Federal Advocacy Update: Week of August 28, 2018

U.S. Capitol
U.S. Capitol

In this issue:

Senate Passes Labor-HHS Appropriations Bill in Third Minibus Package

Stephanie Martinez-Ruckman, 202.626.3098

On August 23, the Senate approved, in a 87-5 vote, H.R. 6157, which includes both the Defense and Labor, Health and Human Services, and Education appropriations bills. This $857 billion package accounts for two-thirds of the federal government’s funding for Fiscal Year (FY) 2019 and represents movement of 9 of the 12 annual appropriations bills by the Senate. These bills have been contentious in the past and the Labor-HHS bill, in particular, hasn’t passed a vote through regular order since 2007.

The Labor-HHS bill is largely good news for cities, with an increase in funding towards fighting opioid abuse, an increase in funding targeted at apprenticeship training programs, as well as a slight increase for the Low-Income Home Energy Assistance Program (LIHEAP). The bill also provides level funding for important programs previously suggested for elimination by the president’s FY19 budget proposal including the 21st Century Community Learning Centers Program, the Corporation for National and Community Service, and the LIHEAP program, among others.

When the House and Senate return from recess in September, they will need to work to conference the spending bills over 11 working days before the end of the fiscal year on September 30. While there have been threats of a shutdown by the president, the Senate has been hard at work to prevent this from occurring. It is expected that there will likely be a continuing resolution for the three remaining spending bills, including the Homeland Security bill that includes partisan conversations over funding for immigration reform including a U.S.-Mexico border wall.

NLC Releases New Guide on How to Plan for Small Cell Wireless Infrastructure

Angelina Panettieri, 202.626.3196

On August 27, NLC released a new small cell wireless municipal action guide for city leaders. Small cell wireless infrastructure, which is increasingly important for wireless broadband deployment and smart city technology, has traditionally been guided by federal and industry interests, as opposed to local needs.

The “race to 5G” and small cell wireless infrastructure deployment present new challenges and opportunities for cities. Unlike traditional cellular equipment which is placed high up on single cell towers, small cell technology requires many equipment installations clustered closely together. Cities must balance the business interests of wireless providers eager to densify their networks with the management of increasingly crowded city streets and sidewalks. 

This action guide outlines what small cell wireless infrastructure is and how it fits within a city. It also highlights some of the opportunities and pitfalls that come along with it, and how to adapt city processes to reflect the evolutions in wireless technology. In addition, the guide addresses the rapidly changing laws governing local oversight of small cell infrastructure, which have been shifting in state capitals and in Washington, D.C. Cities have faced increased preemption of their review processes, fee structures, and negotiations with wireless providers as companies seek ways to reduce their deployment times and costs.

This guide explains small cell infrastructure and related policy issues in clear terms so that city leaders can thoughtfully plan for small cell deployments in their communities. The guide profiles five U.S. cities – Boston; Lincoln, Neb.; San Jose, Calif.; Raleigh, N.C., and Tempe, Ariz. – and their diverse approaches to small cell wireless infrastructure deployment.

The guide includes six major recommendations for city leaders:

  1. Gain a full understanding of the technology and important safety considerations.
  2. Articulate your city’s priorities for accommodating this technology.
  3. Create clear policies for permit review that let both city staff and industry applicants know the expectations.    
  4. Develop a template right-of-way access policy/agreement, as well as a city pole attachment agreement.
  5. Think through in advance any beneficial items the city could negotiate with industry in exchange for use of the right-of-way – if allowed by state law.
  6. Give careful consideration to fee structures.

To read the full report, visit nlc.org/smallcell.

NLC Submits Comments on New Risk Management Proposed Rule

Carolyn Berndt, 202.626.3101

On August 23, NLC submitted comments on the U.S. Environmental Protection Agency’s (EPA) proposed rule on Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act. Under this proposed rule, the Agency suggests changes to the final Risk Management Program Amendments rule issued on January 13, 2017. 

The Risk Management Rule applies to facilities that use regulated toxic and flammable hazardous substances, including water and wastewater treatment facilities, and requires coordination with local emergency responders. The proposed rule addresses many concerns, such as costs to local governments both as owner and operators of water and wastewater treatment facilities and as first responders, as well as vague and unworkable definitions, that NLC raised with the previous rule.

In addition, the proposed rule would eliminate requirements around third party audits and root cause analysis for accidents and near misses, while maintaining with modification provisions around local emergency coordination, emergency response exercises and public meetings. 

The Agency intends to finalize the proposed rule by early 2019. A fact sheet and summary presentation are available for more information.

Administration Proposes Rulemaking to Revise Vehicle Emissions and Fuel Economy

Carolyn Berndt, 202.626.3101

On August 2, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) released a proposed rule to amend existing Corporate Average Fuel Economy (CAFE) and greenhouse gas emissions standards for passenger cars and light-duty trucks and establish new standards, covering Model Years 2021 through 2026.

In 2012, the agencies worked together to develop CAFE and carbon dioxide standards for Model Years 2017 and beyond. Under that rulemaking, EPA set carbon dioxide standards for Model Years 2017-2025, while NHTSA set final CAFE standards for Model Years 2017-2021 and put forth “augural” CAFE standards for Model Years 2022-2025. 

This proposed rule would revise the 2012 rule. Specifically, the proposed rule would:

  • Retain the Model Year 2020 CAFE and carbon dioxide emissions standards for passenger cars and light trucks through 2026.
  • Withdraw the California Waiver that allows the state to set its own standards for greenhouse gas emissions and zero emissions vehicles. Twelve other states plus the District of Columbia have adopted the California standards. 

The 2012 rule required EPA to issue a Final Determination by April 1, 2018 on whether the greenhouse gas emission standards for Model Years 2022-2025 light-duty vehicles remain appropriate. EPA’s Final Determination issued earlier this year found that the current greenhouse gas emissions standards for Model Years 2022-2025 are based on outdated information, that the current standards may be too stringent, and that they should be revised as appropriate.

Earlier this year, over 60 local officials joined with state leaders to voice strong opposition to EPA’s Final Determination to weaken the clean car standards, declaring, “We strongly support the current federal standards for a modern vehicle fleet agreed to in 2012 by the automotive industry, the federal government and the State of California.”

The agencies are accepting comments on the proposed rule through October 2. Comments can be submitted through the Federal Register, Docket ID EPA-HQ-OAR-2018-0283. NLC is reviewing the proposed rule and will submit comments. Any city wishing to submit comments is encouraged to do so and should forward a copy to Carolyn Berndt at berndt@nlc.org.

FCC Issues Notice for New BDAC Disaster Response Working Group

Angelina Panettieri, 202.626.3196

The Federal Communications Commission (FCC) released a public notice soliciting nominations for a new working group within its Broadband Deployment Advisory Committee (BDAC). The Disaster Response and Recovery Working Group was announced by FCC Chairman Pai during the July public meeting of the BDAC, and is charged with "making recommendations on additional measures that can be taken before a disaster to improve resiliency of broadband infrastructure, strategies that can be used during the response to a disaster to minimize the downtime of broadband networks, and actions that can be taken to restore broadband infrastructure during disaster recovery."

The FCC is seeking applicants from a number of categories, including local governments, particularly first responders, emergency managers, emergency planners, local network managers, and risk management staff, as well as community organizations involved in emergency management. The public notice observes that the time commitment for participation will be substantial, although the majority of the work will be conducted online or via conference call. Also, please note that the notice does not indicate that working group appointees will be voting members of the full BDAC.

Applicants may not be registered federal lobbyists, but they may be nominated to represent a group or organization, such as a city, local public safety entity, or state municipal league. All applications must be submitted by email to the FCC including the information listed in the public notice no later than September 7, 2018

If you or a local official you know plans to apply for the BDAC Disaster Response and Recovery Working Group, please email Angelina Panettieri at panettieri@nlc.org so that NLC can write a letter in support of your nomination. For more information about the BDAC, and previous concerns NLC raised about this body, visit NLC’s blog, CitiesSpeak.

NLC Joins Opportunity Starts at Home Housing Campaign

Michael Wallace, 202.626.3025

On August 16, the National League of Cities (NLC) announced that it had joined the steering committee for the “Opportunity Starts at Home" campaign, a multi-sector initiative focused on advancing federal solutions that address housing affordability. As a top priority for city leaders, NLC has long advocated for a federal partnership that works with city leaders to expand housing availability, provides rental assistance to low-income and vulnerable communities, and ensures that all residents have the opportunity for safe, decent and affordable housing.

This campaign will provide NLC with new opportunities to advocate for these long-held priorities. This steering committee is unique among housing advocates as it consists of organizations that, like NLC, are not primarily housing associations or interest groups. As campaign director Mike Koprowski explained, “When people lack access to decent affordable housing, it negatively impacts their health outcomes, educational attainment, and ability to climb the economic ladder. That’s why leaders from a range of sectors – from healthcare to education to civil rights – are coming together to build a broad movement to make affordable homes a top national priority.” NLC is enthusiastic about continuing to elevate its voice on this important issue.

To learn more about this new initiative visit NLC’s blog, CitiesSpeak.

EPA Proposes Clean Power Plan Replacement

Carolyn Berndt, 202.626.3101

On August 21, the U.S. Environmental Protection Agency (EPA) issued a proposed rule to reduce greenhouse gas emissions from existing coal-fired electric utility generating units and power plants. The Affordable Clean Energy (ACE) Rule replaces the 2015 Clean Power Plan. In 2016, the Clean Power Plan was stayed by the U.S. Supreme Court and has not gone into effect.

The ACE proposed rule takes a narrower approach to reducing greenhouse gas emissions than the Clean Power Plan. It focuses on making individual plants more efficient — a move that would achieve far shallower reductions compared to the Clean Power Plan, which sought to cut emissions across the power sector. The proposed rule would also give states more leeway in how they meet the more modest climate goals. 

Specifically, the proposed rule would:

  • Provide states with a list of “candidate technologies” that can be used to establish standards of performance and incorporate into their state plans. States will have three years from date of finalization to prepare and submit a plan that establishes a standard of performance. The proposed rule does not set a standard of performance, but rather give states the flexibility to design a plan to achieve emissions reductions at the source.
  • Revise the New Source Review to allow for an hourly measurement of emissions as opposed to an annualized accounting. The New Source Review program aims to protect air quality when factories, industrial boilers and power plants are newly built or modified. Under the program, a state permit is required for any new facility or to renovate an existing facility if it will lead to an increase in annual emissions. The proposed change would apply only to power plants. It is significant because with the hourly accounting power plants can more easily show efficiency gains and therefore fewer sources will trigger the New Source Review requirements. 

In May, NLC submitted comments to EPA on a proposed rule to repeal the Clean Power Plan, as well as an Advance Notice of Proposed Rulemaking to solicit input on a replacement

In the letters, NLC raised concerns with the process the Agency is using to repeal and replace the Clean Power Plan, urging the Agency to move forward in a more deliberative and subsequent manner, rather than concurrently. 

In rulemaking and litigation, NLC supported the Clean Power Plan as a means of nationally reducing greenhouse gas emissions and mitigating the growing negative impacts of climate change on cities. NLC continues to urge the Administration to support and partner with cities in addressing the urgent need to reduce greenhouse gas emissions. 

EPA plans to issue a final rule in early 2019. The agency will accept comments on the proposed rule for 60 days after publication in the Federal Register. NLC is reviewing the proposal and will likely submit comments. Any city wishing to submit comments is encouraged to do so and should forward a copy to NLC at berndt@nlc.org.

Treasury and IRS Propose Rulemaking on State and Local Tax Credits

Brian Egan, 202.623.3107

Yesterday, the Internal Revenue Service (IRS) and Treasury Department published a Notice of Proposed Rulemaking (NPRM) on Contributions in Exchange for State and Local Tax Credits that would limit the deductibility of state and local charitable contributions. The proposal comes as several states have recently authorized or expanded some state charitable tax credit programs in the wake of the $10,000 cap to the state and local tax (SALT) deduction included in last year’s tax reform package.  

Several states – mostly in the Northeast and on the West Coast – have authorized or are considering authorizing the creation of state and local “excellence” funds. These programs are public charities that fund police, education and other public services. In exchange for a donation, the state/local government would offer the donor an accompanying tax credit – sometimes close to a dollar for dollar match – to reduce state/local tax liabilities. Unlike SALT, the charitable donation deduction still has no cap, so the donor can continue to deduct an unlimited amount of charitable contributions on their federal income tax returns. 

Under this new proposal, taxpayers would need to subtract the value of state and local tax credits from their federal charitable deductions on tax returns if the state and local credits are worth more than 15 percent of the value of the contribution. For example, if a $1,000 donation comes with a $600 state/local credit (a 60 percent credit), the taxpayer will now only be able to write off $400 worth of the contribution. The proposal will not change the value of federal charitable deductions that are coupled with state/local deductions. In the lead up to the notice, there was speculation that the proposal may include a carve out for other state tax credit programs, such as school vouchers, but this was not the case.

The 45-day comment window will close on October 11. The IRS plans to hold a public meeting on November 5 at 10:00am. 

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