Construction Legislative Week in Review
www.agc.org February 6, 2014
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On the Inside
SAFETY
OSHA Comment Period on Proposed Crystalline Silica Rule Closes Feb. 11
HEALTHCARE
Momentum Builds for Revising the ACA’s Full-Time Employee Definition
TRANSPORTATION
CBO Predicts Trouble for Highway Trust Fund
LABOR
Updated Inventory of Construction-Industry Multiemployer Pension Plans Released
NLRB Re-Proposes "Quickie Election" Rule
TAX
Senate Passes Flood Insurance Bill to Delay Rate Hikes
Changing of the Guard at Finance
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SAFETY
OSHA Comment Period on Proposed Crystalline Silica Rule Closes Feb. 11
Take Action: Visit AGC’s Legislative Action Center to Submit Your Comments Today
 

On Sept. 12, 2013, the Occupational Safety and Health Administration (OSHA) published a proposed new rule on silica exposure. AGC members, chapters and interested stakeholders are encouraged to submit comment letters opposing the proposed new rule on silica exposure through the AGC Legislative Action Center (LAC).  A sample, editable letter has been provided for your convenience and can be customized to your respective operations.  Click here to access the letter.  All comments must be submitted by 11:59 p.m. (ET) Feb. 11, 2014.

The proposal aims to reduce the silica permissible exposure limit (PEL) for construction work to 50 µg/m3. The agency has also proposed an action level (AL) of 25 µg/m3, which will trigger the exposure monitoring provisions. Exposure monitoring is just one of numerous ancillary provisions that are included in the proposal. Others are requirements for regulated areas or written access control plans, prohibitions on work practices on construction sites such as the use of compressed air, dry sweeping, and dry brushing, medical surveillance, respiratory protection, training and hazard communication and recordkeeping. OSHA has also proposed an alternative to the exposure monitoring provisions through a "Table 1." Table 1 sets forth specific job activities, engineering and work practice controls, and respiratory protection that, if followed, would exempt the employer from compliance with the standard’s monitoring requirements.

Based on AGC’s review, the proposal should be returned to OSHA for further evaluation of costs, benefits and risk for the following reasons:

Crystalline silica is the second most abundant mineral in the Earth's crust (12 percent) and is found almost everywhere as a component of rocks, sand, and soils. 

Silica is perhaps the most common construction and manufacturing material in the world; it is a critical component in many manufacturing, construction, transportation, defense, and high-tech industries and is present in thousands of consumer products. 

Over the last 40 years, significant progress has been made in preventing silica-related disease under existing regulations -- coinciding with the adoption of the current PEL for silica in the early 1970s and concomitant improvements in industrial practices. Cases of silicosis still occur in the U.S. and are most likely attributable to the higher silica exposures that were prevalent three and four decades ago, as well as continuing widespread overexposures compared with the existing PEL. 

Cutting the PEL in half would be enormously costly. A recent analysis of the anticipated OSHA proposal would impose $5.5 billion in annualized compliance costs on affected industries and result in the loss of 17,000 person-years of employment and $3.1 billion of economic output every year the proposed regulation is in effect. 

The real problem is the failure to achieve compliance with the current PEL. Correcting that failure should be the focus of OSHA's efforts and will likely achieve the best results. 

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

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HEALTHCARE
Momentum Builds for Revising the ACA’s Full-Time Employee Definition
Take Action: Encourage Your Elected Officials to Support the Save American Workers Act
 

On Feb. 4, the House Ways and Means Committee passed H.R. 2575, the Save American Workers Act. The act would repeal the 30-hour definition of "full-time employment" in the Affordable Care Act (ACA) by replacing it with the more traditional 40-hour definition. AGC is encouraging Congress to pass H.R. 2575 and urges members to use the Legislative Action Center to send a letter of support to their elected officials in support of the legislation.

AGC sent a letter in support of the legislation and highlighted the fact that the construction industry is typically project-based, transitory and seasonal, which distinguishes it from other professional industries with more predictable hours. As a result, many construction employers rely on part-time, seasonal and variable-hour employees. In addition, the construction industry consists of many smaller employers with limited human resource and administrative staff. These two issues alone add layers of difficulty for a construction firm that is required to use the complex formulas in the ACA to determine whether or not it is considered a large employer under the law.

AGC also stressed that despite the one-year delay of the reporting and enforcement provisions of the ACA, the law continues to add layers of administrative burdens for employers, while other regulations are yet to be issued. Replacing the definition of a full-time employee to the more commonly accepted 40 hours per week will, at the very least, reduce some of the complexity associated with the ACA.

For a review of the Affordable Care Act employer requirements, please see the summary prepared by Washington Council Ernst & Young.

For more information, please contact Jim Young at (202) 547-0133 or youngj@agc.org Return to Top
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TRANSPORTATION
CBO Predicts Trouble for Highway Trust Fund
 

This week, the Congressional Budget Office (CBO) released its annual Economic and Budget Outlook.  CBO included an update to its biannual projections of the Highway Trust Fund (HTF) cash flow in the report.  The report confirms previous speculation that the HTF will run out of cash on a day-to-day basis before the expiration of MAP-21 on Sept. 30, 2014.  CBO estimates that only the Transit Account of the HTF will be able to meet all obligations during fiscal year 2014.

The pending shortfall will mean that the Department of Transportation will need a cash infusion of about $4 billion prior to Sept. 30 in order to meet cash flow requirements.  Looking beyond September, if Congress wants to write a six-year surface transportation bill at current funding levels plus annual increases for inflation, they will need to provide over $100 billion in revenue for the HTF, as stated in the CBO report.  A four-year bill would require $67 billion in new revenue, and a two-year bill would require $35 billion.  Even a simple one-year extension of MAP-21 would require an additional $19 billion.

None of these scenarios are particularly optimal.  In the short term, Congress will need to provide money for the HTF just to get through the fiscal year, while they continue to look for revenue to fund a multi-year reauthorization of MAP-21.

This issue remains a top priority for AGC.  We urge all of our members to visit the Legislative Action Center and contact their members of Congress to encourage them to make solving the trust fund revenue shortfall a top priority for Congress.

For more information, please contact Sean O’Neill at (202) 547-8892 or oneills@agc.org Return to Top

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LABOR
Updated Inventory of Construction-Industry Multiemployer Pension Plans Released
Advocacy Efforts for Reform Continue
 

The Mechanical Contractors Association of America (MCAA) and Horizon Actuarial Services have released a second edition of their Inventory of Construction Industry Pension Plans.  The Inventory provides historical data from all multiemployer pension plans in the construction industry.  It includes analyses of key trends in plan demographics, cash flows, investments, funding, costs, and expenses. One of the enhancements of the new edition is the inclusion of plan features by specific craft.

“The result is a valuable tool that will assist the union sector of the construction industry in better understanding how multiemployer pension plans have evolved, and where they may be headed, to aid them in ensuring the plans' futures,” MCAA stated in a Feb. 1 press release.

AGC and MCAA are working together, along with other stakeholders from both labor and management, to promote certain legislative reforms in laws governing multiemployer pension plans.  The proposed reforms, known as Solutions Not Bailouts, are designed to stabilize and enhance the current multiemployer system, provide additional tools for deeply troubled plans, and encourage the development of innovative plan designs.  AGC hopes to see legislative adoption of the proposed reforms this year, before the scheduled sunset of the Pension Protection Act of 2006 (PPA) at the end of 2014. 

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

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NLRB Re-Proposes "Quickie Election" Rule
 

On Feb. 5, 2014, the National Labor Relations Board (NLRB) re-issued a proposed rule that would expedite the election process in union representation cases, likely to unions’ advantage. The rule appears to be identical to a rule proposed back in 2011.  A shortened version was finalized and took effect in 2012, but was invalidated by a court on procedural grounds shortly thereafter.  The NLRB recently withdrew its appeal of the court’s decision and formally rescinded the rule.

The changes proposed in the re-issued, more comprehensive rule include: shortening the time between the filing of the petition and the holding of the election; eliminating pre-election hearings; expanding the information that employers must disclose about employees to include e-mail addresses and telephone numbers; and rendering post-election review by the Board discretionary.

As AGC explained in comments to the 2011 proposed rule, the rule would be particularly difficult to apply in the construction industry due to a number of unique aspects of the industry, including the complexity of bargaining unit and voter eligibility determination, and the decentralized nature of the workplace. Regarding the proposed mandatory disclosure of employee e-mail addresses and telephone numbers, recent cases have illustrated how construction unions might misuse such information. AGC is also concerned that the proposed rule might lead to unintended consequences in the realm of increased litigation and protracted legislative fights at both the federal and state levels.

AGC is presently considering its response to the re-issued proposed rule, as is the AGC-supported Coalition for a Democratic Workplace.  Comments are due April 7, 2014.

For more information, please contact Jim Young at youngj@agc.org or Denise Gold at goldd@agc.org. Return to Top

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TAX
Senate Passes Flood Insurance Bill to Delay Rate Hikes
Congress Tries to Fix Problem It Created
 

Last week, the Senate passed a measure that delays higher federal flood insurance premiums for homes and businesses located in coastal and flood-prone areas. The Homeowner Flood Insurance Affordability Act, S. 1926, delays dramatic National Flood Insurance Program (NFIP) premium increases for four years, until the Federal Emergency Management Agency (FEMA) has an opportunity to complete the flood map affordability study mandated in a law Congress passed in 2012—the Biggert-Waters Flood Insurance Reform Act.

This vote came as a result of Congress passing a law without considering its consequences. Congress passed the Biggert-Waters Flood Insurance Reform Act of 2012 to address the financial stability of the NFIP, which is $24 billion in debt as a result of claims stemming from Hurricanes Katarina and Sandy. That law sought to increase flood insurance premiums for homes and businesses located in flood plains and update FEMA flood plain maps. However, Congress did not anticipate how dramatically premiums would rise – many homeowners and business owners have seen premiums increase by more than 10 times their previous rate in less than one year.

The appropriations bill postponed some of the flood insurance increases. Specifically, that bill postpones rate hikes for policyholders who voluntarily bought flood insurance and were later drawn into the map's outline of areas that could flood. The bill also delays the implementation of rate hikes for those being mapped into areas now considered to have greater flood risks. The bill does not address other NFIP premium increases nor the “trigger” that automatically raises the rates, sometimes dramatically when a property sells, at least for homes and businesses sold after July 6, 2012. 

Again, the Senate bill and a similar one in the House—H.R. 3370—would delay the rate hikes for four years and allow FEMA to update its flood maps. The House bill has over 180 cosponsors and the House leadership has indicated that it may be willing to bring the legislation for a vote this year.

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

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Changing of the Guard at Finance
 

On Thursday, the Senate Majority Leader Harry Reid (D-Nev.) announced that Senator Ron Wyden (D-Ore.) will become the chairman of the Senate Finance Committee. Leader Reid’s action means no votes are needed from the party's caucus or steering committee. Wyden following Baucus in the chairman's role will make a spot on the committee available, with Senator Mark Warner (D-Va.) expected to fill the vacancy. Wyden is the second Oregonian to serve as chairman, after Bob Packwood (R) in 1995.   

It is unclear at this point whether Wyden will carry on in the same vein as the outgoing chairman when he turns to the tax portion of his agenda, or if he will consult with House Ways and Means Chairman Dave Camp (R-Mich.) as intimately as Baucus had over the past three years. While the transition to chairman of the panel may not take long, observers are awaiting anticipated changes to key staff and a pronouncement for the direction of the committee especially on reforming the tax code; advancing Trade Promotion Authority as signaled by the president in the State of the Union; and addressing technical setbacks to Obamacare and reforms to doctors’ payments.

Baucus's nomination to become the U.S. Ambassador to China was approved by a voice vote on Feb. 4. by the Senate Foreign Relations Committee and passed the on the Senate floor by a 96-0 vote. Baucus is expected to be sworn in immediately after resigning his Senate seat in the coming days, which he held since 1979. It is expected that Montana Lt. Gov. John Walsh (D) will be appointed to the Senate to serve out the remainder of the term.

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

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