TAUC Legislative and Regulatory Update, August 2017

August 2 2017

TAUC Legislative & Regulatory Update, August 2017

It has been a wild month in Washington, D.C. The effort to repeal and replace Obamacare has been the focus of much of the legislative activity over the past month. The rejection of Majority Leader McConnell’s efforts to find a final legislative compromise that could pass the Senate leaves Republican congressional leaders scrambling back to the drawing board to identify a path forward with their number one legislative priority. With the focus shifting to completing the budget, raising the debt ceiling, and comprehensive tax reform, it remains unclear where ACA repeal efforts go from here.

While health care sucked most of the oxygen out of the room, there are several other very important legislative and regulatory developments that can impact TAUC members and their customers. Here is an exclusive update from TAUC on issues of vital interest to contractors and the union construction and maintenance industry as a whole.

Anti-Davis-Bacon and Project Labor Agreement Attacks

TAUC and our labor and union contractor association allies have faced a number of amendments attempting to block or undermine federal prevailing wage laws and project labor agreement (PLA) requirements on federal projects. TAUC sent letter to each member of Congress opposing these amendments, and has worked closely with the Congressional Building Trades Caucus, the Construction Employers of America, and the North American Building Trades Unions to fight these attacks.

• Rep. Paul Gosar (R-AZ) offered an amendment to the FY 2018 National Defense Authorization Act that would have changed the process by which federal Davis-Bacon Act wage determinations are calculated. The Gosar amendment was defeated July 13th in the House by a vote of 183-242 – with 51 Republican House members joining all Democrats to defeat the amendment.
• Rep. Steve King (R-IA) offered an amendment to the FY 2018 Military Construction Appropriations Act to prevent the use of funds to “implement, administer, or enforce” the Davis-Bacon Act and the Davis-Bacon Act prevailing wage requirements for projects funded under this legislation. The amendment was defeated by a vote of 178-249, with 58 Republicans joining all Democrats in opposition.
• Rep. Francis Rooney (R-FL) and Ted Budd (R-NC) proposed an amendment to prohibit funds made available under FY 2018 Energy and Water Appropriations Act from being used to “implement, administer, or enforce” the Davis-Bacon Act and the Davis-Bacon Act prevailing wage requirements for projects funded under this legislation. The amendment was withdrawn.
• Rep. Rooney also proposed an amendment to the FY 2018 Energy and Water Appropriations Act that would prohibit funds made available under this Act from using PLAs for projects funded under this legislation. The amendment was withdrawn.

On a related matter, Rep. Todd Rokita (R-IN) is circulating a letter to President Trump requesting that he rescind President Obama’s Executive Order 13502 that allows Federal agencies to consider the use of PLAs on federally assisted construction projects over $25 million. The letter urges President Trump to reinstate Executive Orders put in place by President Bush banning the use of PLAs on federal construction projects.

House Considers a Series of Bills Designed to Encourage Energy Production and Speed Construction of Energy Infrastructure

The House passed two pieces of legislation designed to speed the approvals of pipeline and transmission projects. TAUC joined with a number of trade associations, business groups, and building trades unions to support these bills and urge their passage. H.R. 2883, which passed on a vote of 254-175, would transfer approval authority for cross-border energy projects from the State Department to the Federal Energy Regulatory Commission for pipelines and to the Department of Energy for electric transmission projects. The Presidential permit requirement was central to former President Obama’s rejection of the Keystone XL pipeline. President Trump has subsequently issued the permit and construction of this project is underway.

The House also approved H.R. 2910, which would reinforce Federal Energy Regulatory Commission’s (FERC) role as the lead agency for permitting interstate gas pipelines and giving FERC more authority and allowing it to impose timelines on other federal and state regulators during the permit process. The bill passed by a vote of 254-179.

The House also passed H.R. 806, the “Ozone Standards Implementation Act.” The bill would roll back EPA attainment designations for its latest ozone air quality benchmark — set two years ago — until 2025. EPA had been scheduled to make those designations by this October, but Administrator Scott Pruitt recently imposed a one-year delay. The 2015 rule lowered the ozone threshold to 70 parts per billion (ppb) from the current 75 ppb. The bill’s sponsor, Rep. Pete Olson (R-TX), argues that many regions of the country continue to be out of compliance with the 75-ppb standard. The bill would also rewrite a key tenet of the Clean Air Act by extending the review cycle of EPA’s standards for ozone and other “criteria pollutants” from once every five years to once every decade.

Cadillac Tax

During consideration of the unsuccessful effort to repeal the Affordable Care Act, the Senate passed an amendment offered by Sen. Dean Heller (R-NV) to repeal the excise tax on high-cost, employer-sponsored health insurance. The ACA created a 40 percent surcharge on certain employer-based health premiums above certain thresholds but delayed implementation of the tax until 2018. There continues to be wide support in both the House and Senate for eliminating the tax; however, these efforts seem to be contingent on repeal or significant changes to the ACA.

Administration’s Unified Regulatory Agenda

The White House released its first bi-annual regulatory agenda, which is a survey for all pending federal agency actions. The Agenda provides uniform reporting of data on regulatory and deregulatory activities under development throughout the Federal Government. The latest Agenda includes a number of notices to withdraw or revise regulations impacting TAUC members.

According to the agenda, EPA intends to withdraw the Clean Power Plan and Clean Water Rule. The administration had previously said it plans to roll back the Clean Power Plan, which required states to craft plans to reduce carbon dioxide emissions from existing power plants. The Agenda also moved a rule that would address emissions from new and modified plants to the “long-term actions” category. EPA states it plans to withdraw the standards on the grounds they exceed statutory authority.

EPA is moving to extend the stay of Obama-era methane standards for the oil and gas industry until August. A federal court last week granted EPA a two-week reprieve from complying with its recent ruling that the agency lacked authority to delay the rule. The agency also plans to continue with a rulemaking launched under the Obama administration to spell out the requirements for state cleanup plans needed to meet its 2015 ozone standard, with the final rule scheduled to be made final next March. The agenda notes that the final attainment designations for the ozone standard are now due by October 2018, after EPA Secretary Pruitt recently delayed them. Environmental and public health groups filed suit last week to reverse that decision.

The agenda also shows that the administration intends to move quickly to repeal and replace the 2015 Clean Water Rule, which clarifies which waters are covered by the Clean Water Act. While it does not set a specific timeline for a final regulation repealing the regulation, also known as the Waters of the U.S., or WOTUS, rule, the agenda shows the administration plans to propose a replacement regulation by December.

The agenda shows that OSHA will withdrawal regulatory efforts related to the establishment of injury and illness prevention program; noise in construction requirements; and combustible dust standards. The agenda does not provide any details on plans for implementation of the silica standard rule. Earlier this year, OSHA delayed the enforcement date by three months, until September 23, 2017. OSHA also signed plans to issue a proposal to reconsider injury and illness recordkeeping final rule, which was issued in May 2016.

Steel Imports

As reported a couple of months ago, President Trump issued an executive order instructing the Secretary of Commerce to launch a special investigation under section 232 of the 1962 Trade Expansion Act to unfair trade practices by foreign steel and aluminum producers constitute a threat to national security. If such a threat is found, emergency trade sanctions can be imposed on “national security” grounds. Commerce Secretary Wilbur Ross recently told Congress that the effort has “gotten bogged down in complexity.” It has been widely reported that here are disagreements within the Administration on how best to proceed in dealing with concerns over steel and aluminum dumping. There is no clear deadline for completion of the final investigation.

Infrastructure Investment Plan

While congress has been focused on health care, and leaders are planning to turn to tax reform as the next major policy item on the agenda, the President’s call for a major infrastructure investment package appears to be facing head winds. Congressional committees appear to be waiting on the Administration to submit its proposal before drafting and advancing infrastructure legislation. U.S. DOT Secretary Elaine Chao testified that she anticipated that more details regarding the Administration’s proposal will be released in September.

On a related note, the Senate’s FY18 Transportation, Housing, and Urban Development bill includes a provision that increases the passenger facility charge (PFC) that airports can levy to support infrastructure projects from $4.50 to $8.50 for originating passengers. TAUC worked with a coalition of airport, construction and aviation stakeholders to support this increase.