Emerging Technologies Washington Update - May 2020 #2

This week: Coronavirus response; House and Senate Democrats introduce COVID-19 consumer data privacy bill; lawmakers offer bipartisan bills to create skills training credit; House allows remote voting for first time in history.

Coronavirus Response

The Latest

Last Friday, the House passed the Health and Economic Recovery Omnibus Emergency Solutions Act (HEROES) Act, House Democratic leadership’s $3 trillion proposal for Phase 4 coronavirus response legislation. The bill, which passed largely along party lines, focuses on funding for states and local governments, including first responders, extends family and medical leave programs, provides eviction and foreclosure protection, and extends work visas for certain immigrants, among other provisions. The House also adopted a resolution to authorize remote voting by proxy and provide for official remote committee proceedings. Yesterday, Speaker Pelosi (D-CA) invoked the authorities included in that resolution to enable remote voting and committee proceedings beginning next week.

The Senate has largely resumed legislative business, including pending nominations. The Senate Banking Committee held a hearing this week on “The Quarterly CARES Act Report to Congress” with Treasury Secretary Mnuchin (testimony) and Federal Reserve Chairman Powell (testimony). Elsewhere, the Congressional Oversight Commission released its first report, which focuses on the $500 billion Congress authorized in the CARES Act for the Treasury Department to make loans, loan guarantees, and other investments to provide liquidity to businesses, states, and municipalities.

Later today, the Senate may vote on legislation to extend the current eight-week period businesses have to use Paycheck Protection Program (PPP) loans to pay employees and other expenses for the loan to be forgiven, possibly to 16 weeks. All senators would have to agree to pass the measure by unanimous consent. 

Last night, President Trump formally announced that Brooke Rollins will serve as Assistant to the President and Acting Director of the Domestic Policy Council, succeeding Joe Grogan. Derek Lyons will serve as Assistant and Counselor to the President.

Elsewhere, the President and federal agencies continue to take other steps to respond to the outbreak, including, but not limited to:

  • President Trump signed a Regulatory Relief to Support Economic Recovery Executive Order directing federal agencies to identify any regulations that can be temporarily waived to promote job creation and growth and to determine any regulations currently suspended during the national emergency that should be permanently rescinded.
  • The President announced that former GlaxoSmithKline vaccines chief Moncef Slaoui will serve as Chief Scientist for Operation Warp Speed, the government’s effort to develop and deliver a coronavirus vaccine.
  • Vice President Pence announced five new members of the White House Coronavirus Task Force: Secretary of Agriculture Sonny Perdue, Secretary of Labor Eugene Scalia, National Institutes of Health Director Dr. Francis Collins, Health Resources and Services Administration (HSRA) Administrator Thomas Engels, and Dr. Peter Marks, Director of the Food and Drug Administration (FDA) Center for Biologics Evaluation and Research.
  • The Treasury Department published an interim final rule for the PPP on treatment of entities with foreign affiliates, an interim final rule on the second extension of limited safe harbor with respect to certification concerning need for PPP loan and lender reporting, and updated program FAQs. The Small Business Administration (SBA) updated its report on PPP approvals through May 16 and released the Loan Forgiveness Application.
  • The Department of Health and Human Services (HHS) announced it will provide up to $1.2 billion to support a collaboration with AstraZeneca to make available at least 300 million doses of a coronavirus vaccine with the first doses delivered as early as October 2020.
  • HHS announced that it provided $225 million in Paycheck Protection Program and Health Care Enhancement Act funding to Rural Health Clinics (RHCs) for COVID-19 testing.
  • The Centers for Disease Control and Prevention (CDC) published an overview of its activities and initiatives supporting the COVID-19 response and the President’s plan for Opening Up America Again.
  • The Department of Labor (DOL) announced revised policies for enforcing Occupational Safety and Health Administration (OSHA) requirements with respect to coronavirus as state economies reopen.
  • The Department of Homeland Security (DHS) Cybersecurity and Infrastructure Security Agency (CISA) updated guidance on identifying essential critical infrastructure workers during the COVID-19 response.

A complete overview of both congressional and Administrative response efforts is available here and updated daily.

What’s Next

While the Republican-controlled Senate will not take up the HEROES Act, it serves as Democrats’ opening proposal for what will likely be lengthy negotiations around a Phase 4 bill. Senate Republicans and the White House have made clear that they prefer to give existing relief programs more time to take effect before moving ahead with another round of legislation. Treasury Secretary Mnuchin said today, however, that “there is a strong likelihood we will need another bill.”

The House is expected to vote next week on the bipartisan Paycheck Protection Program Flexibility Act. The bill would reform the PPP to allow forgiveness for expenses beyond the eight week covered period, eliminate restrictions limiting non-payroll expenses to 25% of loan proceeds and that limit loan terms to two years, ensure full access to payroll deferment for businesses that take PPP loans, and extend the rehiring deadline to offset the effect of enhanced unemployment insurance. The House will also vote on the Small Business Transparency and Reporting for the Underbanked and Taxpayers at Home (TRUTH) Act to direct the SBA to explain and justify all disbursements of coronavirus relief funds. The House Ways and Means Committee will also hold a virtual hearing on May 27 on “The Disproportionate Impact of COVID-19 on Communities of Color.”

Relevant Resources

House and Senate Democrats Introduce COVID-19 Consumer Data Privacy Bill

On May 14, a bicameral group of Democrats introduced the Public Health Emergency Privacy Act, which would bar entities from using contact tracing and health-related data for purposes not related to health. According to Senators Richard Blumenthal (D-CT) and Mark Warner (D-VA) and Reps. Anna Eshoo (D-CA), Jan Schakowsky (D-IL), and Suzan DelBene (D-WA), the bill would ensure “data collected for public health is strictly limited for use in public health.” Specifically, the Public Health Emergency Privacy Act would require that any data collected for public health purposes is not used for unrelated purposes and is deleted by companies or states within 60 days of the public health emergency ending. The Federal Trade Commission (FTC) would lead enforcement efforts in consultation with HHS and states, through attorneys general or other agencies, would enforce the provisions. Importantly, the bill would also allow for a private right of action.

This effort comes after Republicans introduced similar legislation earlier in the month. On May 7, Senate Commerce Committee Chairman Wicker (R-MS) and other Committee Republicans introduced the COVID-19 Consumer Data Protection Act. The bill would require companies to obtain affirmative express consent from individuals to collect, process, or transfer their personal health, geolocation, or proximity information for the purposes of tracking the spread of COVID-19.

Lawmakers Offer Bipartisan Bills to Create Skills Training Credit                               

On May 20, Senators Amy Klobuchar (D-MN), Ben Sasse (R-NE), Cory Booker (D-NJ), and Tim Scott (R-SC) introduced the Skills Renewal Act. The legislation would create a $4000 refundable tax credit for any workers who have lost their jobs as a result of the pandemic to apply to their choice of job training programs, including apprenticeships and technical training, as well as two- and four-year postsecondary degrees. The credit would apply to expenses through the end of 2021. Its primary aim is to help newly unemployed workers prepare to reenter the workforce and successfully transition to areas of the labor market in which opportunities are expanding. Reps. Derek Kilmer (D-WA) and Susan Brooks (R-IN) are introducing a companion bill in the House with Reps. Terri Sewell (D-AL) and Glenn Thompson Jr. (R-PA).

House Allows Remote Voting for First Time in History

Last Friday, the House voted 217-189 to pass H.Res. 965 to allow remote committee proceedings and voting by proxy for the first time in its 231-year history. Although framed as a temporary measure, the resolution fundamentally changes how Congress operates in the modern world by no longer requiring members to be physically present to vote, speak, and attend committee hearings, but rely instead on technology.

The historic vote invites questions about how such changes, if ever made longer term, would impact patterns of how members interact with their constituencies and balance their time between districts and Washington D.C. It also raises questions about the applications of technology and consequences for power and lawmaking.

The United States was not a trailblazer in this respect. Governments around the world have undertaken similar measures to allow for remote work, and in some cases voting, due to the global pandemic. For instance, in March, Brazil’s Congress was one of the first in the world to shift to virtual governance. In April, the more than 800-year old British Parliament conducted its first “Virtual Parliament,” and last week the House of Commons held its first remote vote through technology developed by the Parliamentary Digital Service (PDS).

The House vote was divided along party lines with Democrats approving temporary technological adaptations to allow for remote voting and most Republicans dissenting.  Concerns related to setting a precedent that would break with the traditions of the House, diminish the rights of the minority, and that, as “essential” workers, members of Congress should be required to report in person.

Under the resolution, proxy voting and remote committee work, including virtual hearings, markups, and depositions, would be permitted only for a 45-day period, but the resolution could be renewed thereafter. Members who are willing would also be welcome to vote in person and those physically present can proxy vote for a maximum of 10 colleagues.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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