This Week in Congress – February 27, 2017

Both chambers are set to return on Monday after a weeklong recess, kicking off a six-week session of legislative business in Washington, D.C. The issues expected to dominate this work period include the confirmation hearing for Judge Neil Gorsuch to the U.S. Supreme Court and negotiations over how to keep the government funded beyond the scope of the current continuing resolution, which is set to expire on April 28.

During this first week back at the Capitol, Congress will continue to focus on much of the same business of the previous two months. The Senate remains engaged on the confirmation of President Trump’s Cabinet appointees, while the House concentrates on federal regulatory reform and passage of resolutions of disapproval under the Congressional Review Act (CRA) to overturn regulations issued by federal agencies in the final months of the Obama Administration. In addition, on Tuesday night, President Trump will deliver his first State of the Union address, his first speech to Congress. That speech is likely to dominate the news and the rhetoric in Congress for the balance of the week.

The Senate is scheduled to return on Monday for a confirmation vote on the nomination of Wilbur Ross to serve as the Secretary of Commerce. Immediately following the disposition of that nomination, senators are scheduled to hold a cloture vote on the nomination of Rep. Ryan Zinke (R-MT) to serve as Secretary of the Interior. A final confirmation vote on Rep. Zinke can be expected later in the week. Majority Leader McConnell has also filed cloture on the nominations of Dr. Ben Carson to serve as Secretary of Housing and Urban Development and former Texas Governor Rick Perry to serve as Secretary of Energy. With only a simple majority needed to invoke cloture and cut off debate on these nominations and with no Republicans known to be opposing them, cloture should be invoked and votes on the nominations can be expected later in the week.

Members of the House of Representatives are also scheduled to return to legislative business on Monday, when they will consider six bills, four of which have been reported from the Natural Resources Committee, under suspension of the rules.

On Tuesday, the House will begin its consideration of three additional measures related to federal regulatory reforms. First, members will consider H.R. 998, the “Searching for and Cutting Regulations that are Unnecessarily Burdensome” (SCRUB) Act of 2017, which would establish a commission to review existing federal regulations and identify those that should be repealed in order to reduce the costs and burdens to the economy of regulations that can no longer be justified. The commission would then be responsible for reporting to Congress on which regulations should be rescinded; Congress would be afforded a process for eliminating rules identified by the commission. The bill would also require agencies to repeal a rule or set of rules identified by the commission whenever it proposes to implement a new rule. In addition, the legislation would require agencies to review any new regulation within 10 years of its promulgation and determine whether to retain the rule. A previous version of this bill passed the House in 2016. Consideration of H.R. 998 will be subject to a rule.

As noted, on Tuesday night, the President will deliver the State of the Union address. Following the President’s speech, former Kentucky Governor Steve Beshear will give the Democratic response. The remainder of the week is likely to see partisan rhetoric swirling around the President’s initial address to Congress.

During the remainder of the week, members will also consider H.R. 1004, the Regulatory Integrity Act of 2017, which would require greater transparency in federal agency communications about pending regulatory actions. The legislation would direct each federal agency to make information regarding its regulatory actions publicly available in a searchable format. That information would have to include the date a regulation was proposed, its current status, an estimate of when the regulation would be final, and a brief description of the regulation. In addition, agencies would be required to track the details of all public communications about pending regulatory actions. It would also prohibit agencies from using any of the public communications to lobby for public support of their rules. A previous version of this bill passed the House in 2016. Consideration of H.R. 1004 will be subject to a rule.

Finally, members will consider H.R. 1009, the OIRA (Office of Information and Regulatory Affairs) Insight, Reform, and Accountability Act, subject to a rule. The legislation is aimed at strengthening accountability at OIRA, the office in the Office of Management and Budget that oversees the federal regulatory process. The legislation would require the OIRA Administrator to convene a working group to review regulations, streamline regulatory decision-making, and aid small businesses and other entities with compliance.

The House is also expected to take up H.J. Res. 83, a resolution under the CRA to disapprove the Department of Labor’s final rule on “Clarification of Employer’s Continuing Obligation To Make and Maintain an Accurate Record of Each Recordable Injury and Illness.” The rule imposes on employers a continuing obligation to make and maintain an accurate record of each recordable injury and illness during a five year span. Consideration of H.J. Res. 83 will be subject to a rule.

Two congressional committees this week will begin initial hearings to lay the groundwork for authorizing legislation that will be drafted in the year ahead. Two of the House Agriculture Committee’s subcommittees will hold hearings on Tuesday to review issues for the next farm bill, which is set to expire in 2018. The Subcommittee on Livestock and Foreign Agriculture will meet to discuss international market development, while the Subcommittee on Conservation and Forestry will review conservation policy.

The House Judiciary Committee has scheduled a Wednesday hearing regarding the Section 702 surveillance authority of the Foreign Intelligence Surveillance Act, which is set to expire at the end of 2017. House Judiciary Committee Chairman Bob Goodlatte (R-VA) indicated this initial hearing is to “hear from government officials, legal and policy experts, and privacy advocates regarding how the program is currently operating, so that we can best determine what steps might be needed to improve the program.” The first portion of this hearing will be classified.

Additionally this week the House Judiciary Committee will be conducting business related to health care reform efforts. On Tuesday the committee will host a markup that includes consideration of two health care bills. The first bill, H.R. 1215, the Protecting Access to Care Act, is a comprehensive medical liability reform bill. The bill, which the committee has favorably reported in prior Congresses, was not reported in the last Congress due to Republican opposition to it based on federalism concerns. Because the bill scores with budgetary savings, it provides a means to help pay for health care reform Republicans are pursuing. The second measure, H.R. 372, the Competitive Health Insurance Reform Act of 2017, would restore the application of federal antitrust laws to the health insurance market by repealing the McCarran-Ferguson Act insofar as it applies to health insurance. This proposal was included in the Republican Study Committee’s healthcare reform bill and Speaker Paul Ryan’s “A Better Way” white paper; it too will play a role in the Republican majority’s strategy for repealing and replacing the Affordable Care Act.

The House Committee on Education and the Workforce will also be considering legislative proposals related to health care coverage and reforms. On Wednesday the full committee will meet to discuss H.R. 1101, the Small Business Health Fairness Act, which aims to make it more affordable for small businesses to offer health care coverage, as well as two discussion drafts: the Self-Insurance Protection Act and the Preserving Employee Wellness Programs Act.

The Senate Select Committee on Intelligence is scheduled to meet on Tuesday afternoon to hear testimony from former Senator Dan Coats regarding his nomination to serve as the Director of National Intelligence. Senator Coats is a former Republican member from Indiana who sat on both the Intelligence and the Armed Services Committees.

There are three hearings related to cybersecurity scheduled throughout the week. The House Armed Services Committee will discuss cyber warfare at Wednesday hearing, while the Senate Armed Services Committee is scheduled to meet on Thursday regarding cybersecurity strategy and policy. The House Science, Space and Technology Committee will meet on Wednesday to mark up the National Institute of Standards and Technology (NIST) Cybersecurity Framework, Assessment, and Auditing Act of 2017.

Related to foreign affairs and domestic security, on Tuesday the House Foreign Affairs Subcommittee on the Western Hemisphere will hear testimony from experts and academics on issues and opportunities in the western hemisphere. At the same time, the Foreign Affairs Subcommittee on Asia and the Pacific will meet to discuss “China’s maritime push.” These two events provide Congress an opportunity to consider global relationships under the new Trump Administration and the large degree of uncertainty that hangs over international relations. In addition, the Senate Armed Services Subcommittee on National Security will receive a classified briefing on Wednesday on global counterterrorism efforts.

Finally, there are three congressional hearings related to infrastructure improvements and modernization efforts scheduled on Wednesday. The House Transportation and Infrastructure Subcommittee on Aviation will meet to discuss the state of American airports. The full Senate Commerce, Science, and Transportation Committee is scheduled to host a hearing regarding improving access to infrastructure for communities across the country. The Senate Environment and Public Works Committee will meet to review the nation’s flood control infrastructure, a very pressing issue given the safety questions that have arisen amid the ongoing crisis at the Oroville Dam in California.

The full details for these hearings and other events scheduled throughout the week are included below:

Monday, February 27, 2017

House Committees

Assessing VA’s Risks for Drug Diversion
House Veterans’ Affairs – Subcommittee on Oversight and Investigations
Subcommittee Hearing
3:30 p.m., 334 CHOB

Tuesday, February 28, 2017

House Committees

The Next Farm Bill: Conservation Policy
House Agriculture – Subcommittee on Conservation and Forestry
Subcommittee Hearing
10 a.m., 1300 LHOB

Farm Credit Administration Oversight
House Appropriations – Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies
Subcommittee Hearing
10 a.m., 2362-A RHOB

Member’s Day
House Appropriations – Subcommittee on Commerce, Justice, Science, and Related Agencies
Subcommittee Hearing
10:30 a.m., H-309

Providing More Students a Pathway to Success by Strengthening Career and Technical Education
House Education and the Workforce – Subcommittee on Early Childhood, Elementary and Secondary Education
Subcommittee Hearing
10 a.m., 2175 RHOB

Ways to Improve and Strengthen the International Anti-Doping System
House Energy and Commerce – Subcommittee on Oversight and Investigations
Subcommittee Hearing
10:15 a.m., 2123 RHOB

Budget Views and Estimates
House Financial Services
Full Committee Markup
10 a.m., 2128 RHOB

The Future of Counterterrorism : Addressing the Evolving Threat to Domestic Security
House Homeland Security – Subcommittee on Counterterrorism and Intelligence
Subcommittee Hearing
10 a.m., CVC-210

Pending Legislation
House Judiciary
Full Committee Markup
10 a.m., 2141 RHOB

At What Cost? Examining the Social Cost of Carbon
House Science, Space and Technology – Subcommittee on Oversight; House Science, Space and Technology – Subcommittee on Environment
Subcommittees Joint Hearing
10 a.m., 2318 RHOB

The Next Farm Bill: International Market Development
House Agriculture – Subcommittee on Livestock and Foreign Agriculture
Subcommittee Hearing
2 p.m., 1300 LHOB

Member’s Day
House Appropriations – Subcommittee on Interior, Environment, and Related Agencies
Subcommittee Hearing
1:30 p.m., TBA

Department of Defense Inspector General Report ‘Investigation on Allegations Relating to USCENTCOM Intelligence Products’
House Armed Services – Subcommittee on Oversight and Investigations
Subcommittee Hearing
3:30 p.m., 2118 RHOB

Checking China’s Maritime Push
House Foreign Affairs – Subcommittee on Asia and the Pacific
Subcommittee Hearing
2 p.m., 2172 RHOB

Issues and Opportunities in the Western Hemisphere
House Foreign Affairs – Subcommittee on the Western Hemisphere
Subcommittee Hearing
2 p.m., 2200 RHOB

The Future of FEMA : Recommendations of Former Administrators
House Homeland Security – Subcommittee on Emergency Preparedness, Response and Communications
Subcommittee Hearing
2 p.m., CVC-210

Senate Committees

Iraq After Mosul
Senate Foreign Relations
Full Committee Hearing
10 a.m., SD-419

Improving Outcomes for Youth in the Juvenile Justice System
Senate Judiciary
Full Committee Hearing
10 a.m., SD-226

Director of National Intelligence Nomination
Senate Select Intelligence
Full Committee Hearing
2 p.m., SD-106

Intelligence Matters
Senate Select Intelligence
Full Committee Briefing
4 p.m., SH-219

Joint Committees

Legislative Presentation of the Disabled American Veterans
Senate Veterans’ Affairs; House Veterans’ Affairs
Committee Joint Hearing
2 p.m., SD-G-50

Wednesday, March 1, 2017

House Committees

Budget Views and Estimates
House Agriculture
Full Committee Markup
10 a.m., 1300 LHOB

Member’s Day
House Appropriations – Subcommittee on Homeland Security
Subcommittee Hearing
9:30 a.m., 2008 RHOB

Member’s Day
House Appropriations – Subcommittee on Labor, Health and Human Services, Education, and Related Agencies
Subcommittee Hearing
10 a.m., 2358B-RHOB

Cyber Warfare in the 21st Century: Threats, Challenges and Opportunities
House Armed Services
Full Committee Hearing
10 a.m., 2118 RHOB

Legislative Proposals to Improve Health Care Coverage and Provide Lower Costs for Families
House Education and the Workforce
Full Committee Hearing
10 a.m., 2175 RHOB

Section 702 of the Foreign Intelligence Surveillance Act
House Judiciary
Full Committee Hearing
10 a.m., 2141 RHOB

Modernizing Western Water and Power Infrastructure in the 21st Century
House Natural Resources – Subcommittee on Water, Power and Oceans
Subcommittee Hearing
10 a.m., 1324 LHOB

NIST Cybersecurity Framework, Assessment, and Auditing Act of 2017
House Science, Space and Technology
Full Committee Markup
10 a.m., 2318 RHOB

Views and Estimates Meeting 115th Congress
House Small Business
Full Committee Markup
11 a.m., 2360 RHOB

Building a 21st Century Infrastructure for America: State of American Airports
House Transportation and Infrastructure – Subcommittee on Aviation
Subcommittee Hearing
11 a.m., 2167 RHOB

Member’s Day
House Appropriations – Subcommittee on Homeland Security
Subcommittee Hearing
1 p.m., 2008 RHOB

U.S. Ground Force Capability and Modernization Challenges in Eastern Europe
House Armed Services – Subcommittee on Tactical Air and Land Forces
Subcommittee Hearing
3:30 p.m., 2212 RHOB

VA: Path to Reform
House Oversight and Government Reform – Subcommittee on National Security
Subcommittee Hearing
2 p.m., 2154 RHOB

Senate Committees

Global Counterterrorism
Senate Armed Services – Subcommittee on Emerging Threats and Capabilities
Subcommittee Briefing
10 a.m., SVC-217

Connecting America: Improving Access to Infrastructure for Communities Across the Country
Senate Commerce, Science and Transportation
Full Committee Hearing
10 a.m., SD-106

Flood Control Infrastructure: Safety Questions Raised by Current Events
Senate Environment and Public Works
Full Committee Hearing
10:30 a.m., SD-406

The Effects of Border Insecurity and Lax Immigration Enforcement on American Communities
Senate Homeland Security and Governmental Affairs
Full Committee Hearing
10 a.m., SD-342

Pending Business
Senate Judiciary
Full Committee Markup
TBA, SD-226

Joint Committees

Legislative Presentation of The American Legion
House Veterans’ Affairs; Senate Veterans’ Affairs
Committees Joint Hearing
10 a.m., SD-G-50

Legislative Presentation of the Veterans of Foreign Wars of the United States
House Veterans’ Affairs; Senate Veterans’ Affairs
Committees Joint Hearing
2 p.m., SD-G-50

Thursday, March 2, 2017

House Committees

Overview of Military Review Board Agencies
House Armed Services – Subcommittee on Military Personnel
Subcommittee Hearing
10:30 a.m., 2118 RHOB

Member’s Day
House Budget
Full Committee Hearing
10 a.m., 1334 LHOB

Examining FDA’s Generic Drug and Biosimilar User Fee Programs
House Energy and Commerce – Subcommittee on Health
Subcommittee Hearing
10 a.m., 2123 RHOB

Judgement Fund Oversight
House Judiciary – Subcommittee on the Constitution and Civil Justice
Subcommittee Hearing
9 a.m., 2141 RHOB

TSA Transparency
House Oversight and Government Reform
Full Committee Hearing
10 a.m., 2154 RHOB

Adoption of the Committee’s Budget Views and Estimates Letter
House Select Intelligence
Full Committee Markup (CLOSED)
9 a.m., HVC-304

Learning from History: Ideas to Strengthen and Modernize the HUBZone Program
House Small Business – Subcommittee on Contracting and Workforce
Subcommittee Hearing
10 a.m., 2360 RHOB

Senate Committees

Cyber Strategy and Policy
Senate Armed Services
Full Committee Hearing
9:30 a.m., SH-216

Exploring the Value of Spectrum to the U.S. Economy
Senate Commerce, Science and Transportation – Subcommittee on Communications, Technology, Innovation and the Internet
Subcommittee Hearing
9:30 a.m., SD-G-50

Intelligence Matters
Senate Select Intelligence
Full Committee Briefing (CLOSED)
2 p.m., SH-219

The Week Ahead in the European Parliament – February 24, 2017

Summary

Next week will be very busy in the European Parliament as it is a committee week.

On Monday, the Committee on the Environment, Public Health and Food Safety (“ENVI”) will consider amendments on a proposal for a Regulation on the binding annual greenhouse gas emission reductions. The Regulation, dubbed the “Effort Sharing Regulation”, seeks to impose binding annual greenhouse gas emission targets for EU Member States during the period 2021–2030, to meet commitments under the Paris Agreement. It includes areas outside the scope of the Emissions Trading System (“ETS”), such as transport, buildings, agriculture or waste management. The proposal can be found here.

On Tuesday, the Committee of Inquiry into Emission Measurements in the Automotive Sector (“EMIS”) will vote on a report by Jens Gieseke (EPP, DE) and Gerben-Jan Gerbrandy (ALDE, NL) on the inconsistencies between emissions of diesel cars during test driving and real driving. The report also provides recommendations to both the Commission and EU Member States on best practices and developing the application of EU-wide standards. The draft report can be found here.

On the same day, the Committee on Economic and Monetary Affairs (“ECON”) and the Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) will cast their votes on an amendment to a draft report on a proposal for a Directive on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing. The modifications aim to close gaps and reinforce measures preventing the financing of terrorism, including hiding information related to companies’ true ownership and sharing this information across the bloc. The proposal for the directive can be found here.

On Wednesday, political groups in the plenary will deliberate and prepare for the European Council meeting, taking place on March 9-10. The topics to be debated among EU leaders during the summit Continue Reading

Proposal to Amend EU Comitology Rules: Stretching the Limits of the Precautionary Principle

The European Commission has presented a proposal to amend the EU’s examination comitology procedure with the aim of forcing Member States to vote and take responsibility in the adoption of controversial decisions mostly affecting health and the environment, such as pesticides, GMOs, and chemicals.  If adopted, the proposed amendments are likely to result in an even stronger precautionary approach and the adoption of fewer approvals of politically sensitive products in the EU.  The amendments would also mean that companies who seek to have such products approved will need to put more efforts into influencing Member States and their national constituencies.  They are also likely to result in increased litigation before the EU Courts.

The Examination Procedure

The EU adopts most of its legislation and regulatory measures as “implementing acts” that are adopted by the European Commission after consulting Member States and do not require the full involvement of the European Parliament and Council through a full legislative procedure. For example, the European Commission adopted around 1500 implementing acts in 2016.

These implementing acts are adopted through the so-called “comitology” procedures regulated in Regulation 182/2011 on the Commission’s Exercise of Implementing Powers (“Implementing Powers Regulation”).  The most common comitology procedure is the “examination” procedure through which many key regulatory decisions in the areas of health, environmental and energy policy are adopted.  Implementing acts adopted through the examination procedure include approvals in the area of pesticides, biocides, GMOs, REACH, as well as exemptions from prohibitions on chemicals used in electronics.

The examination procedure requires the Commission to present its proposal to a Standing Committee of Member State representatives, who are typically national officials with a regulatory expertise in the dossier. In the areas of health and the environment, the Commission will usually be empowered to make a proposal only on the basis of a scientific review by one of the EU’s scientific bodies, e.g., EFSA, ECHA or the Commission’s scientific committees.

The Standing Committee must take a decision in favor or against the proposal by qualified majority, which requires a vote of 55% of Member States (i.e., currently 16 Member States) representing at least 65% of the European Union’s population.  Under the current rules, abstentions or Member States that are not represented at the Committee meeting neither count for attaining the qualified majority, nor are deducted from the required figures to meet such a qualified majority. The vote at the Committee may have three different outcomes: a favorable opinion, a negative opinion, or no opinion at all.

If the Committee fails to adopt an opinion because it cannot reach a qualified majority vote, the Commission may adopt its proposal except in certain cases, such as those concerning the protection of health or safety of humans, animals or plants. In those cases, the Commission must present its proposal to an Appeal Committee composed of Member State Permanent Representatives.  If the Appeal Committee also fails  to reach a qualified majority in favor or against the Commission’s proposal, it is up to the Commission to decide whether to adopt it.

Political Deadlock in Sensitive Sectors

In practice, the examination procedure results in a no opinion situation that forces the Commission to decide on its own in around less than 2% of all the proposals that the Commission presents. Yet, these situations occur in politically very sensitive areas that many times entail the application of the EU’s precautionary principle.  For example, last year the Commission was forced to decide on the adoption of the extension of the approval period for the pesticide glyphosate after the Member States were unable to reach a qualified majority in favor or against the Commission’s proposal.  There have also been numerous similar situations concerning the approval of GMOs.

Given the domestic political sensitivity of approvals on pesticides, GMOs and similar decisions, Member States will often prefer not to participate in the adoption of what is ultimately a political decision even if the Commission’s proposal is supported by the EU’s scientific bodies. In these cases, the Commission is thus left with the politically uncomfortable situation of either having to take the blame for adopting its proposal in the absence of sufficient Member State political support, or for dropping a proposal that it considers to be scientifically supported.

The Commission’s Proposed Amendments

To solve this political deadlock, the Commission proposes four key amendments to the comitology examination procedure with the objective of forcing Member States to vote in favor or against proposals it presents for adoption through this procedure. The four amendments would change the functioning of the Appeal Committee, but not that of the lower Standing Committees.

First, the Commission’s proposal would change the voting rules in the Appeal Committee so that Member States that abstain or are not represented at the Committee’s meeting are considered as “non-participating Member States” when calculating whether a vote in the Committee reaches a qualified majority.  The qualified majority (55% of Member States representing 65% of the population of the EU) would be calculated taking into account only those Member States that actually vote.

Second, the votes of the Member States at the Appeal Committee would be publicly disclosed. Currently, the Commission publishes for each proposal the total number of votes in favor, against or abstentions, but not the vote of each particular Member State.

Third, if adopted, the proposed amendments would allow the Commission to present for a second time its proposal to the Appeal Committee if it fails to deliver an opinion by qualified majority. However, if the second referral takes place, the Appeal Committee would be composed by Ministers of the Member States.

Fourth, where the Appeal Committee composed of Ministers still fails to deliver an opinion by qualified majority, the proposal would allow the Commission to refer the matter to the Council of the European Union for a non-binding opinion with a view to obtaining its political guidance on the implications of its failure to reach a qualified majority in favor or against the Commission’s proposal.

Impact: Stretching the Limits of the Precautionary Principle

The European Commission justifies its proposed amendments as necessary to ensure a democratic decision making process. According to the Commission, in particularly sensitive areas, Member States should take a clear position and not leave it to the Commission to decide.

However, it is questionable whether the Commission’s proposed amendments will increase the democratic accountability of the European Union, rather than result in a much more complex and politicized decision making process. The EU’s democratic legitimacy is not only based on Member States having a bigger say, and it is difficult to find regulatory systems around the world where legislative bodies adopt highly complex and technical decisions, such as marketing authorizations for a particular GMO or pesticide.  Instead, the democratic legitimacy of any implementing act, such as a market approval, is based on the EU regulatory framework (e.g., the Regulation on Plant Protection Products, Regulation on Biocidal Products) that allows the Commission to adopt those implementing acts and that was adopted by both the European Parliament and Council through a full ordinary legislative procedure.  One could argue that the Commission is giving away its responsibilities and, as a result, undermining its own credibility.  Moreover, it unclear whether the Commission’s proposed amendments are worth it given that they are trying to solve an issue that affects less than 2% of all the EU’s implementing measures.

Most importantly, the proposed amendments are likely to result in the EU adopting even fewer approvals for particular sensitive products or regulatory areas. A system that forces Member States to vote and to make their votes public in highly sensitive areas should increase the likelihood of a negative vote by those Member States, as they will fear domestic criticism; or to force the Commission to adopt a more precautionary approach when considering whether to present a proposal for approval, even after a positive scientific review.  These effects will be further emphasized once Brexit takes place, as the United Kingdom has tended to be an active supporter of a science-based approach, and its positions have often been followed by smaller or less active Member States.

In effect, the proposed amendments would emphasize the application of the precautionary principle in the EU and, are likely to discredit it in the long run. If, as expected, the proposed amendments result in more cases where Member States reject the adoption of approvals of sensitive products, it will be particularly difficult for the Commission to repeatedly justify before the EU courts the failure to take measures that have the backing of the EU’s scientific bodies. While the precautionary principle grants the Commission and other EU institutions a margin of discretion, EU law also requires that they justify their decisions.  It is unclear how far the EU Courts will go in stretching the application of the precautionary approach to cover such political rejections of scientific recommendations.

From a practical point of view, the Commission’s proposed amendments will require companies to master even more the EU’s comitology procedures, focus much of their efforts in convincing Member States and their political constituencies, and seriously consider that any proposal affecting their products may ultimately result in significant litigation before the EU courts.

The Commission’s proposal must now be considered for adoption by the European Parliament and Council through the ordinary legislative procedure. Ironically, the proposed amendments give the Parliament a new opportunity to increase its powers in the EU comitology decision making.  Member States, in turn, are expected to receive the Commission’s proposed amendments very negatively.  It remains to be seen whether they will be ready to consider the proposal, which they may amend significantly, or whether they will simply sit on it.

What’s Next for the FEC?

Commissioner Ann Ravel’s decision to resign from the Federal Election Commission will have short term and long term effects on an agency empowered to interpret and enforce the federal campaign finance laws and disclose the money raised and spent in federal elections.  Its short term effects should be minimal.  The statute requires four votes for all significant agency actions, and with three Republican and two Democratic commissioners remaining, all decisions will still require a bi-partisan consensus.  The long term effects could be more significant.  Ironically, Commissioner Ravel is the only FEC Commissioner serving a current term.  All other commissioners’ terms expired years ago.  This presents the President with the opportunity to replace the entire FEC, though if history is a guide, the consequences of that may be less dramatic than it first appears.  We discuss both short and long term effects below.

Immediate Effect of The Departure of Commissioner Ravel

Commissioner Ravel has announced that she will send a letter of resignation to President Trump this week.  The FEC will soon have three Republican commissioners and two recommended by Democrats (technically Commissioner Steven Walther is registered as an Independent, though he was recommended by then Senate Majority Leader Harry Reid for a “Democratic” seat).  By statute all rulemaking, enforcement, and similar agency actions require the vote of at least four commissioners, assuring that there is bipartisan support for all agency actions.  While Commissioner Ravel was frequently willing to join Republicans to form a consensus early in her term, over time she has been reluctant to do so. Instead, she has become a vocal critic of the Republicans on the FEC, especially over a lack of support for enforcement.  Currently, Commissioners Walther and Matthew Petersen are more frequently the source of consensus on the Commission.  So the loss of Commissioner Ravel should not significantly impede those few areas where a bipartisan consensus is possible.

Long Term Effect of the Departure of Commissioner Ravel 

The departure of Commissioner Ravel presents the President and the leaders of both political parties with some interesting choices.

First:  How many commissioners to appoint?  As noted above, all of the remaining Commissioners are holding over in expired terms.  Commissioner Lee Goodman’s term expired in 2015, Commissioner Caroline Hunter’s in 2013, Commissioner Petersen’s in 2011, Commissioner Walther’s in 2009 and Commissioner Ellen Weintraub’s in 2007.  By statute, none can be re-appointed.  While the President has the ability replace the entire FEC, the backlog of confirmations for other administration positions, and a desire for some continuity may lead the administration to make two or four nominations, instead of six.

Second: How will the President make his selections?  By statute, no more than three FEC commissioners can be of a single political party.  Historically, the President has turned to the opposing party’s congressional leadership for recommendations.  While at least twice in the past, Presidents have refused to honor the opposing party’s recommendation (Carter and Reagan), the confirmation process moves most smoothly if each party picks its own commissioners.  While some have speculated that the President might seek an ideological coup at the FEC by appointing a single non-Republican libertarian, this will spark a messy confirmation fight on issues that put the President at odds with his “drain the swamp” campaign theme.  Instead, we expect President Trump will follow tradition and turn to Congressional Democrats for recommendations.

Third: What kinds of people will be nominated?  On the Republican side, President Trump’s White House Counsel, Don McGahn, previously served as an FEC commissioner and knows the agency well.  McGahn also has a long and close working relationship with Senator McConnell, who cares more than any other Republican in Congress about campaign finance law.  Senator McConnell and Mr. McGahn share a deregulatory, First Amendment-focused approach to campaign finance law, so we should expect the nominee(s) on the Republican side to follow in that tradition.

The Democrats face a more complicated set of choices.  First, who decides?  In the past, there was a sense that the Democratic side of the FEC had a House seat, a Senate seat and a White House seat.  That tradition eroded over time and in recent years, most decisions were made in the Senate.  So what role does Minority Leader Pelosi play in the process?  Second, Democrats have consistently selected commissioners more concerned with enforcing the restrictions in the law, imposing penalties when wrongdoing is found, and closing loopholes.  But there is a split within the party between the Democrats’ reform wing and its more pragmatic side.  With the fervency of the anti-Trump movement within the party, and the sense among Democrats that the Republicans at the FEC have refused to enforce the law regardless of how clear the evidence was of a violation, does the party select a more combative, reform-minded voice?  While neither Commissioner Ravel nor Weintraub began their tenure at the FEC in that role, they have both migrated to it out of frustration with how difficult it has been to find Republican support for what they thought of as moderate positions.

Finally 

Finally, and perhaps most importantly, will President Trump consider the overall make-up of the FEC in selecting new commissioners.  Over the last eight years, the FEC has been a turbulent place, with commissioners turning to talk radio, the blogosphere and comedy shows to take their disputes to the public.  Discord at the top has led to a poisonous atmosphere within the building, and the plummeting of employee satisfaction to the lowest depths of any federal agency.  At the same time, the courts have re-written the scope of what can be regulated, and chastised the agency for not regulating enough.  The amount of money raised and spent has grown, and there is a sense that there is no sheriff in town.

The President has an opportunity to work across the aisle to find commissioners who – even if they don’t agree on all questions of the law – can find an amicable way to provide clear guidance on what laws will be enforced and then do so.  Finding the right commissioner(s) to set that tone takes time and focus, and for too many administrations, the FEC has just not seemed worth it.  Events set in motion by the resignation of Commissioner Ravel will show us if it is different this time.

 

The Week Ahead in the European Parliament – February 17, 2017

Summary

Next week is constituency week for Members of the European Parliament (“MEPs”). MEPs will go back to their home countries to handle national issues, or convene in their parliamentary delegations to work on matters related to non-EU Member States.

This week was, however, important as many significant initiatives were adopted by the Parliament.

On Wednesday, the plenary voted in favor of the final EU-Canada Strategic Partnership Agreement and the Comprehensive Economic and Trade Agreement (“CETA”). CETA aims to enhance tariff-free trade and investments between Canada and the bloc. Under EU law, the Parliament’s consent was necessary for the treaty to come into force. The landmark trade deal could apply from as early as April 2017. The agreement passed with 408 votes to 254, with 33 abstentions. See the recommendation voted on here.

On the same day, the European Parliament gave its consent to a report on a proposal for a directive regarding enhancing cost-effective emission reductions and low-carbon investments. The vote comes on the heels of the adoption of the report of the Committee on the Environment, Public Health and Food Safety (“ENVI”). The Commission introduced the proposal aiming to achieve and implement the European Union’s climate change and clean energy targets for 2030, including a 40% cut of CO2 emissions. The Commission’s proposal for the directive can be found here, and the report here.

On Thursday, the plenary voted in favor of a resolution on Civil Law Rules on Robotics. The resolution called on the Commission to submit a proposal for a directive on the topic, to cover legal and ethical issues associated with ever more sophisticated robots. In particular, MEPs were concerned with enforcing ethical standards, or formulating civil liability rules for accidents, such as those involving driverless cars. MEPs were also in favor of a European agency for robotics and artificial intelligence. Nevertheless, the plenary rejected the notion of a universal basic income as a means of compensation for the possible impact of robots on employment. The draft report can be found here, and the resolution here.

Also on Thursday, the plenary voted on an own-initiative report adopted by the Committee on Industry, Research and Energy (“ITRE”) on the European Cloud Initiative, with the resolution passing with 444 to 93, with 50 abstentions. The European Cloud Initiative aims to bolster the EU’s potential in the area of cloud computing, through advancing the bloc’s development of high-performance computing (“HPC”). MEPs emphasized that cloud computing standardization should be expedited, and that raising awareness of cloud computing more generally is of vital importance. The draft report can be found here, and the resolution here.

Finally, on the same day, the plenary debated and approved a draft report on the Commission Communication “An Aviation Strategy for Europe”, following its adoption by the Committee on Transport and Tourism (“TRAN”). The report passed with 397 votes in favor, 99 against, and 49 abstentions. The Aviation Strategy for Europe aims to foster the growth of the EU aviation sector by opening new markets and creating additional opportunities for companies through the conclusion of new international agreements with key countries. The strategy also intends to plan the means to manage growth in traffic, as well as ensure that aviation services are dependable notwithstanding a malfunctioning national air traffic system.  The Commission aspires for the EU to maintain its leadership on passenger rights and safety, as well as environmental protection, while fostering innovation and proposing a clear framework for drones. See the Communication here, the draft report here, and the resolution here.

Meetings and Agenda

  • No official meetings in the European Parliament are planned before February 27, 2017.

 

 

 

This Week in Congress – February 13, 2017

Both houses of Congress return on Monday. The Senate will continue to focus on confirming President Trump’s cabinet appointees and the House will continue to consider legislation disapproving federal regulations issued in the final months of the Obama Administration under the Congressional Review Act (CRA).

The House is scheduled to return to legislative business on Monday, when members will consider four bills under suspension of the rules, all within the jurisdiction of the Veterans Affairs Committee.

On Tuesday, members will consider H.R. 428, the Red River Gradient Boundary Review Act, subject to a rule. This bill directs the Bureau of Land Management to commission a survey to identify the south bank boundary line along a specified 116-mile stretch of the Red River separating Oklahoma and Texas.

During the remainder of the week, the House will turn its focus back to the consideration of joint resolutions of disapproval under the CRA to block implementation of the previous administration’s regulations . The House plans to consider five such resolutions, each subject to a rule. Three of the disapproval resolutions are aimed at blocking the implementation of rules issued by the Department of Labor (DOL). The first, H.J. Res 42, would nullify a rule that deals with drug testing of applicants for unemployment insurance.

The other two DOL disapproval resolutions concern the safe harbor rules surrounding the setup of retirement savings accounts through payroll deductions for private sector employees. H.J. Res. 66, introduced by Rep. Tim Walberg (R-MI), would disapprove the DOL rule relating to payroll deduction savings arrangements established by states for non-governmental employees. H.J. Res. 67, introduced by Rep. Tom Rooney (R-FL), would disapprove the DOL rule relating to payroll deduction savings arrangements established by qualified state political subdivisions for non-governmental employees. Consideration of each resolution will be subject to a rule.

Members will also consider H.J. Res. 43 to disapprove the final rule issued by the Department of Health and Human Services to prevent states from withholding federal family-planning funds from health clinics that provide abortions, including Planned Parenthood affiliates. This resolution is likely to draw the most public attention of the five CRA disapproval resolutions the House plans to consider this week, given the political sensitivity of abortion and family-planning services.

Finally, the House will consider H.J. Res. 69, to disapprove the Department of the Interior’s rule relating to “Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska.” The rule, issued in August last year, clarifies that predator control is not allowed on National Wildlife Refuges in Alaska, except in defined circumstances. The State of Alaska has already filed a lawsuit challenging the regulation.

Across the Capitol, the Senate is scheduled to return to legislative business on Monday, when a vote is expected on the nomination of Steven Mnuchin to serve as Secretary of the Treasury. In addition to this nomination, Senate leadership reached an agreement last Friday that sets up confirmation votes this week on the nominations of Dr. David Shulkin to serve as the Secretary of Veterans Affairs and Linda McMahon to serve as Administrator of the Small Business Administration. The Senate may also consider any of the CRA disapproval resolutions that have been passed by the House of Representatives.

This week Senate committees will continue their review of the President’s Cabinet appointees. Following multiple postponements, a hearing on the nomination of Andrew Puzder to serve as Secretary of Labor is finally set for this Thursday in the Health, Education, Labor and Pensions (HELP) Committee. Senate Democrats have been highly critical of Mr. Puzder’s background as a business executive and his positions on labor issues, and Senate Minority Leader Chuck Schumer (D-NY) has even called on President Trump to withdraw the nomination. Nevertheless, the HELP Committee is poised to move forward on the consideration of his qualifications.

Also on Thursday, hearings will start for sub-Cabinet appointments. The Finance Committee is scheduled to receive testimony from Seema Verma, of Indiana, on her qualifications to serve as the Administrator of the Centers for Medicare and Medicaid Services (CMS) within the Department of Health and Human Services. CMS oversees the Medicare and Medicaid programs, two of the federal governments largest entitlement programs. CMS is also central to the implementation of the Affordable Care Act (ACA), and the position of CMS Administrator will be influential in helping Republican to arrive at proposals to replace the ACA, as Republicans are committed to doing after they repeal it. In addition, the Foreign Relations Committee plans to hold a hearing for David Friedman, one of President Trump’s personal lawyers, to serve as Ambassador to Israel.

Federal Reserve Chairwoman Janet Yellen will be providing testimony before congressional committees this week in her first appearance on Capitol Hill during the new Trump Administration. Chairwoman Yellen will be delivering her semi-annual monetary policy report to the Senate Banking Committee on Tuesday morning and the House Financial Services Committee on Wednesday morning.

On Monday evening, the House Oversight and Government Reform Committee will mark up a joint disapproval resolution that would attempt to block the District of Columbia’s “Death With Dignity” Act from becoming law. The legislation, which would allow licensed physicians to prescribe life-ending drugs to terminally ill patients, passed the D.C. Council by an 11-2 vote last November with a great deal of controversy surrounding its consideration. Five states have enacted similar legislation. The Home Rule Act of 1973 requires that all legislation enacted by the D.C. government is subject to congressional review for a 30-day period, though Congress typically does not take the time to review and overturn such measures. Should the joint disapproval resolution pass both chambers and be signed by the President, it would prevent the “Death With Dignity” law from enactment.

The Oversight and Government Reform Committee will meet again on Wednesday morning to review the Government Accountability Office (GAO) “High Risk List,” a biennial report that identifies the federal agencies and programs that are considered high risk due to their vulnerabilities to fraud, waste, abuse, and mismanagement, or are most in need of transformation. The Senate Homeland Security and Governmental Affairs Committee will meet for a hearing on this same report on Wednesday afternoon, with GAO Comptroller General Eugene Dodaro scheduled to provide testimony, along with the Director of the U.S. Census Bureau, the Inspector General of the Department of Veterans Affairs, and the Inspector General of the Department of Homeland Security.

The House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law has scheduled a hearing on Thursday to review H.R. 372, the Competitive Health Insurance Reform Act of 2017, legislation that would amend a portion of the McCarran-Ferguson Act of 1945 to restore the application of federal antitrust laws to the health insurance market. This reform provision is included in the Republican Study Committee’s healthcare reform bill and was discussed in Speaker Paul Ryan’s “A Better Way” white paper; the proposal could play a role in the Republican majority’s strategy for repealing and replacing the ACA.

Related to international affairs, the House Armed Services Committee is scheduled to meet on Monday to discuss the evolving threat of terrorism and effective counterterrorism strategies. Later in the week, on Thursday, the House Foreign Affairs Committee will hear testimony from experts and academics on Iran’s illicit weapons program, following the nation’s test-firing of another missile in the past week.

The details for these events and other congressional hearings scheduled this week are included below:

Monday, February 13, 2017

House Committees

D.C. Death With Dignity Act Disapproval
House Oversight and Government Reform
Full Committee Markup
5:30 p.m., 2154-RHOB

Tuesday, February 14, 2017

House Committees

The Evolving Threat of Terrorism and Effective Counterterrorism Strategies
House Armed Services
Full Committee Hearing
10 a.m., 2118-RHOB

Restoring Balance and Fairness to the National Labor Relations Board
House Education and the Workforce – Subcommittee on Health, Employment, Labor and Pensions
Subcommittee Hearing
10 a.m.

Self-Driving Cars: Road to Deployment
House Energy and Commerce – Subcommittee on Commerce, Manufacturing and Trade
Subcommittee Hearing
10:15 a.m., 2123-RHOB

Future of FEMA: Stakeholder Recommendations for the Next Administrator
House Homeland Security – Subcommittee on Emergency Preparedness, Response and Communications
Subcommittee Hearing
10 a.m., HVC-210

Judicial Transparency and Ethics
House Judiciary – Subcommittee on Courts, Intellectual Property and the Internet
Subcommittee Hearing
10 a.m., 2141-RHOB

Pending Legislation
House Oversight and Government Reform
Full Committee Markup
10 a.m., 2154-RHOB

Strengthening U.S. Cybersecurity Capabilities
House Science, Space and Technology – Subcommittee on Research and Technology
Subcommittee Hearing
10 a.m., 2318-RHOB

Exploring National Work Queue’s Impact on Claims Processing
House Veterans’ Affairs – Subcommittee on Disability Assistance and Memorial Affairs
Subcommittee Hearing
10:30 a.m., 334-CHOB

Defeating Terrorism in Syria: A New Way Forward
House Foreign Affairs – Subcommittee on Terrorism, Nonproliferation, and Trade
Subcommittee Hearing
2 p.m., 2172-RHOB

Senate Committees

Long-term Defense Challenges and Strategies
Senate Armed Services
Full Committee Briefing (CLOSED)
9:30 a.m., SVC-217

Semiannual Monetary Policy Report
Senate Banking, Housing and Urban Affairs
Full Committee Hearing
10 a.m., SD-106

DoD Single Servicemember and Military Family Readiness Programs
Senate Armed Services – Subcommittee on Personnel
Subcommittee Hearing
2:30 p.m., SR-222

Intelligence Matters
Senate Intelligence
Full Committee Hearing (CLOSED)
2:30 p.m., SH-219

Wednesday, February 15, 2017

House Committees

Committee Funding for the 115th Congress
House Administration
Full Committee Hearing
10:30 a.m., 1310-LHOB

Rural Economic Outlook: Setting the State for the Next Farm Bill
House Agriculture
Full Committee Hearing
10 a.m., 1300-LHOB

Oversight Hearing – Office of the Inspector General
House Appropriations – Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies
Subcommittee Hearing
10 a.m., 2362-A RHOB

Providing Vulnerable Youth the Hope of a Brighter Future Through Juvenile Justice Reform
House Education and the Workforce – Subcommittee on Early Childhood, Elementary and Secondary Education
Subcommittee Hearing
10 a.m.

Modernizing Energy Infrastructure
House Energy and Commerce – Subcommittee on Energy and Power
Subcommittee Hearing
10 a.m.

Monetary Policy and the State of the Economy
House Financial Services
Full Committee Hearing
10 a.m., 2128-RHOB

GAOs 2017 High Risk Report: 34 Programs in Peril
House Oversight and Government Reform
Full Committee Hearing
10 a.m., 2154-RHOB

Risky Business: The DOE Loan Guarantee Program
House Science, Space and Technology – Subcommittee on Energy
Subcommittee Hearing
10 a.m., 2318-RHOB

Start-ups Stalling? The Tax Code as a Barrier to Entrepreneurship
House Small Business
Full Committee Hearing
11 a.m.

American Aviation Manufacturing
House Transportation and Infrastructure – Subcommittee on Aviation
Subcommittee Hearing
10 a.m.

The Geography of Poverty
House Ways and Means – Subcommittee on Human Resources
Subcommittee Hearing
10 a.m.

Member’s Day
House Appropriations – Subcommittee on Legislative Branch
Subcommittee Hearing
2 p.m., HT-2

Examining Federal Programs that Serve Tribes and Their Members
House Oversight and Government Reform – Subcommittee on the Interior
Subcommittee Hearing
2 p.m., 2154-RHOB

Senate Committees

Mental Health Care: Examining Treatments and Services
Senate Appropriations – Subcommittee on Labor, Health and Human Services, Education and Related Agencies
Subcommittee Hearing
10:30 a.m., SD-138

Endangered Species Act Modernization
Senate Environment and Public Works
Full Committee Hearing
10 a.m., SD-406

Moving America: Stakeholder Perspectives on our Multimodal Transportation System
Senate Commerce, Science and Transportation – Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security
Subcommittee Hearing
2:30 p.m. SR-253

Ending Modern Slavery: Building on Success
Senate Foreign Relations
Full Committee Hearing
10 a.m., SD-419

High Risk: Government Operations Susceptible to Waste, Fraud, and Mismanagement
Senate Homeland Security and Governmental Affairs
Full Committee Hearing
2:45 p.m., SD-342

Stopping Senior Scams: Developments in Financial Fraud Affecting Seniors
Senate Special Aging
Full Committee Hearing
2:30 p.m., SD-562

Thursday, February 16, 2017

House Committees

Pros and Cons of Restricting SNAP Purchases
House Agriculture
Full Committee Hearing
10 a.m., 1300 LHOB

Member’s Day
House Appropriations – Subcommittee on Military Construction, Veterans Affairs, and Related Agencies
Subcommittee Hearing
9:30 a.m., HT-2

Military Services 5th Generation Tactical Aircraft Challenges and F-35 Joint Strike Fighter Program Update
House Armed Services – Subcommittee on Tactical Air and Land Forces
Subcommittee Hearing
9 a.m., 2212-RHOB

Federal Wage and Hour Policies in the Twenty-First Century Economy
House Education and the Workforce – Subcommittee on Workforce Protections
Subcommittee Hearing
10 a.m.

Modernizing Environmental Laws
House Energy and Commerce – Subcommittee on Environment and the Economy
Subcommittee Hearing
10 a.m.

Assessing the U.S.-EU Covered Agreement
House Financial Services – Subcommittee on Housing and Insurance
Subcommittee Hearing
10 a.m., 2128-RHOB

Iran on Notice
House Foreign Affairs Committee
Full Committee Hearing
10 a.m., 2172-RHOB

A Dangerous and Sophisticated Adversary: The Threat to the Homeland Posed by Cartel Operations
House Homeland Security – Subcommittee on Border and Maritime Security
Subcommittee Hearing
10 a.m., 210-HVC

H.R. 372 the Competitive Health Insurance Reform Act of 2017
House Judiciary – Subcommittee on Regulatory Reform, Commercial and Antitrust Law
Subcommittee Hearing
10 a.m., 2141-RHOB

NASA: Past Present and Future
House Science, Space and Technology
Full Committee Hearing
10 a.m., 2318-RHOB

State of the Small Business Economy
House Small Business – Subcommittee on Economic Growth, Tax and Capital Access
Subcommittee Hearing
11 a.m.

Watchdog Recommendations: A Better Way Ahead to Manage the Department of Homeland Security
House Homeland Security – Subcommittee on Oversight and Management Efficiency
Subcommittee Hearing
2 p.m., 210-HVC

The State of Religious Liberty in America
House Judiciary – Subcommittee on the Constitution and Civil Justice
Subcommittee Hearing
2 p.m.

The Use of Official Time for Union Activities at the Department of Veterans Affairs
House Veterans’ Affairs – Subcommittee on Economic Opportunity; House Oversight and Government Reform – Subcommittee on Government Operations
Committees Joint Hearing
2 p.m., 2154-RHOB

Senate Committees

Secretary of Labor Nomination
Senate Health, Education, Labor and Pensions
Full Committee Hearing
10 a.m., SD-430

Administrator of the Centers for Medicare & Medicaid Services Nomination
Senate Finance
Full Committee Hearing
10 a.m., SD-215

U.S. Ambassador to Israel Nomination
Senate Foreign Relations
Full Committee Hearing
10 a.m., SD-419

Committee Organization/Senate Committee Budget
Senate Rules and Administration
Full Committee Business Meeting
10 a.m., SR-301

The Week Ahead in the European Parliament – February 10, 2017

Summary

Next week, there will be a plenary sitting of the European Parliament in Strasbourg, France. Several significant debates and votes will take place, in addition to various committee meetings.

On Monday, the plenary will debate a draft report on a proposal for a directive regarding enhancing cost-effective emission reductions and low-carbon investments. This debate follows the adoption of the report of the Committee on the Environment, Public Health and Food Safety (“ENVI”). The Commission has introduced the proposal aiming to achieve and implement the European Union’s climate change and clean energy targets for 2030, including a 40% cut of CO2 emissions. The Commission’s proposal for the directive can be found here, and the draft report here.

On Wednesday, the plenary will vote on the final EU-Canada Strategic Partnership Agreement and the Comprehensive Economic and Trade Agreement (“CETA”), which aim to enhance trade and investments between Canada and the bloc. Under EU law, the Parliament’s consent is necessary for the treaty to come into force. The Parliament’s recommendation proposes that Parliament’s consent be given. See the recommendation here.

On Thursday, the plenary will vote on a report adopted by the Committee on Legal Affairs (“JURI”), on Civil Law Rules on Robotics. The report calls on the Commission to submit a proposal for a directive Continue Reading

EU Policy Update

Brexit and the EU’s Response

On January 17, in a speech in Lancaster House to the British diplomatic corps, Prime Minister Theresa May presented her “plan for Britain”, which includes 12 “priorities” the UK government will defend in the Brexit negotiations.  The text of the speech can be found here.

May’s highly-anticipated speech came ahead of the UK Supreme Court’s January 24 ruling that the Prime Minister “cannot lawfully bypass MPs and peers by using the royal prerogative to trigger Article 50 of the Lisbon Treaty” to start the two-year process of negotiating Brexit.  The ruling affirmed a judgment of the High Court of England and Wales, which held that the UK Government did not have the power to trigger Article 50 without Parliament’s prior authority.  See the UK Supreme Court’s judgment here.  For Covington’s full analysis, please see the Alert on this topic here.

On February 2, the UK Government released a “Brexit White Paper”, outlining its broad aims for the negotiation with the other 27 EU Member States on its withdrawal from the Union.  Entitled “The United Kingdom’s exit from and new partnership with the European Union”, it broadly followed the 12 priorities outlined in the Prime Minister’s January 17 speech.  For fuller analysis, please see Covington’s Alert on this topic here.

In the interim, on January 27, Theresa May travelled to Washington, where she was the first world leader to visit President Trump after his inauguration.  During the joint press conference following Theresa May’s Continue Reading

“Cybersecurity Review” Takes Shape in China

When China’s Cybersecurity Law was enacted last November, one question (among many) that surfaced was how the government would implement the “national security review” that the law requires for certain network products and services.  The law, which takes effect this June, provides that any network products and services that might affect national security procured by operators of critical information infrastructure must clear a “national security review,” but left that term unexplained.  Last week, the nation’s leading internet regulator—the Cyberspace Administration of China (“CAC”)—stepped in to elaborate, at least in part.

On February 4, CAC issued a draft regulation outlining the contours of the “cybersecurity review” required by the new law and opened a one-month window for receiving public comments (see original Chinese here and our analysis here).  The name change (“cybersecurity” in lieu of “national security”) seems purely cosmetic; consistent with the Cybersecurity Law, the review process focuses on safeguarding China’s national security in cyberspace.  To that end, the draft regulation sheds light on some of CAC’s priorities, while raising new questions about what businesses must do to comply.

First, the regulations appear to contemplate a two-tier compliance system: Government agencies, Communist Party organs, and entities in “key sectors” would be prohibited from procuring any network products and services that have not passed the cybersecurity review, while other critical infrastructure operators would enjoy greater leeway, though any procurement that “may affect national security” is still subject to review. Although the “key sectors” with the strictest obligations include sectors “such as” finance, telecommunications, and energy, it is unclear whether other sectors will join their ranks.  As for other sectors, the regulations do not explain how regulators will determine if certain procurement activities “may affect national security.”

Second, the agencies will focus on ensuring that products and services are “secure and controllable.” This standard, the draft regulations explain, aims to mitigate several distinct risks—the risk that products or services will be “unlawfully controlled, interfered with, or interrupted”; the risks associated with “research and development, delivery, and technical support”; the risks that products or services will become a means to “illegally collect, store, process, or utilize users’ data”; and the risk that providers will leverage user reliance to “engage in unfair competitive practices or otherwise harm consumers.”  The “secure and controllable” standard, then, encompasses not only the more obvious goal of guarding against hacking or interference, but also a distinct and more expansive interest in protecting consumers and their data.  Additionally, to be “secure and controllable” also requires adequate protection against “possible harms to national security and the public interest,” terms that leave ample room for interpretation.

Lastly, the regulations sketch out the cybersecurity review’s core elements—“laboratory testing, on-site inspection, online monitoring, and review of background information.” What each of these elements means in practice, however, remains to be seen.

Public comments are due by March 4.

This Week in Congress – February 6, 2017

Congress this week will continue to move forward on approving President Trump’s cabinet nominees and disapproving federal regulations issued in the final months of President Obama’s Administration in an effort to overturn them under the Congressional Review Act (CRA).

There will be an abbreviated week of legislative business in the House of Representatives, with the Democratic conference retreat scheduled to begin on Wednesday in Baltimore, MD.  House floor activity this week will continue to focus on passage of resolutions of disapproval under the CRA to overturn regulations issued by federal agencies in the final months of the Obama Administration.  Members will consider three such disapproval resolutions this week.

Before tackling the disapproval resolutions, on Monday members will take up seven bills under suspension of the rules, with six under the jurisdiction of the Natural Resources Committee and one under that of the Judiciary Committee.  As with the other suspensions that have been considered thus far this year, each of this week’s suspension bills had been passed by the House during the 114th Congress.

On Tuesday, the House will consider three disapproval resolutions under the CRA to block implementation of the previous administration’s regulations.  The first measure up for consideration is H.J. Res. 44, a resolution of disapproval of the Bureau of Land Management’s (BLM’s) Resource Management Planning rule, finalized in December 2016.   The regulation establishes the procedures used to prepare, revise, or amend land use plans pursuant to the Federal Land Policy and Management Act of 1976, but a number of congressional Republicans, state and local governments, and stakeholders have complained the new process creates more confusion and greater uncertainty.  Consideration of H.J. Res. 44 will be subject to a rule.

Members will then consider two disapproval resolutions targeting rules issued by the Department of Education.  The first, H.J. Res. 57, would overturn a rule relating to the implementation of accountability standards and state plans under the Every Student Succeeds Act.  The second measure, H.J. Res. 58, would disapprove a rule finalized in October 2016 to expand the federal government’s involvement with teacher preparation.  Consideration of each of these disapproval resolutions will be subject to a rule.

Across the Capitol, the Senate is also scheduled to return to legislative business on Monday when it will resume consideration of the nomination of Betsy DeVos to serve as Secretary of Education.  Senate Democrats are expected to force the full 30 hours of post-cloture debate on the floor due to their opposition to the nominee, whom they largely oppose due to her lack of experience and her history of activism in support for school choice.  Teacher union opposition to the nomination is also likely a key Continue Reading

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