January 11, 2017

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Senate Confirmation Hearings

Senate confirmation hearings on eight of President-elect Trump’s cabinet nominations are expected in the coming week, with four on Wednesday alone. Meanwhile, President-elect Trump has scheduled his first press conference since July also on Wednesday.

The hearing for Attorney General nominee, Senator Jeff Sessions (R-AL) was held today before the Senate Judiciary Committee at 9:30 a.m. Sessions was pressed by Democrats about his role as United States attorney in an unsuccessful 1985 voter fraud case against three African-American civil rights activists. Protesters repeatedly interrupted the hearing.

Senators Richard Shelby (R-AL) and Susan Collins (R-ME) introduced Senator Sessions to open the hearings. Senator Cory Booker (D-NJ) and Representatives John Lewis (D-GA), a civil-rights icon, and Cedric Richmond (D-LA), chair of the Congressional Black Caucus, will be testifying against Sessions’ nomination in the third and last panel. It is unprecedented that a sitting Senator would testify in opposition to another sitting Senator.

Sessions’ confirmation hearings will continue on Wed. January 11, when it will be among four other confirmation hearings scheduled that day.

Secretary of State nominee, Rex Tillerson (former CEO of ExxonMobile) will appear before the Senate Committee on Foreign Relations at 9:15 a.m.

Transportation nominee, Elaine Chao (former Secretary of Labor under President George W. Bush and wife of Majority Leader Senator Mitch McConnell, R-KY) will appear before the Senate Committee on Commerce, Science, and Transportation at 10:15 a.m.

Homeland Security nominee, General John Kelly (U.S. Marine Corps, retired) will appear before the Senate Committee on Homeland Security and Governmental Affairs at 3:30 p.m.

CIA nominee, Representative Mike Pompeo (R-KS) had been scheduled to appear before the Senate Committee on Intelligence at 10:00 a.m., but the hearing has been rescheduled for Thursday, Jan. 12 at 10:00 a.m.

Democratic committee staff suggest that the postponement resulted from calls by Minority Leader Charles Schumer (R-NY) to not crowd the hearing process, as had been anticipated with six hearings originally scheduled for Wednesday.

Thursday, Jan. 12, confirmation hearings also include Commerce nominee, Wilbur Ross (billionaire investor) before the Committee on Commerce, Science, and Transportation at 10:00 a.m. and Housing nominee Ben Carson (retired neuro-surgeon and former presidential candidate) before the Committee on Banking, Housing, and Urban Affairs at 10:00 a.m.

Education nominee. Betsy DeVos (Republican activist, billionaire) was also originally scheduled for a Jan. 11 hearing before the Senate Committee on Health, Education, Labor and Pensions. Her hearing has been rescheduled to Tuesday, Jan. 17 at 5 p.m. DeVos, as of this writing, has not completed required financial disclosures and ethics review.

Labor nominee, Andy Puzder (food services CEO) is tentatively scheduled to appear before the Committee on Health, Education, Labor and Pensions on Jan. 17 also.
Environmental Protection Agency nominee, Scott Pruitt (Attorney General, Oklahoma) is tentatively scheduled to appear before the Committee on Environment and Public Works on January 18.

Health and Human Services nominee, Tom Price (R-GA) is tentatively scheduled to appear before the Committee on Health, Education, Labor and Pensions on January 18.
U.N. nominee, Governor Nikki Haley (R-SC) is tentatively scheduled to appear before the Committee on Foreign Relations on January 18.

Other announced nominations have not yet been scheduled for confirmation hearings.
Interior nominee, Ryan Zinke (R-MT), once seen as a fairly safe pick, has been damaged by revelations that he committed travel fraud while serving with the Navy Seals, which could have resulted in criminal charges and other sanctions. These violations could jeopardize his nomination.

Many observers had commented on the unusual crowding of the confirmation hearings, especially for Wednesday when Trump will hold his first post-election press conference. Senate Minority Leader Charles Schumer (D-NY) said, “Jamming all these hearings into one or two days, making members run from committee to committee, makes no sense. It is only fair that they are given a thorough and thoughtful vetting.” Media-focused observers noted that the crowded schedule would likely bury press coverage of some confirmation details in favor of covering Trump press conference.

Kushner Named Senior Advisor

Jared Kushner (billionaire real estate investor and husband of Ivanka Trump), has been named a White House senior advisor, a position that does not require Senate confirmation. Kushner is seen by many as President-elect Trump’s closest advisor. He played a leading role in the ousters of campaign manager Corey Lewandowski and transition leader Governor Chris Christie (R-NJ). Kushner is expected to have a wide portfolio which will likely include the Middle East and Israel, government partnerships with the private sector, and free trade. His appointment is seen as testing federal anti-nepotism rules.

Public Lands

Natural Resources Chairman Rob Bishop (R-UT) authored a rules change that would allow the House to ignore Congressional Budget Office (CBO) scoring of federal revenue losses when considering a federal land transfer to states from activities such as logging, drilling or grazing, making them essentially cost-free. This removes a procedural hurdle favored by public land advocates that requires lawmakers to identify spending offsets in the federal budget for proposed transfers.

Bishop’s change was passed by the House in a vote on the opening day of the 115th Congress in a larger package of rules changes.

Ryan Zinke (R-MT), President-elect Trump’s nominee for the Department of the Interior, voted in favor of the package of rules changes, including the Bishop proposal. Critics contend that it contradicts Zinke’s previous statements against the sale of public lands and warn that it foreshadows a wholesale transfer of public, federal lands to states. Just this year, Zinke resigned as a delegate to the Republican National Convention in July over a provision in the party platform that called for divestiture of public lands. He is on record as a staunch supporter of federal lands, so his yea vote for the rules package is puzzling.

Raúl Grijalva (D-AZ), the committee’s ranking member, called the change “fiscally irresponsible,” contending that CBO scores underestimate public land values. Bishop says that scores ignore the cost of public land to states and local communities.

Chairman Bishop denied that the rules change portends a wholesale transfer of parks and monuments to states and tribes, contending it is “not part of a strategy.”
The package of rules changes passed largely unnoticed amid Republican efforts to weaken the House’s independent ethics office.

National Monuments

On Jan. 5, Energy and Natural Resources Chair Lisa Murkowski (R-AK), with 25 co-sponsors, introduced S.33, the “Improved National Monument Designation Process Act.” It is a bill to provide for congressional approval of national monuments and restrictions on the use of national monuments, to establish requirements for the declaration of marine national monuments, and for other purposes.”

The bill would limit executive authority under the Antiquities Act of 1906 and is a response to President Obama designating public lands as new national monuments, such as the recently established Bears Ears National Monument.

The bill requires national monuments be authorized by a specific act of Congress while also gaining the approval of the legislatures of affected states. In the case of marine monuments, state legislatures within 100 miles of the proposed monument must approve their establishment. Further, the bill would require completion of evaluation under the National Environmental Policy Act.

Resource and agricultural industries support the measure, while conservationists and many tribal interests have expressed concerns.

Congressional Review Act Amendment

The House passed, on Jan. 6, the “Regulations From the Executive in Need of Scrutiny Act ,” (REINS) H.R. 26. The bill passed with a vote of 237 to 187, including all Republicans and Democrats Henry Cuellar (D-TX) and Collin Peterson (D-MN).

The REINS Act would amend the Congressional Review Act to require that both congressional chambers pass, and the president sign, a joint resolution of approval within 70 legislative days before any major rule costing $100 million or more can take effect. If Congress is unable to ratify a major rule within that period, it would be tabled and could be reconsidered in the next session of Congress. This affirmative requirement means that Congress can simply void major rules changes through inaction.

Consideration of “major rules” would be further slowed by a procedural requirement in the bill that regulations could only be considered by the full House on the second and fourth Thursday of each month.

Moreover, under the REINS Act, courts are required to ignore the congressional vote when considering challenges to enacted regulations.This provision represents a change because formerly, courts could not contradict a congressional action as not complying with the provisions of a law, since Congress writes that law.

The act includes an amendment, proposed by Luke Messer (R-IN), requiring an agency to repeal or amend existing rules to offset the costs of the newly promulgated regulation. It passed 235 to 185. The bill also includes an amendment, proposed by Steve King (R-IA), which would allow Congress to review, over a ten-year period, all rules currently in effect. It passed 230 to 193.

REINS faces an uncertain fate in courts if challenged as it permits a chamber of Congress to stop regulations promulgated by the executive branch, through action or inaction. Legal scholars noted that this arrangement upends the separation of powers.

It also faces an uncertain fate in the Senate where Democrats are likely to withhold support needed to reach the 60 votes needed to pass legislation in regular order. Further, though President-elect Trump has voiced support for REINS, there is speculation he may rethink that position as it would explicitly place new limits on executive power.

Midnight Rules Relief Act

The House passed the “Midnight Rules Relief Act,” H.R.21 on Jan. 4 that would allow Congress to revoke multiple executive regulations with a single vote within 60 legislative days of their enactment. Existing authority under the Congressional Review Act requires rules to be considered in separate measures.

The underlying Congressional Review Act (CRA), enacted in 1996, has only been used once and has never been tested in court. It provides that any rule revoked under the act “may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”

In its only successful application, in 2001, the CRA revoked Clinton Administration ergonomic rules enhancing workplace safety. As a result of CRA restrictions, there has been no subsequent, meaningful push to regulate ergonomics in the workplace.
Because of the lax legislative calendar in 2016, the proposed rule would allow repeal of rules stretching back to the middle of June.

Like the REINS Act, the Midnight Rules Relief Act faces an uncertain fate in the Senate, with likely Democratic opposition, and in the courts, where the underlying CRA has never been tested.

Holman Rule

The House Rules Committee, on the first day of the new Congress, approved revival of the “Holman Rule,” formerly in effect from 1876 to 1983. The rule change would allow any member of Congress to propose amendments to appropriations bills that would eliminate federal employees or reduce their salary to as little as $1 per year.

The Holman Rule was used to cut some New York customs positions and later to reduce the number of naval officers in the nursing corps in the 1930s. The rule was discontinued in the early 1980s, in the Reagan Administration.

Republicans portrayed reinstatement of Holman as a tool to make targeted cuts and as part of broader efforts to control executive branch spending.

Representative Nita Lowey (D-NY) derided the move as a “terrible idea.” She added, “Holding hostage the financial security of individual federal employees and their families is reckless and immoral.”

Representative Mike Simpson (R-ID), opposing the rule, said, “I think what you are going to see on the floor is a whole bunch of amendments because someone is pissed off about some employee in their district who they could not get to do X, Y or Z, so they are going to eliminate the position or cut salary.”

In response to Republican dissent, GOP leadership defined the Holman revival as a pilot initiative with a one year term.

Representative Morgan Griffith (R-VA), who led calls to reinstate Holman, pointed to safeguards against misuse, such as a requirement that the House Rules Committee approve any Holman amendments. He added, “It’s only on a trial basis-just in case the sky does start to fall.”

Regulatory Accountability Act

On January 3, Representative Bob Goodlatte (R-VA) introduced H.R. 5, the “Regulatory Accountability Act,” a piece of legislation that combines six reform measures that passed the House last session into one bill that aims to reduce regulations.

This legislation would require federal agencies to provide additional justification for proposed regulations, calculate the impacts of new rules on small businesses, choose the least costly rulemaking alternative, publish information online about the rulemaking and its costs, and publish “plain English” public summaries of proposed rules. It would also increase judicial review, make it more difficult to enact “high-impact rules” with a cost over $1 billion, and end court deference to an agency’s interpretation of its regulations. The bill is part of a larger Republican effort to reform the regulatory system and overhaul what they see as overregulation.

The House may consider the bill Wednesday, followed by debate on 16 amendments. One amendment, proposed by Raúl Grijalva (D-AZ), would strike language that would require the Forest Service and the Bureau of Land Management to perform regulatory flexibility analyses for forest and land management plans. Another amendment, from Bill Posey (R-FL), would require federal agencies to report on the scientific information and peer reviews used in a rulemaking proceeding.

NOAA Releases Road Maps

NOAA Fisheries released its Ecosystem-based Fisheries Management (EBFM) Road Map in November 2016, detailing how the agency will implement its EBFM Policy. The EBFM Policy documents, clarifies and solidifies NOAA Fisheries commitment to EBFM, as well as establishes a framework of guiding principles. The EBFM Road Map will guide implementation of the EBFM Policy, by NOAA Fisheries and its partners, via a series of core components and action items for each of the Policy’s guiding principles. These elements are the actionable steps that provide a menu of options for implementation of EBFM. The report also establishes benchmarks against which NOAA Fisheries can evaluate its progress.

USGCRP Seeks Public Comment

The U.S. Global Change Research Program (USGCRP) seeks public comment on the third-order draft of its Climate Science Special Report (CSSR). This special report provides an update to the physical climate science presented in the Third National Climate Assessment (NCA3) released in 2014. The CSSR Public Comment Period runs from 15 December 2016 – 3 February 2017 (revised). The draft CSSR is also undergoing a concurrent peer review by the National Academies.