NCISS Legislative Update

• January 20, 2016
• by Francie Koehler and Brad Duffy
• Associations

December was an extremely short month, with Congress in session for a total of ten days in the run-up to the Holidays. This brief period of legislative activity focused almost entirely on cobbling together a budget deal to fund the Federal Government -- the "Omnibus" -- for Fiscal Year 2016 (FY2016), and passing other essential legislation such as the tax extender package.

Omnibus

At first, things looked hopeful. The initial version of the omnibus appropriations package included several provisions NCISS was actively working on, including restraints on the implementation of several Department of Labor (DOL) and National Labor Relations Board (NLRB) rules (subjects of earlier NCISS dispatches), as well as a series of other policy "riders," some of which has drawn veto threats from the White House.

In the final analysis, Republicans needed 100 Democrat votes in the House to pass the omnibus, and the Senate would similarly require numerous Democrat defections to pass the funding package. Despite commitments from numerous senior legislators (including the Senate Majority Leader and House Appropriations Chair) the Republican caucus knuckled under, and the vast majority of policy riders were stripped from the bill. The omnibus passed both Chambers with strong majorities.

Outlook for 2016

Looking ahead, Congress has many business matters to attend to in the second year of the 114th Congress, including the reauthorizations of numerous agencies and programs such as the Federal Aviation Administration (FAA - which expires in March of 2016), Child Nutrition and WIC (markup expected in late January), Perkins Career and Technical Education Act (committee staff currently putting together discussion draft), the Higher Education Act (HEA), among others.

In addition, several important committees have signaled their intent to move legislation on some weighty matters, including international tax reform, agreement on a comprehensive Energy Policy Act, a package of provisions to address identity theft and other fraud in the tax system, critical minerals legislation, etc. Fortunately, legislation being tracked by NCISS is not a GOP priority, and has not yet been identified by any Members or committee staff as targets for action (i.e. data brokers, GPS location, gun restrictions, data privacy and pretexting, etc.).

More generally, both House and Senate leadership have committed to a return to "regular order," or what constitutes the regular appropriations process, where each of the 13 appropriations bills is marked up and passed separately by the end of the fiscal year, or September 30.

Given the 2 year budget deal that put money back into the process, and enabled the FY2016 omnibus agreement, Congress stands a better chance of success of this in 2017 than in perhaps the last 15 years.

The Big "If(s)"

Having outlined the above, however, we must introduce some important caveats.
First, the balance of power between the Legislative and Executive Branches remains the same. While the GOP controls both House and Senate majorities, they lack the numbers to overcome a presidential veto. Republicans would need significant Democrat defections to override a veto, a highly unlikely scenario.

In the Senate, the GOP can't even muster enough votes to overcome a filibuster, providing the Democrats enough leverage to stymie anything they don't like. (And as we just saw with the removal of policy riders from the omnibus, this leverage is considerable.)

Second, this is a presidential election year. As such, we can expect high-profile, contentious issues to suck up much of the air (think Planned Parenthood, gun control, the Affordable Care Act, border security and immigration, etc. - and who knows what may pop up in the form of international crises or domestic flash points). While Congress will likely devote significant time to such matters, the White House is on its way out, and has absolutely no incentive to compromise on anything.

Against this backdrop, the GOP (especially the House) will try to move its agenda in the form of policy riders in the appropriations process. While they can likely achieve some smaller ball goals, such efforts will likely result in the process we just witnessed with the FY2016 omnibus - except in the leadup to an election, the voices will be louder and more shrill, with an emphasis on posturing and playing to core constituencies.

So what can we expect? Despite overall legislative gridlock, congressional staff will be working diligently and quietly on the reauthorizations noted above, and will likely be able to iron-out most of the issues which might otherwise stall the measures. As Congress bogs down in other Sisyphean tasks, they typically turn to such matters to keep the ball rolling. As such, Congress will accomplish much, but just not on high-profile, contentious political issues.

Consequently, the devil will surely be in the details. The steady, ongoing work of Congress is typically very quiet, and the legislative process doesn't exactly lend itself to transparency.

There will soon be clearer indications of what Congress will take up in 2016. As of this writing, the committees of jurisdiction have yet to decide on an agenda for 2016 - this is typically discussed in the opening weeks of January. Once our committee contacts have a better idea of their respective agendas, we'll have a much better view of where Congress will be headed, and will better be able to read the tea leaves on how such efforts might pan out.

Another Big IF

As NCISS members are well aware, additional threats to our practice and profession exist in the Executive Branch. Among these are the DOL rules (which are sure to be litigated at length), FAA rules on unmanned aerial vehicles (drones), EEOC rules on background checks, among others.

In fact, it is a safe bet that the focus on NCISS's concerns shift to the Executive Branch, as the current Administration, relieved of worrying about its own political survival, will be emboldened to issue new rules on a variety of matter (pace gun sale restrictions).

Consequently, regular review of the Federal Register will surely identify issues of additional concern to the security service and investigative professions.

Drone Update

About 181,000 consumer drones have been registered with the agency since it implemented the registry system in December.

Still, many more drones remain unregistered: The Consumer Technology Association says 400,000 drones were sold during the 2015 holiday season - quite a bit less than the 1 million figure bandied by the FAA late last year but still a sign of explosive growth in the industry.

Drone owners still have 42 days to register their aircraft. The FAA also publicized a new FAA-sponsored mobile app [1.usa.gov/1ObVB3A]called "B4UFLY": The app is intended to warn drone users about requirements and restrictions, showing alerts like "Proceed with Caution," "Warning - Action Required," or "Flight Prohibited" depending on the user's location and proximity to an airport.

Commercial rules to come: The FAA has authorized more than 3,000 commercial operators to use drones on a case-by-case basis, ranging from movie filming and smokestack inspections to aerial photography and land surveying. The FAA expects to finalize rules for commercial and non-hobbyist drone operations by "late spring of this year."

FAA again misses deadline for small drone rule

The Federal Aviation Administration is again falling behind on deadlines to finalize its rules for commercial use of small drones.

The agency was supposed to deliver the final rule to the DOT Office of the Secretary by Dec. 18 but has yet to do so.

A delay in sending the rule up the pipeline could create a ripple effect, pushing back publication of the final regulation months beyond the current April 29 deadline. Even after FAA sends the rule over to DOT, the Office of Management and Budget still has to give its thumbs up before the regulations can be finalized.

The latest delay comes as drone sales soar - the industry estimates nearly 3 million drones could be purchased in the U.S. this year alone - and Congress mulls its role in regulating the burgeoning industry as part of this year's FAA reauthorization.

The FAA has already blown past orders from Congress that the rule be finalized and small drones be integrated into the national airspace by September 2015.
The FAA had no comment by press time.