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COVID-19 Update | Wednesday, Dec. 9

December 9, 2020

Transition News

  • Visit Elevate’s Transition 2020 Hub to see the most up-to-date list of rumored and announced Cabinet members and staff.
  • President-elect Biden will announce Tom Vilsack as his nominee to be Secretary of Agriculture. Vilsack was previously Secretary of Agriculture for the entirety of the Obama Administration and served as a rural and agriculture policy adviser to the Biden campaign. He also previously served as the Governor of Iowa.
    • Vilsack’s nomination has not yet been officially announced, but it is expected as soon as this week.
  • President-elect Biden is expected to announce House Ways and Means Committee counsel Katherine Tai as his nominee for U.S. Trade Representative. As recently as earlier today, published reports indicated that the conversation was ongoing and that additional candidates, including Reps. Dan Newhouse (R-WA) and Suzan DelBene (D-WA), were being considered. Tai’s nomination has received strong support from Members of Congress and reportedly some labor and business groups in Washington, DC.


  • Some additional details were released on the $908B bipartisan COVID-19 relief package however, legislative text has not yet been released. Issues still to be finalized include state and local aid and liability protections. The compromise offer has $160B in state and local and relief and a placeholder for liability protections as the “basis for good faith negotiations.” Senate and House leadership have not yet agreed on the inclusion of either provision. Elevate believes the delay in releasing official text is due to the added dynamic of the conversations at the leadership level that will significantly impact any final deal. Additionally, according to the outline, the package includes:
    • $300/week in unemployment insurance for 16 weeks.
    • $300B for the Paycheck Protection Program (PPP).
    • $25B to extend the eviction moratorium through January.
    • $15B for public transit.
    • $4B for airports, of which $1B would be for airport concessionaires.
    • $8B for the bus and motorcoach industry.
    • An extension of the airline Payroll Support Program (PSP) through March 31.
    • $6B for State Broadband Deployment and Broadband Connectivity grants.
    • $10B for testing and tracing.
  • As a reminder, Treasury Secretary Mnuchin yesterday proposed a $916B COVID-19 relief package that would include state and local relief and $600 in additional direct stimulus payments to most Americans. The Administration offer did not include unemployment insurance.
  • According to the Wall Street Journal, the Federal government did not meet its personal protective equipment (PPE) goal of increasing the N95 mask emergency supply to 300M, as the U.S. Strategic National Stockpile had only 142M N96 masks in November. Additionally, the U.S. still does not have a centralized database to facilitate medical equipment distribution to healthcare providers, which may pose a significant challenge with the increase in COVID-19 cases.


  • The Senate Commerce, Science and Transportation Committee held a hearing entitled “The Invalidation of the EU-US Privacy Shield and the Future of Transatlantic Data Flows.” The hearing discussed a path forward after the invalidation of the U.S.-European Union (EU) privacy shield, the impact of cross-border data transfer on small- and medium-sized businesses, and the need for federal data privacy laws. Democratic and Republican Committee members shared the desire to reach a new agreement with the EU and many supported their own bills to ensure domestic data privacy. Our coverage of the hearing is attached. Witnesses included:
    • The Honorable Noah Phillips, Commissioner, Federal Trade Commission
    • Ms. Victoria Espinel, President and Chief Executive Officer, BSA – The Software Alliance
    • Mr. Neil Richards, Koch Distinguished Professor in Law, Washington University School of Law
    • Mr. James Sullivan, Deputy Assistant Secretary for Services, International Trade Administration, U.S. Department of Commerce
    • Mr. Peter Swire, Elizabeth and Tommy Holder Chair of Law and Ethics, Georgia Tech Scheller College of Business, and Research Director, Cross-Border Data Forum
  • It remains unclear when the Senate will begin consideration of the FY21 National Defense Authorization Act (NDAA). Beginning consideration this week would allow for final passage early next week.
  • After the House passed the compromise Water Resources Development Act by voice vote yesterday, published reports indicate that Senate Appropriations Committee Chairman Richard Shelby (R-AL) has expressed concerns over language related to the timing of spending down the current balance of the Harbor Maintenance Trust Fund. However, negotiations are ongoing to allow the legislation to be passed as part of the end-of-year government funding package.
  • Senate Democrats were expected to hold an internal caucus vote today to decide whether Minority Whip Dick Durbin (D-IL) could keep his leadership position and serve as Ranking Member of the Senate Judiciary Committee. Sen. Durbin would take the Ranking Member spot based on seniority and is competing against Sen. Sheldon Whitehouse (D-RI) for the position. Sen. Whitehouse and others have claimed that holding the Ranking Member position and being Minority Whip would be too much for a single Senator. It is unclear whether the vote was held and what the outcome was at this time.
  • House Democrats in the 117th Congress will have as little as a five-member majority until vacancies are filled after the confirmation of Rep. Marcia Fudge (D-OH) to be Secretary of Housing and Urban Development and the departure of Rep. Cedric Richmond (D-LA) as Senior Advisor to the President and Director of the Office of Public Liaison. This is the smallest majority since 2001 and will give House Minority Leader Kevin McCarthy (R-CA) increased leverage to affect passage of legislation.
    • Additionally, Rep. Debra Haaland (D-NM) remains in consideration to run the Interior Department in the Biden Administration.
    • The Democratic candidate in the special elections to fill the seats of Rep. Fudge and Rep. Richmond will be heavily favored to win in 2021.
  • The House passed the one-week continuing resolution (CR) to extend government funding through next Friday, December 18 in a 343-67 vote. Currently, there is little indication that negotiations have picked up steam on an omnibus spending package or even a package that covers most of the spending bills. If no agreement is reached by next Friday, it is likely that an additional continuing resolution will be passed to fund the government into March 2021.
  • Rep. John Katko (R-NY) was officially selected to be Ranking Member of the House Homeland Security Committee. Rep. Katko announced that his priorities would be “efforts to thwart terrorism, bolster border security and address the nation’s cybersecurity vulnerabilities.”
  • House Minority Leader Kevin McCarthy (R-CA) said that he would vote against a veto override on the National Defense Authorization Act (NDAA), citing President Trump’s objections over Section 230. As a reminder, the bill passed the House by a 335-78 veto proof margin yesterday with one Member voting “Present”.
  • Rep. Steve Cohen (D-TN) introduced the Emergency Eviction Enforcement Act (H.R. 8886) to establish a prohibition on evictions during public health emergencies. According to a press release, the bill would:
    • Give housing tenants who were evicted without a court order during a national or public health emergency a private right of action against their landlords in federal court.
    • Designate evicting a tenant during a national or public health emergency without a court order as a federal crime.
  • The Federal Aviation Administration’s (FAA) chief of staff, Angela Stubblefield, commented during an aviation security summit today that an interagency group including the Centers for Disease Control and Prevention, the Department of Homeland Security, the FAA and the Transportation Security Administration, are potentially considering requiring proof of vaccination for domestic and international air travel once a COVID-19 vaccine is more widely available.
    • Conversations on this topic are still in their infancy and Airlines for America, through Senior Vice President of Legislation and Regulatory Policy Sharon Pinkerton, already expressed concerns over shifting responsibility for checking vaccination status to airlines.
    • Stubblefield also emphasized at the event that the focus currently continues to be on establishing a strong testing regime.
  • The Environmental Protection Agency (EPA) finalized its Clean Air Act cost-benefit analysis rule today. The rule differentiates between direct benefits and co-benefits, removing co-benefits as a justification for rulemaking, and between domestic and foreign benefits. The rule will take effect immediately.
  • The EPA suggested that a proposed rule to decrease nitrogen oxide emissions from heavy-duty trucks may be issued in early 2021. The Biden Administration may continue this effort, especially given the potential for Mary Nichols, who most recently was the Chair of the California Air Resources Board (CARB), to be EPA Administrator. Under Nichols, CARB created its own truck nitrogen oxide rules.
  • The EPA decided against finalizing its proposed guidance to allow power plants and other sources of air pollution to begin construction before receiving the required permits. The possibility was kept open that the guidance may be included in a future notice-and-comment rulemaking, though it may not be pursued by the Biden Administration.
  • It is possible that Federal Communications Commission (FCC) Chairman Ajit Pai may issue a proposal to limit Section 230 liability protections before leaving his position at the end of the Trump Administration. After the confirmation of Nathan Simington, Pai would have the necessary three votes to support the proposal, though it could be reversed by the Biden Administration. It remains to be determined if Mr. Simington will need to recuse himself from voting on the Section 230 matter.
  • Federal Trade Commission (FTC) Commissioner Noah Phillips voiced his support for the U.S.-China Economic and Security Review Commission’s proposal to require foreign government subsidy disclosure in merger reviews. Phillips stated that “antitrust agencies should follow the money to discover potentially hidden motivations of foreign-subsidized firms playing in the U.S. economy and incorporate that assessment into their enforcement decisions.”
  • The FTC and 48 state attorneys general filed antitrust lawsuits against Facebook today, accusing the company of abusing its marketplace dominance and engaging in anticompetitive behavior. The FTC’s suit would require Facebook to divest from Instagram and WhatsApp, acquisitions that were both previously approved by the FTC, effectively breaking up Facebook. The state suit would require Facebook to notify state officials of all future acquisitions over $10M.
  • USTR Robert Lighthizer unveiled the U.S.’s enforcement action against Canadian dairy protections, which we reported was planned for this week. The action, taken under the U.S.-Mexico-Canada Agreement (USMCA), is the first since signing of the USMCA. The so-called “request for consultations” allows Canada 15 days to respond. If consultations cannot resolve the issue the U.S. can request a USMCA dispute settlement panel.
    Other News
  • As transit agencies around the country continue to struggle and contemplate drastic service cuts, New York City proposed a new tax on deliveries that are not food or medicine. This tax, which would add an extra $3 to all applicable deliveries, would go to funding the Metropolitan Transportation Authority (MTA). It is estimated that the tax would raise $1B per year.
  • President of the Association of Flight Attendants-CWA Sarah Nelson is potentially aiming to be President of the AFL-CIO, after making comments on Twitter. Nelson said that she would consider running for AFL-CIO President after President-elect Biden takes office.
  • Google announced that it will end its ban on political ads starting tomorrow. The ban was in place for five weeks after the November elections, but Google “no longer consider[s] the post-election period to be a sensitive event.”
    • Google’s normal ad policies prohibit false information that may undermine public trust in elections and the democratic process.
  • The New York Comptroller Tom DiNapoli committed the state’s $226B pension fund to reach net-zero emissions by 2040, ten years sooner than any other state pension fund. DiNapoli also outlined a plan to potentially divest from fossil fuel companies after reviewing the pension fund’s portfolio for climate risks.
    • The pension fund previously dropped most of its coal companies after a climate risk review and is currently reviewing tar sands companies.
  • California Governor Gavin Newsom announced that Liane Randolph will be the next Chair of the Air Resources Board, replacing Mary Nichols. Randolph is an attorney who currently serves on the Public Utilities Commission.
    • As mentioned previously, outgoing Chair Nichols is considered a top candidate to be President-elect Biden’s Administrator of the Environmental Protection Agency (EPA).
  • New Jersey Transit (NJ Transit) approved an agreement with the Federal Transit Administration (FTA) to construct the new Portal North Bridge. NJ Transit will receive $766.6M through the FTA’s Capital Investment Grants Program. The Portal North Bridge will replace the old Portal Bridge, which carries 450 Amtrak and NJ Transit trains daily.
  • The United Kingdom (UK) announced that it will not impose retaliatory tariffs against the U.S. in response to Boeing subsidies, though the EU has imposed retaliatory tariffs on $4B of U.S. goods. The UK is seeking to deescalate tensions with the U.S. and reach a bilateral trade agreement.
    • However, the UK will impose retaliatory tariffs in response to the Trump Administration’s Section 232 tariffs on steel and aluminum and is currently discussing which U.S. goods to target.
  • The European Commission is expected to release legislation as a contingency in the event that the EU and UK do not reach a deal on Brexit negotiations. As a reminder, British Prime Minister Boris Johnson and EU Commission President Ursula von der Leyen met today in an effort to break the deadlock over Brexit negotiations. The transition period for Brexit expires on December 31.
    Federal Register Notices
  • The Department of Justice’s Antitrust Division announced changes in membership of the Electrified Vehicle and Energy Storage Evaluation, specifically adding ANSYS, Inc. The notice can be found here.
  • The Centers for Disease Control and Prevention (CDC) announced a public meeting of the Advisory Committee on Immunization Practices (ACIP) that will be held on December 11 from 12:00-5:00pm ET and December 13 from 12:00-4:00pm ET. The meeting will discuss the COVID-19 vaccine. The notice can be found here.
  • The Federal Aviation Administration (FAA) requested comments on an information collection on the Safety Management Systems required for part 121 certificate holders. Comments must be submitted by February 8. The notice can be found here.
  • The Secretary of Health and Human Services amended the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19 from March 2020. The notice can be found here.
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