Construction Legislative Week in Review
www.agc.org March 2, 2017
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On the Inside
SAFETY
U.S. House Passes Legislation to Rollback OSHA Rule Extending Statute of Limitations for Recordkeeping Violations
ENVIRONMENT
Trump Orders Unwinding of WOTUS Rule
REGULATIONS
AGC-Backed Regulatory Reforms Pass House
FEDERAL CONTRACTING
Senate to Vote to Repeal Blacklisting Regulations Next Week
Presolicitation for Border Wall Released
TAX/ACCOUNTING
Early Bird Registration Opens for AGC Financial Issues Summer Meeting
TRANSPORTATION
TCC Fly-In/State Funding Workshop Scheduled
SAFETY
U.S. House Passes Legislation to Rollback OSHA Rule Extending Statute of Limitations for Recordkeeping Violations
Contact your Senators and Help Us Repeal this OSHA Rule
 

On March 1, an AGC-supported resolution passed in the U.S. House disapproving an Occupational Safety & Health Administration (OSHA) rule designed to allow OSHA to issue citations for recordkeeping violations beyond the current six-month limit, up to five and a half years. This expansion of the statute of limitations exposes employers to liability for honest and inadvertent paperwork mistakes related to recordkeeping. The U.S. Senate introduced a similar bill (Sponsored by Senator Cassidy (R-La.) and cosponsored by Senators Hatch (R-Utah), Isakson (R-Ga.) and Daines (R-Mont.)) this week with a vote scheduled by April 7. AGC urges the Senate to support the House-passed bill.  Please contact your Senators and urge them to support repeal of this burdensome rule.

The December 2016 rule, Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness, was issued in response to a federal court ruling that found that OSHA could no longer issue citations beyond the six-month statute of limitation window that is detailed in the OSH Act. The rule is often referred to as the “Volks” rule after the construction company that successfully challenged the rule in court in 2012. For several years OSHA had been operating under the theory that it could issue citations for the entire five-year period during which employers are required to keep records for injuries and illnesses. With this rule, OSHA showed a clear attempt to circumvent the judicial branch and congressional intent with this rule.

For more information, contact Jim Young at youngj@agc.org or Kevin Cannon at cannonk@agc.org Return to Top

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ENVIRONMENT
Trump Orders Unwinding of WOTUS Rule
Follows AGC’s Recommend Path
 

Following AGC’s recommendation to the presidential transition team in December, President Trump issued an Executive Order on Feb. 28 that begins the process of unwinding the “Waters of the United States” (WOTUS) rule.  Also in line with AGC’s recommendation, the Order calls for a new “review” of the WOTUS rule, stating that for any revised proposed rule, the EPA and Corps shall consider interpreting the term ‘navigable waters’ in a manner consistent with the opinion of the late Justice Antonin Scalia in the 2007 Supreme Court case, Rapanos v. United States. In keeping with the Executive Order, EPA and the Corps have issued a notice of intent to review/revise the WOTUS rule.

The Executive Order in and of itself does not remove the WOTUS rule from the books. Rather it merely directs the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers — who issued the rule in 2015 — to begin the lengthy and complex regulatory process necessary to rescind or revise the rule. That process will take time, as it is subject to the same notice and comment rulemaking process that the rule underwent when it was written.  It will also be subject to legal challenge by environmental groups, which may use the government reports and documentation that the agencies used to justify the rule as ammunition against any changes.

The Order also directs the agencies to notify the U.S. Attorney General about the pending review of the WOTUS rule so he may take any such measures as he deems appropriate concerning any pending litigation related to the rule. But at this point, it remains unclear how this Order will impact current litigation. In the midst of this uncertainty, the Corps continues to use the 1986 regulations and applicable jurisdictional guidance (status quo as it existed before the new rule) in making jurisdictional determinations or taking other actions based on the definition of WOTUS.

AGC has been advocating on behalf of its members on this issue since the beginning. AGC submitted four sets of comments on the agencies’ 2014 proposed rule on the scope of their jurisdiction.  The agencies finalized a modestly improved rule in May 2015 and scheduled it to take effect in August 2015.  Many states and others challenged the rule in court.  The U.S. Court of Appeals for the Sixth Circuit has at least temporarily blocked the agencies’ implementation of the rule.  There is no deadline for the Sixth Circuit to make a final decision. AGC has spoken about the implementation of the 2015 rule with EPA and the Corps, including its potential impact on Clean Water Act permitting.  For information on the WOTUS rule and where it generally stands, click here and here, respectively.

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

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REGULATIONS
AGC-Backed Regulatory Reforms Pass House
President Signs New Regulatory Reform Order
 

On March 1, the House passed three AGC-backed regulatory reforms that will help eliminate regulations that are obsolete, ineffective, overly burdensome or duplicative. These reforms bills come on the heels of several others that passed the House in January with AGC support.

While these reforms advance in Congress, the president issued another executive order aimed at reducing the regulatory burden. The Executive Order on Enforcing the Regulatory Agenda establishes task forces within each federal agency whose mission is to evaluate existing regulations and make recommendations to the agency head regarding their repeal, replacement or modification. This order complements the president's previous order that requires agencies to eliminate two regulations for each new regulation it issues.

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

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FEDERAL CONTRACTING
Senate to Vote to Repeal Blacklisting Regulations Next Week
Contact Your Senators and Urge them to Support Repeal
 

In the final year of the Obama administration, federal agencies issued nearly 4,000 new regulations. Many of those regulations negatively impact the construction industry. Congress—through the Congressional Review Act (CRA)—has an opportunity to repeal just a handful of Obama-era regulations issued after approximately May 30, 2016. Among the most unnecessary and burdensome regulations are those implementing the former president’s “Fair Pay and Safe Workplaces” Executive Order 13673, commonly called the Blacklisting Executive Order. The Senate is expected to vote to repeal the Blacklisting regulations early next week.  Contact your senators and ask them to support repeal of these regulations.

Under the Blacklisting regulations, both prime contractors and subcontractors would report violations of 14 federal labor laws and undefined state labor laws before contract award and again every six months after contract award on federal contracts (not federally-assisted contracts) exceeding $500,000. Federal contracting officers would then determine if contractors would be allowed to bid on federal construction work based on their labor law compliance record.

Such a process would introduce a significant degree of subjectively into the federal construction procurement process. It would allow federal contracting officers to effectively debar—or blacklist—companies without the protections of due process afforded under suspension and debarment proceedings. It would also layer a new federal procurement bureaucracy above contracting officers—in the form of labor compliance advisors—which would further delay the procurement process.

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

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Presolicitation for Border Wall Released
Funding Remains Uncertain
 

The Department of Homeland Security, Customs and Border Protection (CBP) is planning to start awarding contracts next month for the proposed extension of the southern border wall with Mexico. In CBP’s presolicitation notice, the agency said it intends to issue a solicitation on or about March 6 for the “design and build of several prototype wall structures.” The procurement will be conducted in a two-step process.

In the first phase, companies will submit a “concept paper” of their prototype(s) by March 10. In the second phase, the field of candidates will be narrowed by March 20, and these finalists will then submit offers with proposed costs by March 24. The CBP’s presolicitation notice gives no details on where the border wall will first be built or how many miles will it initially cover.

Currently, there is no funding appropriated for the southern border wall. It is unclear how soon or how much funding Congress will provide. If funding is not soon appropriated, it is likely the CBP will ask contractors to hold their bids until funding is received for the project. An internal Homeland Security Department report put the cost of the wall close to $21 billion.

For more information, contact Jordan Howard at Jordan.Howard@agc.org or (703) 837-5368. Return to Top

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TAX/ACCOUNTING
Early Bird Registration Opens for AGC Financial Issues Summer Meeting
Register and Book Your Hotel Room Today
 

The AGC Financial Issues Committee (FIC) Summer Meeting will be held June 27-28 at the Loews Minneapolis Hotel in Minneapolis, Minn. Visit the meeting site to register today & book your stay!

The Committee is geared toward member company CFOs, Controllers, Tax Directors, Sureties and other senior accounting professionals – in which attendees have an opportunity to learn as well as formulate positions on tax and accounting matters that directly affect AGC member companies. Meetings center around discussions with FASB, practitioners, and financial officer breakout groups on topics including internal controls, project performance reviews and cybersecurity solutions. Attendees also have an opportunity to network and discuss a wide variety of topics, including: audit issues faced by construction companies; Executive & Congressional action on federal tax policy; and best practices for industry professionals.

For more information, visit meeting.agc.org/fic or contact Brian Lenihan at lenihanb@agc.org Return to Top

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TRANSPORTATION
TCC Fly-In/State Funding Workshop Scheduled
Register Today
 

2017 could be the year of infrastructure in Washington, D.C. President Trump highlighted rebuilding infrastructure during his campaign, again on election night, and as part of his inaugural address. Additionally, both the House and Senate have already held hearings to highlight infrastructure issues.  As we await details about the Trump Infrastructure Initiative, one thing is clear, the construction industry’s involvement into its development and enactment by Congress is vitally important to its success. The 16th Annual Transportation Construction Coalition (TCC) Legislative Fly-In, scheduled for May 17-18, 2017 is well-timed to provide an opportunity for that input.

Join hundreds of other industry leaders in delivering the construction industry’s message on Capitol Hill in May. As part of the Fly-In, AGC has scheduled a one day workshop on Elements of a Successful State Funding Campaign.

The agenda will cover:

  • AGC Chapter Successes in Getting a Funding Increase enacted
  • How to Utilize Social Media to Reach the Broadest Audience
  • Use of Digital Advertising for Cost Effective Outreach
  • Generating\Utilizing Traditional Media
  • How does TRIP fit into State Campaigns
  • What economic Data is Helpful in Your Campaign

For more information and to register visit www.agc.org/tcc_fly-in or contact Brian Deery at deeryb@agc.org Return to Top

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