Construction Legislative Week in Review
www.agc.org July 16, 2015
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On the Inside
TRANSPORTATION
ACTION NEEDED: Tell Your Senators to Support a Long-Term Transportation Reauthorization Bill
House Approves Transportation Extension While Senate Looks Long Term
REGULATIONS
Proposed Changes to Overtime Regulations Announced; AGC Prepares to Comment
PHMSA Releases Final Rule on Federal Enforcement of State Damage Prevention Programs
OSHA Issues Temporary Enforcement Policy for their New Confined Spaces Standard
FEDERAL CONSTRUCTION
How Would the Blacklisting Executive Order Impact Your Company?
AGC Meets with Federal Construction Agencies in Effort to Increase Project Productivity
New NAVFAC Chief Announced
Complimentary Webinar Addressing Contractor Military Base Access
AGC EVENTS
2015 AGC Utility Infrastructure Construction Conference
Early Bird Registration is Open
2016 ELECTIONS
Can Scott Walker Go 4-0?
TRANSPORTATION
ACTION NEEDED: Tell Your Senators to Support a Long-Term Transportation Reauthorization Bill
Action Needed Now on Hardhats for Highways
 

As detailed below, the Senate is preparing to start consideration of a long-term transportation reauthorization bill.  Now is the time to contact your Senators!

A message has been placed on the Hardhats for Highways website for you take action now. 

For more information, contact Brian Deery at deeryb@agc.org or Sean O’Neill at oneills@agc.org Return to Top

House Approves Transportation Extension While Senate Looks Long Term
 

On Wednesday, the House approved H.R. 3038, the “Highway and Transportation Funding Act of 2015, Part II” by a 312-119 vote. The bill extends highway and transit program authorization until December 18, 2015 and transfers $8.07 billion from the general fund into the Highway Trust Fund. The transfer allows highway funding to continue at current levels past the end of the fiscal year and into most of the first quarter of FY 2016.

The act funds the transfer by providing a series of “pay-fors” which are primarily tax enforcement measures, but it also includes an extension of an airline security fee through the end of 2025. House Ways and Means Committee Chairman Paul Ryan (R-Wisc.) and Transportation and Infrastructure Committee Chairman Bill Shuster (R-Pa.) issued a joint statement when the bill was released, saying, “This country needs a long-term plan to fix our roads, bridges, and other infrastructure, and this bill gives us our best shot at completing one this year. By providing resources through the end of the year, we can ensure construction continues while we work toward a package that could close the trust fund’s shortfall for as many as six years..” Prior to the House vote, the White House issued a statement supporting the five month extension despite Transportation Secretary Foxx’s earlier statements hinting that the Administration may not approve another short term extension.

In the Senate, Majority Leader Mitch McConnell (R-KY) has scheduled a procedural vote for July 21 at 2:15 PM that would being the process for consideration of the bill. The current Senate plan is to pass a long term authorization that will not be fully funded. Leader McConnell has been in discussions with Finance Committee Chairman Orrin Hatch (R-UT) and others about a potential list of “pay-fors” that would allow for a longer transportation authorization bill. The legislation may include most elements of the DRIVE Act passed earlier by unanimous support of the Environment and Public Works Committee. The DRIVE Act would increase annual funding levels by about three percent per year over current levels. Some are considering the possibility to deliver a full six years of contract authority at DRIVE Act levels with the intent of providing the revenue needed to support these funding levels in some future legislation - presumably a tax reform initiative.

Another piece of the puzzle fell into place on Wednesday when the Senate Commerce Committee passed the safety and freight titles of the legislation on a partisan 13-11 vote with no Democrats supporting. The Commerce Committee bill, which will ultimately be added to the DRIVE Act, includes an AGC-supported provision that would permanently exempt ready-mixed concrete delivery trucks from a portion of the Federal Motor Carrier Safety Administration’s (FMCSA) truck driver hour limits that require a 30 minute break during an 8 hour drive time. The bill also sets up expedited procedures for industries to seek exemptions from the driving limits. Democrat opposition to the Commerce bill is being addressed prior to action on the Senate Floor. Legislators are negotiating the transit portion of the bill and will incorporate it into the DRIVE Act.

Passage of a comprehensive Senate authorization bill is further complicated by Leader McConnell, who may also include an unrelated provision in the legislative package to reauthorize the Export-Import bank. Because the transportation bill is considered ‘must pass,’ it may be used as a vehicle for reauthorization of the Ex-Im bank which Senate and House conservatives oppose. Sen. Ted Cruz (R-Tex.) has threatened to filibuster the transportation bill if it includes the Ex-Im bank provision.

AGC and our coalition partners have communicated to the entire Senate our interest in a long term bill.  In addition all AGC members and chapters are encouraged to send a message to the Senate that now is the time to stop the endless extensions and pass a multiyear bill

For more information, contact Brian Deery at deeryb@agc.org or Sean O’Neill at oneills@agc.org Return to Top

REGULATIONS
Proposed Changes to Overtime Regulations Announced; AGC Prepares to Comment
 

On June 30, the U.S. Department of Labor’s Wage and Hour Division (WHD) published its Notice of Proposed Rulemaking (NPRM) announcing proposed changes to the overtime regulations of the Fair Labor Standards Act.  The proposal is the result of a 2014 directive from President Obama requiring the Secretary of Labor to modernize and streamline the existing overtime regulations.  The NPRM was officially published in the Federal Register on July 6.

If implemented without changes, the proposed rule would increase the salary threshold for the executive, administrative and professional exemptions from $455 per week ($23,660 per year) to $921 per week ($47,892 per year).  The threshold for highly compensated employees would also increase from $100,000 per year to $122,148 per year.  Both thresholds would be adjusted annually based on one of two proposed methods.  Although WHD did not propose any changes to the duties tests in the NPRM, it strongly indicated consideration of changes and requested comments on possible changes.

In anticipation of the rule’s announcement, AGC has been advocating on behalf of its members by monitoring the rulemaking process and participating in a cross-industry employer coalition specifically devoted to employer advocacy with regard to the rule.  Last year, AGC met with the WHD and the Small Business Administration (SBA) to share the industry’s concerns and will, again, meet with SBA to further share any post-announcement concerns of the industry.  In addition, AGC will soon survey its members to gather feedback on the specific aspects of the proposal to further assess its impact on the construction industry. 

The deadline for public comments on the proposed rule is September 4.  AGC will submit comments as part of the coalition and/or individually. 

For more information, contact Tamika Carter at cartert@agc.org. Return to Top

PHMSA Releases Final Rule on Federal Enforcement of State Damage Prevention Programs
 

The Pipeline and Hazardous Materials Safety Administration (PHMSA), which regulates damage prevention for certain hazardous materials, has released its long-awaited rule governing when and how PHMSA could step in to federally enforce inadequate state damage prevention programs.

This rule has its origins in the Pipeline Inspection, Protection, Enforcement, and Safety (PIPES) Act of 2006, which went through two rounds of public comments. The rule is based on the premise that though all States have a damage prevention program, some States may not adequately enforce their State damage prevention laws. The rule sets up: (1) criteria and procedures for determining the adequacy of State pipeline excavation damage prevention law enforcement programs; (2) an administrative process for making State adequacy determinations; (3) the Federal requirements PHMSA will enforce in States with inadequate excavation damage prevention law enforcement programs; and (4) the adjudication process for administrative enforcement proceedings against excavators where Federal authority is exercised.

One of AGC’s primary requests in the proposed rule phase was that PHMSA examine state programs not just from an excavation enforcement perspective, but also from an operator and locator response perspective. While the rule stops short of creating specific provisions to do so, the rule does acknowledge PHMSA’s awareness of the issue and details the tools PHMSA has available to them to enforce operators to respond to locate requests. AGC is still evaluating the bulk of the rule and will provide additional analysis as it is able.

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

OSHA Issues Temporary Enforcement Policy for their New Confined Spaces Standard
 

On July 8, 2015, during the Summer AGC Safety and Health Conference, the Occupational Safety and Health Administration’s (OSHA) director of construction services announced a temporary enforcement policy for the confined spaces in construction standard.  This policy does not delay the effective date, but will postpone full enforcement of the standard for 60 days from the effective date of August 3, 2015 to October 2, 2015. 

The enforcement policy memo is in response to a letter submitted on June 4, 2015, by a dozen industry associations - including AGC – requesting a full 90 day extension.  While the temporary enforcement policy falls short of the full extension requested, it does provide some relief to contractors who demonstrate a “good faith effort” in complying with the standard.  Employers will not be issued citations as long as the employer is in compliance with the training requirements of the new standard  found at 29 CFR 1926.1207 or the former training requirements found at 29 CFR 1926.21(b)(6)(i).  Employers who fail to train their employees as required by either provision would be properly cited for violation of 1926.1207(a).  Additional factors that OSHA will consider when evaluating an employer’s “good faith effort” to comply with the new standard include:

  • If the employer has not trained its employees as required under the new standard, whether the employer has scheduled such training,
  • If the employer does not have the equipment required for compliance with the new standard, including personal protective equipment (PPE), whether the employer has ordered or otherwise arranged to obtain such equipment required for compliance and is taking alternative measures to protect employees from confined  space hazards, and
  • Whether the employer has engaged in any additional efforts to educate workers about confined space hazards and protect workers from those hazards. 

For more information, contact Kevin Cannon at (703)837-5410 or cannonk@agc.org.

Body text here. Return to Top
FEDERAL CONSTRUCTION
How Would the Blacklisting Executive Order Impact Your Company?
Please Complete the Survey Below to Help You & AGC
 

The Obama administration recently issued a proposed rule and guidance to implement its “Fair Pay and Safe Workplaces” (Blacklisting) Executive Order. Please complete this survey to help AGC show how the Blacklisting EO would impact the construction industry.

Under the Blacklisting EO, direct-federal contractors and subcontractors would have to do ALL of the following:

  • Keep track of all of their violations of federal or state labor or employment laws, including all administrative determinations (such as OSHA citations), all civil judgments and all arbitration awards, for the last three years; AND
  • Include information on all of those violations in all bids and proposals to perform federal contracts exceeding $500,000; AND
  • Provide any information on any new violations to the contracting officer/prime contractor every six months for the term of any federal contract they are performing.

The order would also require prime contractors to evaluate their subcontractors’ labor violations at all subcontracting tiers and determine that the subcontractors are “responsible.” Contractors would have to perform this evaluation process for subcontractors that make offers before bid submission as well as those subcontractors that actually perform work post-contract award.

Again, please take a moment to complete this survey, so AGC can best represent you before Congress and the Administration.

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

AGC Meets with Federal Construction Agencies in Effort to Increase Project Productivity
 

AGC met with the top two federal construction agencies, at their request, to give the contractors’ perspective on key issues facing the industry.

USACE HQ: Early Contractor Involvement

The U.S. Army Corps of Engineers (USACE) Headquarters recently invited AGC to participate in a discussion on project delivery, specifically focusing on early contractor involvement (ECI). USACE executed about a dozen projects via ECI delivery—similar to CM-at-Risk—in the 2000s. (For more USACE ECI background, click here). Looking for ways to improve cost estimates, USACE is again considering using ECI—whether a Federal Acquisition Regulation (FAR) equivalent of ECI or utilizing more constructability reviews concurrent with design.

AGC, along with several contractors, noted that the keys to effectively using ECI depends on the team—on the design, contractor and government-side—the partnership forged among those team members and clear delegation of risks. Representatives from the General Services Administration (GSA) and NAVFAC also participated in the meeting. GSA has used its version of ECI for nearly a decade and has reduced cost and schedule growth through its implementation. NAVFAC had an ECI pilot program several years ago involving two projects, but NAVFAC ultimately decided not to pursue further use of ECI after that pilot. The USACE Kansas City District has the most ECI experience in USACE and also participated via teleconference. AGC has a host of project delivery resources.

NAVFAC HQ: Cost & Schedule Growth

At the request of the Naval Facility Engineering Command (NAVFAC) Headquarters, AGC recently met with NAVFAC leaders in Washington, D.C., to discuss ways the agency could address cost and schedule growth on its projects. AGC presented a host of issues driving those problems, especially the need for timely NAVFAC project decisions, such as completing design reviews/modifications and change orders in a reasonable and time sensitive manner.  

NAVFAC, like other federal owners, continues to face staffing challenges amid increasing retirements and flat budgets. A recent report  notes that after a nearly two-year hiring freeze, NAVFAC is currently recruiting for about 3,000 positions, particularly in the engineering and procurement areas.

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

New NAVFAC Chief Announced
 

Commander of NAVFAC Pacific Rear Admiral Bret J. Muilenburg will become the next Navy chief of civil engineers following RADM Katherine L. Gregory. Prior to reporting to his current position, RADM Muilenburg was the commodore of the 30th Naval Construction Regiment and commander of Task Force Forager, theater engineers for International Security Assistance Force Joint Command, Afghanistan. He holds a Bachelor of Science degree in Mechanical Engineering from the U.S. Naval Academy in Annapolis, Maryland, a Master of Science in Engineering Management from George Washington University, Washington, D.C., and a Master of Science Degree in Environmental Engineering and Science from Stanford University, Stanford, California.  

For more information, please contact Jimmy Christianson at 703-837-5325 or christiansonj@agc.org. Return to Top
Complimentary Webinar Addressing Contractor Military Base Access
Thursday, July 29 from 2:00 p.m. to 3:00 p.m. ET
 

When your company works on a military base, ensuring that your employees can access the project site is essential. Many military bases throughout the nation utilize the RAPIDGate program, which conducts security background checks on your employees as a prerequisite to base access. Several AGC members throughout the country have reported difficulties having their employees approved under RAPIDGate, and, thus, denied access to bases and project sites. During this webinar, Tim McGinn with Eid Passport, which runs the RAPIDGate program, will discuss:

  • The history of the RAPIDGate program and its origins;
  • The RAPIDGate's impact on vendors and contractors;
  • State of the RAPIDGate program within the military services;
  • The future of the RAPIDGATE program and policies that drive it;
  • The objective of teaming with various associations; and
  • Addressing contractor questions and concerns.

To register or for more information, please click hereReturn to Top

AGC EVENTS
2015 AGC Utility Infrastructure Construction Conference
September 29 thru October 1 in Louisville, Kentucky
 

The 2015 AGC Utility Infrastructure Conference will bring together contractors, owners and key industry constituents involved in every aspect of utility and infrastructure construction for a day and a half-long program on the latest legislative and regulatory issues affecting the industry, technology and operation trends shaping the market, and updates on AGC's efforts to fund infrastructure investment.

Come see sessions on managing a multigenerational workforce, the construction challenges on the Springfield, OH High Rate Treatment Plant, and complying with the new OSHA rule on confined space entry. And don't miss the underground damage prevention lunch co-hosted by the Common Ground Alliance featuring two-time Olympian Cliff Meidl.

This year's conference will be co-located with the International Construction and Utility Equipment Exposition (ICUEE), which is the largest industry event focused exclusively on the utility infrastructure market, with over 17,000 industry professionals attending ICUEE 2013. All conference session will take place inside the Kentucky Exposition Center in Louisville, Kentucky.

For more information or to register, go to http://meetings.agc.org/utility/ Return to Top

Early Bird Registration is Open
AGC/CFMA Construction Financial Management Conference
 

Jointly sponsored by AGC and the Construction Financial Management Association (CFMA), the AGC/CFMA Construction Financial Management Conference, held Nov. 4-6, 2015 in Las Vegas, Nev., was developed in response to a need for programs and workshops designed specifically for financial professionals in the construction industry.

The three-day conference is filled with 36 interactive sessions, covering the latest industry issues and their financial implications. Sessions are delivered “group-live” and are at intermediate, overview and update program levels. There are no prerequisites or advanced preparation required.

Information about the conference can be found at meetings.agc.org/agc_cfma.   Return to Top

2016 ELECTIONS
Can Scott Walker Go 4-0?
 

On Monday, Wisconsin Governor Scott Walker (R) formally announced his presidential candidacy, becoming the 15th Republican to officially enter the national campaign. 

Perhaps signaling the type of campaign he intends to run, Gov. Walker sought to create a clear contrast between himself and the rest of the GOP field.  Walker’s theme of being “conservative, bold, and decisive” was highlighted in his announcement video that stressed his gubernatorial record, the fights with Big Labor, and winning three statewide Wisconsin elections in four years. 

Governor Walker was first elected Wisconsin’s chief executive in 2010, after serving two terms as Milwaukee County Executive and spending nine years in the state Assembly.  He defeated Milwaukee Mayor and former Congressman Tom Barrett (D) in 2010 and again in the 2012 recall election.  In 2014, he defeated businesswoman and Madison School Board member Mary Burke. 

In the RealClearPolitics Average of the most recent national polling, the Governor ranks as one of the top five preferred candidates by Republican voters.  Leading the field is former Governor Jeb Bush (R-Fla.) with 17.8%.  He is followed by Gov. Walker (R-Wisc.) at 9.8%, businessman Donald Trump (R) at 9.3%, and US Senator Marco Rubio (R-Fla.) and Dr. Ben Carson (R) who are tied at 8.5%.

The next likely Republican entrants are Governor John Kasich (R-Ohio) and former Governor Jim Gilmore (R-Va.).

For more information, contact David Ashinoff at ashinoffd@agc.org Return to Top

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