Federal Advocacy Update: Week of August 1, 2017
With the House having adjourned and the Senate set to adjourn next week for the summer recess, the next issue of the Federal Advocacy Update will be published on Tuesday, September 12. When Congress reconvenes on September 5, they will face deadlines to pass spending bills to avoid a government shutdown on October 1. It promises to be a busy fall with issues important to cities and towns front and center
In this Issue:
- For City Leaders: Federal Budget and Appropriations Update for FY 2018
- NLC Discusses Future of Work with Rep. Bobby Scott
- AG Sessions Announces Additional Immigration Compliance Requirements for Byrne JAG
- House Committee Passes Brownfields Reauthorization
- NLC Reaffirms Tax Priorities to Senate Finance Committee Chair
- NLC Calls on FCC to Stay Within Authority on Broadband Sitting
- EPA Accepting Public Comments on WOTUS Withdrawal
- FCC Holds Second Meeting of Broadband Deployment Advisory Committee
- NLC Submits Comments on DOE Regulatory Reform
- DOL Releases Request for Information on Overtime Exemption
- U.S. Senate Votes to Narrowly Defeat Health Care Legislation
- Proposed NLC Policy Resolutions and Amendments Due August 31, 2017
- Webinar: Signs and Speech Two Years After Reed
Michael Wallace, 202.626.3025
With the House of Representatives adjourned for the five week August recess, city leaders across the nation are preparing to #FightTheCuts at home by working through the steps of NLC’s August recess action guide.
For Congress, federal funding is typically a two-step process that starts with the Budget and ends with Appropriations. The Budget sets the overall amount of federal funding available to federal agencies, and Appropriations allocates the budgeted funds to specific federal programs within the agencies. The normal deadlines for Congress to meet its obligations are April 15th to finalize the federal budget and September 31st to finalize all 12 annual Appropriations bills. Appropriations bills should reach the President in time for enactment on October 1st, the first day of the fiscal year.
This year, Congress is not following the standard procedure outlined above. Rather, Budget and Appropriations are being negotiated at the same time. Neither the House or Senate has approved a federal budget for Fiscal Year 2018. Instead, the House and Senate are working off a different set of assumptions, with the Senate assuming a higher level of overall funding than the House. Negotiations between members of the House and Senate on a common set of budget figures will be ongoing through the August recess.
Four Appropriations bills have been approved by the House, and zero have been approved by the Senate. In the House, the eight remaining appropriations bills have advanced through Committee consideration. In the Senate, six of the twelve appropriations bills have advanced through Committee
When Congress reconvenes in September, they will have one month to complete negotiations on a common budget and approve all twelve spending bills. If consensus cannot be reached by the September 31st deadline, Congress must begin passing Continuing resolutions to keep the federal government funded and operating or the federal government will shut down.
The August recess presents a critical opportunity for city leaders to weigh in on the importance of federal programs like CDBG, so that city priorities remain high priorities for Members of Congress returning to complete work on Budget and Appropriations in September.
The House Budget has been approved by the House Budget Committee and is scheduled for a final House vote in September. The bill would raise the defense discretionary spending level to $621.5 billion, and lower the nondefense discretionary limit to $511 billion. As a result, House appropriations bills for FY18 will have less funding available for domestic programs, and cuts to city priorities will be an unavoidable consequence. The Senate Budget has not been introduced. Rather, the Senate Appropriations Committee has bypassed the Senate Budget by maintaining spending levels generally equal to those in FY2017. The Senate approach makes more funding available for city priorities, and as a consequence, the majority of programs important to cities would not be cut.
House Appropriations are ahead of the Senate. Each of the 12 appropriations bills has been approved by the House Appropriations Committee; and the full House has completed work and advanced a security-themed “minibus” appropriations package. The Security Minibus is comprised of four bills approved by the House Appropriations Committee. The package includes the Defense (HR 3219), Energy-Water (HR 3266), Legislative Branch (HR 3162) and Military Construction-VA (HR 2998) measures, which together represent more than 60 percent of discretionary spending. Funding for city priorities is generally reduced in the House Appropriations bills. NLC members can see an overview of each bill and a funding levels by program compared to last year here.
Senate Appropriations bills that have been unveiled are generally more favorable to cities. To date, six appropriations bills have been approved by the full Appropriations Committee: the Agriculture and Rural Development bill; the Energy and Water bill; the Commerce, Justice and Science bill; and the Transportation, Housing and Urban Development bill; the Military Construction and Veterans' Affairs bill; and the Legislative Branch bill. In many instances, programs slated for elimination in the House bills, like the TIGER program, are funded in the Senate bills. Crucially, the Senate bills are passing Committee with bipartisan support, which may give the Senate additional leverage to maintain the higher overall funding levels compared to the House proposal. Click here for an overview of each bill and funding levels by program compared to last year.
Time for Action
Congress has not approved a federal budget for FY2018 or delivered any of the twelve annual appropriations bills to the President. August is the time for city leaders to weigh in before any spending bill reached the President’s desk. Throughout August, NLC will be telling Members of the House and Senate that city leaders support the Senate FY18 Budget and oppose the House FY18 Budget, because the Senate preserves funding for the majority of city priorities. NLC is ready to help your city #FightTheCuts.
Stephanie Martinez-Ruckman, 202.626.3098
Last Tuesday, NLC hosted a briefing on Capitol Hill in cooperation with Congressman Robert C. “Bobby” Scott (D-VA-3), Ranking Member on the U.S. House of Representatives Committee on Education and the Workforce. The briefing focused on NLC’s recent report, The Future of Work in Cities, and a discussion surrounding the policy changes, strategies and economic impacts of workforce and business development at the federal level that can support cities.
Attendees heard from on-the-ground practitioners, as well as industry insiders on the trends and real-world implications of this important topic, including Virginia Municipal League president-elect Dr. Patricia P. Woodbury, councilmember of Newport News, Va., Melinda Mack of the New York Association of Training and Employment Professionals, Dr. Chris Hooton from the Internet Association and Senior Executive and Director of the National League of Cities’ Center for City Solutions Brooks Rainwater.
As Congress moves forward with the budget process and conversations around infrastructure investment begin, the panel made clear that cities are looking to the federal government to continue their financial support through the Workforce Innovation and Opportunity Act (WIOA), Perkins CTE, TANF and other education and workforce funding streams through the Departments of Labor and Education.
Yucel Ors, 202.626.3124
Last Tuesday, U.S. Attorney General Jeff Sessions announced new immigration enforcement compliance requirements for local law enforcement agencies receiving justice assistance grants from the U.S Department of Justice (DOJ). In addition to certifying compliance with section 1373, a federal statute applicable to state and local governments that generally bars restrictions on communications between state and local agencies and officials at the Department of Homeland Security (DHS), recipients for FY 2017 Byrne JAG will now be required to do the following:
- permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any detention facility in order to meet with an alien and inquire as to his or her right to be or remain in the United States; and
- provide at least 48-hour advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien.
Unfortunately, the Attorney General’s action does not take into consideration the limitations that are placed on local law enforcement by the U.S. Constitution, states and the courts when someone is arrested because they are suspected of violating federal, state and local laws. It is not always possible for local law enforcement to provide at least 48-hour advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody. Most often, the court, not local law enforcement, determines when and how an individual is released. Depending on the court order, the release can occur within hours of being arrested. However, if and when they are able to, many police departments will notify DHS of the pending release date and time of individuals when asked. This information is also publicly available in most court proceedings, which DHS’s Immigration and Customs Enforcement (ICE) agents can easily access. Requiring local law enforcement to spend time and resources to notify ICE of the release date and time of individuals in their custody is also an unfunded mandate and takes officers away from other tasks they need to do on a daily basis.
Some local governments limit cooperation with federal immigration enforcement because of the enormous costs of enforcing federal immigration laws, detaining undocumented immigrants, logistical concerns related to training and staffing, and the potential for civil liability. According to reports filed with the Texas Commission on Jail Standards, between December 2012 and October 2015, the policy of detaining undocumented immigrants in jails cost local governments nearly $210 million, but the federal government only reimbursed the jails about $4 million of these costs, diverting local resources away from creating economically stable, healthy and safe neighborhoods.
Withholding federal law enforcement grant funding from cities is not going to resolve these issues, and will potentially place communities at greater risk by breaking down the trust between immigrants and local law enforcement. Cities expect local law enforcement officers to respond to the needs of their community and to respect, protect and serve all residents, documented and undocumented, to ensure safety for all people they serve.
While the power to enforce federal immigration laws remains exclusively a federal power, NLC is urging the Attorney General to work with, not against, city leaders to help them address issues associated with federal immigration laws that best meet the needs of all their residents.
Carolyn Berndt, 202.626.3101
Last week, with NLC support, the House Committee on Transportation and Infrastructure passed the Brownfields Reauthorization Act (H.R. 1758) by voice vote. Similar to bills that recently passed the House Energy and Commerce Committee and the Senate Environment and Public Works Committee, H.R. 1758 would reauthorize the U.S. Environmental Protection Agency (EPA) Brownfields program, while making several key changes to assist with the cleanup and redevelopment of large, complex brownfields sites.
NLC has advocated for increasing the single-site cleanup grant cap, authorizing multipurpose grants, and clarifying issues around municipal liability. Many of NLC’s recommendations are incorporated into the bill. Specifically, the bill:
- Authorizes multipurpose grants up to $950,000;
- Increases funding for remediation grants to $600,000, with the ability for EPA to go up to $950,000 per site;
- Allows up to 5 percent of grant amounts to be used for administrative costs;
- Addresses liability concerns for sites acquired prior to Jan. 11, 2002; and
- Addresses “involuntary” acquisition of properties.
H.R. 1758 is sponsored by Reps. Elizabeth Esty (D-CT), John Katko (R-NY), Peter DeFazio (D-OR) and Ranking Member of the committee, and Grace Napolitano (D-CA) and Ranking Member of the Water Resources and Environment Subcommittee.
Similar legislation passed the House Energy and Commerce Committee in June (H.R 3071) and the Senate Environment and Public Works Committee in July (S. 822). The timeframe to move the bills to the floor in either chamber is uncertain.
Brett Bolton, 202.626.3183
NLC responded to a request for comments on tax reform from Senate Finance Chairman Orrin Hatch last week. The Chairman asked for recommendations on how to best achieve: tax relief to the middle class, lowering the cooperate rate, removing impediments for investment and updating the international tax system to make our nation more competitive in the global economy.
In the letter, NLC reaffirmed its support for city priorities, including the tax-exempt status of municipal bond interest and the state and local tax deduction (SALT). Both tools are instrumental in the success of cities, from building and maintaining infrastructure to education and public safety.
Cutting such foundational components of the federal tax code would change the way local governments budget, tax, and allocate funds. Taxpayers would demand immediate action to lower state and local taxes, resulting in shortfalls in already-strained budgets. That would only make the job of providing vital services to citizens even more difficult for local governments.
NLC stands ready to continue the fight to protect local interests in tax reform by simplifying the tax code — both business and personal — and creating a fairer system that empowers cities to continue driving the nation’s economy.
Angelina Panettieri, 202.626.3196
In reply comments to the Federal Communications Commission (FCC), NLC and other local government allies called for the preservation of the FCC’s existing interpretation of its legal authority and avoid further preemption of local authority over broadband infrastructure. In the latest round of responses to a wave of preemptive rulemaking action from the FCC, NLC argued that the FCC cannot reinterpret existing law to prohibit any action by a city government that might potentially inhibit broadband deployment. Existing law clearly states that the FCC can only preempt activities that prohibit broadband deployment. NLC also called on the FCC to respond to local concerns about their continued ability to collect fair and reasonable rent for access to public property, including the rights of way, as well as local efforts around consumer protection for radio frequency emission data, and legacy copper telecommunications infrastructure retirement. NLC also criticized the FCC for its approach to rulemaking on broadband infrastructure, which has focused solely on the role of state and local government regulatory barriers to deployment, and ignored comparable problems caused by members of the industry.
NLC will continue to monitor further developments on this issue. The FCC has not issued a decision yet on this rulemaking, or on an earlier petition from Mobilitie regarding preemption of local regulation of small cell wireless facilities.
Carolyn Berndt, 202.626.3101
Consistent with the direction in the Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule (February 28, 2017), the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) are pursuing a two-step approach to rescind and revise the Clean Water Rule (aka “Waters of the U.S.” or WOTUS).
Under the first step, last week, EPA and the Corps proposed a rule to rescind the Clean Water Rule and re-codify the regulatory text that existed prior to the 2015 Clean Water Rule. The agencies are accepting public comments on the withdrawal proposal through August 28. NLC is reviewing the proposed rule and will likely submit comments.
The withdrawal proposal comes as two House appropriations bills contain policy riders that would allow the agencies to withdraw the rule without following the requirements of the Administrative Procedure Act and the requirement for public notice and comment period. While NLC has concerns with the 2015 rule and has advocated for a revision, the ability of local officials to participate in the rulemaking process is a fundamental principle of the intergovernmental partnership.
In June, NLC submitted comments to the agencies highlighting key recommendations for consideration as the agencies move forward with revising the “Waters of the U.S.”. NLC’s comments followed a Federalism consultation briefing that the agencies held in April to solicit input from state and local government officials and organizations on the rule’s revision.
Angelina Panettieri, 202. 626.3196
On July 20, the FCC held the second public meeting of its Broadband Deployment Advisory Committee, a 30-person body charged by FCC Chairman Ajit Pai with developing model broadband deployment codes for state and local governments, identifying state and local barriers to broadband deployment, and improving competitive access to infrastructure. Prior to this meeting, NLC endorsed the nominations of many local experts to the BDAC, and criticized the FCC for appointing only one elected official to the industry-dominated group. In response, the FCC appointed an additional local government representative, councilmember Andy Huckaba, Lenexa, Kan., and Vice Chair of the FCC Intergovernmental Advisory Committee.
During the meeting, representatives of the four task-focused workgroups provided updates on the status of their efforts. The BDAC has been tasked with making final recommendations to the FCC this fall, and members of the committee expressed concern that they would not be able to fully complete work by this time. Several members of the group also protested the structure of the BDAC and its aims, which are focused only on problems created by state and local governments, not problems created by the federal government or industry.
FCC staff clarified that the group’s outputs were separate from and would not inform the ongoing regulatory proceedings on wireline, wireless, and small cell infrastructure governance. However, the BDAC recommendations will likely contribute to other ongoing federal efforts, including the Gigabit Opportunity Act (S. 1013), which would use tax breaks to incentivize investment in states that pass an FCC-written model state code.
Carolyn Berndt, 202.626.3101
Under the direction of Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs, NLC submitted comments to the U.S. Department of Energy on regulations that may be appropriate for repeal, replacement or modification.
NLC’s comments focus on energy policies to enhance national security and increase energy independence, as well as the importance of the intergovernmental partnership. Specifically, NLC urges the federal government to work with local governments to develop and implement a sustainable energy policy that is reliable, equitable, environmentally responsible and evidence-based that supports renewable energy, reduces the environmental impact of conventional fossil fuels, and support energy efficiency measures.
Additionally, NLC stressed the importance of working with local officials to craft reasonable and practicable rules and regulations, as well as the importance of the federalism consultation process, and the opportunity for local elected officials to provide early and often feedback into the rulemaking process.
Stephanie Martinez-Ruckman, 202.626.3098
Last week, the U.S. Department of Labor (DOL) released a highly-anticipated request for information (RFI) on the overtime regulations put forward by the Obama Administration that increased the overtime salary level to $47,476, which is double the current level, and called for automatic adjustments every three years. The rule was originally scheduled to go into effect on December 1, 2016, however, it was delayed due to the issuance of a nationwide preliminary injunction blocking the rule by the U.S. District Court for the Eastern District of Texas.
In the RFI published in the Federal Register, DOL is seeking input on the role the duties test plays with respect to the salary threshold, what is the proper methodology, and whether there should be multiple salary levels to reflect different regional economies, sizes of employers, and exemptions.
NLC plans to issue comments on the RFI, which will be due on September 25. If you are interested in sharing the impact of this rule on your city, specifically: the cost implications on your municipal payroll, both in the first year of implementation and beyond; any changes you have made to the number of exempted employees on your payroll; and any thoughts you may have on the duties test applied to determine the status of employees, please send your examples to Stephanie Martinez-Ruckman at firstname.lastname@example.org by September 1 to be incorporated into NLC’s formal comments to DOL.
Stephanie Martinez-Ruckman, 202.626.3098
In the early morning hours of last Friday, Senator John McCain cast the tie-breaking vote against the “skinny repeal” of the Affordable Care Act. Senator McCain was joined in his opposition to the bill by all 48 Democrats and Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK). This final vote, which occurred after 20 hours of debate and votes on two other options for replacement, the Better Care Reconciliation Act (BCRA) and the Obama Repeal Reconciliation Act (ORRA), was highly-anticipated. At 1:29 a.m. after the final vote was cast, Leader McConnell asked that the underlying legislation, H.R. 1628, the American Health Care Act (AHCA) be placed back on the Senate calendar for further consideration at a later date.
As proposed, the “skinny repeal” of the Affordable Care Act (ACA), which would have repealed the individual and employer mandates, and eliminated the Prevention and Public Health Fund. The Congressional Budget Office (CBO) estimated that, if passed, the bill would result in 16 million Americans losing their health insurance over the next decade, destabilizing the individual market and increasing average premiums. NLC President Matt Zone released a statement on the vote on Friday morning.
Avery Peters, 202-626-3020
NLC's National Municipal Policy and Resolutions (NMP) are the foundation for the organization's federal advocacy in policy matters before Congress, the administration, and the courts. The NMP is a permanent statement of NLC's position on federal policy matters that directly affect local governments. Resolutions address timely issues or specific pieces of federal legislation and are annual statements of position. Unless action is taken to renew a resolution or incorporate it into the NMP, each resolution expires at the City Summit following its adoption.
As part of NLC's annual policy development process, NLC's Federal Advocacy Committees are charged with reviewing the NMP and resolutions and making recommendations for changes, additions, and deletions. In addition to the committees' work, NLC is inviting all member cities to submit National Municipal Policy (NMP) amendments and resolutions for consideration. The deadline for submissions this year is August 31, 2017.
Each proposed policy amendment or resolution should include a document that provides background on the issue, as well as a discussion of the issues impact on local governments nationwide.
All proposals submitted by the deadline will be forwarded to the appropriate Federal Advocacy Committee for review and consideration. Voting delegates will consider the committees' work at the Annual Business Meeting during NLC's City Summit in Charlotte, N.C., in November.
Proposed policy amendments and resolutions should be submitted in writing to Avery Peters via email at email@example.com or mailed to him at the National League of Cities, 660 North Capitol Street, NW, Suite 450, Washington, D.C. 20001.
Ashley Smith, 202.626.3094
The lower courts have had two years to apply the Supreme Court’s holding in Reed v. Town of Gilbert, Arizona that content-based regulations are subject to strict scrutiny. John M. Baker, Greene Espel, will discuss how local governments have been modifying their sign codes to come into compliance with Reed and how courts have interpreted the Reed decision in and out of the sign context.
Date: August 31, 2017
Time: 1:00 PM EDT
Register for the webinar here