News & Insights

The 117th Congress and the Biden Administration. The major political issue affecting all other legislation is that at the current time the Senate Democratic Majority lacks sufficient votes to pass legislation on a purely partisan vote basis.

In fact, in recent days as of this writing, an unfortunate medical development for one Senator has made the procedural circumstance for the Democratic Majority even more tenuous.

At the January beginning of the current Second Session of the 117th Congress, Senate Democrats held 50 seats. The GOP Senators numbered 50 as well. A tie. The 50-50 tie was broken in favor of the Democrats due to the vote of Vice President Kamala Harris, who also holds the position of President of the Senate as provided in the Constitution.

As a practical matter, a Democratic Majority based on a 50-50 split requires that all 50 Democrats, no exceptions, vote in favor of any bill that comes before the body (this assumes that the GOP Senators will vote in unison to oppose, as they have done often during the 117th and seem likely to continue to do so on major proposals of the Biden Administration).

The most important piece of legislation on tap has been the very large climate, health and education, et. al. Build Back Better bill (henceforth BBB for brevity), the centerpiece of the Biden agenda.

Two Democratic Senators have refused to support BBB. If BBB went to a floor vote in the Senate, it would likely fail 48-52, assuming all Senators are available to vote.

Most of the legislative energy on the Hill since the last ICPI report in November has been expended to find some iteration of BBB that could win the support of the two reluctant Democratic Senators.

Thus far, those Democratic negotiation efforts have not achieved a consensus Democratic bill in the Senate. Recent interviews have suggested that, for at least one of the Democratic Senators, it is possible that no version of BBB could win his support.

With work on BBB reaching a standstill in the Senate, we have seen a recent shift in White House strategy toward breaking up BBB into a series of smaller bills, some of which might, conceivably, win 50 votes in the Senate. If this tactic proves successful, at least some of the BBB elements might pass in advance of the 2022 midterm elections, a priority for the Biden White House.

Now in recent days, one of the key Democratic Senators, Sen. Ben Ray Lujan (D-NM), has suffered a stroke. He is not currently able to cast votes on the Senate floor.

At this writing, his medical outlook, and his future in the Senate, is uncertain. We wish him all the best and hope for a speedy full recovery.

But for the purposes of Senate procedure, the ability of the Senate Democratic Majority Leader to obtain even a 50-vote tie seems impossible unless some GOP Senators can be convinced to vote aye along with all the remaining Democrats. On some issues, any GOP support seems simply not politically feasible.

There had been some discussion about Democrats changing the Senate rules to further limit the use of the filibuster in order to help pass more of the Biden Agenda. But a rules change also requires a majority vote. All GOP Senators are opposed to the filibuster change, as well as some Democrats. For now, with the recent medical development, such a rules change would seem impossible for the time being.

Thus, much of the Biden agenda which has not yet been enacted may be stalled indefinitely, at least with regard to any controversial elements. This fact impacts nearly all the substantive policies that are addressed in this report.

The White House can propose legislation, and the Democratically-led House can pass bills with narrow partisan majorities. But once the bills are received in the Senate, the lack of functional Democratic leverage in voting is bringing movement on big issues like BBB to a halt.

How the Senate Democratic Majority Leader intends to overcome this problem is under discussion in the cloakrooms, but an elegant solution is not readily apparent.

With that background, we move on to the leading issues.

—–

Infrastructure development, funding, policy. Fortunately for proponents of infrastructure development, the 117th Congress has already passed HR3684, the $1.2 trillion Bipartisan Infrastructure Bill, (also referred to as BIB, BIF and several other names). The President signed it into law.

ICPI strongly supported passage of the Bipartisan Infrastructure Bill and signed multiple joint industry letters to the Hill stating the same.

Given the dearth of other legislation that can pass the Senate, the Administration is ramping up efforts to publicize the victory on infrastructure development. In recent days the President has made personal travel to locations outside Washington DC to highlight important public works construction projects. [Building a Better America, a guidebook to the Bipartisan Infrastructure Law for state, local, tribal, and territorial governments, and other partners]

ICPI members should note that infrastructure development may be the most important public policy victory for the Administration that we will see in advance of the 2022 midterm elections. We should expect all the Cabinet-level Secretaries to push forward with public works investment as quickly as the construction economy can absorb it.  Certainly ICPI members will wish to keep track of local project developments. Indeed, it may turn out that infrastructure development is one of few (maybe the only) issue areas that can attract reliable bipartisan support.

The Bipartisan Infrastructure bill authorizes $1.2 trillion for a wide array of infrastructure development, including construction on roads, bridges, mass transit, water facilities and more.

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.

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.

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.

——-

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.

——-

In addition to the bill language appearing above, 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 can also be consulted as insight into congressional intent 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. 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.  

WRDA, the Water Resources Development Act. With the emerging preference for infrastructure as the best opportunity for legislative progress on the Hill, we mention another piece of popular infrastructure legislation, the Water Resources Development Act (WRDA). This would be WRDA 2022, the fifth such bill since 2014. Its primary focus is U.S Army Corps of Engineers funding for ports, harbors, inland waterways and more. WRDA is a vehicle for water resources development that can include funding for stormwater systems and other infrastructure that can make good use of permeable pavements.

At this writing, Cong. Peter DeFazio (D-OR) has begun 2022 hearings in the House Transportation and Infrastructure Committee for a next WRDA bill. ICPI is strongly supportive of WRDA bills and applauds Chairman DeFazio’s intention to move expediently on hearings to hasten development of a next WRDA authorization. We note with appreciation that the GOP Ranking Minority Member on the Committee is also making positive statements regarding WRDA 2022. It appears that WRDA is following the same constructive path as previous versions, with bipartisan early participation on the bill.

We expect WRDA development to continue through the spring and summer of 2022.

FY22 Appropriations status, with focus on the House FY22 THUD Appropriations bill and committee report. As reported previously, the House 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.

Since that time, the FY22 Appropriations negotiations have failed to reach a consensus conclusion, requiring multiple Continuing Resolutions to avoid government shutdowns and continue funding for the U.S. government.

At this writing, we are approaching the latest CR deadline of February 17. Unfortunately, House and Senate negotiators have not been able to reach agreement to pass the FY22 bills, but very recent reports indicate some negoiation progress. Meanwhile, a new CR has been introduced in case it is needed, one that would extend current funding through March 11. At this writing the House has passed this CR extension, with substantial GOP support. Action now shifts to the Senate. We do not sense any political interest in a federal government shutdown.

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 applauds the House interest in a collaboration among USDOT, FEMA and EPA in this regard.

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.

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.

ICPI has signed joint industry letters encouraging the federal government to release as many H-2B worker visas as possible.

The latest action on this issue is a draft Dear Colleague letter proposed by Senators Rounds and King inviting other Senators to sign a joint letter to USDOL and USDHS. The letter urges the agencies to release all statutorily authorized H-2B visas, and to process H-2B applications as soon as possible to allow employers who depend on seasonal workers to have them available for their peak seasons.

The draft Dear Colleague encourages the release of an additional 44, 716 visas as quickly as possible to allow employers to fill positions by April 1, 2022, commencement of the second half of the fiscal year.  Last year, DHS did not release additional visas until May, and then only released 22,000 visas.

ICPI supports the Sens. Rounds and King Dear Colleague effort.

Prior to the Rounds/King letter, USCIS issued a Temporary Final Rule on supplemental H-2B visa allocations. Perhaps the best means to impart this information is to provide the news release from USCIS, appearing in italics:

Temporary Final Rule: Supplemental H-2B Visa Allocation

The U.S. Department of Homeland Security (DHS) together with the U.S. Department of Labor (DOL) issued a joint temporary final rule to increase the number of H-2B temporary nonagricultural worker visas for fiscal year (FY) 2022 making available an additional 20,000 visas. These additional visas are for U.S. employers, which attest that they are suffering irreparable harm, or will suffer impending irreparable harm without the ability to employ all the H-2B workers requested in their petition, and which need to fill positions with start dates on or before March 31, 2022.

The supplemental H-2B visa allocation consists of 13,500 visas available only to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years (FY 2019, 2020, or 2021). The remaining 6,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Honduras, Guatemala, and El Salvador (collectively called the Northern Central American Countries), as well as for nationals of Haiti.

Returning H-2B workers have demonstrated their ability to abide by the terms and conditions of the H-2B program and, therefore, are less likely to remain in the United States and work without authorization after their legal status expires. H-2B workers often return to the same employer year after year on a seasonal basis. They are vetted and trusted and can have their visas approved more rapidly due to their known history.

The rule also grants portability to certain H-2B workers by allowing H-2B nonimmigrant workers already in the United States to begin employment with a new H-2B employer or agent once USCIS receives a timely filed, non-frivolous H-2B petition but before the petition is approved.

On another H-2B issue, ICPI supports co-sponsorship of the H-2B Returning Worker Exception Act to make it easier for returning workers to continue in the H-2B worker visa program.

The bill would:

–Exempt from the 66,000 annual H-2B cap workers who have been admitted to work in the United States on an H-2B visa during one of the past three fiscal years;

–Require the Departments of Labor (DOL), Homeland Security (DHS) and State to create a single on-line filing portal that would eliminate the need to express mail paper documents;

–Require DOL to maintain an online jobs registry;

–Include some program integrity measures and increase the maximum penalties that could be levied against employers who willingly and repeatedly violate the program’s requirements; and

–Address misconduct by foreign recruiters and strengthen workers safety standards for H-2B employees while in the United States.

Earlier in 2021, 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.

The outcome on all FY22 Appropriations, including Labor and DHS, remain to be determined sandwiched among CR deadlines.

WOTUS:  Waters of the U.S. The Biden Administration announced in 2021 that it withdrew the Trump Administration version of WOTUS and that it would write a new WOTUS rule.

The most important aspect of WOTUS is that it defines the scope of water tributaries, headwaters and wetlands that are subject to the policies (including stormwater runoff and similar permeable pavement-relevant issues) covered by the Clean Water Act, CWA.

The latest action is that 117 Members of the House of Representatives have sent a letter to the U.S. Army Corps of Engineers and U.S. EPA urging the agencies to move quickly to create a science-based new rule that would provide greater, broader protection for clean water.

The joint letter supports making smaller water conveyances subject to CWA, one of the most contentious aspects of any WOTUS rulemaking. This is a position that is strongly opposed by many rural and agricultural advocates.

The WOTUS issue is active, but WOTUS development has proven to be time consuming and subject to court challenges. ICPI will be following development of the next version of WOTUS.

Labor issues. One of the Biden Administration priorities has been to upgrade and expand labor and labor union policies.

In March of 2021, the House passed the PRO Act. Quoting from the Library of Congress abstract of the bill:

This bill expands various labor protections related to employees’ rights to organize and collectively bargain in the workplace.

Among other things, it (1) revises the definitions of employee, supervisor, and employer to broaden the scope of individuals covered by the fair labor standards; (2) permits labor organizations to encourage participation of union members in strikes initiated by employees represented by a different labor organization (i.e., secondary strikes); and (3) prohibits employers from bringing claims against unions that conduct such secondary strikes.

The bill also allows collective bargaining agreements to require all employees represented by the bargaining unit to contribute fees to the labor organization for the cost of such representation, notwithstanding a state law to the contrary; and expands unfair labor practices to include prohibitions against replacement of, or discrimination against, workers who participate in strikes.

The bill makes it an unfair labor practice to require or coerce employees to attend employer meetings designed to discourage union membership and prohibits employers from entering into agreements with employees under which employees waive the right to pursue or a join collective or class-action litigation.

The bill further prohibits employers from taking adverse actions against an employee, including employees with management responsibilities, in response to that employee participating in protected activities related to the enforcement of the prohibitions against unfair labor practices (i.e., whistleblower protections). Such protected activities include

–providing information about a potential violation to an enforcement agency,

participating in an enforcement proceeding,

–initiating a proceeding concerning an alleged violation or assisting in such a proceeding, or

–refusing to participate in an activity the employee reasonably believes is a violation of labor laws.

Finally, the bill addresses the procedures for union representation elections, provides employees with the ability to vote in such elections remotely by telephone or the internet, modifies the protections against unfair labor practices that result in serious economic harm, and establishes penalties and permits injunctive relief against entities that fail to comply with National Labor Relations Board orders.  

While the PRO Act has passed the House, it would attract a filibuster in the Senate. ICPI and all of the construction and manufacturing community, most of which are in strong opposition, keep watch on the bill.

More recently, the White House Task Force on Worker Organizing and Empowerment has issued its report to the President outlining nearly 70 recommendations that “when implemented, will promote worker organizing and collective bargaining for federal employees and for workers employed by public and private-sector employers.”

It is unknown whether and how this White House Task Force work product will find its way into policy proposals or legislation, but ICPI and other concerned business advocates will be on the lookout for vehicles that cite this Task Force report for support.

Tax reform. At the beginning of the 117th Congress and the Biden Administration, tax reform, including repeal of the corporate tax changes enacted in 2017, was considered a genuine possibility, a campaign priority. But given the Democratic voting situation in the Senate, it would seem that any significant tax reform effort in 2022 is not possible.

Thank you for this opportunity to report.

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