Situational Awareness
As of last Friday, the 119th Congress has officially convened. Official business commenced in the House of Representatives after Speaker of the House Mike Johnson (R-La.) received enough votes to remain in his leadership position. Today, the House and Senate will convene a joint session to certify the results of the 2024 presidential election. Later this week, the House is slated to vote on two bills related to immigration detention requirements and International Criminal Court sanctions. Across Capitol Hill, the Republican-led Senate will convene for the first time with Sen. John Thune (R-S.D.) serving as Senate Majority Leader. Before the holidays, Sen. Thune was selected by his colleagues to replace Sen. Mitch McConnell (R-Ky.), who previously held the top Senate GOP leadership position since 2007.
With a majority in both chambers of Congress, Republican lawmakers will begin work on a legislative package that incorporates incoming President Donald Trump’s top policy priorities, including new funding for border security, permitting reforms for domestic energy production and an extension of expiring provisions of the 2017 Tax Cuts and Jobs Act. Republicans will seek to pass the legislation through a process called budget reconciliation, which requires only a simple majority in the Senate versus 60 votes. This process can only be applied to legislation that solely alters spending or revenue levels.
Last night, the president-elect called on Congress to pass a single reconciliation package—a firm rejection of Senate Majority Leader Thune’s preference for two separate packages. For Speaker Johnson, the biggest challenge to passing such a package is his party’s narrow majority. Currently, he has a four-vote margin to navigate. But that number will shrink when two House lawmakers depart Congress to join the Trump administration.
ICYMI: USCIS Finalizes Rule to Modernize H-2 Program Requirements, Oversight and Worker Protections
On December 17, 2024, U.S. Citizenship and Immigration Services (USCIS) issued a final rule to modernize and improve Department of Homeland Security (DHS) regulations relating to the H-2B temporary nonagricultural worker program. The effective date of the new rule, first proposed in September 2023, is January 17, 2025. To implement this rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions beginning on the effective date.
The rule’s provisions span three areas: improve H-2B program efficiencies; strengthen H-2B worker protections and increase the H-2B program’s integrity; and provide greater flexibility to H-2B workers. Notably, the rule would eliminate the H-2B eligible countries list, make permanent certain portability flexibilities and strengthen employer compliance with prohibited fees.
This final rule could be repealed by the incoming Republican-led Congress under the Congressional Review Act, vis a vis the so-called “lookback” provision which allows lawmakers to issue a joint disapproval of resolution of an agency rule if it was finalized 60 legislative days within the beginning of a new legislative session. Alternatively, the incoming Trump administration could issue an Executive Order directing DHS and USCIS to propose new rules that undo the final Biden administration rule.
EPA Issues New WOTUS Joint Coordination Memorandum
The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers released two new jurisdictional determination (JD) memorandums that help inform the agencies’ ongoing implementation of the post-Sackett “waters of the United States” (WOTUS) rule. In April 2024, the agencies released a coordination process update that includes an explanation on how, if a jurisdictional determination is elevated to agency headquarters for review, a policy memorandum may be issued providing guidance to the respective EPA regional and Corps district offices. However, the agencies clarify that memorandums don’t impose legally binding requirements on the regulated community and may or may not apply to a particular situation based upon the circumstances.
The JD memorandum addresses whether site specific natural landforms can provide evidence of a continuous surface connection. The EPA and Army Corps determined jurisdiction over a pond and wetland on the property in question because of evidence of recurring hydrologic events, such as sediment deposition patterns consistent with water elevation changes of the navigable river. The memorandum also details that because the river in question regularly floods over a natural riverbank on the property, the landform serves as a continuous surface connection.
House Workforce Panel Chair Writes OSHA on Heat Rulemaking
In mid-December, then-House Committee on Education and Workforce Chair Virginia Foxx (R-N.C.) wrote to Department of Labor (DOL) Acting Secretary Julie Su regarding the Occupational Safety and Health Administration’s (OSHA) proposed “Heat Illness Prevention in Outdoor and Indoor Work Settings” rule. The letter stipulates that in its current form, DOL’s “one-size-fits-all proposed rule” fails to consider any regional differences in climate and that many requirements included in the proposed rule are overly-prescriptive as many employers have already adopted certain practices to keep workers safe from extreme temperatures.
The letter also serves as a preview for the work that incoming Chair Tim Walberg (R-Mich.) will inherit from his predecessor on providing oversight of the incoming Trump administration’s work to roll-back Biden-era regulations that expanded certain protections and benefits for millions of new workers.