Administration Delays Implementation of Employer Mandate and Issues Regulatory Guidance
July 2, the Department of Treasury announced that the employer mandate under the Affordable Care Act (ACA) will
be delayed for one year. The employer mandate initially forced large employers,
as defined by the ACA, to either provide health coverage for its full-time
employees and equivalents or pay a penalty beginning in 2014. AGC has been
working with an employer coalition on the implementation of the ACA to ensure
that employer-sponsored coverage remains a competitive option for their
employees. Transition relief from the employer mandate was a top priority of
transition relief provided by the Treasury Department delays the reporting
requirements of employers on the coverage they offer until 2015, as well as delaying
any shared responsibility payments by employers. On July 9, additional guidance was released by the administration on the
transition relief. The guidance closely follows the July 2 announcement and
also includes a Q&A section on the effect on business and other statutory
provisions. The guidance reiterates that no other ACA provisions beyond the
reporting requirements and the employer mandate provisions are delayed.
House is expected to vote on legislation next week that would formally provide
a one-year delay in the individual and employer mandate penalties. Regardless
of the outcome of this legislation, the one-year delay of the employer mandate
will continue, while AGC continues to encourage passage by Congress of a one-year
additional information on last week’s announcement, see Washington Council
Ernst & Young’s Legislative Alert. Additional information on the ACA is
available to members on the AGC website.For
more information, please contact Jim Young at (202) 547-0133 or email@example.com.
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House GOP Members Discuss Strategy
last month’s passage of the Border Security, Economic Opportunity, and Immigration
Modernization Act in the Senate, the debate has shifted to the House. Discussions
continue to center on whether the House will move forward with a comprehensive
bill, as the Senate did, or with smaller, piecemeal legislation initially and
then combine the separate bills to begin negotiating with the Senate. While the
direction is still undecided, piecemeal appears to be the winning strategy thus
far. It also appears that ultimate action and decisions have been delayed until
fall, which sets up a particularly busy schedule in the House over the next few
months with other controversial legislation having similar fall deadlines.
committees in the House have passed smaller-scale legislation that focuses on
mandatory electronic verification (E-Verify), high-skilled and agricultural
guestworker visa programs, and border security legislation. A priority for AGC
in immigration reform that is yet to be considered by House committees continues
to be a low-skilled temporary guestworker program. AGC is hopeful legislation
will be considered in the near future that addresses AGC’s concerns and doesn’t
include provisions that set arbitrary and unique caps on the construction
industry – as in the Senate bill – but allows the construction industry to
fully utilize the guestworker visa program for construction occupations when U.S.
workers are unavailable.
continues to encourage members to contact their representatives in support of
comprehensive immigration reform in the House, with the inclusion of a
temporary guest worker program that does not include any industry caps or
more information, please contact Jim Young at (202) 547-0133 or firstname.lastname@example.org.
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Sequestration Impacts Begin for Construction
Army Expects to Cancel $400 Million in Milcon; DOD Furloughs Begin
Chief of Staff General Raymond Odierno recently
that the Army has deferred $788 million in military construction projects and
expects to cancel over $400 million military construction projects permanently.
This week about 650,000 Department of Defense civilian employees will take the
first of 11 furlough days, which could impact construction project management
decisions. All these actions come as a result of sequestration cuts—including
about $4 billion in cuts to construction—implemented on March 1.
are AGC contractors saying about sequestration’s impact on their business to
date? Many contractors who work directly for federal agencies have noted a
continued slow-down in projects hitting the street and increased competition as
a result. Larger contractors are bidding on work that they usually would not
bid. Many of those contracts are for smaller jobs sought after by smaller
contractors. Also, contractors have noted increased agency requests for
contractors to hold their bids for 120 days or more. As for ongoing projects,
the onset of furloughs could delay agencies’ construction project management
decisions, as agency project managers or decision makers cannot respond to
questions or do work of any kind during their furlough days.
the sequestration outlook ahead? The implementation of the cuts and their
ramifications on projects are still just taking hold. Undersecretary of Defense
for Acquisition, Technology and Logistics recently admitted that, “[i]t’s a
reasonable possibility that we will go into 2014 with sequestration still
underway.” Additionally, there’s a chance that another round of sequestration
cuts come on Oct. 1, when the 2014 fiscal year begins. The House and Senate
already passed budget resolutions with different top-line figures billions of
dollars apart. If the two chambers cannot agree on the same top-line budget
figure—at or below the Budget Control Act level—the stage is set for another
round of indiscriminate, across-the-board sequestration cuts.
about sequestration prior to its implementation. AGC will continue to monitor
the impact of sequestration on the construction industry and advocate against
further indiscriminate cuts to construction funding. Please contact AGC
Director of Federal & Heavy Construction Jimmy Christianson if you have any
examples of how sequestration is impacting your business. For
more information, please contact Jimmy Christianson at email@example.com or
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Energy & Water (U.S. Army Corps Civil Works)
On July 10, the House passed the FY 2014 Energy and Water
appropriations bill, which funds the U.S. Army Corps of Engineers (USACE) Civil
Works’ construction program. Without accounting for the impact of dozens of
late floor amendments added to the House bill, the Senate Appropriations
Committee’s version of this bill would provide for $396 million more than the House-passed bill and $446 million more than the
president’s budget request.
a complete, line-by-line analysis of all Civil Works’ accounts and funding
levels as requested by the president and proposed by the House and Senate, click here. To view what projects the House bill would fund, see page 26 and
onward of the House Appropriations Committee Report. To view what projects the Senate bill would fund, see page
26 and onward of the Senate Appropriations Committee Report.
continues to maintain that through regularly investing adequate funding to
maintain our nation’s inland waterways, ports and coastlines and to protect
cities from floods and storm damage, our economy will grow, jobs will be
created and the need for large disaster assistance aid will be diminished, and
more lives will be saved with improved construction precautionary measures.For
more information, please contact Jimmy Christianson firstname.lastname@example.org or
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Policy Rider to Halt EPA Clean Water Act Guidance Survives Floor Vote
A policy rider that would bar the
Army Corps of Engineers and the Environmental Protection Agency from
implementing their guidance on Clean Water Act jurisdiction
survived an amendment offered by Rep. Jim Moran (D-Va.). The amendment would have
stripped the provision in the
Energy and Water Appropriations bill prohibiting any use of the appropriations
funds for work on guidance or regulations pertaining to the definition of
waters of the US. The
Moran Amendment failed by a vote of 177-236. As an
Appropriations rider, this provision is only able to de-fund implementation of
the Guidance for one year.
For more information, please contact Scott Berry at
(703) 837-5321 or email@example.com.
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AGC Submits Comments on Water Resources Infrastructure Guidance
On June 27, AGC submitted comments to the White House Council on
Environmental Quality (CEQ) in response to its recent final
principles and requirements and proposed
interagency guidance on federal investment in water resources. CEQ issued this
guidance as part of the revision process of the 1983 Economic and Environmental
Principles and Guidelines for Water and Related Land Resources Implementation
Studies. CEQ inexplicably (and without statutory authorization) took over this
revision process from the U.S. Army Corps Engineers (USACE) when the Obama
comments, AGC notes that CEQ’s proposal for all water infrastructure agencies
to evaluate a “range of reasonable [project] alternatives”—including
nonstructural approaches, local interest preferred action, and environmentally
preferred alternatives—during the pre-construction, study phase would only
serve to further delay delivery of essential water resources infrastructure
projects. For example, before USACE can solicit contractors to work on a
project, it must ensure that the provisions of at least 21 statutes, hundreds
of pages of regulations stemming from those statutes and 8 executive orders are
followed during the project study period. AGC explained that the concept of
designing alternatives will divert resources and attention away from designing
and delivering the best solution to meet the water resources infrastructure
continue to fight the unauthorized CEQ revision process and advocate for a more
streamlined approach to delivering water resources infrastructure projects.
For more information, please contact Jimmy
Christianson at (703) 837-5325 or firstname.lastname@example.org.
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DOT Regulatory Agenda Shows DBE Rule Extended – MAP-21 Rules Moving Forward
The Department of Transportation (DOT) released its Semiannual
regulatory agenda this week, which gives a status report on a number of pending
rules and regulations that the agency is working on. Many of the rules on the
list are related to implementation of provisions in MAP-21. FHWA has issued
temporary guidance to states on how to implement these provisions pending the
final outcome of the regulatory process including: categorical exemptions from
the environmental review process for projects in highway right of way or that
do not meet a $5 million threshold; use of Construction manager/General
Contractor and design-build contracting procedures; performance measurements;
work zone safety and others. Most of these rules are close to being proposed
and FHWA projects that they will be finalized in the next few months.
To note is a pending rule altering the application of the
Disadvantaged Business Enterprise (DBE) program. DOT issued a notice of
proposed rule-making in September 2012 in which it recommended only minor
changes to the rule. AGC provided extensive comments and generated 125 letters,
including comments from 18 AGC chapters, pointing out the significance of the
rule changes. DOT informed AGC that it has now determined the rule would
have significant impacts if adopted. Issuance of a final rule has been now
placed on the long-term agenda. For more information, please contact Brian Deery
at (703) 837-5319 or email@example.com.
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Labor Department Updates Regulatory Agenda
week, the U.S. Department of Labor (DOL) released its Semiannual Regulatory
Agenda – Spring 2013. The release of the agenda is several months delayed and
agencies often do not adhere to the target dates listed; however, the agenda is
a good indicator of issues the agency wants to address in 2013, which includes
several regulations of concern to the construction industry.
Respectfully, DOL did not announce any new regulations in the newly-released
agenda nor are there any real surprises. However, the agency did provide notice
of several updates that include:
Office of Federal Contract Compliance Programs
In 2010, the Office of Federal Contract Compliance Programs
(OFCCP) announced that it is working on a Compensation Data Collection Tool
to identify contractors violating sex and race-based compensation
discrimination laws. AGC submitted comments explaining why the use of a tool
such as this one should be modified or not required at all. The new
agenda suggests that details about the tool will emerge this month in the form
of a notice of proposed rulemaking, hopefully
with AGC’s suggested modifications.
Also expected this month are final rules (individuals with disabilities and veterans) – which were first announced in 2010 and 2011 – with regard to
the affirmative action requirements of direct federal contractors as they
relate to veterans and individuals with disabilities. AGC has been
actively trying to modify or block both rules. One analysis conducted by AGC
uses data provided by AGC members that estimates the cost of compliance as 20
to 30 times more than the cost estimated by OFCCP. In addition, AGC
co-sponsored a study that concludes that comprehensive rules of this nature are
unnecessary. For more information from AGC on the rule regarding individuals
with disabilities, click here. For more information on the veterans rule, click here.
The agenda also mentions a plan to issue a proposed rule that
would establish a new method for meeting affirmative action goals and
requirements for minorities and women in construction – the first change to the
process since 1980. A notice of proposed rulemaking rule is
projected for October.
Office of Labor Management Standards
The DOL’s attention continues to focus on finalizing a Persuader
rule. DOL’s Office of Labor-Management Standards rule would limit the “advice”
exception under the Labor-Management Reporting and Disclosure Act so that all
consultation with labor lawyers and/or consultants will be subject to
disclosure to the DOL. This rule will significantly impact employers’
ability to retain counsel. A final rule is projected for November 2013.
Occupational Safety and Health Administration
OSHA expects to issue a notice of proposed rulemaking on
occupational exposure to crystalline silica this month. AGC expects the
proposed rule to recommend permissible exposure limits (PEL), which may be
impossible to comply with in the construction industry. AGC believes the
proposal should be returned to OSHA for further evaluation of costs, benefits
and risk. The agenda states a notice of a proposed rulemaking in January
2014 for its Injury and Illness Prevention Program (I2P2), which would
require employers to implement and frequently update an Injury and Illness
Prevention Program to address safety and health hazards, beyond those currently
regulated. OSHA currently has voluntary Safety and Health Program
Management Guidelines. AGC has encouraged OSHA to remove the requirement that
companies develop company-wide safety programs to address these unregulated
hazards. Instead, AGC has recommended that OSHA provide simple guidelines to
employers to develop and implement an effective safety and health program that
focuses on the regulated hazards that are significant threats in the workplace.
The agenda did not list a date when the Small Business Regulatory Enforcement
Fairness Act (SBREFA) process would begin for I2P2. In addition, the OSHAconfined space final rule is expected in December, while the Modernization/Improve
Tracking of Workplace Injuries and Illnesses notice of proposed rulemaking is expected this
National Labor Relations Board
The National Labor Relations Board (NLRB) listed the Quickie
Elections rule as a long term action on its agenda, presumably due to the legal
challenges to whether the NLRB was legally able to issue the rule. Much
of the work of the validly of the work the NLRB performs is under scrutiny
while the members of the board that were appointed by President Obama by recess
appointment await a constitutionality decision by the Supreme Court next year.
information, please contact Jim Young at (202) 547-0133 or firstname.lastname@example.org.
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Rick Perry Decides Against Seeking a Fourth Term
On Monday, Texas Gov. Rick Perry (R) ended
speculation about his political future. Mr. Perry, standing behind a podium on
a stage surrounded by American and Lone Star State flags, made public his
intention to retire from the governorship when his current term ends, but left
the door wide open for another presidential run.
The governor faced a conundrum about whether to keep his current position while
attempting another run for the nation's top office. In his situation,
considering the context of the original Perry national campaign that ended in
disaster, the decision whether to seek re-election was more difficult than for
most politicians in a similar situation. Usually, attempting to execute the
duties of one political office while running for president is often a
disqualifying factor but, in Gov. Perry's case, the credibility he would have
earned from winning yet another term in statewide office and the financial base
that such position provides made his decision difficult.
Late last week, Mr. Perry transmitted an email to supporters indicating that he
would formally announce a decision regarding his political future. The secret
was well-guarded to the point that no leak occurred about what would actually be
When Gov. Perry’s term ends, he will have served fourteen years as Texas' chief
executive, more than double the time that anyone else has held the office.
Until 1982, the state restricted its Governors to one four-year term. Even when
legislation was passed eliminating term limits, it took until 1998 for Texas'
voters to actually re-elect a governor, and that individual was George W. Bush.
The Perry record is strong. As he mentioned in his retirement address, over 30
percent of all jobs created in America since he became governor have occurred
in Texas. The Lone Star economy is robust, while the nation's economic numbers
sink. It was his economic record that propelled him to the forefront of the
2012 Republican presidential field, and kept him as perhaps the favorite for
the nomination until his ill-fated debate performance, in which he couldn't
recall the name of a federal agency that he was pledging to eliminate, cost him
any chance for national victory.
It seemed clear through his energetic retirement speech yesterday that the
governor still has the political "fire in the belly". The chances of
him running for president again are high, but without his office as a
fundraising perch he might find it increasingly difficult – particularly in the
So the question that will linger for the next several years is: can Rick Perry
rehabilitate his image sufficiently to seriously contend for the 2016
Republican nomination? When he announced his 2012 candidacy on the day of the
Iowa Straw Poll vote back on August 13, 2011, it appeared that the Texas
governor was destined to become a major force for the nomination. His fall into
the second tier may have set a record for the fastest political free fall in
Can he rebound again before 2016? It remains to be seen. On the one hand, he
helped himself by ridding himself of governing responsibility and the criticism
that usually accompanies an office holder running for president. Conversely, he
negated one of his greatest assets: the fundraising prowess of the sitting
governor from the second largest state.
information, please contact David Ashinoff at (202) 547-5013 or email@example.com.
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AGC to Host Webinar on Hispanic Construction Workforce
According to the Center for Construction Research and
Training, 30 percent of all construction workers are Hispanic. Therefore,
understanding and exploring the impact culture plays when working with a
Hispanic workforce is vital to the success of construction companies
On Thursday, July 18, AGC will host a webinar on The
Hispanic Workforce: Best Practices for Construction Employers. The
webinar will take place from 2:00-3:30 p.m. EDT. The cost to participate
is just $99 for AGC members and $129 for non-members.
During the webinar, Tricia Kagerer will provide employers
with several techniques for success when managing a Hispanic construction
workforce. Ms. Kagerer is the former vice president of risk, safety and
process improvement for CF Jordan Construction and is now a risk management
executive with the American Contractors Insurance Group.
After participating in the webinar, registrants will be able
- Expand their knowledge of some Hispanic cultural influences;
- Identify cultural barriers that block communication; and
- Learn about DOL’s latest enforcement initiative requiring the training of
workers in a language and vocabulary they understand.
For more information or to register, please click here.
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