day
Pentagon review concluded that while ``the Deputy Secretary was
at all times positioned to perform all the functions and duties
of the Secretary of Defense,'' there were improvements that
could be made and provided eight specific recommendations to
improve the procedures related to when another official assumes
the functions and duties of the Secretary of Defense.\15\
Notably, neither the White House memorandum nor the Pentagon's
recommendations included explicit recommendations to ensure
that Congress is notified in instances of an agency head's
medical
---------------------------------------------------------------------------
\13\Department of Defense, Office of the Secretary of Defense,
Memorandum for Senior Staff of the Secretary and Deputy Secretary of
Defense, Director of Administration and Management, Cables Executive
Support Office, Secretary of Defense Communications, Executive
Secretary: Review of Notification Process for Assumption of Functions
and Duties of the Secretary of Defense (Jan 8, 20203; Corrected copy
Jan. 11, 2024) (https://media.defense.gov/2024/Jan/08/2003371727/-1/-1/
1/NOTIFICATION_PROCESS_FOR_ASSUMPTION_OF_FUNCTIONS_AND_DUTIES_OF_
THE_ SECRETARY_OF_DEFENSE_8_JAN_24.PDF).
\14\The White House, Memorandum to Cabinet Members: Cabinet
Notifications (Jan. 9, 2024).
\15\Department of Defense, Office of the Secretary of Defense,
Memorandum for Senior Pentagon Leadership, Commanders of the Combatant
Commands, Defense Agency and DOD Field Activity Directors Senior Staff
of the Secretary and Deputy Secretary of Defense, Executive Secretary,
Cables Executive Support Office, Secretary of Defense Communications:
Follow-on Actions Review of Notification Process for Assumption of
Functions and Duties of the Secretary of Defense (Feb 26, 2024)
(https://media.defense.gov/2024/Feb/26/2003400143/-1/-1/1/FOLLOW-ON-
ACTIONS-REVIEW-OF-NOTIFICATION-PROCESS-FOR-ASSUMPTION-OF-FUNCTIONS-AND-
DUTIES-OF-THE-SECRETARY-OF-DEFENSE.PDF).
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Incapacity or temporary transfers of authority.\16\
Additionally, Secretary Austin's hospitalization was not the
only incident of a Cabinet official temporarily transferring
their authorities due to medical incapacity. During the Obama
Administration, then-Secretary of Commerce John Bryson took a
leave of absence for medical reasons and transferred the
functions and duties of his office to his Deputy.\17\ In this
case the transfer of authority was not reported and a vacancy
was not reported until the Secretary resigned from his position
nine days later.\18\
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\16\Id.
\17\John Bryson Takes Medical Leave, Politico (Jun. 11, 2012)
(https://www.politico.com/story/2012/06/bryson-to-take-leave-of-
absence-077312).
\18\Government Accountability Office, Federal Vacancies for Prior
Administrations (https://www.gao.gov/legal/federal-vacancies-reform-
act/federal-vacancies-prior-administration) (accessed Dec 2, 2024);
Bryson resigns from Commerce, Politico (Jun 21, 2012) (https://
www.politico.com/story/2012/06/bryson-resigns-as-commerce-secretary-
077695).
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Members of the National Security Council (NSC), including
the Secretary of Defense, advise the President on all matters
relating to protecting the country's national security.\19\
This includes monitoring and providing expertise and advice on
significant and rapidly developing events with direct
consequences for American national security and global
stability. As such, the security and continuity of the chain of
command for these critical positions is vital. The
circumstances surrounding Secretary Austin's hospitalization
left key national security officials unaware of temporary
changes in the chain of command and who was executing the
functions and duties of the Secretary of Defense.
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\19\50 U.S. Code Sec. 3021.
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This legislation adds additional reporting requirements to
clarify that during an instance of medical incapacity, the head
of an agency on the NSC is subject to reporting obligations
under the Vacancies Act. Specifically, the bill requires a
notification to Congress, OPM and the President within 24 hours
of an agency head who serves on the NSC becoming medically
incapacitated or 24 hours prior to a planned procedure that
will likely result in medical incapacitation. The notification
must include that the agency head is or will be medically
incapacitated, and which official will be fulfilling the
functions and duties of the office on behalf of the agency
head. The bill also provides additional reporting requirements
within 72 hours if an agency fails to provide the 24-hour
notice.
III. Legislative History
Congresswoman Jennifer Kiggans (R-VA-2) introduced H.R.
6972, the Securing Chain of Command Continuity Act, on January
11, 2024. The bill was referred to the House Committee on
Oversight and Accountability, where it was reported favorably
with 41 yeas to 0 nays on February 6, 2024. The bill passed the
House under suspension of the rules by voice vote on May 6,
2024.
On May 7, 2024, the bill was received in the Senate and
referred to the Committee on Homeland Security and Governmental
Affairs. The Committee considered H.R. 6972 at a business
meeting on November 20, 2024. At the business meeting, Senator
Peters offered a substitute amendment to the bill, as well as a
modification to that amendment. The substitute amendment, as
modified, makes several changes to clarify the text, including
simplifying the language so that the required notifications are
solely the responsibility of the first assistant, ensuring that
the 24-hour notification contains information about which
individual will be performing the functions and duties of the
agency head for the medically incapacitated official, and
harmonizing the notification recipients to those that receive
notifications of vacancies under the Vacancies Act, thereby
adding the Senate Homeland Security and Governmental Affairs
Committee, House Oversight and Accountability Committee and the
House and Senate Appropriations committees, and the Office of
Personnel Management (OPM) as report recipients. Senator Peters
also modified his substitute amendment to add language
stipulating that no additional funds could be used to implement
the legislation.
The Committee adopted the modification to the Peters
substitute amendment, and the Peters substitute amendment as
modified, by unanimous consent, with Senators Peters, Hassan,
Rosen, Ossoff, Blumenthal, Butler, Lankford, and Hawley
present. The bill, as amended by the Peters substitute
amendment as modified, was ordered reported favorably by roll
call vote of 8 yeas to 0 nays, with Senators Peters, Hassan,
Rosen, Ossoff, Blumenthal, Butler, Lankford, and Hawley voting
in the affirmative. Senators Carper, Sinema, Paul, Johnson,
Romney, Scott, and Marshall voted yea by proxy, for the record
only.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section establishes the short title of the bill as the
``Securing Chain of Command Continuity Act.''
Section 2. National Security Council medical incapacity notification
enhancement
Amends 5 U.S.C. 3349 (Reporting of vacancies) with a new
subsection (c):
Paragraph (1) requires the first assistant to submit
a notification to the appropriate federal officials
within 24 hours of an agency head who serves on the
National Security Council becoming medically
incapacitated or 24 hours prior to a planned procedure
that will likely result in medical incapacitation. The
notification must include that the agency head is or
will be medically incapacitated, and which official
will be fulfilling the functions and duties of the
office on behalf of the agency head.
Paragraph (2) stipulates that if the first assistant
does not provide timely notification under paragraph
(1) that they provide additional information to the
appropriate federal officials within 72 hours,
including the name of the acting official, the date or
expected dates of the acting official's service, the
authority for the acting official to perform the
functions and duties of the office, a comprehensive
list of resources and authorities provided to the
acting official, the date of the head's medical
incapacitation, whether they have resumed service, and
an explanation for why such head was medically
incapacitated.
Paragraph (3) requires the first assistant to provide
periodic updates on the agency head, if the agency head
remains medically incapacitated at the time of a
notification providedpursuant to paragraph (2).
Paragraph (4) provides that if the agency head does
not have a first assistant, the individual performing
the functions and duties of the first assistant shall
perform the reporting responsibilities under this
section.
Paragraph (5) defines the term ``appropriate federal
officials,'' ``medical incapacity,'' ``medically
incapacitated,'' and ``National Security Council.''
Section 3. No additional funds
This section provides that no additional funds are
authorized to be appropriated for the purpose of carrying out
this Act.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
The Congressional Budget Act of 1974 requires the
Congressional Budget Office, to the extent practicable, to
prepare estimates of the budgetary effects of legislation
ordered reported by Congressional authorizing committees. In
order to provide the Congress with as much information as
possible, the attached table summarizes information about the
estimated direct spending and revenue effects of some of the
legislation that has been ordered reported by the Senate
Committee on Homeland Security and Governmental Affairs during
the 118th Congress. The legislation listed in this table
generally would have small effects, if any, on direct spending
or revenues, CBO estimates. Where possible, the table also
provides information about the legislation's estimated effects
on spending subject to appropriation and on intergovernmental
and private-sector mandates as defined in the Unfunded Mandates
Reform Act.
ESTIMATED BUDGETARY EFFECTS AND MANDATES INFORMATION
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Spending subject
Last Budget Direct Revenues, to Pay-as-you-go Budgetary
Bill Number Title Status action function spending, 2025-2034 appropriation, procedures effects Mandates Contact
2025-2034 2025-2029 apply? after 2034
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H.R. 6972.................... Securing Chain Ordered reported 11/20/24 800 0 0 Not Estimated... No No No Matthew
of Command Pickford.
Continuity Act.
H.R. 6972 would require executive branch agencies that are members of the National Security Council to inform the President, Government Accountability Office,
and Congressional leadership when the head of an agency is medically incapacitated. That notice would identify the agency's acting head along with other
information. CBO estimates that enacting H.R. 6972 would not affect direct spending or revenues. CBO has not estimated the legislation's effects on spending
subject to appropriation. The legislation contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act.
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VII. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
Title 5--Government Organization and Employees
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
Subpart B--Employment and Retention
* * * * * * *
CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
* * * * * * *
Subchapter III--Details, Vacancies, and Appointments
* * * * * * *
SEC. 3349. REPORTING OF VACANCIES
(a) * * *
(b) * * *
(c)(1) Not later than 24 hours after the head of an
Executive agency who is a member of the National Security
Council becomes medically incapacitated or 24 hours in advance
of such head undergoing a planned medical procedure for which
medical incapacity is known or may be reasonably assumed, the
first assistant to the office of such head shall submit to the
appropriate Federal officials--
(A) a notification that such head is or will
be medically incapacitated; and
(B) the name of the individual who will serve
in an acting capacity or otherwise perform the
functions and duties of the office of such head
during the medical incapacitation of the head.
(2) If the notification required under paragraph (1)
with respect to the head of an Executive agency who is
a member of the National Security Council is not
submitted in accordance with the requirements under
paragraph (1), not later than 72 hours after such head
becomes subject to a medical incapacity, the first
assistant to the office of such head shall submit to
the appropriate Federal officials a report including--
(A) the name of each individual who served or
is serving in an acting capacity as such head
or otherwise performed or is performing the
functions and duties of the office of such head
pursuant to such medical incapacity and, for
each such individual--
(i) the dates of such service or, if
such head has not resumed performing
the functions and duties of the office
of such head, the expected dates of
service;
(ii) the authority for the individual
to serve in such acting capacity or
otherwise perform the functions and
duties of the office of such head; and
(iii) a comprehensive list of resources
and authorities allocated to such
individual while serving in such acting
capacity or otherwise performing the
functions and duties of the office of
such head to ensure that such
individual could perform the functions
and duties of the office of such head;
(B) the dates of such head's medical
incapacitation, and if such head has resumed
performing the functions and duties of the
office, the date such head so resumed
performing such functions and duties; and
(C) an explanation of why such head was
medically incapacitated.
(3) In the event the head of an Executive agency who
is a member of the National Security Council remains
medically incapacitated on the date the report is
submitted under paragraph (2), the first assistant to
the office of such head shall submit periodic updates,
as the first assistant considers appropriate, to such
report to the appropriate Federal officials.
(4) If the head of an Executive agency who is a
member of the National Security Council and is
medically incapacitated does not have a first
assistant, the individual performing the functions and
duties of the first assistant shall perform the
reporting obligations of the first assistant under this
subsection.
(5) In this subsection--
(A) the term `appropriate Federal officials'
means the Majority Leader of the Senate, the
Minority Leader of the Senate, the Speaker of
the House of Representatives, the Minority
Leader of the House of Representatives, and
each required recipient of a report under
subsection (b);
(B) the terms `medical incapacity' and
`medically incapacitated' mean, with respect to
the head of an Executive agency, that such head
is unable to perform the functions and duties
of the office of such head due to sickness,
injury, or other medical condition; and
(C) the term `National Security Council'
means the council established under section 101
of the National Security Act of 1947 (50 U.S.C.
3021).
* * * * * * *
[all]