MCAA Regulatory Update: The Latest Regulatory Developments Impacting Our Industry

As highlighted at the MCAA Industry Funds Conference in December, 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, February 16, 2024 MCAA Lobbying Firm,  Longbow Public Policy Group provided the following information:

The balance of power in the House is shifting again after former Democratic Rep. Tom Suozzi defeated Republican Mazi Pilip on Tuesday in the special election for New York’s 3^rd Congressional District. Suozzi’s win means that once Suozzi is sworn in on February 28th, if every member is present and voting, House Speaker Mike Johnson (R-LA) can only afford to lose two members to pass legislation. The majority could further shift with special elections later this year to replace former Rep. Brian Higgins (D-NY-26) on April 30^th, former Speaker Kevin McCarthy (R-CA-20) on May 21^st, and former Rep. Bill Johnson (R-OH-6) on June 11^th.

On Capitol Hill this week, before leaving for the President’s Day recess next week, the Senate passed a $95.3 billion military aid package for Ukraine, Israel, and Taiwan by a bipartisan vote of 70-29. Twenty-two Republicans joined most Senate Democrats in supporting the bill. Following the vote, House Speaker Mike Johnson (R-LA) declared the bill “dead on arrival” in the House because it lacked border security measures.  Johnson’s remarks come as a moderate group of House lawmakers, led by Reps. Brian Fitzpatrick (R-PA) and Don Bacon (R-NE), introduced compromise legislation to provide funds to Ukraine, Israel, and Taiwan that includes provisions implementing the “Remain in Mexico” policy requiring asylum seekers to await adjudication of their asylum claim in Mexico and not be released into the U.S. with a summons. The bill would also provide a one-year authority to the Homeland Security Secretary to suspend the entry of inadmissible migrants at the U.S.-Mexico border if the Secretary determines it is necessary to achieve operational control at the border.

In other immigration-related news, on a second try, the House succeeded in impeaching Homeland Security Secretary Mayorkas by a vote of 214-213. House Republicans were able to impeach Mayorkas despite three Republicans opposing the effort because House Majority Leader Steve Scalise (R-LA) returned to D.C. following cancer treatment. The vote may be for naught, however, because the Senate plans to reject the impeachment effort after it returns from the President’s Day recess. Notably, even conservative Trump ally Sen. Kevin Cramer (R-ND) slammed the House’s impeachment of Mayorkas, calling it “the worst, dumbest, exercise and use of time” and confirmed it is “dead on arrival” in the Senate.

Finally, with only weeks to go until government funding runs out and nearly five months since the start of fiscal year 2024, congressional lawmakers seem no closer to reaching agreement on spending bills than they were when the fiscal year started on October 1, 2023. This week, as the “laddered” March 1^st and March 8^th government funding deadlines approach, appropriators said a series of hurdles remain in crafting appropriations bills, including disputes over thorny social issues ranging from abortion to LGBTQ rights and extending to partisan disputes over funding for the FBI, election security assistance, and the IRS. With lawmakers having departed for the President’s Day recess and House lawmakers not expected to return to D.C. until February 28^th, there is little time left to avoid a partial government shutdown when the first tranche of government funding runs out on March 1^st. There are signs that House Republicans have little confidence in Speaker Johnson’s ability to resolve government funding and other key priorities based on a Politico article released last week in which members from every corner of the House Republican Caucus described Speaker Johnson a nice man who is just “winging it” on major questions of strategy, messaging, and basic vote counting.

Enjoy the congressional recess next week.  It will be hectic when Congress returns next week

MCAA Issues and Interests

Nomination of Julie Su to be Labor Secretary

MCAA is supporting the renomination of Julie Su to be Labor Secretary in light of her record after serving almost one year as Acting Secretary during which her Department has finalized important MCAA regulatory priorities, including new Davis-Bacon Regulations and revised standards on the classification of workers as independent contractors.  But her confirmation continues to face challenges that MCAA is working to overcome. 

Last Wednesday, Senate Health, Education, Labor, and Pensions (HELP) Committee Ranking Member Bill Cassidy (R-LA) sent a letter objecting to Committee Chair Bernie Sanders’ (I-VT) plans to hold an “off-the floor” markup of Julie Su’s nomination. In the letter, Cassidy insisted on another committee hearing and formal committee markup of Su’s nomination. Cassidy argued that in the 299 days since the last hearing on her nomination, Acting Secretary Su has pursued policies that warrant a new hearing where she can be questioned about these initiatives. Among the Labor Department policies Senator Cassidy called out in his letter are: (1) DOL’s recent MCAA-supported independent contractor rule; (2) DOL’s recent MCAA-supported Davis-Bacon rule; (3) a pending rule to give more workers overtime; (4) generally supporting unions and workers seeking to form or join unions; and (5) failing to quickly approve employers’ applications for H-2B foreign workers. Chair Sanders, as of this writing, has not responded to Cassidy’s letter and the HELP Committee has not yet noticed any action with regard to Su’s nomination, but we continue to engage with staff to communicate the MCAA’s continued support for her nomination.

Misclassification and Davis-Bacon

MCAA Joins Construction Employers of America in Responding to House Oversight Hearing

Last Tuesday, MCAA worked with the Construction Employers of America (CEA)—the umbrella group of union contractor associations—to submit a detailed letter to the House Education and the Workforce Subcommittee on Workforce Protections ahead of a Wednesday oversight hearing on the Labor Department’s Wage and Hour Division (WHD). In the letter expresses strong support for the leadership of WHD Administrator Jessica Looman and applauded her for securing critical regulatory changes to Davis-Bacon prevailing wage and the independent contractor standard under federal wage and hour laws. The letter also highlighted the CEA’s support for Administrator Looman’s stepped up enforcement actions against unscrupulous employers. MCAA also worked with congressional offices and allies to push back on false narratives about the Davis-Bacon rulemaking.

During last Wednesday’s hearing, Subcommittee Chair Kevin Kiley (R-CA) announced his intention to introduce a House companion to the Senate Congressional Review Act resolution to nullify the new independent contractor rule. MCAA’s lobbying team has already been advocating against a similar CRA resolution announced by Senate HELP Committee Chair Bill Cassidy (R-LA) last month. In addition to Chair Kiley’s criticism of the independent contractor rule, House Freedom Caucus Chair Bob Good (R-VA) used the hearing to object to the WHD’s new Davis-Bacon regulations and even advocated for completely repealing the Davis-Bacon Act, arguing it would save taxpayers money.

Registered Apprenticeship

MCAA is working with the UA and the joint apprenticeship fund’s attorneys on comments concerning the U.S. Department of Labor’s proposed apprenticeship modernization rule.  Drafting is underway and the comments are due March 18^th.

Decarbonization

EPA Requests Comments to Inform Labeling Program for Low Embodied Carbon Construction Materials

Last Thursday, the Environmental Protection Agency (EPA) published a notice seeking comments on its Draft Approach for Implementation of the EPA Label Program for Low Embodied Carbon Construction Materials (Draft Label Program).  The 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 March 18, 2024 and can be submitted through the federal eRulemaking portal here using Docket No. EPA-HQ-OPPT-2024-0038.

EPA will also host a webinar on the Draft Label Program Approach on February 27, 2024 from 12pm to 1pm ET. Registration is due by 5pm ET on February 26, 2024 and can be completed through Zoom here.

Other Interesting Developments in Washington, DC

Thursday, February 15^th

• The Biden Administration kicked off its fourth Investing in America tour by announcing that the Federal Aviation Administration awarded $970 million in grants through the Airport Terminal Program created by the Bipartisan Infrastructure Law. The grants will fund improvements to terminals at 114 airports across 44 states. The five largest awards went to: (1) Ft. Lauderdale, Florida ($50 million); (2) Chicago O’Hare ($40 million); (3) Phoenix, Arizona ($36 million); (4) Washington-Dulles ($35 million); and (5) Los Angeles and San Francisco (both receiving $31 million). A complete list of the airports receiving funding is available here. Biden Transportation Secretary Pete Buttigieg visited Charlotte Douglas International Airport, which received a $27 million grant award as part of Thursday’s announcement.

• The Labor Department announced an extension—from February 20, 2024 to May 13, 2024—of the comment period on its December 2023 Request for Information (RFI) about updating the Schedule A list of occupations in which the federal government acknowledges such a shortage of domestic workers that employers can bring in foreign labor for these occupations without testing the U.S. labor market for American workers. While this request has generally been framed as part of a possible expansion of schedule A to more jobs in science, technology, engineering, mathematics, and artificial intelligence, it could be much broader. This is because the RFI notably requested comments on extending Schedule A to certain “skilled technical workforce occupations” as defined by the National Science Foundation, which includes certain occupations in construction and extraction, installation, maintenance and repair, production, and healthcare.

• The Biden Energy Department (DOE) announced over $17 million from the Bipartisan Infrastructure Law to support the design and construction of facilities that will produce rare earth elements and other critical minerals and materials from coal-based resources through three projects led by: (1) The Board of Trustees of the University of Illinois at Urbana-Champaign; (2) Winner Water Services, Inc. of Sharon, Pennsylvania; and (3) Tetra Tech, Inc. of Houston, Texas.

• The House voted 224-200 to approve legislation to block the Biden Administration’s pause on new natural gas export projects by removing the Administration’s ability to reject export projects altogether. Nine Democrats joined Republicans voting for the measure.

Wednesday, February 14^th

• The Energy Department announced the availability of $63 million through the Inflation Reduction Act to accelerate the growth of domestically manufactured residential heat pumps, heat pump water heaters, and other heat pump systems and components. An informational webinar will be held on the funding on February 21, 2024, at 2:00 pm ET and registration is available here.

• Sens. Amy Klobuchar (D-MN) and Deb Fischer (R-NE) led a bipartisan, bicameral letter to Internal Revenue Service Commissioner Daniel Werfel urging his agency to clarify the tax status of Bipartisan Infrastructure Law lead pipe replacement grants that provide federal funding to replace some of the 9.2 million lead water pipe service lines across the country. The letter stresses that “many state and local governments have been unable to use these critical federal resources to begin replacing lead service lines due to the uncertain tax status of lead pipe replacement projects in our states.”

• A new poll confirmed that nearly 3 in 5 Americans (59%) now agree with President Joe Biden that corporate greed is a “major cause” of inflation. That’s a 15% jump since January 2022. The rise in Americans blaming corporate greed for higher prices spans party lines. This week, after the latest consumer price index (CPI) data came in higher than expected, the White House once again stressed its view of the role corporate greed plays driving up consumer prices through “shrinkflation.” The Director of President Biden’s National Economic Council told reporters that “[i]f you look at some of the staples, like eggs or milk, they have come down. But consumer brands, instead of actually lowering prices, they’ve shrunk packaging” and are selling less for the same price.

Tuesday, February 13^th

• The Environmental Protection Agency (EPA) announced it has expanded to an additional 150 rural communities its Closing America’s Wastewater Access Gap Community Initiative that partners with underserved communities to provide technical assistance on accessing federal wastewater funding, especially through the Bipartisan Infrastructure Law.

• The Treasury and Energy Departments, as well as the Internal Revenue Service announced that they will no longer accept new applications for the 2023 program year of the Inflation Reduction Act’s Low-Income Communities Bonus Credit Program after February 29^th. The program provides a 10% to 20% point boost to the Investment Tax Credit for qualified solar or wind facilities in low-income communities.

Monday, February 12^th

• Sens. Ed Markey (D-MA), Bernie Sanders (I-VT), Elizabeth Warren (D-MA), Sheldon Whitehouse (D-RI), Corey Booker (D-NJ), Jeff Merkley (D-OR), and Richard Blumenthal (D-CT) sent a letter to federal regulators accusing fossil fuel companies of deceiving the public with ostensibly “green” gas—and overcharging customers for projects that won’t help the climate. The letter also asked the Federal Trade Commission to examine whether the certified gas industry is engaged in “unfair and deceptive practices.”
  
  
• A crowded field began lining up to replace retiring House Energy and Commerce (E&C) Committee Chair Cathy McMorris Rodgers (R-WA), including Rep. Bob Latta (R-OH) (who chairs the E&C Communications and Technology Subcommittee), Rep. Brett Guthrie (R-KY) (who chairs the E&C Health Subcommittee), Rep. Richard Hudson (R-NC) (who serves as chair of the National Republican Congressional Committee), and Rep. Tim Walberg (R-MI) (who is the vice chair of the E&C Subcommittee on Innovation, Data, and Commerce).

Friday, February 9^th

• The Labor Department’s Occupational Safety and Health Administration (OSHA) sent its final rule on the Worker Walkaround Representative Designation Process to the White House for review. White House review is typically the final step before an item is published in the Federal Register. On Monday, Republican House Education and the Workforce Committee Chair Virginia Foxx (NC) sent a letter to acting Labor Secretary Julie Su raising concerns over the rulemaking that would allow union representatives and other third parties to participate in OSHA inspections of non-union workplaces. 

• The White House announced it expects to invest over $5 billion from the CHIPS and Science Act for semiconductor-related research, development, and workforce needs, including the creation of a Workforce Center of Excellence with a presence in multiple regions.

• The General Services Administration and the Defense Department announced a joint effort seeking suppliers that could provide federal facilities in the mid-Atlantic and Midwestern U.S. with 100% carbon pollution-free electricity by 2030. The agencies published a Request for Information seeking input by March 19, 2024 to inform the government’s procurement planning for this effort.

• The Federal Energy Regulatory Commission (FERC) announced that Willie L. Phillips, Jr. has been appointed as Chair of FERC after serving as a FERC Commissioner since November 17, 2021 and as Acting Chair since January 3, 2023.

Around the Country

Northeast

• On February 15^th, New York’s Independent Redistricting Commission approved a new set of lines for the state’s 26-member congressional delegation. The new lines would provide a boost to Democrats’ efforts to retake New York’s 22^nd Congressional District occupied by Rep. Brandon Williams (R-NY), while incumbent Reps. Marc Molinaro (R-NY) and Pat Ryan (D-NY) would get a boost in New York’s 19^th and 18^th Congressional Districts, respectively.

• On February 15^th, it was reported that John Deaton, a prominent cryptocurrency attorney, is taking a “serious look” at running as a Republican against U.S. Senator Elizabeth Warren (D-MA).
  
• On February 13^th, former Democratic Rep. Tom Suozzi defeated Republican Mazi Pilip in the special election for New York’s 3^rd Congressional District previously held by George Santos. Experts claim that Republicans’ distrust of mail-in voting may have helped to contribute to Pilip’s loss as a Nor’easter brought heavy snow to the district and depressed Election Day voting. Former President Donald Trump lashed out following Pilip’s defeat, branding her as a “very foolish woman” and chiding her for distancing herself from him. House Speaker Mike Johnson (R-LA) brushed off Pilip’s loss, saying the race is “in no way a bellwether” for the November elections. But respected Republican pollster Frank Luntz disagrees with Johnson and is warning Republicans that Democrats flipping this congressional seat should be a “final warning call” to the party before the November elections. Luntz says that the results are not an “endorsement of Biden,” but instead a “rejection of House Republican chaos.” Luntz believes voters in the district didn’t approve of Biden’s policies, but rather Republicans “gave voters nothing to vote for.”
  
• On February 13^th, reports indicated that New Jersey First Lady Tammy Murphy’s Democratic U.S. Senate bid is facing hostility from the rank and file of the New Jersey Democratic Party. The intensity of the revolt was evident last Saturday when her opponent, Rep. Andy Kim (D-NJ), handily defeated Murphy in Monmouth County, her home county, which held the state’s first Democratic nominating convention.
  
• On February 13^th, New York Gov. Kathy Hochul (D-NY) announced a special election on April 30^th to fill New York’s 26^th Congressional District seat vacated by Rep. Brian Higgins (D-NY).

West

• On February 14^th, the Environmental Protection Agency (EPA) announced that it has begun work to clear and inspect nearly 100,000 linear feet of sewer lines within Lahaina, Hawaii. These inspections will allow the County of Maui to prioritize the emergency repairs needed to protect its wastewater treatment plant from excess infiltration of salt water through damaged sewer pipes.
  
• On February 12^th, the Energy Department announced the selection of three projects that will receive up to $60 million through the Bipartisan Infrastructure Law to demonstrate the efficacy and scalability of enhanced geothermal systems (EGS). The pilot projects awarded to Chevron New Energies for an existing geothermal field in Sonoma County, California, Fervo Energy for a pilot within the Milford Renewable Energy Corridor in Utah, and Mazama Energy for a project on the western flank of Newberry Volcano in Oregon will use innovative technology and a variety of development techniques to capture the earth’s heat resources.

Midwest

• A $1.5 billion loan announced by the Energy Department on February 12^th could help to revive the Palisades nuclear power plant in Covert, Michigan in the southwest part of the state and make the facility the first nuclear power station to restart operations after being decommissioned in 2022.

• On February 15^th, Rep. Matt Rosendale (R-MT) dropped out of the Montana U.S. Senate race less than a week after he officially announced a bid. Rosendale said that former President Donald Trump’s endorsement of Republican Tim Sheehy in the race led him to conclude his path to the Republican nomination was closed.

• On February 15^th, Republican businessman Eric Hovde announced a bid for U.S. Senate in Wisconsin against Democratic Sen. Tammy Baldwin.

• On February 14^th, former Detroit Police Chief James Craig announced he was dropping his Republican U.S. Senate bid in Michigan and is “strongly considering” running in Detroit’s mayoral election next year.

• On February 13^th, a new poll showed progressive Rep. Cori Bush (D-MO) trailing her Democratic primary challenger Wesley Bell by 22 points, with Bell beating Bush among every demographic.

• On February 9^th, after being one of only three Republicans to vote against the impeachment of Homeland Security Secretary Alejandro Mayorkas, Rep. Mike Gallagher (R) announced he will not seek reelection to Wisconsin’s 8^th Congressional District.

Southeast

• On February 15^th, House Homeland Security Chair Mark Green (R-TN) announced he would not seek reelection to Tennessee’s 7^th Congressional District.

• On February 14^th, General Electric Vernova’s Nuclear Fuel business, Global Nuclear Fuel (GNF), announced it received approval from the Nuclear Regulatory Commission (NRC) to manufacture, ship, and analyze the performance of nuclear fuel with Uranium-235 enrichments of up to 8 percent. With the NRC approval of GNF’s fuel fabrication license amendment, the company’s manufacturing facility in Wilmington, North Carolina becomes the first commercial facility in the U.S. to hold a license to fabricate fuel enrichments up to 8 percent.

• On February 14^th, the Virginia House and Senate passed different versions of legislation that could help advance the deployment of small modular nuclear reactors in the state, despite environmental and ratepayer advocates’ concerns about the costs utility customers could bear for the yet-to-be-used technology.

• On February 13^th, Mountain Valley Pipeline, LLC won its bid to continue construction of a more than 300-mile long natural gas pipeline from West Virginia to Virginia despite a protest from local property owners.

Southwest

• On February 12^th, Sen. Rand Paul (R-KY) and Rep. Matt Gaetz (R-FL) announced their endorsement of Republican Kari Lake in the Arizona U.S. Senate race.