Update on of ICPI Government Relations Initiatives

November 15, 2017

Transportation (THUD) Appropriations, Transportation Authorization outlook:  this paragraph contains the most new information on this topic relative to the update at the Toronto meetings.  At this time, the U.S. government is operating on a Continuing Resolution of FY17 appropriations.  This language contains the ICPI-sought PICP language that has been discussed often.  We expect this legislation to remain in effect into the second week of December of 2017, at which time a new appropriations law needs to take effect in order to fund the federal government.  Based upon prior action that occurred in September of 2017, we expect the new law to be enacted in December which will fund the federal government through FY18 to also contain the ICPI-sought language on PICP.  We encourage all interested parties to carry forth on plans to make use of that language.   

The language offered by ICPI, and adopted by the House Appropriations Committee, is as follows: 

Permeable pavements.—The Committee encourages the Secretary to accelerate research, demonstration, and deployment of permeable pavements to achieve flood mitigation, pollutant reduction, stormwater runoff reduction, and conservation.  Projects may include roadway shoulder load testing and documenting lifecycle cost efficiency. 

Please note the emphasis in the last sentence on roadway shoulder testing and life cycle cost efficiency, two specific items requested by ICPI to help overcome barriers to adoption cited by the staff and membership. 

ICPI sees a future in serving the market for low-speed use on road shoulders, particularly to exploit the water shedding benefits of PICP.  Work on road shoulders can generalize to other Transportation uses as well.  Because PICP may require more expense during initial construction, it is imperative to document potential savings in life cycle costing, particularly with regard to ease of repair. 

The adoption of the ICPI language in the House FY18 THUD Appropriation follows similar adoption of the language in the FY17 Omnibus spending bill that was passed into law in May, 2017 and is currently funding the U.S. government. 

Further, it dovetails with the authorization language offered by ICPI and included in the MAP-21 bill in a previous Congress, which remains the law of the land.

ICPI wishes to thank members of the association who made timely grassroots contacts to their Members of Congress urging their support on the ICPI legislation.  This element has a strong positive impact on ICPI’s lobbying efforts.  Many congressional offices require the input of constituents to enlist their support. 

ICPI’s recommendations to Congress connect ICPI and PICP with issues that are becoming increasingly important across all federal policy, including Transportation.  The stated benefits that resonate in environmental policy are “green” construction/landscaping, and water quality/stormwater runoff. 

From a public policy standpoint, PICP is a malleable technology that bridges gaps across many of the natural political borders. 

Assuming the FY18 THUD bill becomes law, the next challenge after the lobbying effort is done is to identify a project or projects to propose to/work with FHWA based upon the intent of Congress on permeables as set forth in MAP-21 and the FY18 THUD legislation.  This requires coordination with FHWA and state and local DOTs.

We have also suggested an alternate based upon FHWA’s relationship with state and local governments:  ICPI and its members might seek to collaborate with both FHWA and state and local governments to conduct work with PICP supported by the ICPI language in the THUD.  The following language, culled from H.RPT. 114-606, provides some insight into FHWA’s funding nexus with state and local applications of technology, and may offer guidance: 

The Federal Highway Administration (FHWA) provides financial assistance to the states to construct and improve roads and highways. It also provides technical assistance to other agencies and organizations involved in road building activities… Funding is provided by contract authority…

The federal-aid highways program is designed to aid in the development, operations, and management of an intermodal transportation system that is economically efficient and environmentally sound, to provide the foundation for the nation to compete in the global economy, and to move people and goods safely…State highway departments have the authority to initiate federal-aid projects, subject to FHWA approval of the plans, specifications, and cost estimates.

The mention of help with technical assistance might be an avenue for PICP research at the state and local level – worth discussion with FHWA staff.  

We encourage interested ICPI members to join the technical staff at ICPI in this effort.  With the lobbying element largely complete, member involvement in exploiting the Hill language will be important, perhaps determinative.  

b.  Planning a PICP demonstration with Cong. David Price:  at press time, ICPI is in final preparations to help host a technical demonstration of PICP and its capacity to mitigate stormwater for Cong. David Price (D-NC), the Ranking Member on the House Appropriations THUD Subcommittee.  The event is planned to be held in his district, on the campus of North Carolina State University, on November 20, 2017.  The congressman is fully briefed by ICPI and ICPI members in North Carolina as to the public policy benefits of PICP.  The Congressman and his staff have indicated a strong interest in attending a real-world demonstration of PICP capability to absorb stormwater in situ and help mitigate the damage and negative environmental impacts of stormwater runoff.  North Carolina State University and ICPI members in North Carolina are collaborating to conduct the scientific test and demonstration of the technology for the congressman and his staff.  At press time, we expect the event to be widely attended with perhaps 60 or more local business persons, NC State and local Transportation officials to attend.   

ICPI applauds Cong. Price for his seriousness and interest in learning about emerging technologies that can not only provide jobs for his constituents but also address important issues such as water quality and flood mitigation. 

c.  Possible tax reform bill, implications:  at press time, both the House and Senate have introduced separate and different tax proposals and are working through the tax machinations on both sides of the Hill.  The House is slated to have a final floor vote on its version the tax bill; that vote is expected to have sufficient support to pass.  Meanwhile, the Senate is pushing its version through the Senate Finance Committee.  Senate Leader Mitch McConnell has said he hopes to take the bill to the Senate floor in the week following Thanksgiving. 

The outcome of the Senate bill is more difficult to predict in that the GOP leadership may only lose two votes and yet obtain passage of its version.  Both versions seek to reduce the number of individual tax rates, reduce or eliminate the state and local tax deduction, dramatically reduce corporate rates to be more in alignment with the rest of the world, enact new tax rates and provisions for pass-through entities, accelerate cost recovery and expensing, and other provisions.   

We expect the GOP leaders to move as aggressively as possible to assemble the necessary GOP votes to achieve passage. 

On a specific point, ICPI joined many other associations in signing a letter to tax writers on both sides of Capitol Hill to take no action that would inhibit the ability of trade associations to work to advance the interests of their industries via their association activity. 

d.  Regulation reform under the new Administration, Congressional Review Act:  by far, the greatest impact of the new Administration has been in reversing, withdrawing or halting development of regulations.   The President has reversed direction on a myriad of regulatory actions from actions in the early planning stages to completed rules.  Further, on Capitol Hill, Congress has invoked the Congressional Review Act (CRA) fourteen times to overturn fourteen late-term regulations finalized under the previous Administration. 

The Administration released a Unified Agenda which gave notice that up to 860 other regulations may be pulled back in some manner.  Many of the completed rules will require new rulemakings to eliminate or amend them, but the Administration appears fully committed to such efforts and is moving forward as quickly as agency staff can be hired to execute on these efforts.

We address two regulations of special interest below. 

e.  WOTUS regulation, EPA update:  EPA proposed and formally commenced the process to repeal the WOTUS rule that redefined and expanded federal jurisdiction under the Clean Water Act.  This action was predetermined as a consequence of the 2016 elections.

At this point and without listing the lineage of actions on WOTUS in 2017, the bottom line is that the geographic jurisdictional expansion that was anticipated under WOTUS is nullified for now and for the time being. 

While the current action does halt the planned expansion of CWA jurisdiction under the current WOTUS regulation, the underlying policy favoring stormwater mitigation, and the commensurate utility of PICP in achieving this goal, remain. 

ICPI has commented in the past that if the jurisdiction of the Clean Water Act is increased by a WOTUS rule, permeable pavements using PICP can play a significant role as a proven, successful, off-the-shelf technology to help mitigate stormwater runoff, improve water quality, reduce flooding and enhance green infrastructure. 

Silica regulation update:  ICPI and CISC, the Construction Industry Safety Coalition, continue to challenge the final silica regulation in federal court.  A key compliance development in 2017 has been that ICPI and others requested that USDOL and OSHA delay enforcement of the regulation for the construction industry for a year pending further review of the rule.  OSHA responded by extending the compliance deadline from June 23, 2017 to September 23, 2017.   While the extension was a positive step, the Coalition sought a full year extension.  ICPI plans to continue its participation as a member of CISC and support its efforts to mitigate the negative impacts of the silica regulation. 

H-2B/immigration status:  while the new Administration campaigned on a promise to pursue a comprehensive immigration bill in 2017, there has been no clear vehicle developed to begin Hill debate much less lead to new law.  The DACA issue has dominated much of the immigration airspace.  However, executive actions are underway which could be very beneficial to proponents of the H-2B seasonal worker visa program and to ICPI members. 

The Administration has announced that it would increase the current cap of 66,000 H-2B visas, a cap which has existed for several years, by an additional 15,000 visas in the current fiscal year.  These visas were available only to American businesses which attest that they would likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petition. 

This was characterized as a one-time increase based on a time-limited statutory authority. It does not affect the H-2B program in future fiscal years. It expired on Sept. 30, 2017. 

Nonetheless, this is the first positive development for the H-2B visa program in years and, hopefully, will lead to other changes that will allow U.S. employers to use the program more effectively.

Despite the admonition that this is a one-time increase, clearly it creates favorable precedent for future boosts.  

h.  Labor issues, NLRB status:  the National Labor Relations Board (NLRB) is in the process of changing its political make-up from majority Democrat to majority Republican.  The President has tapped GOP-favored labor attorneys to the fill the open seats on the five-member board.  Peter Robb has been confirmed by the Senate as the new counsel for NLRB.  A GOP majority will tilt the Board in favor of a more lenient and accessible H-2B worker visa program, fewer onerous restrictions on employers’ time and resources in addressing unionization efforts, future possible developments on issues akin to the Persuader Rule, and joint employer and micro-unions decisions are likely to be modified or overturned.  These changes may require formal rulemakings, but they reflect the direction sought by most management advocates.  ICPI supports these developments.     

i.  Career technical training/Perkins Act support:  HR2353, the Perkins Act reauthorization, has passed the House and is now under consideration in the Senate, where it appears to be stalled.  The Perkins Act is the premier federal legislation governing education and training for the highly skilled trades.  It has bipartisan support, and addresses a need which is held true nearly universally within the construction trades.  ICPI strongly supports the Perkins Act reauthorization and urges the Senate Health, Education, Labor and Protections Committee complete its work and report out the bill for Senate floor action as soon as possible. 

Political developments:  at press time an increasing number of current Members of Congress are announcing their intentions to not seek re-election  and will retire at the end of the current Congress.  While retirements occur in every cycle, we see a spike based upon the difficult political climate and recent results from state-wide elections in New Jersey and Virginia.  Some retirements may also be related to term-limited Chairs who would rather leave Congress altogether than forfeit their gavels and continue as former Chairs.  We are watching these developments closely, particularly in swing districts.