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Using an LLC to Protect the Family Vacation Home

Vacation homes offer a retreat from daily life, providing a sanctuary to relax and create cherished family memories. Many owners envision passing down their vacation home for future generations to enjoy, but the lack of proper planning can often lead to intra-family disputes. Leaving a vacation home outright to children or other family members may be the easiest option, but the potential for discord over the control and usage of the property only increases as ownership is passed from one generation to the next. A limited liability company (LLC) can mitigate the risk of conflict and provide a tailored solution to the meet the specific needs of a family.

When a vacation home is owned by an LLC, the membership interests in the LLC are passed down to younger generations, which allows for the continued use and enjoyment of the property by the family. The structure also provides a framework for management through an operating agreement, which governs the LLC. An operating agreement allows the original owner to create a plan for how the property will be used and managed as additional owners are added. The agreement can determine who is responsible for property management, how expenses should be proportioned and paid, how decisions should be made and provide guidelines for scheduling family usage. By establishing clear rules and procedures, an LLC can reduce the likelihood of disputes and encourage fairness among different generations.

Another benefit of an LLC is the ability to prevent unwanted transfers of ownership thus ensuring that the property stays in the family. A well-drafted operating agreement can prohibit membership interests from being transferred to third parties, protecting the family as a whole from an individual’s divorce or creditor problems. The LLC can also hold additional assets, including rental income and deposits of other funds earmarked for property expenditures, which facilitates the proper management and use of resources to cover expenses.

An LLC offers an efficient structure to avoid intra-family turmoil and preserves the spirit of the family vacation home for generations to come.

U.S. House and Senate Reach Agreement on Uyghur Forced Labor Prevention Act

On December 14, 2021, lawmakers in the House and Senate announced that they had reached an agreement on compromise language for a bill known as the Uyghur Forced Labor Prevention Act or “UFLPA.” Different versions of this measure passed the House and the Senate earlier this year, but lawmakers and Congressional staff have been working to reconcile the parallel proposals. The compromise language paves the way for Congress to pass the bill and send it to President Biden’s desk as soon as this week.

The bill would establish a rebuttable presumption that all goods originating from China’s Xinjiang region violate existing US law prohibiting the importation of goods made with forced labor. The rebuttable presumption would go into effect 180 days after enactment. The compromise bill would also require federal officials to solicit public comments and hold a public hearing to aid in developing a strategy for the enforcement of the import ban vis-à-vis goods alleged to have been made through forced labor in China.

This rebuttable presumption will present significant challenges to businesses with supply chains that might touch the Xinjiang region. Many businesses do not have full visibility into their supply chains and will need to act quickly to map their suppliers and respond to identified risks. Importers must present detailed documentaton in order to release any shipments that they think were improperly detained, a costly and time-consuming endeavor. Notably, the public comment and hearing processes will guide the government’s enforcement strategy, providing business stakeholders an opportunity to contribute to an enforcement process that could have implications for implementation of the import ban more broadly.

China’s Xinjiang region is a part of several critical supply chains, lead among them global cotton and apparel trade, as well as solar module production. According to the Peterson Institute:

Xinjiang accounts for nearly 20 percent of global cotton production, with annual production greater than that of the entire United States. Its position in refined polysilicon—the material from which solar panels are built—is even more dominant, accounting for nearly half of global production. Virtually all silicon-based solar panels are likely to contain some Xinjiang-sourced silicon, according to Jenny Chase, head of solar analysis at Bloomberg New Energy Finance. If signed into law, the bill will send apparel producers and the US solar industry scrambling to find alternative sources of supply and prices are bound to increase.

Article By Ludmilla L. Kasulke and Rory Murphy of Squire Patton Boggs (US) LLP

For more legal news and legislation updates, click here to visit the National Law Review.

House Energy and Commerce Committee Holds Hearing on Security of Internet of Things

The growing scale of cybersecurity concerns is prompting action from government leadership on the federal level. Before the Thanksgiving recess, the House’s Committee on Energy and Commerce got in on the act when two of its subcommittees–the Communications and Technology Subcommittee, chaired by Rep. Greg Walden (R-OR), and the Commerce, Manufacturing, and Trade Subcommittee, chaired by Rep. Michael C. Burgess, M.D. (R-TX)–held a joint hearing to investigate and consider the role of Internet-enabled devices (collectively referred to as the “Internet of Things,” or “IoT”) in high-profile online attacks.

What the experts are saying.

The hearing was motivated by the revelation that cybersecurity is no longer just about protecting laptops or securing digital data. IoT insecurity puts human safety at risk, as everything from home appliances to automobiles and medical technology are becoming connected to the Internet. Representatives from both committees pressed expert witnesses Mr. Dale Drew of Level 3 Communications, Dr. Kevin Fu of Virta Labs and the University of Michigan, and Mr. Bruce Schneier of the Harvard Kennedy School of Government for examples of legislation that could target the cybersecurity concerns related to the Internet of Things.

These experts shared conflicting opinions about whether it is in fact possible for the government to establish one set of security standards that covers all Internet-connected devices, as these devices do many different things and are powered by many different types of technology. Mr. Schneier reminded the subcommittees that “[your smartphone] is not a phone; it’s a computer that makes phone calls.” The same applies to a long list of devices including WiFi-connected baby monitors, thermostats, refrigerators, DVR players, GPS systems, children’s toys, and of course, electronic voting booths. In his testimony, Mr. Drew explained that “bad actors are increasingly attracted to IoT devices since they can use those devices without being detected for long periods of time, they know most devices will not be monitored or updated, and they know there are no endpoint protection capabilities on IoT devices to remove threats.” Nevertheless, they agreed that a collaborative and, above all, proactive approach by both the government and manufacturers of these devices will be essential.

Fortunately, we already have a potential starting point. The National Institute of Standards and Technology recently issued a comprehensive set of guidelines and best practices for securing IoT devices and systems throughout their entire life cycle. But simply establishing these best practices on paper will not be enough. Dr. Fu reiterated the most important takeaway from the hearing: that proper security measures for IoT devices must be “built in, not bolted on.” Protective measures like encryption must be incorporated into the fundamental design of a device, not tacked on as an afterthought. They also must secure a device from its creation, through its life with a consumer, and after “retirement” since old but active devices are still vulnerable to hijacking by botnets like the one used in last month’s massive distributed denial of service (“DDoS”) attack on global Internet routing company Dyn.

Looking ahead to the future.

Currently, there are few market incentives to spend time and money producing more secure encrypted devices. There are likewise no significant legal or economic penalties for selling devices to consumers that are insecure. In short, consumers are focused on buying sleek and affordable new products rather than on the networks that connect them. However, if massive DDoS attacks continue the same way that data breaches have in recent years, the priorities of consumers and manufacturers alike are bound to evolve.

Will a greater focus on security slow down the rate of technological innovation? Despite some concerns, Dr. Fu and Mr Schneier reassured the subcommittees that efforts to improve cybersecurity will spur innovation in the tech industry, not hold it back. As consumers and manufacturers become more aware of the implications of poorly secured devices, incorporating features like end-to-end encryption will be understood not as necessary obstacles, but as valuable solutions to very real and costly problems.

ARTICLE BY Cynthia J. Larose, Michael B. Katz & Joanne Dynak of Mintz Levin

U.S. Election Forecast on Congressional Leadership Changes

With the election less than a week away, we conducted in-depth analysis of possible House and Senate committee leadership changes, including committees that effect energy technology policies. Leadership of a number of House and Senate committees is bound to change due to term-limits, retirements, and perhaps election results, including the Energy and Commerce and Natural Resources House committees, and the Energy and Natural Resources and Environment and Public Works Senate committees. We have outlined those potential changes in either a Republican- or a Democratic-controlled House and Senate. To read more about these potential Congressional leadership changes, read on!

Among Republicans on the House Energy and Commerce committee, Rep. John Shimkus (IL) and Rep. Greg Walden (OR) are expected to run for Chair/Ranking Member because Rep. Fred Upton (MI) is term-limited. Rep. Shimkus has more seniority on the committee than Rep. Walden, but Walden is completing his second term leading the Republican National Congressional Committee. Both are well-liked within the Republican Caucus and are adept fundraisers. Rep. Joe Barton (TX) has the most seniority on the committee and could also choose to run for Chairman or Ranking Member. Sources are indicating that should the Democrats gain control of the House, Rep. Barton would be less interested in running for Ranking Member. Additionally, Rep. Barton is already term-limited as the top Republican on the committee and would have to seek a waiver to serve as the next Chair or Ranking Member. On the Democrats’ side, Rep. Frank Pallone (NJ) would likely remain the Ranking Member if the Republicans control the House and would likely become Chairman if the Democrats control the House.

On the House Natural Resources committee, Republican Rob Bishop (UT) would likely remain the Chairman if the Republicans control the House and would likely become the Ranking Member if the Democrats took control. For the Democrats, Rep. Raul Grijalva (AZ) could remain the Ranking Member if the Republicans retain the House and could become Chairman if the Democrats win control. However, Rep. Grijalva could choose to run for Chair/Ranking Member of the Education and the Workforce Committee if Rep. Bobby Scott (VA) is appointed to the Senate to replace Vice Presidential candidate Tim Kaine. It is unclear who would run for or become Chair/Ranking Member of Natural Resources in that scenario.

In the Senate, Republican Sen. Lisa Murkowski (AK) would likely remain Chairwoman of the Energy and Natural Resources committee if the Republicans win the Senate. However, if the Democrats control the Senate, Sen. John Barrasso (WY) could become the Ranking Member because Sen. Murkowski is term-limited as Ranking Member of Energy and Natural Resources. Sen. Barrasso could also choose to become the Ranking Member of Environment and Public Works, in which case, Sen. Jim Risch (ID) could become the Ranking Member of Energy and Natural Resources. However, sources are indicating that Sen. Barrasso, who represents a Western coal state, would likely choose to become the Ranking Member of Energy and Natural Resources, in part because it would allow Sen. Shelley Moore Capito (WV), a rising female star in the GOP who hails from an Eastern coal state, to become the Ranking Member of Environment and Public Works. For the Democrats, Sen. Maria Cantwell (WA) would likely remain the Ranking Member if Republicans remain in control or become the Chairwoman for Energy and Natural Resources if the Democrats win the Senate. Though highly unlikely, there is a scenario in which, Sen. Jack Reed (RI) becomes the Chair/Ranking Member of Appropriations and Sen. Bill Nelson (FL) then takes over as Chair/Ranking Member of Armed Services. In that unlikely case, Sen. Cantwell could choose to become the Chair/Ranking Member of Commerce, opening up the top Democratic slot on Energy and Natural Resources to Sen. Bernie Sanders (VT). (Sen. Ron Wyden (OR) would be next in line after Sen. Cantwell on Energy and Natural Resources, but Sen. Wyden will remain the Chair/Ranking Member of Finance.)

Among Republicans on the Senate Environment and Public Works committee, Sen. Barrasso could become the Chairman because Sen. James Inhofe (OK) is term-limited as Chairman and Sen. David Vitter (LA) is retiring. If the Democrats control the Senate, Sen. Barrasso could become the Ranking Member because Sen. Inhofe is again term-limited and Sen. Vitter is retiring. However, as discussed above, Sen. Barrasso would likely choose to become the Ranking Member of Energy and Natural Resources, in which case Sen. Capito could become the Ranking Member of Environment and Public Works. For the Democrats, if the Republicans or Democrats control the Senate, Sen. Tom Carper (DE) could become Chair/Ranking Member of Environment and Public Works because Sen. Barbara Boxer (CA) is retiring. According to sources, Sen. Carper is indeed preparing to take over as the top Democrat on this committee. However, Sen. Carper could choose to remain the Chair/Ranking Member of Homeland Security, in which case Sen. Ben Cardin (MD) could become the Chair/Ranking Member of Environment and Public Works. Sen. Cardin could also choose to remain the Chair/Ranking Member of Foreign Relations unless Sen. Robert Menendez (NJ) is cleared of ethics violations and is reinstated, which is unlikely in the near future. If Sen. Cardin remains the Chair/Ranking Member of Foreign Relations, which is nearly certain as long as Sen. Menendez is under indictment, Sen. Sanders could become the Chair/Ranking Member of Environment and Public Works.

ARTICLE BY David J. Leiter, Sarah Litke & Matthew Miller of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Senate, House Continue on with Appropriations Work

Senate Legislative Activity

The Senate will convene on Monday, June 20, at 3:00pm. Following any Leader remarks, the Senate will resume consideration of H.R.2578, Commerce, Justice, Science, and Related Agencies Appropriations Act. The pending cloture motions on amendments will ripen at 5:30pm, at which time the Senate will have up to four roll call votes:

Grassley amendment #4751;
Murphy amendment #4750;
Cornyn amendment #4749; and
Feinstein amendment #4720

If cloture is invoked on any of these amendments, there will be up to 30 hours of debate on each amendment on which cloture is invoke prior to a vote on that amendment, after which the Senate will move on to a cloture vote on the next amendment.

House Legislative Activity

On Monday, June 20, the House will meet at 2:00pm in pro formasession, with no votes expected.

On Tuesday, June 21, the House will meet at 12:00pm for morning hour and at 2:00pm for legislative business, with votes postponed until 6:30pm. The following legislation will be considered under suspension of the rules:

H.R. 5525 – End Taxpayer Funded Cell Phones Act of 2016;
H.R. 4369 – To authorize the use of passenger facility charges at an airport previously associated with the airport at which the charges are collected;
H.R. 5388 – Support for Rapid Innovation Act of 2016;
H.R. 5389 – Leveraging Emerging Technologies Act of 2016;
S. 2133 – Fraud Reduction and Data Analytics Act of 2015;
H.R. 4902 – To amend title 5, United States Code, to expand law enforcement availability pay to employees of U.S. Customs and Border Protection’s Air and Marine Operations;
H.R. 2395 – Inspector General Empowerment Act of 2016, as amended;
H.R. 4639 – Thoroughly Investigating Retaliation Against Whistleblowers Act, as amended;
H.R. 4372 – To designate the facility of the United States Postal Service located at 15 Rochester Street, Bergen, New York, as the Barry G. Miller Post Office;
H.R. 2607 – To designate the facility of the United States Postal Service located at 7802 37th Avenue in Jackson Heights, New York, as the “Jeanne and Jules Manford Post Office Building”;
H.R. 4010 – To designate the facility of the United States Postal Service located at 522 North Central Avenue in Phoenix, Arizona, as the “Ed Pastor Post Office”;
H.R. 4777 – To designate the facility of the United States Postal Service located at 1301 Alabama Avenue in Selma, Alabama as the “Amelia Boynton Robinson Post Office Building”;
H.R. 4925 – To designate the facility of the United States Postal Service located at 229 West Main Cross Street, in Findlay, Ohio, as the “Michael Garver Oxley Memorial Post Office Building”;
H.R. 4960 – To designate the facility of the United States Postal Service located at 525 N Broadway in Aurora, Illinois, as the “Kenneth M. Christy Post Office Building”;
H.R. 5028 – To designate the facility of the United States Postal Service located at 10721 E Jefferson Ave in Detroit, Michigan, as the “Mary Eleanora McCoy Post Office Building”;
H.R. 4590 – Fiscal Year 2016 Department of Veterans Affairs Seismic Safety and Construction Authorization Act, as amended;
H.R. 5317 – To designate the Department of Veterans Affairs health care center in Center Township, Butler County, Pennsylvania, as the “Abie Abraham VA Clinic”;
H.R. 3936 – VET Act, as amended;
H.R. 5170 – Social Impact Partnerships to Pay for Results Act, as amended;
H.R. 5447 – Small Business Health Care Relief Act of 2016;
H.R. 5452 – Native American Health Savings Improvement Act; and
H.R. 5456 – Family First Prevention Services Act of 2016

ARTICLE BY Brandon C. Roman of Squire Patton Boggs (US) LLP

Congress Awaits Health Provisions in President’s Budget

Health Bills Slated for House Floor Consideration; SAMHSA Releases Proposed Rule Focused on Confidentiality of Substance Use Disorder Patient Records

Legislative Activity

Congress Awaits Health Provisions in President’s Budget

On Tuesday, February 9, President Barack Obama will submit his FY 2017 Budget Request to Congress, which is expected to include several large-scale investments for the nation’s health. Last week, the White House released a “sneak preview” of the Budget, which includes: $755 million for cancer research as part of the “moonshot” to cure cancer; a legislative proposal to provide any state that takes up the Medicaid expansion option the same three years of full federal support that states that expanded in 2014 received; a commitment to changes in the excise tax on high-cost employer-sponsored health coverage, otherwise known as the “Cadillac Tax”; and $1 billion in mandatory funding over two years to address prescription drug abuse and heroin use.

On Wednesday, February 10, U.S. Department of Health and Human Services (HHS) Secretary Sylvia Mathews Burwell will provide testimony on the Budget to the House Committee on Ways and Means. The next day, she will also address the Budget in her testimony to the Senate Committee on Finance.

Health Bills Slated for House Floor Consideration

House Majority Leader Kevin McCarthy (R-CA) has announced that several health care bills will be considered on the floor this week.

On Tuesday, the following pieces of health legislation are expected to be considered under suspension of the rules: H.R. 3016, the Veterans Employment, Education, and Healthcare Improvement Act, as amended, which clarifies the role of podiatrists in the Department of Veterans Affairs (VA); H.R. 3106, the Construction Reform Act of 2016, which makes certain changes in the administration of Department medical facility construction projects; H.R. 3262, To provide for the conveyance of land of the Illiana Health Care System of the Department of Veterans Affairs in Danville, Illinois; H.R. 4056, To authorize the Secretary of Veterans Affairs all right, title, and interest of the United States to the property known as “The Community Living Center” at Lake Baldwin Veterans Affairs Outpatient Clinic, Orlando, Florida, as amended; H.R. 4437, To extend the deadline for the submittal of the final report required by the Commission on Care; H.R. 3234, the VA Medical Center Recovery Act, which establishes within the VA an Office of Failing Medical Center Recovery; and H.R. 2915, the Female Veteran Suicide Prevention Act, which directs the Secretary of the VA to identify mental health care and suicide prevention programs that are effective in treating women veterans.

Later in the week, the House is expected to consider H.R. 2017, the Common Sense Nutrition Disclosure Act of 2015, which seeks to improve and clarify disclosure requirements for restaurants and other retail food establishments.

Senate HELP Committee to Mark Up Health Legislation

On Tuesday, February 9, the Senate Committee on Health, Education, Labor, and Pensions (HELP) will hold a markup to consider several health care bills. In January, Committee Chairman Lamar Alexander (R-TN) announced the Committee’s schedule for the “step by step” consideration of biomedical innovation bills. This process, aimed at legislation that is somewhat similar to language in the House-passed 21st Century Cures Act (H.R. 6), begins with this markup.

Legislation to be considered on Tuesday includes: S. 2030, the Advancing Targeted Therapies for Rare Diseases Act of 2015, which allows the sponsor of an application for the approval of a targeted drug to utilize data and information from the sponsor’s previously approved targeted drugs; S. 1622, the FDA Device Accountability Act of 2015, which requires the Food and Drug Administration (FDA) to ensure training on least burdensome requirements for employees who review premarket submissions of medical devices; S. 2014, the Next Generation Researchers Act, which seeks to demonstrate a commitment to our nation’s scientists by increasing opportunities for the development of future researchers; S. 800, the Enhancing the Stature and Visibility of Medical Rehabilitation Research at NIH Act, which seeks to improve, coordinate, and enhance National Institutes of Health (NIH) rehabilitation research; S. 849, the Advancing Research for Neurological Diseases Act of 2015, which provides for systematic data collection and analysis and epidemiological research regarding neurological diseases; S. ___, the Preventing Superbugs and Protecting Patients Act; and S. ___, the Improving Health Information Technology Act.

This Week’s Hearings:

Tuesday, February 9: The Senate Committee on Health, Education, Labor, and Pensions (HELP) will hold a markup of health care bills, as described above.
Wednesday, February 10: The House Committee on Energy and Commerce Subcommittee on Health will hold a hearing titled “Examining Medicaid and CHIP’s Federal Medical Assistance Percentage.”
Wednesday, February 10: The House Committee on Veterans’ Affairs will hold a hearing titled “U.S. Department of Veterans Affairs Budget Request for Fiscal Year 2017.”
Wednesday, February 10: The House Committee on Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations and Subcommittee on the Western Hemisphere will hold a joint hearing titled “The Global Zika Epidemic: Emerging in the Americas.”
Wednesday, February 10: The House Committee on Ways and Means will hold a hearing titled “Department of Health and Human Services’ (HHS) Fiscal Year 2017 Budget Request.”
Wednesday, February 10: The House Committee on Rules will meet on H.R. 2017, the Common Sense Nutrition Disclosure Act of 2015.
Wednesday, February 10: The Senate Committee on the Judiciary will hold a hearing titled “Breaking the Cycle: Mental Health and the Justice System.”
Wednesday, February 10: The Senate Special Committee on Aging will hold a hearing which “will unveil and examine a new, troubling scam by global drug traffickers perpetrated against our nation’s seniors.”
Thursday, February 11: The House Committee on Veterans’ Affairs Subcommittee on Health will hold a hearing titled “Choice Consolidation: Improving VA Community Care Billing and Reimbursement.”
Thursday, February 11: The House Committee on Homeland Security Subcommittee on Emergency Preparedness, Response, and Communications will hold a hearing titled “Improving the Department of Homeland Security’s Biological Detection and Surveillance Programs.”
Thursday, February 11: The Senate Committee on Finance will hold a hearing titled “The President’s Fiscal Year 2017 Budget.”
Thursday, February 11: The Senate Committee on the Judiciary will hold a markup, which will include consideration of: S. 483, the Ensuring Patient Access and Effective Drug Enforcement Act of 2015, which seeks to improve enforcement efforts for prescription drug diversion and abuse; and S. 524, the Comprehensive Addiction and Recovery Act of 2015, which authorizes the Attorney General to award grants to address prescription opioid abuse and heroin use.
Friday, February 12: The House Committee on Energy and Commerce Subcommittee on Oversight and Investigations will hold a hearing titled “Outbreaks, Attacks, and Accidents: Combatting Biological Threats.”

Regulatory Activity

SAMHSA Releases Proposed Rule Focused on Confidentiality of Substance Use Disorder Patient Records

On Friday, February 5, the Substance Abuse and Mental Health Services Administration (SAMHSA) released a proposed rule titled “Confidentiality of Substance Use Disorder Patient Records.” The proposed rule seeks to amend the Confidentiality of Alcohol and Drug Abuse Patient Records regulations, which were last substantively updated in 1987. According to HHS, the proposed rule will “facilitate health information exchange to support delivery system reform efforts” and ensure privacy for patients seeking substance use disorder treatment.

The proposed rule will be published in the Federal Register on February 9, and comments are due April 11.

Article By Beth L. Goldstein of Squire Patton Boggs (US) LLP

Winter Weather Causes Congressional Cancellations

Legislative Calendar in Flux from Winter Storm Jonas

Following severe weather in Washington this weekend, this week’s legislative calendar is in flux. As noted below, the Senate has delayed its scheduled by a day (for now) and the House has cancelled session for the week. As such, it is unclear to what extent Committee work will be impacted.

Senate Legislative Activity

Due to this weekend’s winter storm, the Senate has pushed its schedule back a day. As such, the Senate will now meet on Wednesday, January 27. At 5:30pm, the Senate is expected to take up the confirmation of Executive Calendar #306, the nomination of John Michael Vazquez, of New Jersey, to be United States District Judge for the District of New Jersey. The delay has also called into question the exact timing of the Senate’s consideration of S.2012, Energy Policy Modernization Act of 2015.

House Legislative Activity

As a result of this weekend’s inclement weather, the House will not be in session this week. Next votes are scheduled for Monday, February 1 at 6:30pm, during which time Members will consider:

H.R. 3662, Iran Terror Finance Transparency Act; and
the Veto Message on H.R. 3762, Restoring Americans’ Healthcare Freedom Act

Article By Brandon C. Roman of Squire Patton Boggs (US) LLP

Senate Democrats Continue To Push For A Budget Deal; House And Senate Continue Appropriations Markups

Senate Democrats Continue to Push for a Budget Deal

In the coming weeks, Senate Democrats will implement a strategy intended to force Republicans into a budget deal. Senate Democratic leadership does not want to rely on President Obama’s vetoes of appropriations bills to force Republicans into negotiations, and will likely prevent any appropriations bills that retain the sequester’s spending limits from reaching the Senate floor. Senate Appropriations Committee Ranking Member Barbara Mikulski (D-MD) said Democrats intend to be at the table during any budget deal negotiations between President Obama and Senate and House Republicans, noting Senate Democrats “are doing everything to force this issue.” Additionally, Senate Democratic Whip Dick Durbin (D-IL) said the plan is to force Republicans to make a deal now, rather than wait until the end of the fiscal year after the President vetoes appropriations measures. He noted that “as long as the Republicans need 60 votes in the Senate and don’t have them, they’ll need Democratic cooperation.”

While the House has been moving appropriations measures at a quick pace, and the Senate has been making progress on their Appropriations Committee markups, the appropriations process could slow down in the coming weeks as Senate Republicans try to bring the Defense Appropriations Bill to the floor (as of the time of writing this report, Senate Majority Leader Mitch McConnell (R-KY) had not yet scheduled floor time for the Defense Appropriations Bill). Democrats are expected to block the measure, as it increases defense spending without increasing non-defense discretionary spending. If Democrats are successful, it could effectively stop further Senate appropriations efforts on the floor, though the Senate Appropriations Committee will likely continue to pass appropriations bills out of committee, laying the groundwork for an omnibus bill later in the year.

This Week’s Hearings:

Wednesday, June 17: The Senate Budget Committee will hold a hearing titled “CBO’s Long Term Fiscal Outlook for the Nation.”
Wednesday, June 17: The House Budget Committee will hold a hearing titled “Why Congress Must Balance the Budget.”

FY 2016 Appropriations Committee/Subcommittee Markup Hearings

Tuesday, June 16: The Senate Appropriations Homeland Security Subcommittee will hold a markup of the FY 2016 Homeland Security Appropriations Bill.
Tuesday, June 16: The Senate Appropriations Interior, Environment, and Related Agencies Subcommittee will hold a markup of the FY 2016 Interior and Environment Appropriations Bill.
Tuesday, June 16: The House Appropriations Committee will hold a markup of the FY 2016 Interior and Environment Appropriations Bill.
Wednesday, June 17: The House Appropriations Labor, Health and Human Services, Education, and Related Agencies Subcommittee will hold a markup of the FY 2016 Labor, Health and Human Services, and Education Appropriations Bill.
Wednesday, June 17: The House Appropriations Committee will hold a markup of the FY 2016 Financial Services and General Government Appropriations Bill.

ARTICLE BY Timothy W. Drake & Pamela K. Welsh of Squire Patton Boggs (US) LLP

Elementary and Secondary Education Act (ESEA) Reauthorization On The House Floor This Week

Legislative Activity

ESEA Reauthorization Bill to be Considered on the House Floor this Week

The education community continues to analyze H.R. 5, the Student Success Act, which the House Education and the Workforce Committee approved and reported to the House prior to the Congressional recess. Echoing the White House report criticizing H.R. 5 released last week, an estimate published by the Council of the Great City Schools also described the negative effect H.R. 5’s Title I portability measures would have on school districts.

In response to the White House’s report, Chairman John Kline (R-MN) accused the White House of using “scare tactics and budget gimmicks to kill K-12 education reform.” Rep. Kline believes his legislation provides states and families with greater flexibility to meet student needs.

The House Committee on Rules recently announced that it will meet next week to grant a rule that could limit the amendment process for floor consideration of H.R. 5. The announcement also stated that amendments to H.R. 5 are due to the committee by Monday afternoon. The bill will be brought to the floor for debate on Wednesday and Thursday and a final vote is scheduled for Friday.

Senate HELP Committee Will Hold Hearing on Burdensome Regulations

Last week, the Task Force on Federal Regulation of Higher Education published a report identifying 10 regulations/regulatory areas that are most burdensome to institutions of higher education due to cost, complexity, lack of relevance, and for having duplicative requirements. On Tuesday, the Senate Health, Education, Labor and Pension (HELP) Committee will hold a hearing on the report and will hear testimony from two members of the Task Force – William Kirwan, Chancellor of the University System of Maryland, and Nicholas Zeppos, Chancellor of Vanderbilt University. In addition to these witnesses, the Senate HELP Committee members that led this effort, including Chairman Lamar Alexander (R-TN), Barbara Mikulski (D-MD), Richard Burr (R-NC), and Michael Bennet (D-CO), plan to testify.

This is the first hearing of the 114th Congress related to HEA reauthorization. The Senate HELP Committee may hold other hearings on HEA this year before it drafts legislation. The House is expected to introduce a bill as early as March.

Senators Question Department of Education’s Enforcement of Title IX

Last week, Senators Barbara Boxer (D-CA) and Kirsten Gillibrand (D-NY) sent a letter to Secretary of Education Arne Duncan asking for information on the Department of Education’s enforcement of Title IX and the Clery Act. Specifically, the Senators requested information on the number of complaints received over the past five years, the number of investigations conducted in response to those complaints, the average length of time it takes to complete investigations, the penalties the agency has imposed, and what procedures are used to protect students from sexual assault. Both Senators have been leaders on issues related to campus sexual assault and will likely reintroduce the Campus Accountability and Safety Act (CASA) in the 114th Congress. Additionally, Senator Boxer plans to reintroduce the Survivor Outreach and Support Campus Act (SOS Campus Act) this week.

This Week’s Hearings

Tuesday, February 24: The Senate Health, Education, Labor and Pensions Committee will hold a hearing titled “Recalibrating Regulation of Colleges and Universities: A Report from the Task Force on Government Regulation of Higher Education.”

Regulatory Activity

Federal Agencies Continue to Focus on Preventing Campus Sexual Assault

Last week, the Department of Education’s Office for Civil Rights (OCR) opened new Title IX investigations at the University of Connecticut and the State University of New York at Brockport. To date, OCR is conducting 102 Title IX sexual violence investigations at 97 colleges and universities.

Additionally, the Department of Justice’s National Institute of Justice (NIJ) and the White House’s Office on Violence Against Women recently announced that they are seeking applications for grants to research and identify “promising practices” in campus investigation and judicial decision making involving student sexual assault, both for “victim impact and offender accountability.” This is in response to a recommendation from the White House Task Force to Protect Students From Sexual Assault to improve understanding of policies and practices regarding investigation and adjudication of sexual assaults on college campuses. Grant applications are due April 6, 2015.

First in the World 2015 Priorities

The Fund for the Improvement of Postsecondary Education (FIPSE) has made available its proposed Priorities, Requirements, Selection Criterion and Definitions for the First in the World (FITW) program grants. The Department summarizes the proposal as follows:

These priorities, requirements, selection criterion, and definitions would enable the Department to focus the FITW program on identified barriers to student success in postsecondary education and advance the program’s purpose to build evidence for what works in postsecondary education through development, evaluation, and dissemination of innovative strategies to support students who are at risk of failure in persisting in and completing their postsecondary programs of study.

The proposal is scheduled to be published in the Federal Register Monday, with the deadline for submitting comments 30 days later. The FIPSE office hopes to review comments on the priorities, selection criteria, and definitions and finalize the application by the end of March or early April. Once these priorities have been set, the Department will make the FY 2015 FIPSE funding opportunity announcement as early as May.

ARTICLE BY

Amy Budner Smith

Dana T. Weekes

Amy F. Davenport

Squire Patton Boggs (US) LLP

House Passes Bill to Prevent EPA Overreach

The U.S. House of Representatives recently passed legislation prohibiting the U.S. Army Corps of Engineers and the Environmental Protection Agency (EPA) from developing, finalizing, adopting, implementing, applying, administering, or enforcing the EPA rule defining what constitutes “waters of the United States” under the Clean Water Act.

This Waters of the United States Regulatory Overreach Protection Act of 2014, H.R. 5078, comes as a response to a move by the EPA in April of this year that proposed changes to how the EPA will define “waters of the United States.” The EPA’s update uses scientific terms from hydrogeology to define which waters are covered under the Clean Water Act.

Farmers, however, have criticized the EPA update as 80 pages of technical and legal jargon. After Congressional hearings, the House passed The Waters of the United States Regulatory Overreach Protection Act of 2014. This bill will go to the Senate next for consideration.

ARTICLE BY

Aaron M. Phelps

Sherry X. Lin

Varnum LLP

Tag: house

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