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On Wednesday evening, May 9th and Thursday, May 10th, NARI members from around the country convened for NARI’s third annual Washington, DC Fly-In and Lobby Day on Capitol Hill. NARI members from Florida, Georgia, Maryland, Nebraska, New York, North Carolina, Virginia, Oregon, Wisconsin, and the District of Columbia all came to meet with their Congressional Representatives about issues impacting the remodeling industry.
On the evening of Wednesday, May 9th, NARI members gathered for a reception near the Capitol and welcomed NARI’s new government affairs committee chairman, Andy Apter. After the reception, members were treated to a special nighttime tour of the U.S. Capitol led by NARI’s government affairs representatives - former U.S. Senator Tim Hutchinson, and former Congressmen Albert Wynn and Charles Bass. On that tour, NARI members learned about various areas of history within the walls of the Capitol.
The following article was written by James Boudreau and Adam Roseman of Greenberg Traurig LLP. Greenberg Traurig is the lobby firm that represents NARI in Washington, DC
The Department of Labor (DOL) released its much anticipated Final Rule revising its amended white collar overtime regulations at an event in Columbus, Ohio.
The final rule includes a few changes from the Proposed Rule, and to the extent that companies were changing practices to comply with the Proposed Rule in anticipation of the Final Rule, there are a few matters of note.
First, the Final Rule increases the minimum salary threshold required to qualify for the Fair Labor Standards Act’s (FLSA) white collar exemption to $47,476 per year ($913 per week). Although nearly double the current minimum salary threshold of $23,660 per year ($455 per week), it is slightly lower than the $50,440 minimum salary set forth in the Proposed Rule. In other words, there is a little more room for employers, also aided by the fact that the Final Rule permits employers to include bonuses and other incentive payments up to 10 percent when determining compliance with the new minimum salary requirement. Moreover, no one will be waiting another 20-plus years for updates to the minimum salary threshold. It will now be updated every three years and tied to the salary of the 40th percentile of full-time salaried workers in the lowest wage region of the country, currently the Southeast.
Second, many feared little time to implement workforce changes in response to the Final Rule. The DOL responded to such concerns, setting an implementation date of Dec. 1, 2016. This is far longer than the traditional 60-day implementation period that many had feared.
Finally, the Final Rule does not include any changes to the duties tests of any of the white collar exemptions. The DOL considered turning back the clock and adding a quantification component similar to California’s duties test that would have required employers to show an employee was performing exempt duties for a certain percentage of time to qualify under the specific exemption, but ultimately declined to make any such changes.
Employers have known for months that changes regarding the white collar exemption were all but certain but employers now know the exact parameters of the changes.
Although employers can breathe a sigh of relief that the DOL decided not to change any of the duties tests to meet the white collar exemptions, the increase in the minimum threshold salary required to qualify for the FLSA’s white collar exemptions will likely have a substantial effect on employers, particularly in retail and service industries. Indeed, employees whose salaries are between the old minimum salary to qualify for a “white collar” exemption under the FLSA ($23,660) and the new minimum salary ($47,476) yet meet the relevant duties test will no longer qualify for a white collar exemption.
With the final rule becoming effective Dec. 1, 2016, employers should act quickly and consult with counsel in order to ensure compliance.
Last month the Senate passed its comprehensive energy bill, S. 2012, the Energy Policy Modernization Act. For a while it looked like the Senate was never going to be able to pass its bill and then a breakthrough in behind the scenes negotiations allowed the measure to come to the floor and pass with a strong bipartisan vote. Since the House of Representatives had passed its own energy bill last year, hopes were high that both chambers would be able to work out their differences and bring back a final product that could be signed into law. NARI has been an active participant in the Energy Efficiency Coalition and the SAVE Act Coalition, which have both been following and advocating for this legislation for several years.
Each week the Energy Efficiency Coalition has a conference call to report on various energy efficiency measures and to coordinate strategy among the many different groups involved. Unfortunately, after the call last week, the outlook for a final energy bill was grim. While Senators on both sides of the aisle continue to push for completion of the bill, there did not appear to be as much interest in finalizing a bill on the House side, especially among House Republicans. In particular Members of the so called “tea party” movement were making demands and refusing to negotiate. This group has drawn firm lines on issues with real or imagined budget impacts. However, on the Coalition call this week there was a bit more optimism. Reports came back from the House that said moving slowly was not necessarily a bad thing -- it meant they were moving purposefully and thoughtfully. This process is important because for the conference process to result in success it needs to produce a bill that can pass both chambers and be enacted by the President.
So, you never know in Congress. Just like the Senate bill “came back from the dead,” it is possible for a breakthrough to occur and for Congress to pass comprehensive energy legislation before the end of the year. NARI will continue to join with its partners on the Energy Efficiency Coalition to advocate for this bill.
Save the Dates!
2017 NARI Goes to Washington Fly-In
March 14-15, 2017
More information to come.
The long anticipated OSHA rule on Silica was released at the end of March. There were a few minor changes that were made to the original proposal but for the most part the rule remained the same.
The new rule lowers the Permissible Exposure Level (PEL) from 250 to 50 for the construction industry. This exposure level is averaged over an eight hour day. While remodelers will be impacted by the rule, it will not be as bad when compared to some others in the construction industry. For instance, a remodeler may spend 45 minutes sanding a countertop during the day. On another day, a remodeler may spend two hours installing dry wall. Given the limited time performing these tasks, over the course of an eight hour day it is unlikely that the PEL will exceed 50. Contrast that exposure with a business that is mixing concrete or paving a road or even a stone mason. Those companies are going to be far more impacted by this new rule and in fact, there may be some entities that do not survive. What that will do to remodelers is drive up the price of some materials and services but the long term impact still remains to be seen. The final rule goes into effect for the construction industry on June 23, 2017.
In the meantime, there are several things that remodelers can do to prepare and be ready to comply with this rule. The rule does provide a “Safe Harbor” for the construction industry in Table 1. According to OSHA, Table 1 “identifies 18 common construction tasks that generate high exposures to respirable crystalline silica and for each task, specifies engineering controls, work practices, and respiratory protection that effectively protect workers. Employers who fully and properly implement the engineering controls, work practices, and respiratory protection specified for a task on Table 1 are not required to measure respirable crystalline silica exposures to verify that levels are at or below the PEL for workers engaged in the Table 1 task.”
In addition, NARI is in the process of setting up a webinar with an OSHA expert who will be able to explain this rule in greater detail. Be on the lookout for information about this presentation.
Finally, NARI will continue to work with our partners on the Construction Industry Safety Coalition (CISC), as well as with our allies in Congress to ensure that implementation of this rule does not cause undue economic hardship on the small businesses in our nation’s construction industry.
On Wednesday, the Senate passed comprehensive energy legislation, S. 2012, for the first time in 15 years. The bill passed on an overwhelming bipartisan vote of 85-12. NARI has been actively involved in several coalitions to support this legislation. In particular, the Association has supported the energy efficiency provisions of the bill as well as the SAVE Act that was adopted as an amendment on Tuesday.
According to the Institute for Market Transformation, the SAVE Act “is legislation to improve the accuracy of mortgage underwriting used by federal mortgage agencies by including a home's expected energy cost savings when determining the value and affordability of energy efficient homes. Utility bills are usually larger than either real estate taxes or homeowners insurance, but they are currently ignored in mortgage underwriting. The SAVE Act would help revitalize the hardest hit sectors of the economy by providing lower rate mortgage financing for cost effective energy improvements; giving homebuilders and homeowners the option to recover the cost of efficiency investments; and enabling better federal mortgage underwriting while lowering utility bills for American households.” To avoid a fiscal score, the SAVE Act’s scope was narrowed to those mortgages under the Federal Housing Administration.
Last year the House passed its own comprehensive energy bill, H.R. 8, so the two chambers are now able to go to conference to work out a final agreement. NARI has worked on these energy bills for several years and is pleased to see that progress is being made in the Congress.
On Tuesday evening, March 15 and Wednesday, March 16, NARI members from across the country gathered in Washington, DC for the first ever NARI Fly-In and Lobby Day on Capitol Hill. NARI members from New York, Maryland, Virginia, Florida, and California all came to talk with their Congressional Representatives about issues of importance to remodelers.
The event started on Tuesday evening with a reception at a hotel in downtown Washington. NARI members got a chance to catch up with old friends and make some new ones. After the reception, members went for a personal nighttime tour of the U.S. Capitol led by NARI lobbyists former U.S. Senator Tim Hutchinson and his wife, Randi. Of course, NARI members were particularly interested in the renovations being done in the Capitol dome. Those renovations are scheduled to be complete by the end of the year, in time for the January 2017 inauguration of the next President.
The next day started early with the group gathering at a reserved room in the Capitol Visitors Center. The session got started with Congressman Rick Crawford from Arkansas being the first person to speak to the group. Next up was Congressman Steve Chabot the Chairman of the Small Business Committee. Both Congressmen talked about small business issues and stressed how important it is for NARI members to keep in touch with their Congressional Representatives. Chairman Chabot told the group that it is impossible for Members of Congress, even those who serve on the Small Business Committee, to keep up with every new regulation and policy that is put out by the Federal agencies. Congressional Members rely on their constituents to communicate with them and let them know when a problem arises.
NARI members had an opportunity to ask questions and interact with both these Representatives during their time with the group. After Chairman Chabot, former Congressman Albert Wynn, a Democrat, and former Congressman Charlie Bass, a Republican, came to speak about the Presidential Race and the outlook in Congress. NARI members had an opportunity to hear both a Democrat and a Republican view of where things stand in our nation.
The rest of the morning was spent going over the three issues that NARI members would discuss in their Congressional visits and also honing in on what the actual “ask” would be for each issue. The three issues were: (1) OSHA’s upcoming Silica Rule; (2) Energy Efficiency Legislation, and; (3) Workforce Development. Members of Congress expect that their constituents will ask for their help when they come to visit. NARI members were prepared to engage their Representatives to help remodelers with their concerns.
The morning finished up with the entire group walking over to Senator Rob Portman’s office to present him with NARI’s first Legislator of the Year Award. Sen. Portman has been a tireless advocate for energy efficiency legislation and policies and NARI wanted to recognize his efforts. At the presentation, NARI members had an opportunity to talk with the Senator and encourage him to continue his work on comprehensive energy legislation.
After lunch in the Senate Dirksen Cafeteria, NARI members “stormed the Hill,” and spent the afternoon meeting with their Congressmen and Senators. While there were some who had done lobbying before, for many it was their first time to meet with their federal representatives. Walking the Hall of Congress and having the opportunity to make your own voice heard is an experience like no other. The NARI members who participated can say it best:
“It is a rewarding experience to represent an organization like NARI on Capitol Hill. It is also exhausting because your concentration and energy level are very high throughout the day. Not everyone in the world has the opportunity to participate in public elections and not everyone has the opportunity to personally meet with their elected officials in their own Nation’s Capitol! We would encourage NARI members from every chapter to make the next National Government Affairs Fly-In a fully attended event. You will not regret your investment of time.” -- Steve Klitsch, Maryland NARI member
“Virginia Representative Bobby Scott and his staff were very receptive regarding NARI’s Career and Technical Education initiatives. We look forward to working effectively with a bipartisan Capitol Hill to meet the workforce needs of our industry which begins with training the next generation of skilled tradesmen.” -- Leo Lantz, Virginia NARI member
“Lobbying with NARI grants the average person access to change the laws, rules, and regulations to make a positive difference in our business.” Taylor Moore, Virginia NARI member
“In a society where criticism of our government is commonplace, we must remember that we are not powerless to advocate for change. I feel fortunate to live in a country where we can sit down with our lawmakers and discuss issues that will impact our economy, our industry, our companies and ultimately our families. I am humbled and honored to represent NARI and to have participated in our first Capitol Hill Fly-In event.” -- Angela Hubbard, Executive Director, NARI Central Virginia
These are comments from just a few of the NARI members who participated in the Fly-In. NARI will hold another Fly-In next March 2017. The exact date will be sent once the 2017 Congressional Calendar is finalized by the House and Senate leadership at the end of the year. Make a note on your calendars to attend. Your participation in lobbying for the remodeling industry can make an incredible difference.
OSHA's Crystalline Silica Rule Clears OMB
The Occupational Safety and Health Administration (OSHA) has issued a final rule on crystalline silica, which is comprised of two standards: one for Construction and one for General Industry and Maritime. OSHA estimates about 2.3 million workers are exposed to respirable crystalline silica in their workplaces, including 2 million construction workers who cut, drill, crush or grind silica-containing materials such as concrete and stone. READ THE CISC PRESS RELEASE
On Feb. 17, the Environmental Protection Agency (EPA) released its final rule on revisions to the Lead Renovation, Repair, and Painting (RRP) rule, and the Lead-based
Paint (LBP) Activities rule. According to the EPA, “The revisions are intended to improve the day-to-day function of these programs by reducing burdens to industry and EPA, and by clarifying language for training providers, while retaining the protections provided by the original rules.” The new rule makes three major changes:
The new rule became effective on Feb. 17, 2016.
On Feb. 18, NARI submitted a second round of comments to EPA on Lead Test Kits. In 2008, EPA published the Lead Renovation, Repair, and Painting rule, which included criteria by which the Agency could certify a test kit that contractors could use onsite to test to for the presence of lead. Lead test kits recognized before Sept. 1, 2010, had to only meet the negative response criterion outlined in the regulation, while those recognized after Sept. 1, 2010 had to meet both the negative and positive criterion. The problem has been that there is no technology available that would meet both criterions. There are only two EPA-recognized lead test kits commercial available and they only meet the negative test criterion. After five years of the RRP program, Congress directed EPA to go back and look at this issue. Specifically, the EPA was instructed to “identify solutions that would allow for a test kit to meet the criteria within the 2008 rule to reduce costs for consumers, remodelers and families to comply with the rule. If no solution is reached by the end of the fiscal year, EPA should revisit the test kit criteria in the 2008 rule and solicit public comment on alternatives.”
Last year, EPA began soliciting input from the public and interested stakeholders. NARI submitted comments in 2015 and the agency came back, again, this year asking for additional public input. EPA was specifically interested in comments on:
Since no technology exists that could adequately measure the positive response criterion, NARI recommended eliminating this requirement. NARI also recommended that EPA look at reducing the RRP certification training requirements for XRF technicians. XRF testing is one of the viable options to the use of lead test kits. However, this type of testing is generally more expensive and smaller operations are not always able to absorb the cost. If the certification requirements were to be reduced, it may help to make the testing more affordable and, thereby, more available to a larger percentage of remodelers and the families they serve. NARI would monitor any proposed EPA changes to help ensure that there is no negative impact on the quality of the work performed by XRF technicians. Finally NARI encouraged EPA to support efforts to continue research on other lead-based paint field testing technology. Technology is constantly evolving and EPA should be open to looking for new alternatives. The Agency can support these efforts through (a) monetary support for specific research and; (b) through flexible programmatic and regulatory guidelines that would allow for new technology to be tested and implemented as quickly as possible.
In Dec. 2015, the Occupational Safety and Health Administration (OSHA) sent its final proposed silica rule over to the Office of Information and Regulatory Affairs (OIRA) in the White House (Office of Management and Budget/OMB) for review. It is the job of OIRA to review the costs and benefits of the rule and determine if the rule fits the Administration's regulatory priorities. During this final review process the construction industry will have one last opportunity to impact the rule before it is finalized. Numerous members of the Construction Industry Safety Coalition (CISC), of which NARI is a member, have been going in to meet with OIRA. The message being given to the White House is that we all support regulations that protect the health of employees and clients. However, the Silica Rule, as proposed by OSHA, is neither technologically nor economically feasible. The CISC is asking OIRA and OSHA to go back and rework the proposal.
In addition to working with the White House and OSHA, on Feb. 18 NARI’s Washington lobbyist joined with a number of CISC members in meeting with the majority staff of the House Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies. This is the subcommittee that provides funding for OSHA. Last year CISC members worked to get compromise language by Senator Hoeven into the Senate Labor, HHS appropriations bill but the language was ultimately stripped out of the omnibus funding bill that passed Congress in December. The Hoeven language was a good compromise. It did not prevent OSHA from undertaking the silica rule but instead required the agency to answer a number of questions before moving forward.
Now with the final silica rule at the White House, CISC members wanted to know if Subcommittee Chairman Tom Cole of Oklahoma would support similar compromise language in this year’s House of Representatives OSHA funding bill. Unfortunately, staff indicated that the Chairman was not inclined to fight for Hoeven language. That means that the construction industry community is going to have to weigh in with Congress and let Senators and Representatives know how important this issue is to their constituents. Next month on March 16 there will be a Fly-In for NARI members to come to the nation’s capital and talk with their representatives. The Silica Rule is going to be one of the top issues for discussion. NARI members are encouraged to take this opportunity to come to Washington, DC, get involved and make a difference.
Between the holiday season, the President’s State of the Union speech, each political party’s organizational retreat, and an extraordinary snow storm, the 2nd session of the 114th Congress has gotten off to a slow start. With the weather shutting down the government for several days and making travel very difficult, the House of Representatives postponed all votes until February 1.
The Senate, however, has been in session and on Wednesday began consideration of a bipartisan energy bill, S 2012, that would mandate energy infrastructure upgrades and boost energy efficiency standards for commercial and federal buildings. It is the first time the Senate has considered a major energy bill in over eight years. The measure was sponsored by Energy and Natural Resources Chairwoman Lisa Murkowski and Democratic Ranking Member Maria Cantwell. So far, the legislation has enjoyed wide support among members of the Senate. Both Senators Murkowski and Cantwell have urged lawmakers to refrain from offering controversial amendments or invoking parliamentary procedures which would prevent the passage of the bipartisan bill. With the House passing its own energy bill last year, Senate action would allow both Chambers to go to conference and work out a final compromise that could be passed into law.
NARI has been a strong supporter of the energy efficiency standards in this legislation and has worked with fellow members of the Energy Efficiency Coalition to encourage passage of a comprehensive energy reform bill.
NARI is coordinating a “Lobby Day on the Hill” on Wed., March 16 in Washington, D.C. All interested NARI members are invited to attend as we meet with several key legislators to discuss issues of importance to our industry, such as workforce development, taxes and regulations. In addition, those arriving on Tues., March 15 will have the opportunity to participate in an evening tour of Congress facilitated by our lobbyist, Sen. Tim Hutchinson. Registration information will be coming soon.
The Environmental Protection Agency has been directed by Congress to reexamine its Lead Test Kit regulations. As the current technology stands, there is no test kit available that can meet the requirements as outlined in the EPA’s own regulations. In response to the Congressional directive, EPA held a meeting on this issue on June 4, 2015, and NARI was one of the participants involved in that conversation. In July NARI submitted comments to the EPA on possible reforms to the Lead Test Kit regulations.
The EPA continues to wrestle with this issue and in December, the Agency notified the public of an expanded opportunity to provide comments on lead test kits and other field testing options. The Agency is opening a second comment period and specifically soliciting comments on the following:
The comment period will close on February 19, 2016, and NARI will, again, be submitting comments on behalf of the remodeling industry.
In keeping with its stated goal of finalizing a Silica Rule by the end of February, the Occupational Safety and Health Administration (OSHA) has sent its final proposed rule over to the Office of Information and Regulatory Affairs (OIRA) in the White House for review. OIRA will review the costs and benefits of the rule and determine if the rule fits the Administration's regulatory priorities. It is during this final review process that the construction industry will have one last opportunity to impact the rule before it is finalized.
On Wednesday, January 6, the Construction Industry Safety Coalition (CISC) held another meeting to discuss the options going forward now that the final proposal is at OIRA. NARI, along with fellow members of the CISC, continue to support regulations that protect the health of employees and clients. However, the Coalition continues to have grave concerns that the Silica Rule, as proposed by OSHA, is neither technologically nor economically feasible. Therefore, in an effort to continue to impact the process, representatives of the CISC, along with individual member organizations, will be going in to meet with OIRA over the next several weeks to request that OSHA begin this rule making process again. NARI will continue to be involved in this process.
After passing two short term continuing resolutions to keep the government running, Congress finally reached an agreement on a $1.15 trillion omnibus appropriations bill and an almost $700 million tax package.
The omnibus package adheres to spending levels that were agreed to in last month’s bipartisan budget deal. That agreement provided an approximately 5 percent increase to FY 2016 discretionary spending above the post-sequester level. The new omnibus legislation would provide around $548 billion for defense programs and $518 billion for nondefense. The compromise is a product of weeks of long and difficult negotiations.
In the end, Congressional Members dropped the most contentious policy issues that had stalled negotiations in recent weeks, including almost all appropriations “riders.” That decision will make it easier to garner Democratic votes, which will be needed to carry the legislation through both chambers.
In keeping with their promise to give Members time to review legislation, Republican leaders agreed to adhere to the “three-day rule.” They released the package on Tuesday and scheduled votes for later in the week. The omnibus first passed the House of Representatives on Friday, December 18. The Senate then took up a combined omnibus/tax extender package and passed that on Friday as well.
House Appropriations Committee Chairman Harold Rogers was quoted as saying, “"While an end-of-the-year omnibus is not the preferred way to do business – it is always better to complete individual bills in a timely fashion – this bill will allow Congress to fulfill its constitutional duty to responsibly fund the federal government and avoid a shutdown.”
The passage of the FY 16 omnibus bill will allow Congress to start fresh in January 2017 on the next appropriations process for fiscal year 2017.
On Thursday, December 17, the House of Representatives passed an approximately $700 billion tax cut package. The measure passed on a vote of 318–109, with 77 Democrats voting in support and three Republicans opposed. The Senate combined the measure with the omnibus appropriations bill and passed it on Friday.
Included in the measure were three energy efficiency provisions that NARI has supported throughout the year: (1) 25C for improvements made to existing homes; (2) 45L for the construction of energy efficient new homes, and; (3) 179D the energy efficient commercial buildings deduction.
The tax bill is a two year extension through 2016, including a retroactive application to the current 2015 tax year. There were also a number of tax provisions that were made permanent including the research and development tax credit, Section 179 capital expensing for businesses, and expanded versions of the child tax credit, Earned Income Tax Credit and American Opportunity Tax Credit for college expenses.
Despite overwhelming pressure from the construction industry, Members of the Appropriations Committee did not include the Silica rider in the FY 16 Omnibus Appropriations bill. The absence of this rider increases the likelihood that OSHA will go ahead and finalize the Silica rule in February 2016. However, there is still an opportunity to weigh in on the proposal before it becomes final. Once OSHA finalizes its draft rule, the agency must send the proposal to the Office of Information and Regulatory Affairs (OIRA) in the White House for review. Major rules, such as the Silica rule, must also be accompanied by a final Regulatory Impact Analysis.
OIRA will review the costs and benefits of the rule and determine if the rule fits the Administration's regulatory priorities. OIRA then has a 90-day period in which to complete its review process. It is during this time period that NARI, along with our partners in the Construction Industry Safety Coalition (CISC), will, again, try and set up a meeting with OIRA to discuss the rule. This will be the industry’s last opportunity to really influence or change the rule before it is published. There is the possibility that the final OIRA review may involve further negotiations with the agency, and the agency will then, again, have to wait for the conclusion of OIRA review. OIRA is much more attuned to the economic effects of regulations than the Agencies themselves. If there are going to be any last minute changes before final publication, it will be at this junction.
Once the final rule has been published, an Agency usually must wait at least 30 days before implementing it. However, even if OSHA publishes a final rule, there are still steps that can be taken to continue the fight. For instance, the Congressional Review Act (CRA) grants Congress a 60-day window to review the new rule. This law allows Congress to nullify an Agency rule by simple majority. However, in this case, even if Congress was successful in nullifying the rule, it is doubtful that there would be enough votes to override an expected Presidential veto.
There are a number of other options that could be available and NARI will continue to work with our partners on the Construction Industry Safety Coalition to fight this overly burdensome and technologically unfeasible proposal.
The fight goes on!