MCAA Government Affairs Update: The Latest Developments Impacting Our Industry

March 10, 2024

As part of its ongoing commitment to protecting your livelihood and setting the stage for a bright future, MCAA has secured the services of Longbow Public Policy Group to advise our MCAA Government Affairs Committee (GAC). GAC Chair, Jim Gaffney will be passing along information relative to our industry on a regular basis.

On Friday, March 8, 2024 MCAA Lobbying Firm, Longbow Public Policy Group provided the following information:

It has been a busy two weeks for MCAA in Washington, DC following the President’s Day recess. As we discuss in more detail below, this week President Biden delivered his State of the Union. Congress is focused on avoiding a partial government shutdown that is set to occur at midnight tonight. On Wednesday, the House voted 339-85 to pass the first six fiscal year 2024 appropriations bills for Military Construction-Veterans Affairs, Energy and Water Development, Transportation-Housing and Urban Development, Agriculture-Rural Development, Commerce-Justice-Science, and Interior-Environment. The funding package is currently pending action in the Senate. As of this writing, some Republican senators are demanding amendment votes on the bill, arguing that the package has not been adequately debated. In addition, Alaska Sen. Dan Sullivan (R-AK) is holding up action on the bill over an unspecified “national security concern.” These disputes are preventing a time agreement to allow the Senate to pass the funding measure before tonight’s midnight deadline. While a brief shutdown overnight cannot be ruled out, we are confident the Senate will get these six funding bills passed late tonight or tomorrow. Then Congress must immediately turn to resolving the other six federal spending bills set to expire on March 22nd.  This week we also saw the House-passed bipartisan tax package languish in the Senate and additional indications it may not advance out of the Senate.

Last week, the Senate Health, Education, Labor, and Pension (HELP) Committee succeeded in advancing the MCAA-supported nomination of Julie Su to be Labor Secretary along party lines. This makes possible a vote by the full Senate that has not yet been scheduled. Additionally, last week, the Committee held a retirement hearing that discussed defined benefit pension plans, as well as the overpayment of Special Financial Assistance to the Teamsters’ Central States plan. A more detailed recap of the hearing is included below. In addition, we also include details below on Senate Minority Leader Mitch McConnell’s announcement last week that he plans to step down from Senate Republican leadership. 

On the political front, after this week’s “Super Tuesday” primaries the 2024 presidential race is all but set after former U.N. Ambassador Nikki Haley dropped out of the GOP presidential primary without endorsing presumptive republican nominee former President Donald Trump. Haley’s departure from the race following a disappointing showing on Super Tuesday sets up a 2020 election rematch between Trump and President Biden. 

In addition to the items discussed above, below we provide more details on an Executive Order president Biden issued earlier this week on apprenticeship, the introduction of bicameral Congressional Review Act resolutions to nullify the MCAA-supported independent contractor rule, the confirmation of three members to the Federal Trade Commission, and several other issues we thought you would find interesting and useful. 

MCAA Issues and Interests 

Biden Delivers Final State of the Union Address of First Term 

Last night, President Biden gave his annual State of the Union Address, framing the coming general election against former President Trump as an existential struggle over America’s place in the world and the future of democracy and the middle class. During his address, Biden highlighted the U.S.’s post-COVID-19 economic recovery and his Administration’s plans to reduce the federal deficit. The President also sought to remind voters of his legislative accomplishments, including the Bipartisan Infrastructure Law, the Inflation Reduction Act and The CHIPS and Science Act. On the labor and employment front, the President called on Congress to pass the Protecting the Right to Organize (PRO) Act and raise the federal minimum wage. He also urged Congress to pass legislation to lower housing costs and proposed several housing initiatives, including streamlining permitting to build and renovate more than two million affordable housing units. 

During his more than one hour address, President Biden outlined his tax policies, including proposals to raise the corporate tax rate. The President also called on Congress to pass the bipartisan Senate compromise immigration legislation to strengthen security at the southern border and provide aid to foreign allies, enact legislation strengthening voting rights. The President also pledged to address price gouging by corporations that is contributing to high prices. Ahead of the President’s Address, the White House posted fact sheets on several issues Biden raised in his State of the Union remarks, including the President’s plan to “deliver tax cuts for working families” by “making big corporations and the wealthy pay their fair share,”by raising the corporate tax rate to 28%, quadrupling the “stock buyback tax,” requiring the wealthiest Americans to pay at least 25% of their income in taxes, and “ensuring the IRS can continue to collect taxes owed by wealthy tax cheats.” The White House also posted a fact sheet on Administration effortsto lower costs for consumers, “address corporate price gouging,” and “fight corporate rip-offs,” as well as the transcript of Wednesday’s press briefing by National Economic Advisor Lael Brainard and other officials previewing the President’s address and economic agenda.

Nominations

Senate HELP Advances Su Nomination 

On February 27th, the Senate Health, Education, Labor, and Pensions (HELP) Committee advanced the MCAA-supported nomination of Julie Su for the second time on a party line 11-10 vote. In setting the vote, HELP Chair Bernie Sanders (I-VT) ignored calls from Committee Ranking Member Bill Cassidy (R-LA) for a second confirmation hearing, as well as Cassidy’s protests over the vote to advance Su’s nomination being held behind closed doors. It remains unclear when Senate Majority Leader Chuck Schumer (D-NY) plans to being Su’s nomination to the floor given previous concerns about her nomination from Sens. Joe Manchin (D-WV) and Kyrsten Sinema (I-AZ). Democrats can only lose one vote in the 51-49 Senate and still confirm Su with Vice President Kamala Harris’ tie-breaking vote. Su’s nomination is quickly becoming a proxy war over the Labor Department’s January final rule on independent contractor status that MCAA supports.

Senate Republican Leadership Race

McConnell Announces He is Stepping Down as GOP Leader Following November Elections

On February 28th, Senate Minority Leader Mitch McConnell announced he would step down from Senate Republican leadership in November, ending his record tenure as the longest serving Senate leader of either party. McConnell indicated he plans to serve out the remainder of his current term, which ends in January 2027. This week, Senate Minority Whip John Thune (R-SD) and Sen. John Cornyn (R-TX), two close McConnell allies, announced they are running to succeed McConnell as Republican leader. Senate Republican Conference Chair John Barrasso (R-WY) passed on running for McConnell’s job and instead announced he is running for Sen. Thune’s current job of Senate Republican Whip. Sen. Tom Cotton (R-AR) announced he is running to replace Barrasso as Senate GOP Conference Chair.

Apprenticeship

Biden Executive Order Using Federal Procurement and Grants to Expand Apprenticeships

On March 6th, President Biden issued an Executive Order to incentivize apprenticeships by directing federal agencies to review their financial assistance programs and government contracting plans to identify ways they could “include requirements, application evaluation factors, or incentives in appropriate program documents or solicitations for grantees or contractors to employ workers on projects receiving federal funding” who have been part of an apprenticeship or pre-apprenticeship program. The White House issued an accompanying Fact Sheet explaining that the order is part of an effort to “help ensure Americans have the skills and training they need for the good jobs created by the President’s Investing in America agenda, which includes the American Rescue Plan Actthe Bipartisan Infrastructure Lawthe CHIPS and Science Act, and the Inflation Reduction Act.” 

The Executive Order also creates a Registered Apprenticeship Interagency Working Group “to coordinate policy development with regard to Registered Apprenticeships and the effective implementation of this order.” The Working Group will submit a report to the President within 180 days addressing, among other things, promoting and utilizing Registered Apprenticeships in federal grant programs and procurement. The Executive Order comes at Biden Labor Department’s Employment and Training Administration announced the new 2024-2025 membership of the Advisory Committee on Apprenticeship, which includes the reappointment of Raymond Boyd of the UA as a labor representative.

Independent Contractors 

Republican Lawmakers Introduce Resolutions to Nullify MCAA-Supported Independent Contractor Rule 

On March 6th, Senate Health, Education, Labor, and Pensions (HELP) Committee Ranking Member Bill Cassidy (R-LA) and House Education and the Workforce Subcommittee on Workforce Protections Chair Kevin Kiley (R-CA) introduced their long promised Congressional Review Act resolutions to nullify the Department of Labor’s MCAA-supported final independent contractor rule making it harder to misclassify workers as independent contractors instead of employees. The MCAA has been preparing for the introduction of this legislation and has been engaged in proactive advocacy to oppose it since before the final independent contractor rule published in January. Earlier in the week Senate HELP Ranking Member Cassidy released a statement highlighting over 170 organization that support the CRA resolution. The supporters include construction industry groups like the Associated Builders and Contractors, the Associated General Contractors, and the National Association of Home Builders, as well as well funded national business organizations like the U.S. Chamber of Commerce, the National Association of Manufacturers, the Retail Industry Leaders Association, the Real Estate Roundtable, the National Federation of Independent Businesses, the National Restaurant Association, and the International Franchise Association.

Pension Reform

Senate HELP Holds Hearing on Retirement Crisis and Defined Benefit Plans

On February 28th, the MCAA policy team covered the Senate Health, Education, Labor and Pensions Committee hearing entitled, “Taking a Serious Look at the Retirement Crisis in America: What Can We Do to Expand Defined Benefit Pension Plans for Workers?” During the hearing, Committee Chair Bernie Sanders (I-VT) extolled the benefits of defined benefit (DB) pension plans, with Democrats using the hearing to stress that DB plans are generally better for workers than defined contribution plans. Sanders also highlighted several other proposals, such as expanding Social Security by making the richest Americans “pay their fair share of taxes” and requiring every company to offer retirement plans or give their workers the option to contribute to a federally-run pension plan, like the one offered to members of Congress. Committee Ranking Member Bill Cassidy (R-LA) used the hearing to call out the Teamsters about the erroneous Special Financial Assistance payments to dead participants. The hearing made clear that Republicans now plan to make addressing the $127 million in overpayments to the Central States plan a condition of any further reform to the defined benefit system. Cassidy highlighted that while the Teamsters’ president publicly committed during an earlier HELP Committee hearing to repay those funds, the Central States plan has now said it would be impossible to repay them absent clarifications of current law. 

Relatedly, ahead of the Senate hearing, on February 26th, House Education and the Workforce Committee Chair Virginia Foxx (R-NC) sent a letter to PBGC Director Hartogensis requesting details on the steps his agency is taking to quantify overpayments to multiemployer pension plans under the Special Financial Assistance (SFA) program to any multiemployer plans—not just the Teamsters. Foxx believes there may be more overpayments beyond those already linked to the Central States plan. The PBGC responded to Foxx’s letter on February 29th, saying that the agency supports repayment of any material SFA amount that was paid based on inaccurate census data and continues to explore any potential mechanism for recovery. 

Federal Trade Commission

The MCAA policy team continues monitoring the Federal Trade Commission’s deliberations related to its proposed rule banning non-compete agreements and it consideration of possible action on a federal right to repair rule. Last night, the Senate confirmed by unanimous consent the nominations of Republicans Andrew Ferguson and Melissa Holyoak. The FTC had been without a Republican commissioner for nearly a year. The Senate also confirmed the reappointment to the FTC of Democrat Rebecca Slaughter. 

Other Interesting Things Since Our Last Report 

Friday, March 8th

  • The Energy Department (DOE) announced $425 million in funding from the Bipartisan Infrastructure Law for the Advanced Manufacturing and Recycling Grant Program (Program) to reduce industrial emissions and advance clean energy manufacturing essential to the U.S. energy supply chain. The Program will support small and medium-sized manufacturers in current and former coal communities that are focused on producing and recycling clean energy products, as well as investing in decarbonization at their facilities. In this round of funding, DOE will prioritize two investment themes of “areas of interest”: (1) Clean Energy Manufacturing and recycling; and (2) Industrial Decarbonization. Applications for Clean Energy Manufacturing and Recycling should aim to establish, re-equip, or expand an existing manufacturing or recycling facility for the production or recycling of advanced energy. As explained on page 15 of the Funding Opportunity Announcement, this extends to addressing greenhouse gas emissions associated with “carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.” Industrial Decarbonization is focused on building or upgrading manufacturing facilities to substantially reduce greenhouse gas emissions and create low carbon materials. An informational webinar on the Program will be held on March 14, 2024 at 3:30pm ET (with registration available here). Concept papers ae due April 8, 2024 and full applications are due June 24, 2024 at 5pm ET. More details about the funding opportunity is available here.

Thursday, March 7th

  • The Senate passed by unanimous consent the House-passed short-term extension of funding and programs for the Federal Aviation Administration until May 20, sending the bill to the White House. The short-term extension is expected to give lawmakers more time to negotiate a longer FAA reauthorization and keeps funds flowing for airport modernization projects. 

Wednesday, March 6th

Tuesday, March 5th

  • President Joe Biden announced a “Strike Force on Unfair and Illegal Pricing” led by the Department of Justice and the Federal Trade Commission intended to “hold companies accountable for price-gouging practices” and to coordinate federal efforts to “rein in anti-competitive and unfair practices in key sectors including food, prescription drugs and transportation.” 
  • The Environmental Protection Agency (EPA) announced it is seeking comments on, and will host a public webinar in connection with, a draft document entitled, “EPA Criteria for Product Category Rules to Support the Label Program for Low Embodied Carbon Construction Materials.” The President’s Inflation Reduction Act authorized $100 million for the EPA to develop a program to identify and label construction materials and products that have substantially lower embodied carbon, in coordination with the General Service Administration, and the Department of Transportation’s Federal Highway Administration. Comments are due by April 4, 2024. Additionally, the EPA will host a webinar in connection with the draft PCR Criteria document on March 21, 2024 from 1pm to 2pm ET. Those interested in participating in the webinar must register here by 12pm ET on March 21, 2024.
  • The Department of Labor’s Employment and Training Administration (ETA) issued Training and Employment Notice (TEN) No. 23-23 on “Quality Pre-Apprenticeship Programs,” for the purpose of: (1) describing the scope and characteristics of quality pre-apprenticeship programs in a manner that is consistent with the language of the Equal Employment Opportunity in Apprenticeship final rule and the Workforce Innovation and Opportunity Act final rule; (2) identifying how pre-apprenticeship programs can increase access to Registered Apprenticeship Programs (RAPs) for Americans, including those historically underrepresented and underserved in RAPs; and (3) providing examples of quality pre-apprenticeship programs in diverse settings. TEN No. 23-23 replaces prior ETA guidance on pre-apprenticeship programs in TEN No. 13-12. The ETA notes that while its Office of Apprenticeship (OA) does not directly oversee or regulate pre-apprenticeship programs, OA recommends the elements outlined in this TEN as they facilitate subsequent success in a RAP. TEN No. 23-23 is addressed to state workforce agencies, state apprenticeship agencies, Job Corps programs, and YouthBuild programs, among others. It is also believed to be an indicator of ETA’s thinking on pre-apprenticeship programs as it pursues its pending 180-page proposed rule on National Apprenticeship System Enhancements
  • The Labor Department’s (DOL) Office of Labor-Management Standards (OLMS) posted a new fact sheet entitled, “Avoiding Common Errors on the Form LM-20 Report” that clarifies when and how management labor relations consultants (aka “Persuaders”) should submit Form LM-20 reports, commonly called “Persuader Reports,” detailing their persuader and worker surveillance agreements with employers. In addition to general guidance, the Fact Sheet includes hypothetical examples of scenarios requiring a Form LM-20. The Fact Sheet also refers interested parties to the OLMS employer-consultant reporting page. In addition to the Fact Sheet, DOL published a new blog post by OLMS Director Jeff Freund, entitled “Labor Relations Consultants: Fill Out Form LM-20 Correctly.”

Monday, March 4th

  • The Energy Department announced $90 million in funding to states, Tribal governments, and partner organizationsunder the Bipartisan Infrastructure Law’s Resilient and Efficient Codes Implementation program to support building energy code adoption, training, and technical assistance at the state and local level. The funding is intended to address the fact that only 35% of counties, cities, and towns are using the latest building codes—which establish energy efficiency standards for the construction of new buildings and major renovations to existing commercial and residential buildings.

Friday, March 1st

Thursday, February 29th

  • The Transportation Department (DOT) announced $9.9 billion in federal funding to support public transportation in 500 cities and to develop transit in rural areas through the President’s Bipartisan Infrastructure Law. The formula-based grant programs will distribute funding to state departments of transportation, Tribal nations, and municipal transit authorities to fund buses and bus facilities, to support and improve the condition of transit assets, to pay for transit designed for seniors and people with disabilities, and to provide planning funds. The areas receiving the most funding are: (1) New York-Jersey City-Newark, New York-New Jersey Area $520,665,906; (2) Los Angeles-Long Beach-Anaheim, California Area $156,606,076; (3) Chicago, Illinois Area $135,276,088; (4) Washington, DC – Arlington, Virginia – Maryland Area $97,172,284; (5) Boston, Massachusetts $84,731,587; and (6) Philadelphia, Pennsylvania and Surrounding Area $83,645,727. Apportionment tables with funding levels are available here.

Wednesday, February 28th

  • The Energy Department announced $17.28 million for its fourth round of awards through the Energy Efficiency and Conservation Block Grant (EECBG) Program created by the Bipartisan Infrastructure Law. Grant recipients in North Carolina, Nevada, Massachusetts, Ohio, South Carolina, Wyoming, Texas, Florida, Georgia, Colorado, Alabama, Louisiana, California, Delaware, Oregon, Connecticut, Kansas, Mississippi, and North Dakota will receive grants under the program for projects like installation of solar and other types of renewable energy at schools, essential energy efficiency upgrades on municipal buildings and facilities, energy retrofits on low-income homes, and more. A complete list of projects funded under the $95 million in awards made to date under the EECBG program is available here.
  • The Environmental Protection Agency (EPA) announced the launch of the $3 billion Clean Ports Program created under the President’s Inflation Reduction Act to fund zero-emission infrastructure and port equipment at U.S. ports to reduce pollution across the freight sector. This program is composed of two separate funding opportunities: (1) nearly $2.8 billion will be available through the Zero-Emission Technology Deployment Competition to directly fund zero-emission port equipment and infrastructure, including electric charging and hydrogen fueling infrastructure; and (2) approximately $150 million will be available through the Climate and Air Quality Planning Competition, to fund climate and air quality planning activities at U.S. ports.

Tuesday, February 27th

  • A federal judge in Texas limited the federal government’s ability to enforce the Pregnant Workers Fairness Act (PWFA) in Texas saying that Congress passed the law in violation of the U.S. Constitution’s Article I, Section 5 quorum provision requiring a majority of members of the U.S. House and Senate to be present to enact legislation. The House relied on proxy voting to pass the measure in 2021 during the COVID-19 pandemic. Texas sued the U.S. Equal Employment Opportunity Commission (EEOC) last February to block enforcement of the law in the Lonestar State arguing that only 201 members of the U.S. House of Representatives were physically present to vote on the PWFA, well short of the 218 members required for a quorum under the Constitution. Federal Judge James Hendrix of the U.S. District Court for the Northern District of Texas sided with the state and prohibited enforcement of the PWFA in Texas. The court’s interpretation of the quorum provision may lead to challenges against other laws passed by the House during COVID using proxy-voting procedures.
  • The Energy Department announced more than $366 million for 17 projects in New Mexico, Alaska, California, Arizona, Utah, Colorado, Maine, Wisconsin, Montana, Minnesota, Tennessee, North Carolina, Iowa, Florida, Georgia, Mississippi, South Carolina, Kentucky, Alabama, and Washington State to accelerate clean energy deployment in rural and remote areas across the country. This funding, authorized by the President’s Bipartisan Infrastructure Law, will support a variety of energy projects in rural and remote regions, such as building microgrids for community health centers and constructing new hydroelectric facilities on Tribal lands to improve access to reliable, affordable energy. The full list of projects is available here.
  • The Environmental Protection Agency (EPA) announced $74 million in Water Infrastructure Finance and Innovation Act loans to the Pajaro Valley Water Management Agency in Santa Cruz County, California, to support alternative water supply projects that reduce the demand for groundwater, such as upgrading a filter plant and constructing a pump station, recharge basin, and associated pipeline. The EPA estimates that the loan will create over 500 jobs.
  • The Environmental Protection Agency (EPA) announced over $1 billion to launch new cleanup projects at 25 Superfund sites and continue other cleanups at over 85 Superfund sites through funding authorized by the President’s Bipartisan Infrastructure Law. In addition to funding cleanup, these projects involve site preparation work required to make cleanup sites ready for new construction.
  • The Energy Department (DOE) announced that it is opening applications for the Communities Sparking Investments in Transformative Energy (C-SITE) funding opportunity, which will award approximately $18 million to up to 20 recipients that implement municipality- or Tribal-led, clean energy projects. Projects funded under this program must deliver benefits to local workers and residents, such as workforce agreements and protections, reduced energy costs, and improved air quality.

Monday, February 26th

Around the Country 

Northeast 

  • On March 5th, the U.S. Army Corps of Engineers (USACE) announced its intent to prepare an environmental impact statement (EIS), and host a related public scoping meeting, in connection with an application from Micron to construct over 20 years a massive $1 billion semiconductor manufacturing campus for dynamic random-access memory (DRAM) chips in the Town of Clay, Onondaga County, New York that is expected to create 50,000 jobs. Support from the President’s CHIPS and Science Act played a critical role in Micron pursuing the project, which will consist of: (1) four individual memory fabrication units (fabs), ancillary support facilities, driveways, and parking; (2) construction of a childcare and health care center located at 9100 Caughdenoy Road, Brewerton, NY; (3) construction of a connection to the National Grid substation, adjacent to the Micron Campus, and (4) a rail spur on the west side of Caughdenoy Road adjacent to the proposed facility. Micron intends to start construction of the Micron Campus in 2025, with two fabs (Fabs 1 and 2) becoming operational by 2029 and two more fabs (Fabs 3 and 4) becoming operational by 2041. Moreover, Onondaga County plans to improve water supply and wastewater infrastructure to support operations of the manufacturing plant and the National Grid utility company plans to upgrade energy infrastructure to support the project. Comments can be submitted at any time by email to celrb-micron.public.comments@usace.army.mil. USACE will host a public scoping meeting in connection with the EIS on March 19, 2024 at 7pm ET in-person at the Town of Clay – Town Hall Board Room, 4401 Route 31, Clay, NY 13041. There is no stated requirement to RSVP to attend the meeting.
  • On February 27th, Democrats in the New York State Legislature proposed new congressional maps which could result in a slight boost for Rep. Tom Suozzi (D-NY) in New York’s 3rd Congressional District, Rep. Jamaal Bowman in New York’s 16th Congressional District, and Rep. Pat Ryan (D-NY) in New York’s 18th Congressional District and would make Rep. Brandon Williams (R-NY) more vulnerable in New York’s 22nd Congressional District.

West

Midwest 

  • On March 2nd, Republican J.R. Majewski—who has been dogged by revelations he lied about his military service—announced he is dropping out of the GOP primary race for Ohio’s 9th Congressional District currently represented by Rep. Marcy Kaptur (D). Majewski’s departure reduces the Republican primary field to two former state representatives—Rep. Craig Riedel and state Rep. Derek Merrin—both of whom Republican leaders view as stronger candidates against Rep. Kaptur.

Southeast

Southwest

  • On March 6th, the Biden Labor Department (DOL) announced that the Wage and Hour Division’s New Orleans district office signed a three-year collaborative agreement with the Southeast Louisiana Building and Construction Trades Council that will help provide construction workers in Louisiana with information, guidance, and access to educational and training resources to aid them exercising their rights to be protected by minimum wage, overtime, recordkeeping and child labor laws. The agreement will also include compliance assistance activities to help employers understand their labor compliance obligations.
  • On February 29th, the U.S. Department of Labor proposed $308,125 in penalties against Pyles Plumbing and Utility Contractors Inc., a full service plumbing company that performs commercial installations and is based in Macon, Georgia, for two willful violations and three serious violations following an OSHA investigation spurred from a trench collapse that resulted in fatal injuries of one employee and hospitalization of another.
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