ICPI Government Affairs Update
At this writing, Congress has recently passed HR3684, the $1.2 trillion Bipartisan Infrastructure Bill, (also referred to as BIB, BIF and several other names). The President has signed it into law.
Further, hours before this writing, the House passed more controversial “climate and social infrastructure” bill, a $1.9 trillion piece of legislation. This bill is now sent to the Senate for consideration there, with possible substantial amendment. We do not believe that the House-passed version will pass the Senate without significant amendments on major issues.
Coming up, by December 3, the Continuing Resolution that is currently funding the federal government is slated to expire requiring either a succeeding Continuing Resolution or new Appropriations to be passed so as to avoid a government shutdown.
In addition, there is action to report on the OSHA front with vaccine mandates and action on H-2B worker visas.
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HR3684, the $1.2 trillion Bipartisan Infrastructure Bill: on November 5, 2021, Congress completed development and passage of HR3684, the Infrastructure and Investment Jobs Act (also known as the Bipartisan Infrastructure Bill). It is now law.
ICPI strongly supported passage of a Bipartisan Infrastructure Bill and signed multiple joint industry letters to the Hill stating the same.
The legislation authorizes $1.2 trillion for a wide array of infrastructure development, including construction on roads, bridges, mass transit, water facilities and more. Clearly, ICPI members will wish to engage the infrastructure authorities within their marketing areas to track developments in how the funding and policy under this legislation will have a local economic and construction impact on projects in which they may have interest.
While the bill is filled with provisions that will fund infrastructure projects throughout the economy, we call ICPI members’ attention to specific provisions of unique interest to the ICPI community regarding permeable pavement and stormwater reduction. It is possible that ICPI might wish to provide technical input for some of these activities. Some were recommended or specifically supported by ICPI in conversations with Capitol Hill infrastructure leadership.
We note there are multiple provisions in both the bill text and the accompanying committee reports that make references to permeable, pervious and porous pavements. We assume that various provisions originated from various sources and from various authors, and that multi-sourcing is seen in the variable usage of permeable, pervious and porous. We see no apparent purpose or reason to conclude that Congress meant to include one technology to the exclusion to or preference over others, and in fact it would seem the that greatest likelihood is that Congress uses these terms interchangeably as does much of the non-engineering world. It would appear that, regardless of the specific term used in any provision, Congress’ intent is to advance the use of pavements that allow rainwater to pass through pavements into the in situ soil, in juxtaposition to impervious pavements, a term also used in the bill. Thus as ICPI talks with USDOT/FHWA and state/local authorities regarding these provisions, ICPI can make this observation and encourage the authorities to adopt the broad inclusive viewpoint. In addition, should ICPI participate in the permeable and pavement studies authorized in this legislation, ICPI may wish to advocate that the authorities that use these materials understand and adopt the broader inclusive view as the true intent of Congress and the best means to realize the public policy goals (improved water quality, reduced stormwater runoff, etc.) that Congress intends to advance with this legislation.
The development of this infrastructure bill has involved one of the most complicated drafting exercises among many committees on both sides of the Hill; in fact the process has taken years of “Transportation Weeks” and many draft versions. While the final legislation did not include every possible provision that ICPI would have preferred from start to finish, it does provide multiple opportunities to advance policy on permeable pavements, stormwater runoff reduction, and helps solidify the linkage between permeable pavements and environmental goals such as stormwater reduction.
Here are some of the more ICPI-specific, paver-specific highlights in the bill text. These are only selected highlights; readers may wish to peruse the full bill text and committee report language for additional issues such as the water project features:
SEC. 11518. PERMEABLE PAVEMENTS STUDY.
(a) In General.--Not later than 1 year after the date of enactment
of this Act, the Secretary shall carry out a study--
(1) to gather existing information on the effects of permeable
pavements on flood control in different contexts, including in
urban areas, and over the lifetime of the permeable pavement;
(2) to perform research to fill gaps in the existing
information gathered under paragraph (1); and
(3) to develop--
(A) models for the performance of permeable pavements in
flood control; and
(B) best practices for designing permeable pavement to meet
flood control requirements.
(b) Data Survey.--In carrying out the study under subsection (a),
the Secretary shall develop--
(1) a summary, based on available literature and models, of
localized flood control capabilities of permeable pavement that
considers long-term performance and cost information; and
(2) best practices for the design of localized flood control
using permeable pavement that considers long-term performance and
cost information.
(c) Publication.--The Secretary shall make a report describing the
results of the study under subsection (a) publicly available.
SEC. 11519. EMERGENCY RELIEF PROJECTS.
(a) Definition of Emergency Relief Project.--In this section, the
term ``emergency relief project'' means a project carried out under the
emergency relief program under section 125 of title 23, United States
Code.
(b) Improving the Emergency Relief Program.--Not later than 90 days
after the date of enactment of this Act, the Secretary shall--
(1) revise the emergency relief manual of the Federal Highway
Administration--
(A) to include and reflect the definition of the term
``resilience'' (as defined in section 101(a) of title 23,
United States Code);
(B) to identify procedures that States may use to
incorporate resilience into emergency relief projects; and
(C) to encourage the use of Complete Streets design
principles and consideration of access for moderate- and low-
income families impacted by a declared disaster;
(2) develop best practices for improving the use of resilience
in--
(A) the emergency relief program under section 125 of title
23, United States Code; and
(B) emergency relief efforts;
(3) provide to division offices of the Federal Highway
Administration and State departments of transportation information
on the best practices developed under paragraph (2); and
(4) develop and implement a process to track--
(A) the consideration of resilience as part of the
emergency relief program under section 125 of title 23, United
States Code; and
(B) the costs of emergency relief projects.
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SEC. 11520. STUDY ON STORMWATER BEST MANAGEMENT PRACTICES. (a) Study.--Not later than 180 days after the date of enactment of this Act, the Secretary and the Administrator of the Environment Protection Agency shall offer to enter into an agreement with the Transportation Research Board of the National Academy of Sciences to conduct a study-- (1) to estimate pollutant loads from stormwater runoff from highways and pedestrian facilities eligible for assistance under title 23, United States Code, to inform the development of appropriate total maximum daily load (as defined in section 130.2 of title 40, Code of Federal Regulations (or successor regulations)) requirements; (2) to provide recommendations regarding the evaluation and selection by State departments of transportation of potential stormwater management and total maximum daily load compliance strategies within a watershed, including environmental restoration and pollution abatement carried out under section 328 of title 23, United States Code (including any revisions to law (including regulations) that the Transportation Research Board determines to be appropriate); and (3) to examine the potential for the Secretary to assist State departments of transportation in carrying out and communicating stormwater management practices for highways and pedestrian facilities that are eligible for assistance under title 23, United States Code, through information-sharing agreements, database assistance, or an administrative platform to provide the information described in paragraphs (1) and (2) to entities issued permits under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.). (b) Requirements.--If the Transportation Research Board enters into an agreement under subsection (a), in conducting the study under that subsection, the Transportation Research Board shall-- (1) review and supplement, as appropriate, the methodologies examined and recommended in the report of the National Academies of Sciences, Engineering, and Medicine entitled ``Approaches for Determining and Complying with TMDL Requirements Related to Roadway Stormwater Runoff'' and dated 2019; (2) consult with-- (A) the Secretary; (B) the Administrator of the Environmental Protection Agency; (C) the Secretary of the Army, acting through the Chief of Engineers; and (D) State departments of transportation; and (3) solicit input from-- (A) stakeholders with experience in implementing stormwater management practices for projects; and (B) educational and technical stormwater management groups. (c) Report.--If the Transportation Research Board enters into an agreement under subsection (a), not later than 18 months after the date of enactment of this Act, the Transportation Research Board shall submit to the Secretary, the Committee on Environment and Public Works of the Senate, and the Committee on Transportation and Infrastructure of the House of Representatives a report describing the results of the study. ------- SEC. 11521. STORMWATER BEST MANAGEMENT PRACTICES REPORTS. (a) Definitions.--In this section: (1) Administrator.--The term ``Administrator'' means the Administrator of the Federal Highway Administration. (2) Best management practices report.--The term ``best management practices report'' means-- (A) the 2014 report sponsored by the Administrator entitled ``Determining the State of the Practice in Data Collection and Performance Measurement of Stormwater Best Management Practices''; and (B) the 1997 report sponsored by the Administrator entitled ``Stormwater Best Management Practices in an Ultra-Urban Setting: Selection and Monitoring''. (b) Reissuance.--Not later than 1 year after the date of enactment of this Act, the Administrator shall update and reissue each best management practices report to reflect new information and advancements in stormwater management. (c) Updates.--Not less frequently than once every 5 years after the date on which the Administrator reissues a best management practices report described in subsection (b), the Administrator shall update and reissue the best management practices report until the earlier of the date on which-- (1) the best management practices report is withdrawn; or (2) the contents of the best management practices report are incorporated (including by reference) into applicable regulations of the Administrator. -------
SEC. 11406. HEALTHY STREETS PROGRAM. (a) Definitions.--In this section: (1) Cool pavement.--The term ``cool pavement'' means a pavement with reflective surfaces with higher albedo to decrease the surface temperature of that pavement. (2) Eligible entity.--The term ``eligible entity'' means-- (A) a State; (B) a metropolitan planning organization; (C) a unit of local government; (D) a Tribal government; and (E) a nonprofit organization working in coordination with an entity described in subparagraphs (A) through (D). (3) Low-income community.--The term ``low-income community'' means a census block group in which not less than 30 percent of the population lives below the poverty line (as defined in section 673 of the Community Services Block Grant Act (42 U.S.C. 9902)). (4) Porous pavement.--The term ``porous pavement'' means a paved surface with a higher than normal percentage of air voids to allow water to pass through the surface and infiltrate into the subsoil. (5) Program.--The term ``program'' means the Healthy Streets program established under subsection (b). (6) State.--The term ``State'' has the meaning given the term in section 101(a) of title 23, United States Code. (7) Tribal government.--The term ``Tribal government'' means the recognized governing body of any Indian or Alaska Native tribe, band, nation, pueblo, village, community, component band, or component reservation, individually identified (including parenthetically) in the list published most recently as of the date of enactment of this Act pursuant to section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5131). (b) Establishment.--The Secretary shall establish a discretionary grant program, to be known as the ``Healthy Streets program'', to provide grants to eligible entities-- (1) to deploy cool pavements and porous pavements; and (2) to expand tree cover. (c) Goals.--The goals of the program are-- (1) to mitigate urban heat islands; (2) to improve air quality; and (3) to reduce-- (A) the extent of impervious surfaces; (B) stormwater runoff and flood risks; and (C) heat impacts to infrastructure and road users. (d) Application.-- (1) In general.--To be eligible to receive a grant under the program, an eligible entity shall submit to the Secretary an application at such time, in such manner, and containing such information as the Secretary may require. (2) Requirements.--The application submitted by an eligible entity under paragraph (1) shall include a description of-- (A) how the eligible entity would use the grant funds; and (B) the contribution that the projects intended to be carried out with grant funds would make to improving the safety, health outcomes, natural environment, and quality of life in low-income communities and disadvantaged communities. (e) Use of Funds.--An eligible entity that receives a grant under the program may use the grant funds for 1 or more of the following activities: (1) Conducting an assessment of urban heat islands to identify hot spot areas of extreme heat or elevated air pollution. (2) Conducting a comprehensive tree canopy assessment, which shall assess the current tree locations and canopy, including-- (A) an inventory of the location, species, condition, and health of existing tree canopies and trees on public facilities; and (B) an identification of-- (i) the locations where trees need to be replaced; (ii) empty tree boxes or other locations where trees could be added; and (iii) flood-prone locations where trees or other natural infrastructure could mitigate flooding. (3) Conducting an equity assessment by mapping tree canopy gaps, flood-prone locations, and urban heat island hot spots as compared to-- (A) pedestrian walkways and public transportation stop locations; (B) low-income communities; and (C) disadvantaged communities. (4) Planning activities, including developing an investment plan based on the results of the assessments carried out under paragraphs (1), (2), and (3). (5) Purchasing and deploying cool pavements to mitigate urban heat island hot spots. (6) Purchasing and deploying porous pavement to mitigate flooding and stormwater runoff in-- (A) pedestrian-only areas; and (B) areas of low-volume, low-speed vehicular use. (7) Purchasing of trees, site preparation, planting of trees, ongoing maintenance and monitoring of trees, and repairing of storm damage to trees, with priority given to-- (A) to the extent practicable, the planting of native species; and (B) projects located in a neighborhood with lower tree cover or higher maximum daytime summer temperatures compared to surrounding neighborhoods. (8) Assessing underground infrastructure and coordinating with local transportation and utility providers. (9) Hiring staff to conduct any of the activities described in paragraphs (1) through (8). (f) Priority.--In awarding grants to eligible entities under the program, the Secretary shall give priority to an eligible entity-- (1) proposing to carry out an activity or project in a low- income community or a disadvantaged community; (2) that has entered into a community benefits agreement with representatives of the community; or (3) that is partnering with a qualified youth or conservation corps (as defined in section 203 of the Public Lands Corps Act of 1993 (16 U.S.C. 1722)). (g) Distribution Requirement.--Of the amounts made available to carry out the program for each fiscal year, not less than 80 percent shall be provided for projects in urbanized areas (as defined in section 101(a) of title 23, United States Code). (h) Federal Share.-- (1) In general.--Except as provided under paragraph (2), the Federal share of the cost of a project carried out under the program shall be 80 percent. (2) Waiver.--The Secretary may increase the Federal share requirement under paragraph (1) to 100 percent for projects carried out by an eligible entity that demonstrates economic hardship, as determined by the Secretary. (i) Maximum Grant Amount.--An individual grant under this section shall not exceed $15,000,000. (j) Treatment of Projects.--Notwithstanding any other provision of law, a project assisted under this section shall be treated as a project on a Federal-aid highway under chapter 1 of title 23, United States Code.———
Thus far this memorandum has referenced actual bill language in the final enacted version of HR3684. There are two accompanying committee reports that can be used to help interpret the intent of Congress as both Houses of Congress drafted their respective versions of major infrastructure legislation. One committee report (H.Rpt. 117-70) was used to enhance the earlier House version of the bill, and another committee report (S. Rpt. 117-41) was used to enhance the Senate version. While the Senate was the later body to amend the final bill and the House subsequently voted to adopt and pass the Senate-amended version, we suggest that the House report might also be consulted to provide insight into congressional thinking on some of the issues addressed in the legislation.
H.Rpt. 117-70 contains language to explicitly include permeable pavements as a “protective feature” in USDOT programs. ICPI specifically supported this passage. We note that the passage was not included in the Senate report. We believe that the difference reflects the manner in which both bodies developed their own drafts, and drafted independently, rather than any intentional difference of opinion on this topic.
The following is the H.Rpt. 117-70 passage on “protective features” that makes reference to permeable pavements and we think it expresses the view of the House:
(B) Inclusions.--The term ``protective feature'' includes-- (i) raising roadway grades; (ii) relocating roadways to higher ground above projected flood elevation levels or away from slide prone areas; (iii) stabilizing slide areas; (iv) stabilizing slopes; (v) lengthening or raising bridges to increase waterway openings; (vi) increasing the size or number of drainage structures; (vii) replacing culverts with bridges or upsizing culverts; (viii) installing seismic retrofits on bridges; (ix) scour, stream stability, coastal, and other hydraulic countermeasures; (x) the use of natural infrastructure; (xi) integration of the use of traditional and natural infrastructure features; (xii) undergrounding public utilities in the course of other infrastructure improvements eligible under this title; and (xiii) permeable pavements for stormwater management. ———
The “climate and social infrastructure” legislation, or the “BR” for Budget Reconciliation. This legislation is one of the broadest, most comprehensive and expensive measures likely to be attempted any time soon. It is a vehicle for many of the issues that resonated in the 2020 elections and will likely continue to move elections in 2022 and beyond. The cost is itself controversial and a reason why some Democrats are having difficulty committing to it.
The final outlook for the bill or anything resembling it is impossible to determine at this writing.
Because of the subject matter breadth of the legislation, many industry representatives are focusing comments about various possible elements. There are pieces that some industries oppose vigorously but others that might be supportable individually; for example some infrastructure development features that have been included in base drafts could be attractive to some industry advocates.
ICPI continues to watch developments with an eye towards working with the construction and industrial communities when and if input on specific elements would be useful and helpful.
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FY22 Appropriations status, with focus on the House FY22 THUD Appropriations bill and committee report:
As reported previously, the House has indeed passed its FY22 THUD Appropriations as part of a larger package of funding bills and has referred that package to the Senate for consideration.
In late summer, it became apparent that the Hill would be unable to complete work on the various FY22 Appropriations bills in time to avoid a government shutdown. As an alternative, the Hill passed and the President signed a Continuing Resolution (CR) to continue funding at FY21 levels.
That CR is slated to expire on December 3. Further action will be required by that date to avoid a government shutdown.
ICPI continues to support passage of new FY22 Appropriations bills, focusing on the FY THUD Appropriations bill as part of a package.
The House Committee Report to accompany the FY22 THUD Appropriations bill contains language advocated by ICPI in a joint conversation with subcommittee staff. The report language eventually adopted by the House Appropriations Committee is as follows:
Permeable pavements.—The Committee continues to encourage the Secretary to accelerate research, demonstration, and deployment of permeable pavements to achieve flood mitigation, pollutant reduction, stormwater runoff reduction, environmental conservation, and resilience for new road construction and retrofit of existing roads. The Committee encourages the Secretary to conduct structural evaluations of flood-damaged pavements, with emphasis on local roads and highways subject to flooding and extended periods of inundation, to understand the mechanisms of flood damage and how permeable pavements might be used to prevent or reduce damage from future flooding. Furthermore, the Secretary is encouraged to work with the Federal Emergency Management Agency (FEMA) and the Environmental Protection Agency (EPA), as both agencies are also doing work in the area of permeable pavements and a cross-agency collaboration may yield more innovation. As such, the Committee directs the Department to submit a report within 240 days of enactment of this Act to the House and Senate Committees on Appropriations detailing current efforts, utilization, and research within FHWA and efforts made with FEMA and EPA.
ICPI had expressed the concern to Appropriations staff that USDOT/FHWA may not regard the role of permeable pavements, and the roadsides where they would be applicable, to be central to the USDOT/FHWA mission. In thinking about this problem, ICPI considered that the input of other agencies that are further along in understanding the beneficial role of pavers (for example EPA and FEMA) with respect to stormwater management would be helpful and informative to USDOT/FHWA.
ICPI applauds the House interest in a collaboration among USDOT, FEMA and EPA in this regard. ICPI would be happy to offer technical assistance in such a collaboration.
We observe that key infrastructure leaders across the House and Senate have well received ICPI’s educational advocacy regarding permeable pavements and the linkage with stormwater management. We thank them for their kind attention and excellent interest in the issues.
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H-2B Worker Visa action: There has been considerable recent action regarding the H-2B worker visa program. H-2B remains a priority for ICPI which is pleased to continue work with the H-2B Coalition on these issues, and we are pleased to use material from the Coalition in this report.
ICPI has signed joint industry letters encouraging the federal government to release as many worker visas as possible.
Further, ICPI supports cosponsorship of the H-2B Returning Worker Exception Act to make it easier for returning workers to continue in the H-2B worker visa program.
On November 3, USDOL announced the following, which serves as a good summary of late summer H-2B action:
November 3, 2021. The Department of Labor’s Response to Stakeholder Requests to Raise the H-2B Visa Cap for the First Half of Fiscal Year 2022
The Department of Labor (Department or DOL) continues to recognize that obtaining a reliable workforce is crucial to meeting the temporary or seasonal labor needs of American businesses. The Department also recognizes how important it is to help Americans get back to work. We are committed to building a modern, inclusive workforce – ensuring all workers have good jobs, fair wages and working conditions, and opportunities for advancement.
The Immigration and Nationality Act (INA) sets the cap on the annual number of non-citizens who may be issued H-2B visas or otherwise provided H-2B nonimmigrant status to perform temporary non-agricultural work at 66,000, to be distributed semi-annually beginning in October and April (H-2B cap). The Department of Homeland Security’s (DHS) United States Citizenship and Immigration Services (USCIS) has the statutory responsibility for determining whether the H-2B cap has been reached in each semi-annual period based on the number of H-2B petitions it receives.
On October 12, 2021, USCIS announced that on September 30, 2021 it had reached the congressionally mandated cap for H-2B visas for temporary nonagricultural workers for the first half of the FY 2022. Except where the H-2B petition qualifies for an exemption from the statutory visa cap, USCIS is currently rejecting new cap-subject petitions received after September 30, 2021 that request an employment start date before April 1, 2022.
While the 33,000 H-2B cap for the first half of FY 2022 has been reached, we encourage every employer seeking workers to visit the almost 2,400 American Job Centers (AJC) nationwide to find and hire talented workers, as well as to train and retain qualified workers. Additionally, the Department recognizes the incredible value of our nation’s veterans and encourages tapping into their skills and talents. There are Veteran Employment Representatives in every AJC across the country who can assist businesses and veterans with their employment needs. You may also consider working with the Department’s Veterans’ Employment and Training Service to facilitate recruitment efforts in the veteran community.
Again, we understand the importance of this issue to both workers and employers. In recent years, Congress has enacted a series of public laws that provided the Secretary of Homeland Security with time-limited, discretionary authority to increase the H-2B cap beyond the number set forth in the INA after consultation with the Secretary of Labor. The Department will continue working collaboratively with our partners at DHS in an ongoing effort to ensure effective operation of the H-2B program.
Earlier in the year, during House FY22 Appropriations consideration for USDOL and USDHS funding, appropriators added language to the H-2B worker visa provisions that would further prompt the Secretary to make additional worker visas available during FY22. ICPI and the Coalition support this language.
Further during the appropriations process in the House, pro-H-2B Members successfully resisted several proposals that could have effectively gutted the H-2B program. Proposals would-
-Prohibit industries from using the H-2B program if they experienced unemployment
in any of the previous 12 months over 10%;
Prohibit construction industries from using the program even in seasonal locations or occupations;
Increase the baseline for wages to at least 150% of the federal or state minimum wage, whichever is higher;
Require wage compliance with a collective bargaining agreement for your industry in the area, even if a company is not a party to the agreement;
Ban participation in the program for labor/workforce related infractions outside of the scope of the H-2B program.
ICPI and the Coalition opposed all these amendments.
As mentioned above, the outcome on all FY22 Appropriations, including Labor and DHS, remain to be determined with the upcoming December 3 CR deadline.
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OSHA Emergency Temporary Standard on COVID-19 vaccination and testing: OSHA has issued an Emergency Temporary Standard on COVID-19 vaccination and testing. The policies surrounding mandatory vaccination and testing is being contested in the courts and the outcome is uncertain. At this writing legal challenges have led to a pause in implementation of the OSHA policy. Having said that, we provide the following material sourced from the U.S. Small Business Administration Office of Advocacy which describes what OSHA seeks to do, and we thank SBA staff for their information.
OSHA Issues Emergency Temporary Standard On COVID-19 Vaccination And Testing
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) on mandatory “COVID-19 Vaccination and Testing” under section 6(c)(1) of the Occupational Safety and Health Act. The ETS requires employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy, except for covered employers that adopt an alternative policy of requiring employees to undergo regular COVID–19 testing and wear a face covering at work. OSHA has determined that a grave danger exists that necessitates the ETS and that the ETS is both technically and economically feasible for covered employers. The rule is effective immediately and employers must comply with most requirements within 30 days and with testing requirements within 60 days. The ETS is open for public comment through December 6, 2021.
For additional information, including OSHA summaries and fact sheets about the ETS, please visit OSHA’s COVID-19 Vaccination and Testing webpage.
Read OSHA’s Emergency Temporary Standard on COVID-19 Vaccination and Testing here: Federal Register :: COVID-19 Vaccination and Testing; Emergency Temporary Standard
Comments are due by December 6, 2021, and can be filed at www.regulations.gov at Federal Register :: COVID-19 Vaccination and Testing; Emergency Temporary Standard (Docket No. OSHA–2021–0007-0001)