Construction Legislative Week in Review
www.agc.org June 20, 2013
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On the Inside
SMALL BUSINESS
Top AGC Legislative Priority Passes House
IMMIGRATION
Senate Immigration Debate Shifts to Border Security on Immigration Bill
BUDGET
House Continues Work onAppropriations Bills
ENVIRONMENT
Policy Rider to Halt EPA Guidance Attached to House Energy and Water Appropriations Bill
House Committee Approves AGC-Endorsed Coal Ash Bill
LABOR
Davis-Bacon Hearing in House Committee
Another Circuit Court Strikes Down AGC-Opposed NLRB Posting Rule
AGC EVENTS
AGC Financial Issues Forum Discusses Priorities for Tax Reform & Accounting Rules
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SMALL BUSINESS
Top AGC Legislative Priority Passes House
Counting Lower-Tier Small Businesses Bill Moves to Senate
 

On June 14, the House of Representatives adopted the AGC-supported “Make Every Small Business Count Act of 2013” (H.R. 2232) that would allow prime contractors to count lower-tier small business subcontractors towards their small business goals.  Prior to ultimate passage of the NDAA bill by a 315-108 vote, this AGC-backed legislation was amended into the National Defense Authorization Act of 2014 (NDAA) without objection. Rep. Richard Hanna (R-N.Y.), along with House Transportation and Infrastructure Committee Chairman Bill Shuster (R-Pa.), House Small Business Committee Chairman Sam Graves (R-Mo.), and Reps. Gerry Connolly (D-Va.) and Duncan Hunter (R-Calif.), offered the amendment that included H.R. 2232.

Current law only allows prime contractors to count first-tier small business subcontractors towards their goals. This simple record keeping change in H.R. 2232 will encourage prime contractors to make sure small businesses have the opportunity to compete for subcontracts at every tier, thereby allowing more opportunities for small business growth.  AGC testified in support of H.R. 2232 before the House Small Business Committee in May.

Last week’s successful vote is in large part thanks to the hundreds of AGC members who sent letters on this issue to their Representative through AGC’s Legislative Action Center. Action now moves to the Senate, where AGC will continue to fight for the enactment of this measure.

For more information, please contact Jimmy Christianson at (703) 837-5325 or christiansonj@agc.org. Return to Top

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IMMIGRATION
Senate Immigration Debate Shifts to Border Security on Immigration Bill
Increasingly Likely Bill with AGC-Opposed Restrictions on the Construction Industry will Pass Senate
 

As the Senate debate of the comprehensive immigration bill S. 744 – the Border Security, Economic Opportunity, and Immigration Modernization Act – enters week two, the conversation has been overwhelmingly focused on strengthening the border security provisions before the legalization provisions of the bill could go into effect. The Senate has only one more week of debate and amendments left before an expected final vote on passage. The attempts to increase border security language are an effort to bring more GOP senators in support of the final bill.

AGC remains supportive of several major provisions of S. 744, including the use of e-verify for new hires, eliminating the patchwork of local immigration laws, providing new avenues for legal immigration, and creating a legal status for undocumented workers currently in the United States. The bill also prohibits employers from “knowingly” hiring an undocumented worker.

AGC’s top priority with the bill remains with the proposed new temporary worker program.  As currently drafted, the program places unique restrictions on the construction industry that prevent the industry from fully utilizing the future temporary worker visa program.  The construction industry would be the only industry with a cap on the number of workers that could work in construction-related occupations. The program for construction would have a national cap of 15,000 workers annually.

AGC urges you to contact your elected officials on the temporary guest worker program. Please tell your Senators to oppose restrictions on the industry and tell your Representative it is important to not make the same mistakes made by the Senate with regards to the temporary worker program. If piecemeal reform is the path forward in the House, it must include a temporary worker program component.

For more information, please contact Jim Young at (202) 547-0133 or youngj@agc.org. Return to Top

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BUDGET
House Continues Work onAppropriations Bills
 

Energy & Water (U.S. Army Corps Civil Works)

On June 18, the House Appropriations Subcommittee on Energy and Water Development approved a funding bill for the U.S. Army Corps of Engineers Civil Works construction program. The bill provides a mixed bag of results for construction accounts when compared to the previous fiscal year (FY) in which Corps sequestration cuts amounted to$263 million.

On one hand, the operations and maintenance (O&M) account would see a $395 million – or 17 percent – increase from FY 2013 post-sequestration levels. On the other hand, the construction account would experience a $331 million – or 20 percent – cut compared to FY 2013 pre-sequestration figures. The Mississippi River and Tributary (MR&T) account would face a $30 million – or 11 percent – cut when compared to the president’s FY 2014 budget request. For a complete line-by-line analysis of all Civil Works’ accounts, click here.

AGC continues to maintain thatthrough regularly investing adequate funding to maintain our nation’s inlandwaterways, ports and coastlines and to protect cities from floods and stormdamage, our economy will grow, jobs will be created , the need for largedisaster assistance aid will be diminished, and more lives will be saved withimproved construction precautionary measures.

For more information, pleasecontact Jimmy Christianson at (703) 837-5325 or christiansonj@agc.org.


Department of Housing & Urban Development

For the Department of Housing andUrban Development, the House appropriations bill would fund the CommunityDevelopment Block Grant (CDBG) program at $1.637 billion for FY 2014. Thiswould represent a $1.311 billion—or 45 percent—reduction from FY 2012 levels. The CDBG program provides annual grants on a formula basis to cities,urban counties and states to develop housing for low- and moderate-incomepersons.

For more information, pleasecontact Jimmy Christianson at (703) 837-5325 or christiansonj@agc.org.


Transportation

This week, the House Appropriations Subcommittee on Transportation, Housing and Urban Development (THUD) passed their funding bill for FY 2014.  The bill included MAP-21 funding levels for federal highway and transit programs supported by AGC and its transportation stakeholders.  In total, the bill provides over $40 billion for the highway program and $10 billion for the transit program.  AGC members who participated in April’s Federal Contractors Conference and this month’s Transportation Construction Coalition Fly-In lobbied their members on the hill to ensure the THUD bill included MAP-21 funding levels.

In addition, the AirportImprovement Program saw a slight increase in funding from FY 2013 to $3.35billion from $3.1 billion.  Thesubcommittee faced a tight discretionary spending cap of $44.1 billion (the HighwayTrust Fund and Airport Improvement Program are not subject to this spendingcap), forcing them to make cuts to several programs, including zeroing out theTIGER grant programs for next year and rescinding $237 million previouslyappropriated in FY 2013.  The bill doesnot include the $50 billion in upfront infrastructure funding proposed inthe president’s budget.

The bill will be considered by thefull House Appropriations Committee on June 27. AGC will continue to advocate for full funding for the majorinfrastructure programs in the final FY 2014 transportation funding bill.

For more information, please contact Sean O’Neill at (202) 547-8892 or oneills@agc.org
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ENVIRONMENT
Policy Rider to Halt EPA Guidance Attached to House Energy and Water Appropriations Bill
 

The House Energy and Water Appropriations Subcommittee approved a $30.4 billion energy and water spending bill for FY 2014 after adding a policy rider that would bar the Army Corps of Engineers (USACE) from implementing guidance that clarifies which U.S. waters fall under federal protection via the Clean Water Act (CWA). The guidance, which was proposed in May 2011 and sent to the Office of Management and Budget (OMB) for interagency review and finalization in February 2012, clarified which waters are subject to CWA jurisdiction in response to two U.S. Supreme Court decisions.

This rider parallels AGC’s legislative strategy on this issue with legislation introduced in past congresses to stop the Environmental Protection Agency (EPA) and USACE from implementing the guidance.

For more information, please contact Scott Berry at (703) 837-5321 or berrys@agc.org or Leah Pilconis at (703) 837-5332 or pilconisl@agc.org Return to Top

House Committee Approves AGC-Endorsed Coal Ash Bill
 

This week, the House Energy and Commerce Committee voted 31-16 to approve H.R. 2218, the “Coal Residuals Reuse and Management Act of 2013,” which was sponsored by Rep. David McKinley (R-W.Va.) and a bipartisan group of representatives. The legislation would prevent the U.S. Environmental Protection Agency (EPA) from regulating coal ash (including fly-ash) as a “hazardous” substance. The legislation would give states broad powers to regulate the disposal of waste from coal combustion as long as they follow minimum federal standards. AGC sent a letter to the committee urging that the legislation be adopted.

EPA began its work on a rule to regulate the disposal of coal ash following a December 2008 spill from an impoundment at a Tennessee Valley Authority (TVA) facility in Kingston, Tenn.  The containment failure released approximately a billion gallons of coal ash sludge into the adjoining rivers and neighborhood and put a national spotlight on impoundment and disposal practices.

AGC has been working to keep EPA from taking action to deem fly-ash as hazardous. AGC submitted comments urging EPA to weigh the potential impacts of its regulatory options on the beneficial use of these materials and take into consideration the real environmental benefits of reusing these materials, as well as the lack of negative reports (i.e., alleged or proven damage cases) associated with the beneficial use of fly-ash in many construction applications including concrete and wallboard. AGC urged EPA to either rely on state requirements or establish non-hazardous waste requirements that protect the beneficial use of fly-ash in construction.

AGC will continue to work to garner support for the McKinley legislation and will push for the Senate version as well.

For more information, please contact Brian Deery (703) 837-5319 or deeryb@agc.org. Return to Top

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LABOR
Davis-Bacon Hearing in House Committee
 

On June 18, the House Education and the Workforce Committee Subcommittee on Workforce Protections held a hearing on Promoting the Accuracy and Accountability of the Davis-Bacon Act. The hearing focused on some of the flaws with the manner in which surveys are conducted, job classifications, and how the law is enforced. While many AGC members participate in Davis-Bacon wage surveys and regularly perform work subject to the Act, there are several concerns and recommendations that AGC shared with the committee in a letter prior to the hearing.

AGC is concerned about the effect of sudden increases in Davis-Bacon wage rates and a contractor’s ability to quickly adjust to increased rates. AGC also recognizes that participation in wage surveys is vital to the success of the program; however, there continues to be poor survey participation in some areas, leading to inaccurate wage determinations. AGC also highlighted that often times wage rates and classifications are improperly adopted from areas that don’t accurately reflect the current market conditions. Moreover, AGC is concerned with the increased number of missing and/or inaccurate classifications listed in wage determinations.

Additionally, AGC highlighted ways to improve wage determinations and explore using Bureau of Labor Statistics (BLS) data – specifically data from BLS’s Occupational Employment Statistics survey and National Compensation Survey – as the primary basis for Davis-Bacon wage determinations. Many of AGC’s recommendations were included in a 2011 GAO report. The hearing is not expected to lead to any legislative changes this Congress, but was intended more as an opportunity to educate members of the committee on the current program.

For more information, please contact Jim Young at (202) 547-0133 or youngj@agc.org.
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Another Circuit Court Strikes Down AGC-Opposed NLRB Posting Rule
 

The U.S. Court of Appeals for the Fourth Circuit has ruled that the National Labor Relations Board’s (NLRB) notice-posting rule is invalid.  The regulation, which has been on hold for over a year and has never taken effect, would require most employers to post designated notices informing employees of certain rights under the National Labor Relations Act (NLRA), including the right to organize.  The decision is the latest in a series of significant victories by employers challenging the Board’s authority in court, including a decision last month by the D.C. Circuit striking down the same rule on different grounds.

To assess the scope of the Board’s authority, the Fourth Circuit considered the plain language, structure, and history of the NLRA, as well as comparisons to other labor statutes.  It found that Congress has empowered the Board to act only in a reactive manner; not a proactive one.  While the NLRA does grant the Board authority to issue regulations, that authority is limited to carrying out the agency’s statutorily defined roles in addressing unfair labor practice charges and in conducting representation elections upon request.  Furthermore, the court noted, Congress has enacted other labor laws expressly giving “sister agencies” authority to promulgate notice requirements at the same time it chose not to do so in the NLRA.  The court, therefore, held that the Board exceeded its authority in issuing the challenged rule.

The Board has not yet indicated how it will respond.  While the agency has some options for seeking review of the Fourth Circuit and D.C. Circuit decisions, the fact that two appellate courts have ruled against it on separate grounds renders it unlikely that the Board will pursue the matter further. 

While employers need not comply with the Board’s posting rule at this time, covered federal contractors must still comply with similar posting rules issued by the Department of Labor and FAR Council.

For more information, please contact Denise Gold at (703) 837-5326 or goldd@agc.org.
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AGC EVENTS
AGC Financial Issues Forum Discusses Priorities for Tax Reform & Accounting Rules
 

Last Thursday and Friday, member company CFOs, CEOs and other senior accounting professionals participated in the AGC Financial Issues Forum (FIF) Summer Meeting in San Diego, Calif. FIF members were brought up to speed by AGC staff on the schedule in Congress for tax reform; privy to an in-depth economic outlook for the industry; and engaged in a colloquy with colleagues on the latest accounting proposals impacting the construction industry.

Dedicated segments covered the following:

  • Tax Reform policy dialogue concerning the recently published legislative drafts and congressional meetings held since last year.
  • Discussion with chief tax counsels from the Senate Finance and Ways & Means Committees on the thinking behind members of Congress’ approach to certain tax provision changes.
  • Updates on Financial Accounting Standards Board (FASB) Exposure Drafts (including the ED for Leases published on May 16), status of the Revenue Recognition Project, and American Institute of Certified Public Accountants’ (AICPA) recently issued Financial Reporting Framework for Small- and Medium-Sized Entities.
  • Update on the implementation of the Affordable Care Act from Ernst & Young LLP on the latest regulations, as well as details on the law’s penalties and taxes.
  • Presentation by AGC’s chief economist on the forecast for the industry.

The AGC Financial Issues Forum Winter Meeting is scheduled for Jan. 9-10, 2014, in Miami, Fla.

For more information, contact Brian Lenihan at (202) 547-4733 or lenihanb@agc.org. Return to Top

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