Washington Update

Government Funding Update
With government funding set to expire on September 30 and a possible government shutdown looming, the House and Senate continue their consideration of Fiscal Year 2024 appropriations bills, while the White House is also pushing for $44 billion in emergency supplemental funds.

House Action
House Speaker Kevin McCarthy (R-CA) released a short-term spending bill tying significant funding cuts with immigration and border policies.  Speaker McCarthy initially signaled an interest in voting on the bill on Thursday, but backed away from holding a vote. Politico reported yesterday there is currently “no viable plan to fund the government, with just 12 days left to avoid a shutdown.”

Senate Action
Last week, Senator Ron Johnson (R-WI) objected to a unanimous consent request on a package of three appropriations bills, the Military Construction-VA, Agriculture, and Transportation-HUD, forcing a delay in floor consideration. Senator Johnson sought to consider each bill as a standalone, with unlimited amendments on each bill. This week, the Senate is likely to further consider the bill, though the exact process is unclear. Leadership could attempt to suspend Senate rules and bring the bill to the floor, though that would require 67 votes and it is unclear whether there is enough Republican support to do so. Appropriations Ranking Member Susan Collins (R-ME) said she was “dismayed we’ve lost another week” and is working with the parliamentarian to examine additional mechanisms to bring the bill to the floor.

Federal Court Rules Against DACA
The U.S. District Court for the Southern District of Texas again declared the Deferred Action for Childhood Arrivals (DACA) program unlawful, prohibiting new enrollees but allowing those participating in the program prior to July 16, 2021 to continue, including by renewing their applications. Current grants of DACA and related work authorizations remain valid until they expire, and the federal government will continue processing DACA renewal requests. The federal government is likely to appeal the ruling to the Fifth Circuit Court of Appeals and ultimately the Supreme Court. The ruling follows a 2022 U.S. Fifth Circuit Court of Appeals ruling that upheld the District Court’s 2021 holding that DACA was illegal, with the Circuit Court remanding the case back to the lower court.

NIH Publishes New Guide on Subrecipient Reporting, Extends Compliance Date
The National Institutes of Health (NIH) published a new guide notice clarifying its policy on foreign subaward and consortium written agreements and extended the compliance deadline to March 2, 2024. APLU and AAU urged NIH to make several clarifications to this new policy when it was open for public comment in July.

NIH indicates that based on feedback from the earlier public comments, the “notice modifies the requirements to state that “subaward agreements must stipulate that foreign subrecipients will provide access to copies of all lab notebooks, all data, and all documentation that supports the research outcomes as described in the progress report, to the primary recipient with a frequency of no less than once per year, in alignment with the timing requirements for Research Performance Progress Report submission.” And we clarify that by “access to,” it is understood that such access may be entirely electronic. Effective January 2, 2024, section 15.2 of the NIH Grants Policy Statement will be updated to include these clarifications. Grant recipients will need to be in compliance with this updated policy guidance by March 2, 2024.”

APLU Submits Comments on NSF Common Disclosure Forms
APLU joined a comment letter led by the Council on Governmental Relations (COGR) in response to the National Science Foundation’s call for comments on planned common disclosure forms to be used by all federal agencies for biographical information and current and pending research support from both domestic and foreign sources. NSF’s call for comments specifically asked for comments on “any fatal flaws associated with the proposed common disclosure forms, including the accompanying instructions.” The joint association letter recommends NSF make further clarification to several definitions and instructions to researchers.

The creation of a common disclosure form has been a goal of the interagency working group tasked with implementation of NSPM-33. APLU, the Association of American Universities, COGR, the Association of American Medical Colleges, and the American Council on Education commented on an earlier version of the common disclosure form in November 2022. The administration is aiming to finalize the regulation within the next several months.