ACSM.NET - Government Affairs Update

FEBRUARY 2007 GOVERNMENT AFFAIRS UPDATE

IN THIS ISSUE …

1. Association Health Plan Legislation Introduced in House.

2. Hearing Takes Place in COFPAES vs. FAR lawsuit

3. Legislation Introduced to Repeal 3% Withholding Tax

4. President’s FY08 Budget Cuts Funding for Several Federal Surveying and Mapping Programs

Association Health Plan Legislation Introduced in House. Three bills relating to Association Health Plans were recently introduced in the House of Representatives.

H.R. 241, the Small Business Health Fairness Act of 2007 was introduced by Rep. Sam Johnson (TX); its purpose is to “amend Title I of the Employee Retirement Income Security Act of 1974 to improve access and choice for entrepreneurs with small businesses with respect to medical care for their employees.”

H.R. 324, the Working Families Wage and Access to Health Care Act was introduced by Rep. Buck McKeon (CA); its purpose is “to increase the minimum wage, to provide access to healthcare coverage to employees of small businesses and to preserve American jobs.”

H.R. 1012, the Small Business Growth Act of 2007 was introduced by Rep. Vern Buchanan (FL); its purpose is to “reform laws and procedures affecting small business.”

Although all of these bills generally apply to different issues relating to small business, they all contain the same language advocated the development of association health plans.

Hearing Takes Place in COFPAES vs. FAR lawsuit. A hearing recently took place in the lawsuit COFPAES and other organizations initiated against the FAR. John Palatiello, Administrator for COFPAES was present at the hearing and took notes of the proceedings. His notes, in their entirety, are below:

“The hearing went as scheduled today. It lasted not more than an hour.I was at the table with the attorneys, helping them with answers, so I was not able to take copious notes of Judge Ellis’ questions, and the answers by our attorney, Alex Bullock or the US Attorney. Judge Ellis started with questions on standing, based on his December order. He posed questions to both attorneys. The focus was the hierarchy of the plaintiffs being associations, the associations (at least MAPPS, which is the association from whom affidavits were filed), have as members firms, and the firms employ architects, engineers and surveyors. It is the individuals who would be injured. The judge asked “is there an injury in fact”. Questions then turned to the state ethics regulations against bidding. The question he asked was on whether there is a “plausible threat of discipline”. The government argued that since we have produced no evidence that any state has taken disciplinary action against a licensed practitioner for bidding, there is no threat of injury. Our attorney argued that practitioners cannot afford to take the risk of deciding with ethics regulations to honor and which to ignore, based on whether there is a history of enforcement action; that the rules are the rules and must be followed. It was possible that Judge Ellis could have ruled on standing right there, particularly if he was going to deny standing, and thus end the hearing. However, he went right into the merits. The questions were on the intent of Congress in passing the Brooks Act, subsequent pieces of legislation, and the 1999 Defense Appropriations bill. The government argued that the 1988 Mavroules colloquy with Jack Brooks was in effect law, and is accurately in the FAR. Alex argued that a colloquy is not binding, and that Congress has since spoken to the issue regarding mapping. He said Congress, in statute, has not qualified “mapping,” has not legislated “some mapping”, but simply used the term “mapping”. The Judge asked questions about whether the attorneys believed there was or was not “a reasonable application of the plain meaning of the statute” in the regulations. The government argued there was, Alex argued there was not. Finally, Alex said the 1999 Act that triggered the change in the FAR did two things (1) removed the exemption from Brooks for the Defense Mapping Agency and (2) instructed that the FAR be changed. While the Appropriations bill only restricted funds, the two aforementioned actions were in the Committee report. Alex argued the government can’t have it both ways. You can’t rely on the Mavroules colloquy and discount Conference report language. You have to take both or neither. He also said the Government cannot argue the Appropriation provision was for one year only, since the removal of DMA from the FAR provision was permanent, not just for one year. If the Government truly believed the intent of Congress was for this to apply for one year only, DMA (later NIMA/NGA) would have had to go back to its Brooks exception after the 99 appropriation expired. Judge Ellis seemed to enjoy testing the attorneys. He would ask a question (to which he already had an answer) and if either attorney did not give an answer he was expecting, he would give the answer he was expecting! He has an excellent command of the facts in the case. The bizarre part of the case was when Judge Ellis questioned why Congress would subject Federal agencies to state licensing laws. Clearly, that is not an issue in the case, or for this court. Neither side wanted to get into an argument with the Judge on this, so the question and answers were bantered about rather philosophically. Judge Ellis announced he will issue a ruling based on all the motions and briefs filed, and the points in today’s hearing. This is not a transcript or a full discussion of all issues, but my highlights based on rather abridged notes.”

Legislation Introduced to Repeal 3% Withholding Tax. Representative Kendrick Meek (D-FL) recently introduced legislation to repeal the 3% withholding tax on government contracts that was signed into law last year. Although it is a small bill, it specifically repeals the law. Congressman Meek also distributed a ‘Dear Colleague” letter throughout the House to get co-sponsors onto the legislation.

President’s FY08 Budget Cuts Funding for Several Federal Surveying and Mapping Programs. The recently released President’s FY08 budget makes significant cuts to the budgets of several federal agency programs affecting surveyors. Here is a rundown of some of those cuts:

Bureau of Land Management (BLM). The President’s budget reduces funding for the BLM Alaska Conveyance program by $1.8 million and the Cadastral Survey program by $3.2 million. The budget narrative explains that the Cadastral Survey decrease reflects a reduction of BLM survey work. The program will continue to focus efforts on providing core functions and oversight of approving surveys, addressing public inquiries, boundary consultation, guidance and oversight and Geographic Coordinate Database management.

USGS Geography Program. The President’s FY 2008 budget request represents a net decrease of $1.7 million below the 2007 level for the USGS Geography Program. In 2007, funding for the Geographic Research, Investigations, and Remote Sensing Cooperative Topographic Mapping Program was moved to the National Geospatial Program. That program received an increase of $1.6 million over 2007 amount. For the second year in a row, there was no request for funding for the Cooperative Topographic Mapping Program. The Land Remote Sensing Program saw a decrease of $323,000 from the 2007 request and the Geographic Analysis/Monitoring Program saw a decrease of $1.3 million from the 2007 request.

FEMA Flood Map Modernization Program. The President’s FY08 budget request of $195 million for the Flood Map Modernization Program is a decrease of $8 million from the 2007 level. There have been many complaints from flood map modernization stakeholders that FEMA was doing a poor job with this program. In particular, many users have complained that the maps being produced under the program were inaccurate and were often just a digitized version of old, outdated map. A decrease in funding certainly will not help fix the problem and may, in fact, exasperate the problem.

Federal Railroad Administration Nationwide Differential GPS. NDGPS provides precise positioning information and integrity monitoring of the GPS constellation for all transportation modes. The President made no funding request for this program in the FY08 budget. The funding that was to go to this program will be moved to the Research and Innovative Technology Administration. ACSM is working to get funding to these programs restored.