Construction Legislative Week in Review
www.agc.orgSeptember 10, 2009
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On the Inside
Federal Contractor E-Verify Rule Now in Effect
President Reaffirms Desire to Pass Health Care Reform
Oberstar Continues to Press for Multi-Year Transportation Reauthorization
AGC Looks at Climate Bill H.R. 2454: Title III Reducing Global Warming Pollution
New Chairman Takes Helm at Senate Health, Education, Labor and Pension Committee
Federal Contractor E-Verify Rule Now in Effect

A rule requiring federal contractors and subcontractors to use the Department of Homeland Security U.S. Citizenship and Immigration Services’ E-Verify system to verify their employees' authorization to work in the U.S. is now in effect.  The rule applies to federal solicitations and contract awards government-wide beginning September 8.   Click here for information on the free webinars DHS is offering on the E-Verify program.

The rule applies only to employers with direct contracts with the federal government and, via a flow-down requirement, to their subcontractors.  It does not apply to employers working only on federally funded projects or on other projects not under contract with a federal agency.

The rule requires the insertion of a new clause in certain federal contracts and subcontracts.  Prime contracts below the simplified acquisition threshold of $100,000 and those with performance terms of less than 120 days are excluded.  The clause requires the contractor to use E-Verify to confirm employment eligibility of all new employees hired during the contract term and all current employees assigned to work on a federal job within the U.S.  It also allows, but does not require, the federal contractor to use E-Verify to confirm eligibility of all employees, regardless of whether they are assigned to work on a federal job.  Currently, use of E-Verify to confirm anyone other than a new hire (including applicants and current employees) is prohibited. 

The FAR Council issued the final rule in November 2008.  In response to a legal challenge to the rule and in order to give the new administration time to fully review the matter, the government agreed to suspend the rule on three separate occasions, but, in a July 8 statement, DHS Secretary Janet Napolitano announced that DHS will "push ahead with full implementation" of the rule without further delay. 

Although the litigation continues, we are advising contractors to carefully review all new solicitations and contracts for federal projects and comply with any E-Verify requirements at this time.  AGC will continue to monitor all related litigation and legislation and will report on significant developments.

Click herefor the E-Verify Supplemental Guidance for Federal Contractors issued by USCIS on September 8. Click here for DHS's list of Frequently Asked Questions (FAQ's) for Federal Contractors and E-Verify.  Click here for more information about critical components of the rule.  Click here for information about free webinars on the E-Verify program.

Further guidance on immigration compliance is available in an MP3 download of a live educational session held at AGC's Annual HR Professionals Conference in June 2008.  An immigration law update will also be provided at AGC's next HR Professionals Conference, which will take place October 27-29, in Atlanta, Ga. Click here for conference details and registration.

For more information, contact Denise Gold at (703) 837-5326 or, or Marco Giamberardino at (703) 837-5325 or Return to Top

President Reaffirms Desire to Pass Health Care Reform

Last night the president laid out his priorities for health care reform, many of which are in line with a compromise version being crafted in the Senate Finance Committee.  The speech comes on the heels of the Committee releasing a draft of a framework for legislation – short of actual legislation. The Committee’s legislation is expected to be released next week.

The Finance Committee draft framework does not mandate that employers provide insurance; replaces a public option with CO-Ops, contains an individual mandate beginning in 2013; includes small business tax credits; and would create state-based health insurance exchanges. Specifically, the draft framework covers: 

  • Employer Responsibility - Employers would not be required to offer health insurance coverage.  However, employers with more than 50 full-time employees (30 hours and above) that do not offer health coverage must pay a fee for each employee who receives the tax credit for health insurance through an exchange. The assessment is based on the amount of the tax credit received by the employee(s), but would be capped at an amount equal to $400 multiplied by the total number of employees at the firm (regardless of how many receive a credit in the exchange).
  • Small Business Tax Credits – Similar to the House bill, credits are limited to firms with fewer than 25 employees and average wages below $40,000, and the maximum credit available would be 50%.
  • Individual Responsibility – Beginning in 2013 all citizens would be required to purchase health insurance or receive coverage from an employer with the penalty for failing to obtain coverage being as high as $950 for individuals and a maximum penalty per family of $3,800.
  • Revenue Provisions – Tax high cost plans with a 35% excise tax for plans above $8,000 per individual, $21,000 for family. Additional revenue provisions include taxes on the pharmaceutical manufacturing industry and health insurance industry.

Democratic leaders have made September 15 a deadline for the bipartisan group of six senators crafting the Finance Committee plan to reach a consensus, followed by consideration in committee and a vote in the Senate in early October. President Obama hopes to have both the House and Senate pass bills and conference them so that he can sign a bill by Thanksgiving.

For more information, contact Jim Young at (202) 547-0133 or
Return to Top

Oberstar Continues to Press for Multi-Year Transportation Reauthorization

House Transportation and Infrastructure Committee Chairman Jim Oberstar (D-Minn.) plans to limit the length of an extension of highway and transit program spending authorization in order to press for a multi-year transportation authorization bill. It is unclear at this time how long an extension Chairman Oberstar will support. SAFETEA-LU expires on September 30, and Congress must take action to allow the programs to continue uninterrupted.

Prior to its summer recess, Congress passed legislation to transfer $7 billion into the Highway Trust Fund (HTF) to ensure that there would be no slow down in reimbursements to states for ongoing construction projects. Congressional Budget Office projections indicate that HTF revenue, coupled with the general fund transfer, is sufficient to keep the trust fund solvent for several more months.

The Senate is expected to soon bring up legislation reported from Committee prior to the summer recess to extend highway and transit authorization for 18 months until March 2011. The Senate intends to include in the authorization extension an addition to a general fund transfer to ensure the HTF remains solvent through March 2011. Senate Environment and Public Works Committee Chairman Barbara Boxer (D-Calif.) indicated that she intends to continue drafting a multi-year bill during this extension. An amendment to limit the extension in the Senate to less than 18 months is expected.

The Obama Administration has called for an 18-month extension for the program, coupled with an additional infusion of general fund revenue to keep the programs at a steady funding level. The president does not appear to be ready to address a long-term program authorization at this time.

 AGC continues to advocate the need for six-year reauthorization legislation with significantly increased revenues to address the nation’s growing transportation infrastructure deficit while working to ensure there is no disruption in program funding in the interim.

For more information, contact Brian Deery at (703) 837-5319 or Return to Top

AGC Looks at Climate Bill H.R. 2454: Title III Reducing Global Warming Pollution

The U.S. Senate is drafting a comprehensive bill to address climate and energy, and it is basing that work on a related bill passed by the U.S. House of Representatives.  The third installment of AGC’s summary of the American Clean Energy and Security Act of 2009 (H.R. 2454) highlights the major provisions of Title III (Reducing Global Warming Pollution), which identifies reduction goals and establishes a cap-and-trade program to reduce emissions from major sources.

Under a cap-and-trade program, covered entities are permitted to emit a certain amount of a pollutant during a defined period of time, such as one year.  The amount of pollutant the entity is allowed to emit – allowances -- depends on the category of the source (e.g., electric utility industry).  Each category of sources is assigned a limited number of allowances (e.g., the electric utility industry category received 35 percent of the total allowances under H.R. 2454).  The total number of allowances economy-wide also is capped and decreases each year in order to meet the emissions reduction goal set by policymakers.  If a covered entity requires more than its permitted allowances, then it can seek to reduce emissions, offset the emissions and/or obtain the needed allowances from another covered entity.

Subtitle A – Reducing Global Warming Pollution

The bill amends the Clean Air Act to add a new title, Title VII: Global Warming Pollution Reduction Program. 

Reduction Goals and Targets

The bill identifies greenhouse gases of concern as those that induce global warming and “cause and contribute to injuries to persons in the United States.”  The bill sets economy-wide gas reduction goals beginning in 2012, aiming to keep emissions below 97 percent of the quantity of emissions in 2005; and reduces the acceptable amounts in subsequent years: 2020 at 80 percent of 2005 levels; 2030 at 58 percent; and 2050 at 17 percent.  The bill further sets nearly identical reduction goals for specific capped sources of emissions.  Part A also establishes a review and recommendation process for Congress to assess the progress towards achieving the intended reductions.

Designation and Registration of Greenhouse Gases

The bill identifies seven categories of greenhouse gases and authorizes the administrator of the U.S. Environmental Protection Agency to designate additional gases as warranted.  The bill then establishes a registry of greenhouse gases for sources that meet specific criteria, such as stationary sources within specified categories (e.g., cement production) and those that emit 25,000 metric tons per year of carbon dioxide equivalent.  It also authorizes the administrator of the EPA to determine whether to include reporting requirements for vehicle fleets in the registry.  Among the logistical instructions to EPA in the bill, Congress requires that EPA provide for immediate dissemination of the reported data on the Internet.

Program Rules, Offsets and Deforestation Reduction

The bill establishes emission allowances for covered entities based on calendar year.  The number of allowances diminishes each year beginning at 4,627 (in millions) in 2012 to 1,035 in 2050 and stabilizes thereafter at the 2050 amount.  The bill further outlines details of the cap-and-trade program including prohibitions for exceeding allowances, methods of demonstrating compliance, the use of offsets and the trading and banking of allowances and offsets.  EPA will issue permits to administer the program.  The bill details the establishment of an offsets program including information on eligible offset projects, requirements, approval, review and audit procedures.  It outlines an international deforestation reduction program. 

Subtitle B – Disposition of Allowances

The bill lays out the allocation and auction of allowances with programs to benefit consumers, renewable energy and energy efficiency, trade-vulnerable industries, etc.

Subtitle C – Additional Greenhouse Gas Standards

The bill amends the Clean Air Act to add a new title, Title VIII: Additional Greenhouse Gas Standards.

Stationary Source Standards

The bill charges EPA to publish an inventory of the uncapped sources of greenhouse gas emissions that emit greater than 10,000 tons per year of carbon dioxide equivalent. It further directs EPA to promulgate standards of performance for those sources and corresponding regulations.  EPA may promulgate other standards (design, equipment, operational-based) in lieu of performance standards “without regard to any determination of feasibility…”.

Exemptions from Other Programs

The bill exempts greenhouse gases from regulation under several programs in the Clean Air Act, such as criteria pollutants, hazardous air pollutants, new source review and title V permits.  The bill amends the Clean Air Act to include hydrofluorocarbons (HFCS) as class II substances and charges EPA with promulgating regulations to phase down the consumption of 20 listed HFCS that fall into class II, group II substances.

Black Carbon

The bill requires EPA to evaluate black carbon emissions and submit a report to Congress with -- among other details -- an inventory of major sources, technologies and strategies for reductions and recommendations of actions to reduce emissions.  The bill then requires EPA to promulgate regulations to reduce black carbon emissions or to propose a finding that existing regulations currently address these emissions adequately.


The bill further addresses state programs, Davis-Bacon compliance, biological carbon sequestration as well as acid rain and mercury pollution reduction.

Subtitles D and E– Carbon Market Assurance and Additional Market Assurance

The bill amends the Federal Power Act to “promulgate regulations for the establishment, operation and oversight of markets for regulated allowances…”.  It also sets forth numerous conditions on swapping derivatives and other transactions that involve energy commodities.

What Can You Do?

Read the “AGC Looks at Climate Bill H.R. 2454” series, the introduction,Title I summary and Title II summary.

Take action and write your Senator using the AGC Legislative Action Center. (AGC, its Chapters and members sent over 2,000 letters to Capitol Hill in response to H.R. 2454).

Explore the potential threats and opportunities for the real estate and construction industries in climate legislation.  This is an evolving discussion draft document resulting from AGC’s meetings and discussions with representatives of the real estate and construction industries and other related groups.

Go to and search under “H.R. 2454” to read the bill.

Read information about greenhouse gas emissions associated with the construction industry.

Learnlow-cost ways contractors can reduce greenhouse gas emissions from equipment.

For more information, contact Karen Lapsevic at (202) 547-4733 or Return to Top

New Chairman Takes Helm at Senate Health, Education, Labor and Pension Committee

Senator Tom Harkin (D-Iowa) has taken the chairmanship of the Senate Health, Education, Labor and Pension (HELP) Committee.  Senator Christopher Dodd (D-Conn.) had been standing in prior to former HELP Chairman Senator Ted Kennedy’s (D-Mass.) death to help marshal health care reform through the Senate.   In an agreement made with democratic leaders in the Senate, Sen. Dodd will continue his role as the point person in the health care debate for the HELP Committee and remain chairman of the Banking Committee.  

Sen. Harkin is the top supporter of the “so-called” Employee Free Choice Act (EFCA) in the Senate and is pushing for a vote on the bill.  Currently, there are enough votes to move EFCA in the committee and the sticking point remains the ability to garner 60 votes for cloture to end debate on the Senate floor.  Sen. Harkin is trying to work with other EFCA supporters to find some sort of compromise, but announced at a pro-EFCA rally today that he does not think a bill will pass this year.  AGC strongly opposes EFCA and sees any compromise as a Trojan Horse to push through the legislation as it currently exists.  Please continue to send letters to your Members of Congress opposing EFCA through AGC’s Legislative Action Center.

For more information, contact Jim Young at (202) 547-0133 or Return to Top

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