January 21, 2022, Number 3
Download the full .pdf version here: TML Legislative Update Number 3
federal infrastructure bill update
In November 2021, the federal Infrastructure Investment and Jobs Act (IIJA) was signed into law. The IIJA is altogether a $1.2 trillion bill that will invest in the nation’s core infrastructure priorities including roads, bridges, rail, transit, airports, ports, energy transmission, water systems, and broadband.
The League will monitor state and federal agencies and work with the National League of Cities (NLC) to access the latest information relating to the IIJA. We will be providing periodic updates in the Legislative Update on resources for Texas cities on how to access IIJA funding for local infrastructure projects.
National Telecommunications and Information Administration (NTIA)
Under the IIJA, the NTIA is responsible for distributing more than $48 billion in broadband funding through several different programs. On January 7, the NTIA announced an opportunity for stakeholders to submit input and recommendations for consideration in the development of NTIA broadband programs. Comments are due on Friday, February 4 at 4:00pm (CST). More information on NTIA’s Request for Comment, including the questions on which NTIA is seeking public comment, can be found here.
The NTIA is also hosting a series of virtual listening sessions throughout January and February in connection with the broadband programs to be developed pursuant to the IIJA. The dates of the listening sessions and registration information can be found here.
Federal Highway Administration (FHWA)
Last week the FHWA announced the launch of the new Bridge Replacement, Rehabilitation, Preservation, Protection, and Construction Formula Grant Program. The five-year total funding under the program for Texas is just over $537 million, with fiscal year 2022 totals for Texas at over $107 million ($91 million for federal highway bridges, $16 million for “off-system” bridges).
Under the IIJA, FHWA allocates funds to the states using a formula based on bridges in poor condition (75% of the formula) and fair condition (25% of the formula), with a $45 million minimum apportionment for each state. According to the FHWA, 818 bridges in Texas are deemed to be in poor condition.
Federal funds under the program will flow through the TxDOT, and cities will ultimately need to work with TxDOT to shape how funds are distributed at the local level in Texas. FHWA program guidance can be found here.
National League of Cities (NLC)
NLC has announced its “Ready to Rebuild” webinar series focusing on providing information on the IIJA. The webinars will feature federal officials and guest experts “to prepare communities of all sizes to learn about new and renewed programs and how your community can access and optimize the opportunities available.” Follow the link above for more information, including the calendar of upcoming webinars.
texas broadband office seeks input on pole replacement program
The Texas Broadband Office is seeking input on proposed rules on the Broadband Pole Replacement Program. The rules implement the establishment of a Broadband Pole Replacement Program created by H.B. 1505. The program will reimburse pole owners or broadband service providers eligible replacement costs while targeting unserved areas to accommodate the attachment of an eligible broadband facility.
Comments are due January 30, 2022 and may be submitted to Greg Conte, Director, Texas Broadband Development Office, Data Analysis and Transparency Division, at firstname.lastname@example.org or at P.O. Box 13528, Austin, Texas 78711.
don't forget: mandatory hotel occupancy tax reporting
The 50-day window for reporting local hotel occupancy tax information opened January 1, 2022. The reporting deadline is February 20, 2022.
Tax Code Section 351.009 requires cities to file an annual report with the comptroller that includes the city’s hotel occupancy tax rate, the amount of revenue generated by the tax, and the amount and percentage of the revenue spent for each of the following purposes:
- Convention or information centers
- Convention delegates registration
- Advertising to attract tourists
- Arts promotion and improvement
- Historical restoration and preservation projects
- Signage directing the public to sights and attractions
Cities have two reporting options: (1) use the comptroller’s online reporting form to submit all required information; or (2) clearly post and maintain all required information on the city’s website and provide the comptroller’s office with a link to the information. For cities selecting the second option, the comptroller provides an optional format template to post on the city’s website.
don't forget: mandatory eminent domain reporting
Legislation passed in 2015 requires cities to annually fill out a web-based form with the comptroller relating to each city’s statutory eminent domain authority. Instructions for reporting can be found here. The three-month reporting period began on November 1, 2021 and closes on February 1, 2022. However, reports may be updated at any time throughout the year. The failure to fill out the form could result in a maximum $2,000 penalty against a city.
The entry should be, for almost every city, an update of previously filed information, including whether the city exercised its eminent domain authority in the preceding calendar year by filing a condemnation petition under Section 21.012, Property Code. This was clarified to some degree for certain cities by legislation that passed in 2021. S.B. 157 provides that—for cities under 25,000 population—an annual report must be filed only if the city’s eminent domain authority information has changed from the previous year. If the city’s information has not changed from the previous report, the city must use the comptroller’s reporting tool to confirm the accuracy of the previous information by electronically updating the filed report with the comptroller. Of course, any city that never filled out the form as required should do so now.
City officials with questions about the requirements can contact the comptroller’s transparency team by email at email@example.com or (844) 519-5676.
covid-19 update (no. 215)
All pandemic-related updates, including information about the American Rescue Plan’s city-related provisions, will be in the Legislative Update Newsletter from now on.
Texas Supreme Court Issues 47th Emergency Order of the COVID-19 Pandemic
The Supreme Court has renewed and amended its 45th Emergency Order which, among other things:
- Allows justice and municipal courts to suspend or modify trial-related and pretrial hearing deadlines through March 1, 2022;
- Urges justice and municipal courts to “move swiftly to return to regular pretrial and trial proceedings as soon as reasonably feasible before March 1, 2022;”
- Continues the authority of courts to modify certain procedures and deadlines in child-protection cases; and
- Allows courts to continue to use reasonable efforts to hold proceedings remotely with certain exceptions or actions required.
The complete Order can be found here.
U. S. Supreme Court stays OSHA’s COVID-19 Vaccine Requirement for Large Employers
On January 13, the Supreme Court of the United States stayed implementation of the Occupational Safety and Health Administration (OSHA) COVID-19 vaccine mandate for large employers. (Click here for more information regarding the OSHA vaccine requirement and its inapplicability to Texas cities.) In a 6-3 opinion, the court explained that while OSHA is empowered to regulate workplace dangers, the kind of “universal risk” created by the threat of COVID-19 is outside OSHA’s regulatory authority. Additionally, the OSHA rule is overly broad and not tailored narrowly enough to protect those workers “where the virus poses a special danger because of the particular features of an employee’s job or workplace.” The court held that because the rule likely exceeds OSHA’s statutory authority, the applicants challenging the rule are likely to prevail on the merits of their claims and that implementation of the requirement should be stayed while the cases proceed through the lower courts.
U. S. Supreme Court upholds CMS’s COVID-19 Vaccine Requirement – Texas Still Under Injunction
On January 13, the Supreme Court of the United States lifted lower court injunctions that blocked enforcement of the Centers for Medicare and Medicaid Services (CMS) COVID-19 vaccine mandate for staff of certain medical facilities. (Click here for more information regarding the CMS vaccine requirement.) In a 5-4 opinion, the court explained that receipt of Medicare and Medicaid funds, “have long included a requirement that certain providers maintain and enforce an ‘infection prevention and control program designed . . . to help prevent the development and transmission of communicable diseases and infections.’” Additionally, the court agreed that Congress has authorized the Secretary of Health and Human Services to promulgate, “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution” participating in the Medicare or Medicaid programs and that vaccination requirements are within the Secretary’s statutory authorization. Consequently, the court will allow the CMS vaccine requirement to take effect as the lower court cases move through the courts.
CMS released updated guidance in response to the ruling, which can be found here. Affected facilities have until February 13 to demonstrate that their staff have received the first dose of a COVID-19 vaccine and until March 15 for facilities to demonstrate full compliance.
Texas Still Exempt from Enforcement of CMS Rule: Twenty-five states were already subject to the rule as originally promulgated by CMS, and the Supreme Court ruling affects twenty-four additional states. Texas is the sole state with an injunction in place still barring implementation of the CMS rule. TML will continue to monitor and update as news develops.
TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.