Contents

• Introduction
• The Appointment Process for PAS Positions
• Selection, Clearance, and Nomination
• Senate Consideration
• Appointment
• Recess Appointments
• Characterization of Regulatory and Other Collegial Bodies
• Appointments During the 110^th Congress
• Length of Time to Confirm a Nomination
• A Change in Methodology From Previous Tracking Reports
• Organization of the Report
• Board and Commission Profiles
• Additional Appointment Information
• Chemical Safety and Hazard Investigation Board (CSB)
• Commodity Futures Trading Commission (CFTC)
• Consumer Product Safety Commission (CPSC)
• Defense Nuclear Facilities Safety Board (DNFSB)
• Election Assistance Commission (EAC)
• Equal Employment Opportunity Commission (EEOC)
• Export-Import Bank Board of Directors (EXIMBANK)
• Farm Credit Administration (FCA)
• Federal Communications Commission (FCC)
• Federal Deposit Insurance Corporation Board of Directors (FDIC)
• Federal Election Commission (FEC)
• Federal Energy Regulatory Commission (FERC)
• Federal Housing Finance Board (FHFB)
• Federal Labor Relations Authority (FLRA)
• Federal Maritime Commission (FMC)
• Federal Mine Safety and Health Review Commission (FMSHRC)
• Federal Reserve System Board of Governors (FRS)
• Federal Trade Commission (FTC)
• Foreign Claims Settlement Commission (FCSC)
• Merit Systems Protection Board (MSPB)
• National Credit Union Administration Board of Directors (NCUA)
• National Labor Relations Board (NLRB)
• National Mediation Board (NMB)
• National Transportation Safety Board (NTSB)
• Nuclear Regulatory Commission (NRC)
• Occupational Safety and Health Review Commission (OSHRC)
• Postal Regulatory Commission (PRC)
• Privacy and Civil Liberties Oversight Board (PCLOB)
• Railroad Retirement Board (RRB)
• Securities and Exchange Commission (SEC)
• Surface Transportation Board (STB)
• United States International Trade Commission (USITC)
• United States Parole Commission (USPC)
• United States Sentencing Commission (USSC)

Summary

The President makes appointments, with the advice and consent of the Senate, to some 152 full-time leadership positions on 34 federal regulatory and other collegial boards and commissions. This appointment process consists of three distinct stages: selection, clearance, and nomination by the President; consideration by the Senate; and appointment by the President. These advice and consent positions can also temporarily be filled by the President alone through a recess appointment. Membership positions on this set of collegial bodies often have fixed terms, and incumbents are often protected from arbitrary removal by the President. The enabling statutes for most of these boards and commissions require political party balance in their membership.

During the 110^th Congress, President George W. Bush submitted nominations to the Senate for 74 of these 152 positions. (Most of the remaining positions on these boards and commissions were not vacant during that time.) A total of 88 nominations were submitted, of which 46 were confirmed, 15 were withdrawn, and 27 were returned to the President. The number of nominations exceeded the number of positions because the President submitted multiple nominations for some positions. In some cases the President submitted one nomination for the end of a term in progress and a second nomination of the same person to the same position for the succeeding term. In other cases, the President submitted a second nomination after his first choice failed to be confirmed. President Bush made one recess appointment to a board covered by this report during the 110^th Congress, and he submitted an "extra" nomination of that individual in order to comply with a law affecting the payment of that appointee. At the end of the 110^th Congress, 15 incumbents were serving past the expiration of their terms. In addition, there were 22 vacancies among the 152 positions.

This report specifies, for the 110^th Congress, all nominations to full-time positions on 34 regulatory and other collegial boards and commissions. Profiles of each board and commission provide information on their organizational structures, membership as of the end of the 110^th Congress, and appointment activity during that Congress. The organizational section discusses the statutory requirements for the appointed positions, including the number of members on each board or commission, their terms of office, whether or not they may continue in their positions after their terms expire, whether or not political balance is required, and the method for selection of the chair. Membership and appointment activity are provided in tabular form. The report also includes tables summarizing the collective appointment activity for all 34 bodies, and identifying Senate recesses during the 110^th Congress.

The calculations of nomination-to-confirmation intervals provided in this report counted all the days within the interval, including those during summer recesses and between sessions of the Senate. The inclusion of all days differs from the methodology used in similar CRS reports for previous Congresses. The new methodology takes into consideration changes in Senate adjournment practices and is consistent with published research in this area. This change may reduce the comparability of statistics in this report with those of the earlier research.

Information for this report was compiled from data from the Senate nominations database of the Legislative Information System at http://www.congress.gov/nomis/, telephone discussions with agency officials, agency websites, the United States Code, and the 2008 edition of United States Government Policy and Supporting Positions (more commonly known as the "Plum Book").

This report will not be updated.

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Presidential Appointments to Full-Time Positions on Regulatory and Other Collegial Boards and Commissions, 110^th Congress

Introduction

This report provides an overview of the process for filling positions to which the President makes appointments with the advice and consent of the Senate (PAS positions). It also specifies, for the 110^th Congress (January 2007-January 2009), all nominations to full-time positions on 34 regulatory and other collegial boards and commissions that have such positions (e.g., the Consumer Product Safety Commission, the Federal Reserve Board, and the Election Assistance Commission). Profiles of each board and commission provide information on their organizational structures, membership as of the end of the 110^th Congress, and appointment activity during that Congress.

The Appointment Process for PAS Positions

The President and the Senate share the power to appoint the principal officers of the United States.¹ The Constitution (Article II, Section 2, clause 2) empowers the President to nominate and, by and with the advice and consent of the Senate, to appoint the principal officers of the United States.² Three distinct stages mark the appointment process: selection, clearance, and nomination by the President; consideration by the Senate; and appointment by the President.

Selection, Clearance, and Nomination

In this stage, the White House selects and clears a nominee before sending the formal nomination to the Senate. There are a number of steps in this stage of the process for most Senate-confirmed positions. First, with the assistance of, and preliminary vetting by, the White House Office of Presidential Personnel, the President selects a candidate for the position. Interested parties, including Members of Congress, often have input during this process. Most boards and commissions are required, by statute, to have a political balance among their members (i.e., no more than a simple majority may be from the same political party), so the President normally negotiates over nominations with leaders of the opposition party in Congress. These negotiations involve questions not only of patronage but of policy, especially when the board or commission is involved in areas that, at the time, may be particularly sensitive. This often results in a packaging process in which the President submits several nominations together for positions in a particular agency and the Senate then confirms them as a group. Sometimes, however, only one or two nominations are submitted when three or four positions may be available. When this occurs, a nomination may remain before the Senate for many months, until one or two additional nominations are submitted. Generally, all are then quickly confirmed.

During the clearance process, the candidate prepares and submits several forms: the "Public Financial Disclosure Report" (Standard Form (SF) 278), the "Questionnaire for National Security Positions" (SF 86), and the White House "Personal Data Statement Questionnaire." The Office of the Counsel to the President oversees the clearance process, which often includes background investigations conducted by the Federal Bureau of Investigation (FBI), the Internal Revenue Service (IRS), the Office of Government Ethics (OGE), and an ethics official for the agency to which the candidate is to be appointed. If conflicts are found during the background check, OGE and the agency ethics officer may work with the candidate to mitigate the conflicts. Once the Office of the Counsel to the President has cleared the candidate, the nomination is ready to be submitted to the Senate.

The selection and clearance stage is often the longest part of the appointment process. There can be lengthy delays, particularly if many candidates are being processed, as they are at the beginning of an Administration,³ or if conflicts need to be resolved. Candidates for higher-level positions are often accorded priority in this process. In an effort to reduce the elapsed time between a new President's inauguration and the appointment of his or her national security team, provisions added in 2004 to the Presidential Transition Act of 1963 encourage Presidents-elect to submit, for security clearance, potential nominees to high-level national security positions as soon as possible after the election.⁴

For positions located within a state (e.g., U.S. attorneys, U.S. marshals, and U.S. district judges), the President, by custom, normally nominates an individual recommended by the Senator or Senators (if they are from the same party as the President) from that state.⁵ If neither Senator is from the President's party, the President usually defers to the recommendations of party leaders from the state. Occasionally, the President solicits recommendations from Senators of the opposition party because of their positions in the Senate. Before making a nomination to a federal position at the state or national level, the President would consider how it will fare in the confirmation process.

A nominee has no legal authority to assume the duties and responsibilities of the position; the authority comes with Senate confirmation and presidential appointment. A nominee who is hired by the agency as a consultant while awaiting confirmation may serve only in an advisory capacity. If circumstances permit and conditions are met, the President may give the nominee a recess appointment to the position (see below). Recess appointments may have political consequences, however, particularly if Senators perceive that an appointment is an effort to circumvent their constitutional role. Some Senate-confirmed positions, such as many of those in the executive departments, may also be temporarily filled under the Federal Vacancies Reform Act of 1998.⁶ Positions on most boards and commissions, however, are not covered by this act.⁷

Senate Consideration

In the confirmation or second stage, the Senate alone determines whether or not to confirm a nomination.⁸ The way the Senate acts on a nomination depends largely on the importance of the position involved, existing political circumstances, and policy implications. Generally, the Senate shows particular interest in the nominee's views and how they are likely to affect public policy.⁹ Two other factors may also affect the scrutiny with which a nominee's personal and professional qualities are examined: whether or not the President's party controls the Senate and the degree to which the President becomes involved in supporting the nomination.

The Senate confirmation process is centered at the committee level. On the day the President submits a nomination to the Senate, the Senate's executive clerk refers it to the appropriate committee or committees. When making a referral, the executive clerk is guided by Senate Rule XXV, which establishes the subject matters under the purview of each committee and directs that "all proposed legislation, messages, petitions, memorials, and other matters relating primarily to [those] subjects" be referred to that committee. The executive clerk is also guided by precedents set by prior referrals and by standing orders and unanimous consent (UC) agreements pertaining to referral of nominations.¹⁰ Most nominations are sent to a single committee. Occasionally, the Senate has agreed, by unanimous consent, by standing order, or by statute, to refer one or more nominations to more than one committee.

Committee nomination activity generally includes investigation, hearing, and reporting stages. As part of investigatory work, committees may draw on information provided by the White House as well as information they themselves collect. Hearings provide a public forum to discuss a nomination and any issues related to the program or agency for which the nominee would be responsible. Even if confirmation is thought to be a virtual certainty, hearings may provide Senators and the nominee with an opportunity to go on the record with particular views or commitments. Senators may use hearings to explore a nominee's qualifications, articulate a policy perspective, or raise related oversight issues. Some committees hold hearings on nearly all nominations that are referred to them; others hold hearings for only some.

The committee may discontinue acting on a nomination at any point—upon referral, after investigation, or after a hearing. If the committee votes to report the nomination back to the full Senate, it has three options: it may report the nomination to the Senate favorably, report it unfavorably, or report it without recommendation. If the committee elects not to report a nomination, the Senate may, under certain circumstances, discharge the committee from further consideration of the nomination in order to bring it to the floor.¹¹

Although the Senate confirms most nominations, some nominations are not confirmed. Rarely, however, does the full Senate reject a nomination. Most nominations that are not confirmed fail in committee, either by committee vote or by committee inaction. Rejections in committee occur for a variety of reasons, including opposition to the nomination, inadequate amount of time for consideration of the nomination, or factors that may have nothing to do with the merits of the nomination. If a nomination is not acted upon by the Senate by the end of a Congress, it is returned to the President. Pending nominations also may be returned automatically to the President at the beginning of a recess of more than 30 days, but the Senate rule providing for this return is often waived.¹²

Appointment

In the final stage, the confirmed nominee is given a commission signed by the President, with the seal of the United States affixed thereto, and is sworn into office. The President may sign the commission at any time after confirmation. Once the appointee is given the commission and sworn in, he or she has full authority to carry out the responsibilities of the office.

Recess Appointments

The Constitution also empowers the President to make limited-term appointments without Senate confirmation when the Senate is in recess.¹³ Such recess appointments expire at the end of the next full session of the Senate. Table B-1 provides the dates of the Senate recesses for the 110^th Congress. One recess appointment was made to a position on a regulatory or other collegial board or commission during the 110^th Congress for reasons discussed below. The recess during which this took place is shown in the table.¹⁴

Presidents have occasionally used the recess appointment power to circumvent the confirmation process. In response, Congress has placed restrictions on the President's authority to make a recess appointment. Under 5 U.S.C. § 5503(a), if the position to which the President makes a recess appointment falls vacant while the Senate is in session, the recess appointee may not be paid from the Treasury until he or she is confirmed by the Senate. The salary prohibition does not apply (1) if the vacancy arose within 30 days before the end of the session; (2) if a nomination for the office (other than the nomination of someone given a recess appointment during the preceding recess) was pending when the Senate recessed; or (3) if a nomination was rejected within 30 days before the end of the session and another individual was given the recess appointment. A recess appointment falling under any one of these three exceptions must be followed by a nomination to the position not later than 40 days after the beginning of the next session of the Senate. For this reason, when a recess appointment is made, the President generally submits a new nomination for the appointee even when an earlier nomination is still pending.¹⁵ In addition, although a recess appointee whose nomination to a full term is subsequently rejected by the Senate may continue to serve until the end of his or her recess appointment, a provision of the FY2008 Financial Services and General Government Appropriations Act might prevent an appointee from being paid after his or her rejection.¹⁶

During the 110^th Congress, the Senate employed, apparently for the first time, another method intended to restrict the President's recess appointment power. This method is predicated on the notion that the President could be restricted from making a recess appointment during a period of three days or less. The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over the last century, as shorter recesses have become more commonplace, the Department of Justice has offered differing views on this issue. In 1993, however, a Justice Department brief implied that the President may make a recess appointment during a recess of more than three days. The authors reasoned that because the "Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House … [i]t might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant."¹⁷ As a practical matter, the shortest recess during which appointments have been made during the past 20 years was 10 days.

From November 2007 through the end of the Bush presidency, the Senate structured its recesses in a way that was intended, at least initially, to prevent the President from making recess appointments by preventing the occurrence of a recess of more than three days.¹⁸ On November 16, 2007, the Senate majority leader announced that the Senate would "be coming in for pro forma sessions during the Thanksgiving holiday to prevent recess appointments."¹⁹ The Senate recessed later that day, and pro forma meetings²⁰ were convened on November 20, 23, 27, and 29, with no business conducted. The Senate next conducted business after reconvening on December 3, 2007. Similar procedures were followed during other periods, during the remainder of President Bush's term, that would otherwise have been Senate recesses of a week or longer in duration.²¹ The President made no recess appointments between the initial pro forma sessions in November 2007 and the end of his presidency.

Characterization of Regulatory and Other Collegial Bodies

Federal executive branch boards and commissions discussed in this report share, among other characteristics, the following: (1) they are independent executive branch bodies located, with four exceptions, outside executive departments;²² (2) several members head each entity; (3) the members are appointed by the President with the advice and consent of the Senate; and (4) the members serve fixed terms of office, and, except in a few bodies, the President's power to remove them is restricted.

For most of the boards included in this report, the fixed terms of office for the member positions have set beginning and end dates, irrespective of whether the posts are filled or when appointments are made.²³ The end dates of the fixed terms of a board's members are staggered, so that the terms do not expire all at once. The use of terms with fixed beginning and end dates is intended to minimize the occurrence of simultaneous board member departures and thereby increase leadership continuity.

Under such an arrangement, an individual is nominated to a particular position and a particular term of office. An individual may be nominated and confirmed for a position for the remainder of an unexpired term in order to replace an appointee who has resigned (or died). Alternatively, an individual might be nominated for an upcoming term with the expectation that the new term will be underway by the time of confirmation. Occasionally, where the unexpired term has been for a very short period, the President has submitted two nominations of the same person simultaneously—the first to complete the unexpired term and the second to complete the entire succeeding term of office.

On some commissions, the chair is subject to Senate confirmation and must be appointed from among the incumbent commissioners. If the President wishes to appoint, as chair, someone who is not on the commission, two nominations are submitted simultaneously for the nominee—one for member and the other for chair.

As independent entities with staggered membership, executive branch boards and commissions have more political independence from the President than do executive departments. Nonetheless, the President can sometimes exercise significant influence over the composition of the membership when he designates the chair or has the opportunity to fill a number of vacancies at once. For example, President George W. Bush had the opportunity to shape the Securities and Exchange Commission during the first two years of his presidency because of existing vacancies, resignations, and the death of a member. Likewise, during the same time period, President Bush was able to submit nominations for all of the positions on the National Labor Relations Board because of existing vacancies, expiring recess appointments, and resignations. Simultaneous turnover of board or commission membership may result from coincidence, but it may also be the result of a buildup of vacancies after extended periods during which the President fails to nominate, or the Senate fails to confirm, members.

Two other notable characteristics apply to appointments to some of the boards and commissions. First, for 26 of the boards and commissions in this report, the law limits the number of appointed members who may belong to the same political party, usually to no more than a simple majority of the appointed members (e.g., two of three, or three of five).²⁴ Second, advice and consent requirements also apply to inspector general appointments in four of these organizations and general counsel appointments in three.

Appointments During the 110^th Congress

During the 110^th Congress, President George W. Bush submitted nominations to the Senate for 74 of the 152 full-time positions on 34 regulatory and other boards and commissions. (Most of the remaining positions were not vacant during that time.) A total of 88 nominations were submitted for these positions, of which 46 were confirmed, 15 were withdrawn, and 27 were returned to the President. The number of nominations exceeded the number of positions because the President submitted multiple nominations for some positions. In some cases, for example, the President submitted one nomination for the end of a term in progress and a second nomination of the same person to the same position for the succeeding term. In other cases, the President submitted a second nomination after his first choice failed to be confirmed. The President also submitted an "extra" nomination of the one individual to whom he had given a recess appointment in order to comply with a law affecting the payment of that appointee (see "Recess Appointments," above). Table 1 summarizes the appointment activity for the 110^th Congress. At the end of the Congress, 15 incumbents were serving past the expiration of their terms.²⁵ In addition, there were 22 vacancies among the 152 positions.

Length of Time to Confirm a Nomination

The length of time a given nomination may be pending in the Senate has varied widely. Some nominations have been confirmed within a few days; others have been confirmed within several months; and some have never been confirmed. In the board and commission profiles following this opening narrative, this report provides, for each board or commission nomination that was confirmed in the 110^th Congress, the number of days between nomination and confirmation ("days to confirm"). For those nominations that were confirmed, an average of 148 days elapsed between nomination and confirmation. The median²⁶ number of days elapsed was 90. The difference between these two numbers suggests that the average was pulled upward by a small number of unusually high numbers.

A Change in Methodology From Previous Tracking Reports

The calculations of nomination-to-confirmation intervals provided in this report counted all the days within such intervals, including those during summer recesses and between sessions of the Senate. The inclusion of all days differs from the methodology used in similar CRS reports for previous Congresses.²⁷ In these earlier reports, days during August and intersession recesses were not included in calculations of nomination-to-confirmation intervals. These changes may reduce the comparability of statistics provided in this report with those provided in earlier reports. More information on this change in methodology is available in Appendix D.

Organization of the Report

Board and Commission Profiles

Each of the 34 board or commission profiles following the narrative portion of this report is organized into three parts: a paragraph discussing the body's organizational structure, a table identifying its membership as of the end of the 110^th Congress, and a table listing nominations and appointments to its positions during the 110^th Congress. The organizational sections discuss the statutory requirements for the appointed positions, including the number of members on each board or commission, their terms of office, whether or not they may continue in their positions after their terms expire, whether or not political balance is required, and the method for selection of the chair.

Data²⁸ on appointment actions during the 110^th Congress appear under both the sections entitled "Membership as of the End of the 110^th Congress" and those entitled "Appointment Action in the 110^th Congress." The former identify the agencies' positions requiring Senate confirmation and the incumbents in those positions as of that time. Incumbents whose terms have expired are italicized. Most of the incumbents serve fixed terms of office and are removable only for specified causes. They generally remain in office when a new administration assumes office following a presidential election. For those agencies requiring political balance among their members, the party affiliation of an incumbent is listed as Democrat (D), Republican (R), or Independent (I). The section also includes the pay levels of the positions. For presidentially appointed positions requiring Senate confirmation, the pay levels fall under the Executive Schedule, which ranges from level I, for cabinet-level offices, to level V, for the lowest-ranked positions. Most of the chair positions are at level III, and most of the other positions are at level IV.²⁹

The "Appointment Action" section provides information about each nomination, in chronological order, including the name of the nominee, the position to which he or she was nominated, the date of submission, the date of confirmation (if any), and the number of days that elapsed between submission and confirmation. Actions other than confirmation (i.e., nominations rejected by the Senate, nominations returned to or withdrawn by the President, and recess appointments) are also noted. Occasionally, where a position was vacant and the unexpired term of office was to end within a number of weeks or months, two nominations for the same nominee were submitted: the first to complete the unexpired term, and the second for a full term following completion of the expired term. Also, in the single instance during the 110^th Congress where the President gave a recess appointment to a nominee for a position covered by this report while the nomination was awaiting Senate action, a second, follow-up nomination was submitted to comply with the requirements of 5 U.S.C. § 5503(b).

In tables that show more than one confirmed nomination, the mean number of days to confirm a nomination is provided. This figure was determined by calculating the number of days between the nomination and confirmation dates, adding these numbers for all confirmed nominations, and dividing the result by the number of nominations confirmed. For tables in which one individual was confirmed more than once (to be a chair and a member, for example), the mean was calculated by averaging all values in the "Days to confirm" column, including the values for both confirmations.

Additional Appointment Information

Appendix A provides two tables. Table A-1 includes information on each of the nominations and appointments to regulatory and other collegial boards and commissions during the 110^th Congress, alphabetically organized, and following a similar format to that of the "Appointment Action" sections just discussed. It identifies the board or commission involved and the dates of nomination and confirmation. The appendix also indicates if a nomination was withdrawn, returned, or rejected, or if a recess appointment was made. The mean and median number of days taken to confirm a nomination are also provided.³⁰

Table A-2 provides summary information on appointments and nominations by organization. For each of the 34 independent boards and commissions discussed in this report, the appendix provides the number of positions, vacancies, incumbents whose term has expired, nominations, individual nominees, positions to which nominations were made, confirmations, nominations returned to the President, nominations withdrawn, and recess appointments.

Appendix B provides information concerning Senate recesses during the 110^th Congress. A list of organization abbreviations can be found in Appendix C.

As noted above, this report employs certain methods that differ from those of previous similar reports. These methodological changes are discussed in detail in Appendix D.

Chemical Safety and Hazard Investigation Board (CSB)

The CSB is an independent agency consisting of five members (no political balance is required), including a chair, who serve five-year terms. The President appoints the members, including the chair, with the advice and consent of the Senate. When a term expires, the incumbent must leave office. (42 U.S.C. § 7412(r)(6))

Commodity Futures Trading Commission (CFTC)

The CFTC consists of five members (no more than three may be from the same political party) who serve five-year terms. At the end of a term, a member may remain in office, unless replaced, until the end of the next session of Congress. The chair is also appointed by the President, with the advice and consent of the Senate. (7 U.S.C. § 2(a)(2))

Consumer Product Safety Commission (CPSC)

The statute establishing the CPSC calls for five members, who serve seven-year terms. During a period that included the 110^th Congress, however, funding was authorized for only three of these positions. No more than three of the members may be from the same political party. A member may remain in office for one year at the end of a term, unless replaced. The chair is also appointed by the President, with the advice and consent of the Senate. (15 U.S.C. § 2053)

Defense Nuclear Facilities Safety Board (DNFSB)

The DNFSB consists of five members (no more than three may be from the same political party), who serve five-year terms. After a term expires, a member may continue to serve until a successor takes office. The President designates the chair and vice chair. (42 U.S.C. § 2286)

Election Assistance Commission (EAC)

The EAC consists of four members (no more than two may be from the same political party), who serve four-year terms. After a term expires, a member may continue to serve until a successor takes office. The chair and vice chair, from different political parties and designated by the commission, change each year. (42 U.S.C. § 15323)

Equal Employment Opportunity Commission (EEOC)

The EEOC consists of five members (no more than three may be from the same political party), who serve five-year terms. An incumbent whose term has expired may continue to serve until a successor is appointed, except that no such member may continue to serve (1) for more than 60 days when Congress is in session, unless a successor has been nominated; or (2) after the adjournment of the session of the Senate in which the successor's nomination was submitted. The President designates the chair and the vice chair. The President also appoints the general counsel, with the advice and consent of the Senate. (42 U.S.C. § 2000e-4)

Export-Import Bank Board of Directors (EXIMBANK)

The Export-Import Bank Board of Directors comprises the bank president, who serves as chair; the bank first vice president, who serves as vice chair; and three other members (no more than three of these five may be from the same political party). All five members are appointed by the President, with the advice and consent of the Senate, and serve four-year terms. An incumbent whose term has expired may continue to serve until a successor is qualified, or until six months after the term expires—whichever occurs earlier. (12 U.S.C. § 635a) The President also appoints an inspector general, with the advice and consent of the Senate. (5 U.S.C. App., Inspector General Act of 1978, § 3, 12)

Farm Credit Administration (FCA)

The FCA consists of three members (no more than two may be from the same political party), who serve six-year terms. A member may not succeed himself or herself unless he or she was first appointed to complete an unexpired term of three years or less. A member whose term expires may continue to serve until a successor takes office. The President designates the chair. (12 U.S.C. § 2242)

Federal Communications Commission (FCC)

The FCC consists of five members (no more than three may be from the same political party), who serve five-year terms. When a term expires, a member may continue to serve until the end of the next session of Congress, unless a successor is appointed before that time. The President designates the chair. (47 U.S.C. § 154)

Federal Deposit Insurance Corporation Board of Directors (FDIC)

The FDIC board of directors consists of five members, of whom two—the comptroller of the currency and the director of the Office of Thrift Supervision (OTS)—are ex officio. The three appointed members serve six-year terms. An appointed member may continue to serve after the expiration of a term until a successor is appointed. Not more than three of the members of the board of directors may be from the same political party. The President appoints the chair and the vice chair, with the advice and consent of the Senate, from among the appointed members. The chair is appointed for a term of five years. (12 U.S.C.§ 1812) The President also appoints the inspector general, with the advice and consent of the Senate. (5 U.S.C. App., Inspector General Act of 1978, § 3, 12)

Federal Election Commission (FEC)

The FEC consists of six members (no more than three may be from the same political party), who may serve for a single term of six-years. When a term expires, a member may continue to serve until a successor takes office. The chair and vice chair, from different political parties and elected by the commission, change each year. Generally, the vice chair succeeds the chair. (2 U.S.C. § 437c)

Federal Energy Regulatory Commission (FERC)

The FERC, an independent agency within the Department of Energy, consists of five members (no more than three may be from the same political party), who serve five-year terms. When a term expires, a member may continue to serve until a successor takes office, except that such commissioner may not serve beyond the end of the session of the Congress in which his or her term expires. The President designates the chair. (42 U.S.C. § 7171)

Federal Housing Finance Board (FHFB)

The FHFB consisted of five members, of whom one—the Secretary of Housing and Urban Development (HUD) or his or her designee—was ex officio. The Housing and Economic Recovery Act of 2008 (P.L. 110-289; 122 Stat. 2654) provided for the abolishment of this board, effective one year from the statute's July 30, 2008, enactment (§ 1311; 122 Stat. 2797). Prior to the enactment of this statute, the law provided for four appointed members who served seven-year terms, with no more than three from the same political party. An appointed member whose term expires could continue to serve until a successor was appointed. The President designated the chair from among the appointed members. (12 U.S.C. § 1422a(1)) Section 1204 of the act (122 Stat. 2785) repealed this section, but it was in effect during part of the period covered by this report.

Federal Labor Relations Authority (FLRA)

The FLRA consists of three members (no more than two may be from the same political party), who serve five-year terms. After the date on which a five-year term would expire, a member may continue to serve until the end of the next Congress, unless a successor is appointed before that time. The President designates the chair. The general counsel is also appointed by the President, with the advice and consent of the Senate. (5 U.S.C. § 7104)

Federal Maritime Commission (FMC)

The FMC consists of five members (no more than three may be from the same political party), who serve five-year terms. When a term expires, a member may continue to serve until a successor takes office. The President designates the chair. (46 U.S.C. § 301)

Federal Mine Safety and Health Review Commission (FMSHRC)

The FMSHRC consists of five members (no political balance is required), who serve six-year terms. When a term expires, the member must leave office. The President designates the chair. (30 U.S.C. § 823)

Federal Reserve System Board of Governors (FRS)

The FRS consists of seven members (no political balance is required), who serve 14-year terms. When a term expires, a member may continue to serve until a successor takes office. The President appoints the chair and vice chair, who are separately appointed as members, for four-year terms, with the advice and consent of the Senate. (12 U.S.C. §§ 241, 242)

Federal Trade Commission (FTC)

The FTC consists of five members (no more than three may be from the same political party), who serve seven-year terms. When a term expires, the member may continue to serve until a successor takes office. The President designates the chair. (15 U.S.C. § 41)

Foreign Claims Settlement Commission (FCSC)

The FCSC, located in the Department of Justice, consists of three members (political balance is not required), who serve three-year terms. When a term expires, the member may continue to serve until a successor takes office. Only the chair, who also is appointed by the President with the advice and consent of the Senate, serves full-time. (22 U.S.C. §§ 1622, 1622c)

Merit Systems Protection Board (MSPB)

The MSPB consists of three members (no more than two may be from the same political party), who serve seven-year terms. A member who has been appointed to a full seven-year term may not be reappointed to any following term. When a term expires, the member may continue to serve for one year, unless a successor is appointed before that time. The President appoints the chair, with the advice and consent of the Senate, and designates the vice chair. (5 U.S.C. §§ 1201-1203)

National Credit Union Administration Board of Directors (NCUA)

The NCUA consists of three members (no more than two members may be from the same political party), who serve six-year terms. When a term expires, a member may continue to serve until a successor takes office. The President designates the chair. (12 U.S.C. § 1752a)

National Labor Relations Board (NLRB)

The NLRB consists of five members, who serve five-year terms. Political balance is not required, but, by tradition, no more than three members are from the same political party. When a term expires, the member must leave office. The President designates the chair. The President also appoints the general counsel, with the advice and consent of the Senate. (29 U.S.C. § 153)

National Mediation Board (NMB)

The board consists of three members (no more than two may be from the same political party), who serve three-year terms. When a term expires, the member may continue to serve until a successor takes office. The board annually designates a chair. (45 U.S.C. § 154)

National Transportation Safety Board (NTSB)

The NTSB consists of five members (no more than three may be from the same political party), who serve five-year terms. When a term expires, a member may continue to serve until a successor takes office. The President appoints the chair, from among the members, for a two-year term, with the advice and consent of the Senate, and designates the vice chair. (49 U.S.C. § 1111)

Nuclear Regulatory Commission (NRC)

The NRC consists of five members (no more than three may be from the same political party), who serve five-year terms. When a term expires, the member must leave office. The President designates the chair. The President also appoints the inspector general, with the advice and consent of the Senate. (42 U.S.C. § 5841 and 5 U.S.C. App., Inspector General Act of 1978, §§ 3, 12)

Occupational Safety and Health Review Commission (OSHRC)

The OSHRC consists of three members (political balance is not required), who serve six-year terms. When a term expires, the member must leave office. The President designates the chair. (29 U.S.C. § 661)

Postal Regulatory Commission (PRC)

The Postal Rate Commission became the Postal Regulatory Commission, as provided in Section 604 of P.L. 109-435, the Postal Accountability and Enhancement Act, enacted on December 20, 2006.

The commission consists of five members (no more than three may be from the same political party), who serve six-year terms. After a term expires, a member may continue to serve until his successor takes office, but the member may not continue to serve for more than one year after the date upon which his tem otherwise would expire. The President designates the chair, and the members select the vice chair. (39 U.S.C. § 502)

Privacy and Civil Liberties Oversight Board (PCLOB)

The board consists of five members (no more than three members of the board may be from the same political party), who serve six-year terms. When a term expires, the member may continue to serve until a successor takes office. Only the chair, who also is appointed by the President with the advice and consent of the Senate, serves full-time. (42 § 2000ee)

The Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, Title VIII, § 801 (121 Stat. 352) established the Privacy and Civil Liberties Oversight Board, and the first new nominations to the board were made in the 110^th Congress. Previously the Privacy and Civil Liberties Oversight Board functioned as part of the White House Office in the Executive Office of the President. That board ceased functioning on January 30, 2008. As of the end of the 110^th Congress, the new board had not been constituted. (See CRS Report RL34385, Privacy and Civil Liberties Oversight Board: New Independent Agency Status, by [author name scrubbed].)

Railroad Retirement Board (RRB)

The board consists of three members (political balance is not required), who serve five-year terms. When a term expires, the member may continue to serve until a successor takes office. The President appoints the chair, and an inspector general, with the advice and consent of the Senate. (45 U.S.C. § 231f and 5 U.S.C. App., Inspector General Act of 1978, §§ 3, 12)

Securities and Exchange Commission (SEC)

The commission consists of five members (no more than three may be from the same political party), who serve five-year terms. When a term expires, the member may continue to serve until the end of the next session of Congress, unless a successor is appointed before that time. The President designates the chair. (15 U.S.C. § 78d)

Surface Transportation Board (STB)

The STB, located within the Department of Transportation, consists of three members (no more than two may be from the same political party), who serve five-year terms. When a term expires, the member may continue to serve until a successor takes office, but not for more than one year after expiration. The President designates the chair. (49 U.S.C. § 701)

United States International Trade Commission (USITC)

The USITC consists of six members (no more than three may be from the same political party), who serve nine-year terms. A member of the commission who has served for more than five years is ineligible for reappointment. When a term expires, a member may continue to serve until a successor takes office. The President designates the chair and vice chair for two-year terms of office, but they may not belong to the same political party. The President may not designate a chair with less than one year of continuous service as a member. This restriction does not apply to the vice chair. (19 U.S.C. § 1330)

United States Parole Commission (USPC)

The USPC is an independent agency in the Department of Justice. The commission consists of five commissioners (political balance is not required), who serve for six-year terms. When a term expires, a member may continue to serve until a successor takes office. In most cases, a commissioner may serve no more than 12 years. However, Section 11017(c) of P.L. 110-273, enacted on November 2, 2002, provides that this limitation does not "apply to a person serving as Commissioner" when the act took effect. The President designates the chair. (18 U.S.C. § 4202) The commission was previously scheduled to be phased out, but its life has been extended several times by Congress. Under P.L. 110-312, § 2 (122 Stat. 3013), it was extended until November 1, 2011. (18 U.S.C. § 3551)

United States Sentencing Commission (USSC)

The USSC is a judicial branch agency that consists of seven voting members, who are appointed to six-year terms, and two non-voting members. The seven voting members are appointed by the President, with the advice and consent of the Senate. Only the chair and three vice chairs, selected from among the members, serve full-time. The President appoints the chair, with the advice and consent of the Senate, and designates the vice chairs. At least three members must be federal judges. Not more than four members may be of the same political party. No more than two vice chairs may be of the same political party. No voting member may serve more than two full terms. When a term expires, an incumbent may continue to serve until he or she is reappointed, a successor takes office, or Congress adjourns sine die at the end of the session that commences after the expiration of the term, whichever is earliest. The Attorney General (or designee) serves ex officio as a non-voting member. (28 U.S.C. § 991-992) The chair of the United State Parole Commission is also an ex officio non-voting member of the commission. (18 U.S.C. § 3551 note)

Appendix A. Summary of All Nominations and Appointments to Collegial Boards and Commissions

Appendix A.

Appendix B. Senate Recesses and Presidential Recess Appointments

Appendix C. Board/Commission Abbreviations

Appendix D. Change in Methodology from Previous Tracking Reports

The calculations of nomination-to-confirmation intervals provided in this report counted all the days within the interval, including those during summer recesses and between sessions of the Senate. The inclusion of all days differs from the methodology used in similar CRS reports for previous Congresses.³¹ In these earlier reports, days during August and intersession recesses were not included in calculations of nomination-to-confirmation intervals. The rationale for the earlier methodology was that the Senate was unlikely to continue consideration of nominations during these periods; committee hearings and votes, among other activities, typically do not occur during these times. The exclusion of days during only certain periods of adjournment—intersession recesses and August recesses, which are usually longer than 30 days—is suggested by Senate rules regarding when nominations are to be returned to the President. These provide:

Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President. ³²

This earlier methodology was also consistent with the approach of some political scientists who study executive branch appointments.³³

The methodology for this report is different from that which was used in previous similar reports for several reasons. First, as discussed above in the section on recess appointments, from the latter part of the first session through the end of the 110^th Congress, the Senate chose to break up what would otherwise have been longer recesses into shorter recesses separated by pro forma sessions. This introduced two options for this report with regard to the calculation of nomination-to-confirmation intervals. The first option would have been to treat each series of short recesses created in this fashion as one long recess and to subtract these days from the nomination-to-confirmation interval.³⁴ The second option would have been to treat each recess in the series of short recesses created in this fashion as a short recess, and not to subtract these days from the nomination-to-confirmation interval. Arguably, the Senate and President actions were consistent with the latter construction—short recesses as short recesses. Otherwise, Senate rules would have required the return of pending nominations (or the waiver of that rule),³⁵ and the President could have—and likely would have—made recess appointments. The Senate and the President did not take these actions. Because of this, short recesses created by pro forma sessions are treated as short recesses in this report. It should be noted, however, that this reduces the comparability of statistics provided in this report with statistics in previous similar tracking reports, since the intervals calculated in this report include days that, in previous reports, were part of longer recesses and therefore were subtracted from the length of the interval. Although the phenomenon underlying this methodological problem first arose during the 110^th Congress, it could arise again in future Congresses.

Other reasons for the methodological change are not unique to the 110^th Congress. First, in some cases, committee or floor action on a nomination that could have been completed before a recess has been, instead, deferred until after the recess. For such a nomination, the period of Senate consideration arguably has been intentionally extended. Counting all days, including those during a long recess, in calculations of elapsed time reflects that extension of Senate consideration. Second, it is unlikely that all work pertaining to nominations stops over a recess, and the inclusion of recess days is a reflection of the fact that the nominee is still under consideration, even during recess. Member and committee staffs may still be considering nominations at that time, even though they may not take direct action in the form of hearings or votes on the nominees. Ongoing activities may include investigatory work and interviews with nominees. Finally, although, as mentioned above, some political scientists who study nominations do subtract recess days during calculations of nomination-to-confirmation intervals, many others do not.³⁶ In addition, the calculation of nomination-to-confirmation intervals in CRS research concerning judicial nominations does not exclude days that fall during recesses. By using methodology that is more similar to the work of other political scientists and to CRS judicial nominations research, the research presented here could be more easily compared and combined with related work. For all of these reasons, in this report, we employ a new methodology for calculating nomination-to-confirmation intervals.