Construction Legislative Week in Review
www.agc.org August 25, 2016
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On the Inside
TRANSPORTATION
AGC & Transportation Construction Coalition Continue August Highway Trust Fund Grassroots Push
AGC and Congress Tell FHWA That Greenhouse Gas Proposal Unauthorized
Former DOT Secretary Peters to Address Highway and Transportation Construction Conference
WATER INFRASTRUCTURE
Members of the House Asking for a Vote on Water Infrastructure Bill in Bipartisan Letter
FEMA Funded Projects May Get More Expensive and Complicated
Register for the 2016 Utility Infrastructure Conference
FEDERAL CONTRACTING
Administration Releases Blacklisting Final Rule and Guidance
ENVIRONMENT
Pressure Mounts on SEC to Enforce Climate Risk Disclosure Requirements
EPA’s Authority to ‘Veto’ 404 Permits Stands
Attend AGC Contractors Environmental Conference
TAX/ACCOUNTING
Early Bird Extended Through Tomorrow! Register for the AGC/CFMA Construction Financial Management Conference
TRANSPORTATION
AGC & Transportation Construction Coalition Continue August Highway Trust Fund Grassroots Push
Just 2 Weeks Left to Meet with Your Federal Representative While They are in Your District
 

The AGC co-chaired Transportation Construction Coalition (TCC) is continuing to ask that you meet with your federal legislator while they are in your district for the August recess to remind members of Congress that although they passed a five-year transportation bill last year, the Highway Trust Fund is still in need of a long-term revenue source.  Visit Hardhats for Highways for resources you can use when meeting with your federal representative to advocate for a permanent Highway Trust Fund fix to be included in any comprehensive tax reform package.

The House Ways & Means Committee released their blueprint for tax reform several weeks ago, which failed to mention the funding problems with the Highway Trust Fund. The Ways and Means Committee needs to hear our industry’s concern about the failure to include a Highway Trust Fund fix in that blueprint.  Visit Hardhats for Highways for talking points to help you in your meeting with your federal Representative, along with information on providing comments directly to the Ways & Means Committee about the importance of fixing the Highway Trust Fund.  If you are unable to meet in person with your member of Congress, you can send a letter to your representative through our Hardhats for Highways website.

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

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AGC and Congress Tell FHWA That Greenhouse Gas Proposal Unauthorized
 

AGC submitted comments last week questioning the Federal Highway Administration’s (FHWA) authority to impose greenhouse gas (GHG) emission requirements as part of its proposal for performance measurements, as required by Congress in the MAP-21 and FAST Act legislation. Members from both the House and Senate also wrote letters telling FHWA that the proposal exceeds its authority for this action.

 Creation of national performance goals and measures to improve decision making and accountability of state departments of transportation and Metropolitan Planning Organizations (MPOs) was a significant policy directive in both transportation authorization bills. AGC supported the inclusion of these requirements and believes that they will be helpful in not only making the best transportation investment decisions but also in making the case to the American public that their user fee and general tax dollars are being used wisely. However, in a nod to the Obama Administration’s climate change agenda, FHWA went beyond measuring congestion and freight movement and suggested that it was also contemplating goals for greenhouse gas emissions as well – including emissions from off-road construction vehicles – without detailing how it intended to do this. AGC does not support the inclusion of greenhouse gas emission requirements as part of the national performance goals.

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

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Former DOT Secretary Peters to Address Highway and Transportation Construction Conference
November 3-5 | JW Marriott Desert Ridge Resort | Phoenix, Arizona
 

Mary Peters, Secretary of Transportation under the Bush Administration, is one of many outstanding speakers who will address the 2016 Highway and Transportation Construction Conference (formerly the Highway Contractors Conference). Secretary Peters will discuss “Transportation Future:  Where is Transportation Heading, How will the Infrastructure be Funded” which will lead to a discussion about how the federal Highway Trust Fund should be fixed moving forward.

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

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WATER INFRASTRUCTURE
Members of the House Asking for a Vote on Water Infrastructure Bill in Bipartisan Letter
Urge Your Rep. to Sign On to the Letter
 

House and Senate committees earlier this year passed water infrastructure bills – known as the Water Resources Development Act – that would collectively invest billions of dollars in municipal drinking water and wastewater projects and Army Corps of Engineers’ projects, including flood control and levees, locks, dams, harbor maintenance dredging and environmental restoration throughout the nation.  However, the bills have not yet been brought to the chambers’ floors for a vote, endangering their success in this election year.  There is currently a bipartisan letter circulating in the House seeking a vote on WRDA before the end of the fiscal year (Sept. 30).  Contact your U.S. Representative while they are home for their summer recess and tell them why it is important to pass WRDA and ask them to sign the bipartisan letter.

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

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FEMA Funded Projects May Get More Expensive and Complicated
New Proposal Would Elevate Projects & Expand Floodplains
 

Some Federal Emergency Management Agency (FEMA) funded construction projects built in preparation for or after disasters may get a little more expensive and complicated if a new proposal from the agency takes effect. On August 22, FEMA proposed an update to its Floodplain Management and Protection of Wetlands regulation that seeks to align with the 2015 Federal Flood Risk Management Standard, which AGC commented on last year.  

The proposal will lead, in many cases, to an expansion of areas considered floodplains and would require elevating projects. Additionally, the proposal would require the use of “nature-based” or “green infrastructure” approaches in the development of alternatives for federal projects in floodplains. FEMA estimates that the total additional grants’ costs as a result of the proposed rule would be between $906,696 and $7.8 million per year and between $301,906 and $2.6 million per year for grant recipients due to the increased elevation or flood-proofing requirements of FEMA projects.

AGC will continue to review the FEMA proposal and plan an appropriate response.  For more information, contact Melinda Tomaino at tomainom@agc.org or (703) 837-5415. Return to Top
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Register for the 2016 Utility Infrastructure Conference
October 28-29, 2016 | Atlanta, Georgia
 

The 2016 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.

This event is an opportunity to connect not only with fellow utility infrastructure contractors, but also with emerging leader construction professionals from across the country. This year’s conference will be co-located with the AGC CLC Leadership Development Conference, the top gathering for emerging construction leaders from across the country. This event will also feature a jobsite tour and a tour/reception at the College Football Hall of Fame.

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

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FEDERAL CONTRACTING
Administration Releases Blacklisting Final Rule and Guidance
 

On August 25, the Federal Acquisition Regulation (FAR) Council and U.S. Department of Labor released a final rule and guidance, respectively, to implement the “Fair Pay and Safe Workplaces” Executive Order 13673, commonly called the Blacklisting Executive Order. AGC is actively working with Congress to undo this rule and is exploring all legal avenues as well.

Under the rule and guidance, both prime and subcontractors must report violations of 14 federal labor laws before contract award and again every six months after contract award, on federal contracts over $500,000. Prime contractors would also be responsible for evaluating the labor law violations of its subcontractors at all tiers. A single violation, or a combination of multiple violations, could lead a contracting officer to either (1) deny a prime contractor the right to compete for a federal contract; or (2) remove a prime contractor or subcontractor from an ongoing project. The critical, phased-in implementation dates are as follows:

  • October 25, 2016: Prime contractors bidding on contracts with a total contract value greater than or equal to $50 million must disclose labor compliance history.
  • April 25, 2017: The total contract value above which prime contractors must make disclosures is reduced to $500,000.
  • October 25, 2017: All subcontractors considering subcontracts with a total contract value greater than or equal to $500,000 must disclose labor compliance history.

AGC submitted over 30 pages of comments on the proposed rule and guidance, noting why they should be withdrawn because they are unfounded, unnecessary, unworkable and unlawful. The association met with the U.S. Small Business Administration—which adopted many of AGC’s concerns in its comments—and the White House Office of Management and Budget noting its deep concerns. AGC has also met with representatives of the U.S. Army Corps of Engineers, Naval Facility Engineering Command, Department of Veterans Affairs and General Services Administration to warn the agencies of the impact of the rule on procurement. AGC is also a leader in a coalition of industry organizations seeking to block this rule on Capitol Hill through the National Defense Authorization Act, meeting with dozens of members of Congress on this issue for the last two years.

AGC will provide a more detailed analysis of the final rule and guidance as it closely reviews the approximately 900 pages of regulatory text.

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

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ENVIRONMENT
Pressure Mounts on SEC to Enforce Climate Risk Disclosure Requirements
Public Companies Will Likely Experience Renewed Focus
 

In 2010 when carbon cap-and-trade legislation and wide-sweeping greenhouse gas (GHG) regulation seemed inevitable, the Securities and Exchange Commission (SEC) released interpretive guidance for public companies to disclose their “climate risks” in an effort to quell concerns from investors.  Six years later, the SEC faces increasing criticism over “lax” enforcement and “inconsistent” reporting and pressure for greater enforcement and standardization.  AGC encourages public companies to review the 2010 SEC interpretive guidance and protect themselves from greater scrutiny.

TheSEC interpretive guidance gives suggestions on ways companies may be impacted by climate concerns and how they should disclose those vulnerabilities – such as potential disruptions to operations from extreme weather or reduced water availability, supply chain risks, the impacts of legislation and regulation related to climate change, and changing business trends.  A January 2016 Government Accountability Office report found that SEC’s Division of Enforcement “has not filed any actions concerning climate-related disclosure issues.”  The report acknowledges that SEC’s priorities in this area have evolved as cap-and-trade legislation was never enacted and other matters, such as 2010 Dodd-Frank Act, became priorities. 

Calls from economists and top White House aides to push disclosure, high-profile investigations facing the oil and gas industry (for allegedly withholding information on climate risks), and an uptick in Federal agency activity related to climate resilience and GHG emissions are pressuring the SEC and other agencies to keep GHGs in the forefront.  Public companies should take heed.

For more information on climate related issues, contact Melinda Tomaino at tomainom@agc.org or (703) 837-5415 Return to Top

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EPA’s Authority to ‘Veto’ 404 Permits Stands
Court OKs EPA’s Revoking Permit Years after Issuance
 

A recent court decision adds a new degree of uncertainty for construction contractors that reasonably rely upon and comply with government-issued Clean Water Act permits. The U.S. Court of Appeals for the District of Columbia Circuit ruled July 19 that the U.S. Environmental Protection Agency (EPA) properly used its “broad veto authority” under the Clean Water Act when it revoked a Section 404 dredge-and-fill permit several years after it had been legally issued by the U.S. Army Corps of Engineers (Corps) and relied upon by the permittee, thus jeopardizing the project. Throughout this long legal battle, AGC has continued to weigh in (see AGC amicus brief, Supreme Court filing and testimony before Congress) on behalf of the construction industry that frequently relies on Section 404 permits to build the nation’s public and private infrastructure.

For more details on this development, contact Leah Pilconis at pilconisl@agc.org or (703) 837-5332 Return to Top

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Attend AGC Contractors Environmental Conference
October 5-6 | Washington, D
 

With penalties for environmental violations just increased to $51,570 per day for Clean Water Act permit programs and even higher for certain federal waste/air programs, you can't afford to miss this year's AGC Contractors Environmental Conference. On Oct. 5-6 in the nation's capital, AGC's 2016 CEC is your chance to hear directly from the regulators and ask your questions. The conference will bring together government officials to discuss compliance issues that will impact construction work in every state.

For more information, please contact Melinda Tomaino at tomainom@agc.org or (703) 837-5415. Return to Top

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TAX/ACCOUNTING
Early Bird Extended Through Tomorrow! Register for the AGC/CFMA Construction Financial Management Conference
Register Now and Save: Early Bird Registration Ends Aug. 26
 

Jointly sponsored by AGC and CFMA, the 20th Annual AGC/CFMA Construction Financial Management Conference will be held Oct. 19-21 at Caesars Palace in Las Vegas, Nevada. This three-day conference offers programs and workshops designed specifically for financial professionals in the construction industry. The 32 interactive sessions will cover the latest industry issues and their financial implications. Participants may earn up to 20 continuing professional education (CPE) credits. Register at meetings.agc.org/agc_cfma.

For more information, contact Brynn Huneke at (703) 837-5376 or brynn.huneke@agc.org Return to Top

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