Commodity Futures Trading Commission, B-288581, November 19, 2001

B-288581 Nov 19, 2001 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights The Commodity Futures Trading Commission (CFTC) has requested an opinion concerning when its appropriations will no longer be available to pay the compensation of Commissioner David D. Spears, due to the expiration of his holdover term. In the event a successor is not appointed and qualified, the applicable statutory holdover provision provides that the Commissioner may continue to serve until the expiration of the current session of Congress. View Decision B-288581, Commodity Futures Trading Commission, November 19, 2001 Decision Matter of: Commodity Futures Trading Commission File: B-288581 Date: November 19, 2001 DIGEST Pursuant to 7 U.S.C. 2(a)(2)(A), in the event a successor is not appointed and qualified, Commodity Futures Trading Commission (CFTC) Commissioner Spears may continue to serve until the expiration of this current session of Congress. The Commissioner may not serve beyond the adjournment sine die of the current session of Congress irrespective of any reserved right to reconvene, or, in the absence of an adjournment sine die, when by operation of law the next session of Congress begins. Decision The Commodity Futures Trading Commission (CFTC) has requested an opinion concerning when its appropriations will no longer be available to pay the compensation of Commissioner David D. Spears, due to the expiration of his holdover term. In the event a successor is not appointed and qualified, the applicable statutory holdover provision provides that the Commissioner may continue to serve until the expiration of the current session of Congress. 7 U.S.C. 2(a)(2)(A). For the reasons discussed below, the Commissioner's holdover term will expire upon the adjournment sine die of the current session of Congress pursuant to a concurrent resolution, irrespective of any reserved right to reconvene, or, in the absence of a resolution providing for an adjournment sine die, when by operation of law the next session of Congress begins. BACKGROUND Commissioner Spears's fixed 5-year term of office ended April 15, 2000, during the second session of the 106th Congress. The Commissioner has continued to serve since that time pursuant to a holdover provision which provides that: Each Commissioner shall hold office for a term of five years and until his successor is appointed and has qualified, except that he shall not so continue to serve beyond the expiration of the next session of Congress subsequent to the expiration of said fixed term of office . . . . 7 U.S.C. 2(a)(2)(A). The CFTC indicates that Commissioner Spears's successor will not be nominated by the President and, with the advice and consent of the Senate, appointed prior to the end of the current session of Congress. Therefore, the Commissioner's holdover term must end upon the expiration of the current session of Congress. See 57 Comp. Gen. 213 (1978) (CFTC may continue to compensate Commissioner whose fixed term expired during first session of 95th Congress until expiration of the second session of the 95th Congress, or appointment and qualification of successor, whichever occurs first). Although we considered this statutory holdover provision, formerly codified at 7 U.S.C. 4a(a), in 57 Comp. Gen. 213, we did not address when a session of Congress expires within the meaning of the statute. ANALYSIS It is well established that a session of Congress is brought to a close through either (1) a concurrent resolution of both houses adjourning the session sine die[1] or (2) operation of law, immediately prior to the beginning of the next session of Congress. Ashley v. Keith Oil Corp. et al., 7 F.R.D. 589, 590 (1947) (effective date of amendments to federal rules which were not to take effect until after the close of the session of Congress). See also Deschler's Precedents, H.R. Doc. No. 94-661, Ch 1, 2, at 8 (1976) (the final adjournment of a session is usually accomplished by a sine die adjournment resolution but can also be accomplished by the commencement of the next session of Congress, referring to January 3, 1941, as the end of the third session of the 76th Congress as well as the beginning of the first session of the 77th Congress). For example, the second session of the 100th Congress expired on October 22, 1988, pursuant to the concurrent resolution adjourning the Congress sine die: Resolved by the House of Representatives (the Senate concurring), That when the House and Senate adjourn on Saturday, October 22, 1988, they stand adjourned sine die. H.R. Con. Res. 398, 100th Cong., 102 Stat. 4934 (1988). In accordance with 7 U.S.C. 2(a)(2)(A), a holdover term expiring at the end of the second session of the 100th Congress pursuant to 7 U.S.C. 2(a)(2)(A) would have expired on October 22, 1998.[2] Compare this to the first session of the 104th Congress which expired prior to noon, January 3, 1996, pursuant to operation of law.