Advocacy

Randall Pence, Capitol Hill Advocates LLC

Capitol Hill action on WRDA 2022, the Water Resources Development Act Reauthorization

The Senate Environment and Public Works Committee passed its version of WRDA 2022 out of committee in early May. The Senate bill is S4136.

In early June, the House passed its version of WRDA 2022. The House bill is HR7776.

We now expect House and Senate infrastructure leaders to work out an agreement between the two bills. In the past, these discussions have gone well and have led to bills being passed by both Houses and sent to the President to be signed into law.

WRDA reauthorizations have been bills strongly supported by ICPI.  Fortunately, WRDA reauthorizations have been easier for Congress to pass than other infrastructure bills because of the lack of funding linkage to the federal gasoline tax as a means for funding, and because Members of Congress have been willing to usually avoid contentious partisan issues that stop other bills. WRDA has melded into a stable and reliable two-year reauthorization cycle that ICPI applauds.

This version of WRDA includes more than sixty stormwater projects.  One of the messages ICPI has adopted to educate policymakers is the logical connection between pavers and stormwater mitigation.

The following is an edited selection of press statements offered from the House Transportation and Infrastructure Committee describing its version of WRDA 2022. This material is noteworthy in part for its clear highlighting of bipartisanship on the legislation:

Chairs DeFazio, Napolitano Applaud House Passage of Bipartisan Water Resources Development Act of 2022

With the passage of WRDA 2022, Congress continues the tradition of enacting bipartisan WRDAs on a biennial basis to invest in America’s water resources infrastructure

Washington, D.C. – Today, Chair of the House Committee on Transportation and Infrastructure Peter DeFazio (D-OR) and Chair of the Subcommittee on Water Resources and Environment Grace F. Napolitano (D-CA) applaud House passage of the bipartisan Water Resources Development Act (WRDA) of 2022.

WRDA 2022 will improve the nation’s water infrastructure by authorizing water resources development projects in collaboration with the U.S. Army Corps of Engineers (Corps). This legislation will strengthen America’s economy through investments in ports, harbors, and inland waterways; make communities more resilient in the face of extreme weather and climate change; and protect and restore our ecosystems.

“The Water Resources Development Act of 2022—the largest and most ambitious WRDA bill to date—demonstrates that when Congress works together, it can pass legislation on a bipartisan basis that benefits communities across the country. WRDA 2022 helps provide much needed investment in ports, harbors, and inland waterways—easing supply chain problems—as well as flood mitigation infrastructure, and ecosystem restoration in both urban and rural communities alike,” said Chair DeFazio. “The bill also directs the Corps to carry out these projects in an economically and environmentally responsible manner, with an added emphasis on coordinating with state, local, and Tribal partners to execute projects equitably. I want to thank Transportation and Infrastructure Committee Ranking Member Sam Graves, Subcommittee on Water Resources and Environment Chair Napolitano and Ranking Member Rouzer for their important work on this legislation. I urge the Senate to act quickly so we can send a final bill to the President’s desk to be signed into law.”

“WRDA is our legislative commitment to investing in and protecting our communities from flooding events, restoring our environment and ecosystems, and keeping our nation’s competitiveness by supporting our ports and harbors. Through biennial enactment, our Committee has addressed local, regional, and national needs through authorization of new U.S Army Corps of Engineers projects, studies, and policies that benefit every corner of the nation,” said Chair Napolitano. “We held four hearings in preparation for this bill, including a Member Day hearing, and had a formal process to receive legislative, policy, and project ideas from Members which resulted in over 1,500 ideas submitted, most of which were incorporated in the final bill. I am very pleased to join Chairman DeFazio, Ranking Member Graves, and Subcommittee Ranking Member Rouzer in bringing WRDA to the floor, and I thank all Members for engaging with the Committee on this bill and advocating for the needs of your districts.”

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Workforce development interest on the Hill with focus on infrastructure

The House Transportation and Infrastructure Committee is engaging the issue of workforce development in the transportation construction economy. The Committee recently held a hearing on the issue, which is usually a signal of substantial interest among the Committee leaders. There seems a recognition that there need to be alternatives to 4-year college career paths, and those paths could well include good careers in transportation construction and related trades. We note this in case future action on the issue might include discussions relevant to market segments like the paver industry. Of course, workforce development continues to be an issue of great concern among ICPI members. While we generally see a greater degree of cooperation and bipartisanship on the infrastructure-related committees, an exception might emerge here relating to the open shop versus union shop dichotomy.

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H-2B worker visa program in the Consolidated Appropriations Act for FY22

After months of talks and multiple Continuing Resolutions, both Houses reached agreement for a final comprehensive FY22 funding bill in early March. The President signed the huge bill into law on March 15. This action supplants the prior-passed Continuing Resolution (CR) that had been funding the federal government on a stopgap basis.

Among thousands of issues, this Act contains several provisions relevant to the H-2B worker visa program.

Of course the H-2B worker visa program remains a priority for ICPI members. See below selections of the H-2B Consolidated Appropriations language, not a complete rendering but important elements:

• Consular Operations.-The agreement endorses House report language under the heading Timely Processing of Passports and Visas. Not later than 90 days after enactment of the Act, the Secretary of State shall submit a report to the Committees on Appropriations regarding lessons learned from the pandemic, including the adoption of remote services, the feasibility of increased interview waivers and remote visa interviews, and any other process improvements that would enhance consular services domestically and overseas.
• Exchange Visitor Program Clarification.-For purposes of subsection (e)(7), the term “modify” means any executive action that changes the number, origin, or eligibility of program participants during any 60 day period, or that otherwise changes the manner in which the program is implemented, including the suspension of visas
• Foreign labor Certification — The agreement recognizes the importance of the H-28 program and urges the Department to take all necessary and appropriate steps to ensure prompt processing of H-28 visa applications.
• H-2B Visas.- The Department shall, in consultation with the Department of Labor, examine the impacts of the current H-2B visa semiannual distribution on employers, employees, and agency operations and provide the Committees a briefing on the study not later than 180 days after the date of enactment of this Act.

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More H-2B worker visa program, and several regulatory actions recently

There has been much regulatory activity on H-2B in addition to what was included in the Consolidated Appropriations Act.

We begin with the following announcement released by USCIS on March 31:

DHS and DOL to Supplement the H-2B Cap with Additional Visas for Second Half of Fiscal Year 2022

Departments to add additional visas and significant worker protections

WASHINGTON —The Department of Homeland Security (DHS) and the Department of Labor (DOL) today announced the forthcoming publication of a joint temporary final rule to make available an additional 35,000 H-2B temporary nonagricultural worker visas for the second half of fiscal year (FY) 2022. These visas will be set aside for U.S. employers seeking to employ additional workers on or after April 1, 2022, through Sept. 30, 2022.

“Informed by current demand in the labor market, today we are announcing the availability of an additional 35,000 H-2B visas that will help to support American businesses and expand legal pathways for workers seeking to come to the United States,” said Secretary Alejandro N. Mayorkas. “Recognizing the importance of strong worker protections, we will apply greater scrutiny to those employers who have a record of violating obligations to their workers and the H-2B program.”

The supplemental H-2B visa allocation consists of 23,500 visas available to returning workers, who received an H-2B visa or were otherwise granted H-2B status, during one of the last three fiscal years. The remaining 11,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Haiti, Honduras, Guatemala, and El Salvador.

The H-2B program permits employers to temporarily hire noncitizens to perform nonagricultural labor or services in the United States. The employment must be for a limited period of time, such as a one-time occurrence, seasonal, or intermittent need. Employers seeking to hire H-2B workers must take a series of steps to test the U.S. labor market. They must provide certification from the Department of Labor that proves there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work for which they seek a prospective foreign worker, and that employing the H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. 

In January 2022, the Departments announced the availability of 20,000 additional H-2B temporary nonagricultural worker visas for the first half of fiscal year (FY) 2022. Additional details about how the supplemental allocation will be implemented, including the worker protections, will be provided in the forthcoming temporary final rule.

Thereafter, ICPI and other pro-H-2B associations sent the following joint letter:

April 11, 2022

The Honorable Alejandro Mayorkas The Honorable Marty Walsh

Secretary of Homeland Security Secretary of Labor

Washington, DC 20528 Washington, DC 20001

Dear Secretaries Mayorkas and Walsh:

The H-2B Workforce Coalition is comprised of small and seasonal businesses across the country owned and operated by thousands of employers and their representatives from industries such as lodging, landscaping, seafood, restaurants, tourism, equine, forestry, mobile outdoor amusement, golf courses, and others. Our members are seasonal businesses that rely on the H-2B visa program to supplement their U.S. workforce during seasonal surge and peak business needs.

We thank you for the announcement on March 31, 2022, exercising the authority Congress granted to you in the Consolidated Appropriations Act of 2022, Pub. L. No. 117-103, Division O, Title II, Sec. 204P. This announcement is welcome news to the many seasonal business across the country who are facing dire labor shortages and we ask that you expeditiously publish a temporary final rule implementing your decision to release the additional 35,000 visas.. The recent filings with DOL for the second half of the fiscal year clearly show that there will be significant workforce disruptions if additional cap relief does not materialize soon. On January 4, 2022, DOL announced that it had received 7,875 H-2B applications requesting 136,555 worker positions for the second half of the 2022 fiscal year. This is more than four times the number of visas permitted under the statutory cap for this period. Congress has continued to provide you with the authority to release additional visas and we again thank you for announcing the decision to do so, however we are pleading with you to publish a temporary rule implementing that decision as soon as possible.

There is a dire shortage of seasonal labor in the U.S. and many employers turn to the H-2B program to meet their workforce needs to not only sustain their businesses, but also to support their American workers. Every H-2B worker supports 4.64 U.S. jobs. Furthermore, a 2020 General Accountability Office report concluded that “counties with H-2B employers generally had lower unemployment rates and higher average weekly wages than counties that do not have any H-2B employers.”

The H-2B program places many requirements on employers to recruit U.S. workers, and our members try to find as many U.S. workers as they can. In these unprecedented times, there are simply not enough workers to meet the seasonal workforce needs of U.S. employers. The most current employment data bare out the workforce struggles of seasonal businesses nationwide, as the Bureau of Labor Statistics reported that while there were 11.3 million job openings in the U.S, at the end of January, the number of unemployed people in the country rests at 6.3 million.

We want to thank you for recognizing the seasonal labor crisis and unprecedented demand that led to the release3 of 20,000 H-2B supplemental visas for the first half of FY22. This marked the first time the Administration has released supplemental H_2B visas for the first half cap, which has significantly less demand than the April 1st date of need that now needs your action.

The timing in which the 35,000 H-2B visas are to be released is critical to ensure that seasonal businesses can meet their workforce needs when their seasonal demands are peaking. Last year, we were grateful that 22,0004 additional H-2B visas were released to supplement the second half cap allocation for FY21. Unfortunately, the rule wasn’t published until May 25, 2021; due to the time it took to process the petitions, allocate the additional visas, and then bring the workers into the country, many H-2B workers were not on their employer’s payroll until after the fourth of July. For companies that needed these workers on April 1 this is more than three months past the employer’s date of need. Seasonal businesses that require H-2B visas need them to be available in the spring, not the middle of the summer when nearly half of the peak season has passed. We respectfully request that expeditiously issue the temporary rule to coincide as closely as possible with the April 1, 2022 date of need.

 Additionally, seasonal employers continue to strongly support the administration’s efforts to increase access to H-2B visas for foreign nationals from the Northern Triangle countries and Haiti. We will continue to work with these foreign governments to help diminish the irregular migration from these countries by helping to streamline the application process for foreign workers from these countries. It remains incumbent upon the administration to revert unused supplemental visas from Northern Triangle and Haiti to returning workers from other nations to fulfill the demand for seasonal workers, as nationals from the Northern Triangle and Haiti cannot satisfy these labor demands alone and we are unsure if there will be 11,500 workers from these countries available to fill these positions.

 Thank you for your consideration of these important matters and we look forward to continuing the important dialogue and assisting in any way possible. Later, on May 15, USCIS issued the following announcement: DHS and DOL Announce Availability of Additional H-2B Visas for Second Half of Fiscal Year

WASHINGTON—The Department of Homeland Security (DHS) and the Department of Labor (DOL) announced today the availability of an additional 35,000 H-2B temporary nonagricultural worker visas during the second half of fiscal year (FY) 2022. These visas are for U.S. employers seeking to employ additional workers on or after April 1, 2022, through Sept. 30, 2022.

“These additional H-2B visas will help employers meet the demand for seasonal workers at this most critical time, when there is a serious labor shortage,” said Secretary Alejandro N. Mayorkas. “The visas are accompanied by significant worker protections and provide a safe and lawful pathway for individuals to come to the United States and earn wages in jobs that are not filled by American workers.”

The supplemental H-2B visa allocation consists of 23,500 visas available to returning workers who received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years. The remaining 11,500 visas are reserved for nationals of El Salvador, Guatemala, Honduras, and Haiti, regardless of whether they are returning workers. The semiannual cap of 33,000 visas for the second half of FY 2022 was reached on February 25, 2022. 

The H-2B program permits employers to temporarily hire noncitizens to perform nonagricultural labor or services in the United States. The employment must be for a limited period of time, such as a one-time occurrence, or seasonal or intermittent need. Employers seeking to hire H-2B workers must take a series of steps to test the U.S. labor market. They must provide certification from DOL that proves there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work for which they seek a prospective foreign worker, and that employing the H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. 

DHS will subject employers that have committed certain labor law violations in the H-2B program to additional scrutiny in the supplemental cap petition process. This additional scrutiny is aimed at ensuring compliance with H-2B program requirements and obligations.

The joint temporary final rule can be found on the Federal Register website. Employers can begin petitioning on Wednesday, May 18.

And thereafter, USCIS issued the following regarding the H-2B visa cap being reached:

Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY 2022

Under the recently announced H-2B supplemental cap temporary final rule increasing the cap by up to 35,000 additional H-2B nonimmigrant visas through the end of fiscal year (FY) 2022, USCIS has received enough petitions to reach the cap for the additional 23,500 visas made available for returning workers only. We continue to accept petitions for H-2B nonimmigrant workers for the additional 11,500 visas allotted for nationals of El Salvador, Guatemala, Honduras and Haiti, regardless of whether they are returning workers.

Because no properly filed petitions were received on the date of the temporary final rule’s publication, we began accepting H-2B petitions on May 19. In the first five business days of filing, we received petitions for more beneficiaries than the additional 23,500 visas made available for H-2B returning workers. In accordance with DHS regulations, we used a computer-generated process to conduct a random selection of petitions to meet, but not exceed, the 23,500 returning worker allotment for FY 2022. The random selection, completed on May 27, included all H-2B cap-subject petitions filed under the H-2B returning worker allotment that were received between May 19 and May 25. We will reject and return any cap-subject petitions for H-2B returning workers (not including petitions for nationals of El Salvador, Guatemala, Honduras and Haiti) received after May 25, together with any accompanying filing fees. Petitions accepted for processing will have a receipt date of May 31, 2022. Premium processing service for these petitions begins on that receipt date.

Petitioners whose workers were not selected for the 23,500 returning worker allotment are encouraged to refile for workers from El Salvador, Guatemala, Honduras and Haiti while visas for that allotment remain available. The final date for filing petitions for nationals of El Salvador, Guatemala, Honduras and Haiti who are exempt from the returning worker requirement is Sept. 15, 2022, or when the cap is reached, whichever occurs first.

We will continue to accept H-2B petitions for workers filing under the El Salvador, Guatemala, Honduras, and Haiti allotment, as well as those that are exempt from the congressionally mandated cap. This includes petitions for:

Current H-2B workers in the United States petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;

Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam from Nov. 28, 2009, until Dec. 31, 2029.

And thereafter, the following announcement:

On May 18, the Department of Homeland Security and the Department of Labor published a joint temporary final rule (87 FR 30334) in the Federal Register to increase the numerical limits during the second half of FY2022 for H‑2B nonimmigrant visas and continue to provide portability flexibility for H‑2B workers already in the U.S. This temporary rule allows an H‑2B worker who is already in the U. S. to begin work immediately with a new employer after an H‑2B petition (supported by a valid temporary labor certification (TLC)) is received by USCIS and before it is approved.

A temporary final rule (87 FR 4722) published in January currently provides portability and portability will continue for petitions received by USCIS through Jan. 24, 2023. Updated Form I‑9 guidance for H‑2B workers seeking to change employers is located in the Handbook for Employers – Section 6.7.

 This concludes the H-2B worker visa segment.

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More on the Consolidated Appropriations Act, non-H-2B

FY22 Transportation-HUD (THUD) funding is included as Division L in the Act.

The Act, as lengthy as it is, does not contain all the policy-related thinking of the Subcommittees that developed each division. Perhaps the best resources on the current or latest thinking on specific issues are the FY22 committee reports developed in the summer of 2021.

Looking back at the House THUD Appropriations Subcommittee report to accompany its version of FY22 THUD (House Report 117-99, dated June 16, 2021), we note the paragraph directly addressing permeable pavements:

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.

All FY22 appropriations, including THUD, went through many discussions, negotiations and alterations  before arriving finally at the Consolidated Appropriations Act.  But the above referenced House THUD Appropriations Committee report was their final report on THUD appropriations before the Consolidated Appropriations Act was generated.  So we believe it represents the latest thinking of the House THUD Appropriations Subcommittee with respect to permeable pavements.

On a separate issue in the Act, we note a provision that is listed explicitly in Division L regarding funding for the Clean Water State Revolving Fund, a matter of importance for ICPI members and a fund that ICPI supports:

State Revolving Fund (CWSRF).—The agreement provides $1,638,826,000 for the Clean Water SRF and directs the Agency to brief the Committees on addressing the impacts of nonpoint source pollution and stormwater runoff through the use of nature-based and other low impact development techniques.

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OSHA progress in developing a standard on heat stress in the workplace 

OSHA continues work on its previously announced plan to produce a standard on heat stress in the workplace.

A potential OSHA heat stress standard calls to mind possible issues such as new considerations for water, rest, shade, training, garments, PPE issues and compliance, work tempo on heat index days and the impact of individual susceptibility to heat. This is not a complete list of possible issues that could be addressed in such a standard, but a good sample.

ICPI participated in a recent SBA remote meeting in which the regulation process on heat stress was discussed at length. NACOSH has convened a work group to review comments received thus far.  An extensive materials review was also underway. NACOSH will recommend revisions to existing guidance documents related to heat stress on the jobsite; thereafter work would begin in earnest on an actual heat stress standard.

To some extent, NACOSH and its work group are still standing up their elements on the project, but they say they intend to move forward steadily. We do not know when employers might begin to see action from this particular effort that would require changes on their worksites.  OSHA will seek to revise existing guidances and make them available to employers; this by itself could take some time. Heat stress will present a broad and complex set of issues with concerns raised by a large host of stakeholders in the manufacturing and construction industries. It seems clear from the discussions and the actions undertaken by OSHA that this will be an important regulatory action for ICPI members. The nearer-term releases of revised guidances will be of keen interest, in part because guidances often signal the direction that OSHA staff would like to take with respect to a subsequent standard.

Members who wish to follow action on the heat stress standard can access this web address:

https://www.osha.gov/heat

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DOL wants to update the Prevailing Wage Methodology for Davis-Bacon

ICPI participated in a remote meeting hosted by the SBA Office of Advocacy on April 25. The USDOL effort that was discussed seeks to revise the Davis-Bacon Prevailing Wage Methodology.

A concern among employer stakeholders active on the issue is that while USDOL prefers to rely upon actual surveys identifying prevailing wages in a given area, the agency proposes to have the flexibility to use other means to arrive at something approximating a prevailing wage if the preferred means don’t clearly identify a prevailing wage.  This could mean using smaller than desired samples that might not accurately indicate prevailing wages in the areas in question.

Other concerns relate to an apparent preference for metropolitan wage information versus rural area information; and there may be a possible alternative method of using state and local existing wage information.

Further, there is a recurrently stated concern that the wage survey methodology is tilted toward the use of union shop data versus open shop, which may work to the detriment of open shops and and small contractor firms.

The above mentioned remote meeting served as a listening session.  It was well attended by large manufacturing and construction groups with whom ICPI routinely shares interests.

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Waters of the U.S. (WOTUS)

WOTUS remains an important and evolving environmental issue. In recent action, many business groups signed and sent a letter to the Administration seeking to stop the expansion of the definition of waters subject to the Clean Water Act.

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Note on the corporate tax rate in the President’s Budget proposal

The President’s Budget proposal included tax material that seems nearly certain to be adopted in campaign messaging later this year, including a “billionaire’s tax” and new taxation on unrealized gains.  But the provision gaining ICPI’s greater attention was a proposal to increase the corporate tax rate from 21% to 28%. ICPI has strongly supported the lower corporate tax rate provisions that became law in 2017.

Of course the President’s overall Budget proposal is never adopted by Congress, and we think it unlikely that the corporate tax rate proposal could garner enough votes to be included in any package coming for a floor vote in the Senate. However, the additional income that would be generated by such a change in the tax rate is calculated to help reduce the overall net deficit in the proposal. This may be one of the reasons the corporate proposal is in the submittal.  While chances for enactment in any broad tax vehicle are slim to none at the moment, the issue lingers, and it is likely to linger into the midterm elections and beyond.

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A note on the Resilient America Act, passing the House on Suspension in early April

The House passed the Resilient America Act on the Suspension Calendar in early April.  Suspension is generally used to pass bills that have wide bipartisan support.  This bill, if enacted, might be one to keep in mind.  It advances the concept of disaster mitigation as a priority, which would seem to call to mind benefits that could be provided by pavers.  The bill might lead to opportunities in future federally funded projects considering that pavers could help localities comport with the Resilient America Act.  Following House passage, the bill was received in the Senate on April 6, where it awaits further action.  The following is from a House T&I Committee press release regarding House passage:

House of Representatives Passes the Resilient AMERICA Act—A Bipartisan T&I Plan to Deploy Disaster Resources Faster

Washington, DC – Today, the House of Representatives passed H.R. 5689, the Resilient AMERICA Act, a bipartisan bill advanced by the Committee on Transportation and Infrastructure.

“Communities around the country are being hit harder than ever before by natural disasters and extreme weather events due to the ongoing climate catastrophe. In addition to taking rapid action to decarbonize, we must also prepare our neighborhoods and infrastructure for these increasingly violent events,” said Transportation and Infrastructure Committee Chair Peter DeFazio (D-OR). “The Resilient AMERICA Act was designed to do just that by putting mitigation and loss prevention at the forefront of our emergency management strategy and I look forward to seeing it signed into law.”

 “The Resilient AMERICA Act will reduce disaster damages and hardships by placing a higher priority on disaster mitigation.  In my district, many people have suffered losses to their homes and business because of flooding, and this bill makes commonsense reforms to ensure that we invest more FEMA resources on the front end to reduce and prevent the impacts of floods and other disasters before they can strike,” said Transportation and Infrastructure Committee Ranking Member Sam Graves (R-MO).

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ICPI has worked to educate policymakers on the relevant Hill infrastructure and environmental committees to be aware of pavers, to understand what they are, how they work, how they are distinguished from other paving systems, and the niche they hold among hardscape technologies. Policymakers need to have a fundamental technical understanding of the technology they are considering.

ICPI has explained how the unique performance characteristics of pavers can benefit the public interest and thus justify consideration in various ways within public policy. For example, ICPI was able to establish how rain water draining through the spaces between pavers would help reduce stormwater runoff and, at the same time, improve water quality by enhancing water filtration as rain water courses through the sands and soils rather than flowing off to a waterway. This may seem elementary to ICPI members who work with pavers every day.  But to policymakers who have been tasked to deal with stormwater but aren’t personally familiar with pavers, it can be useful new information.

ICPI has sought to make this connection with these two emerging priorities, stormwater reduction and improvement in water quality. But of course there are kindred public policies that can be addressed at least in part by paver technology, such as low-impact development, green infrastructure/green spaces, flood mitigation and more.

Now think about what policymakers can do with this information, and how they have responded to it. In this case, perhaps the best indicator of impact is to look at recent legislative documents for entries explicitly referencing permeable pavements, and secondarily for references to environmental and infrastructure provisions that could make use of permeable pavements.

We believe this messaging has had effect, and one recent example is in the $1.2 trillion Bipartisan Infrastructure Bill (BIB), Public law 117-58, signed into law less than a year ago on November 15, 2021. BIB, now the law of land, authorized in Section 11518, a Permeable Pavements study.  It is a full section in BIB dealing expressly with permeable pavements. The Section is available on line but in brief the study would, among other things, require study of the relationship between permeable pavements and flood control in different contexts, call for data surveys, and propose to develop models for performance.

It wasn’t many fiscal cycles ago that we did not see much mention of permeable pavements in legislative documents, but now it is becoming more routine, and coincidentally in the same era that ICPI has made permeables a clarion call. It is impossible to quantify just how much ICPI has been part of this clear upward trend, but it has been a part.

We see other elements in BIB that follow the trend. ICPI is pleased to see there is a study on stormwater best practices, followed by a provision calling for reports to be drafted reporting on the same topic.

There are other recent examples. House Report 117-70 which accompanies BIB includes a provision specifying that “permeable pavements for stormwater management” will be considered a “protective feature” in USDOT programs.

There is other recent committee report language promoting various concepts pertaining to permeable pavements, most particularly in relation to the FY22 THUD Appropriations that was covered in detail earlier in this report. It is an extensive piece and presents great discussion of permeable pavements in THUD Appropriations.

In summary, looking at the most recent legislative documents in the current 117th Congress, we see a stark and steep increase in congressional interest in the perceived public policy value of permeable pavements, identified by the term, as suggested by the frequency and quality and complexity of the material.

ICPI has also been a voice as an employer-focused association with views on issues relating to the environment, labor issues, tax, trade, workforce development, federal funding. All ICPI members also have lives as businesses that must operate in the construction and manufacturing and contractor marketplaces. Such issues are often addressed in coalitions because so many business entities share a common interest. ICPI’s principal focus has always been on matters pavers-specific, but keeping in mind that a broader issue (e.g. tax, labor, OSHA) that turns out less than optimal can be a drag on the entire business. Many of these coalition issues only reach an acceptable status because business entities work collectively in coalitions to pool their advocacy for greater impact. Coalition work has been important for a great many associations like ICPI and we anticipate it will remain so.

This concludes the report.

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.

——————————————

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.

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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.

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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.

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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.  

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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.