Construction Legislative Week in Review
www.agc.org May 24, 2018
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On the Inside
SAFETY
OSHA Issues Proposed Rule to Address Crane Operator Qualification
ENVIRONMENT
EPA Considers Using the Clean Water Act to Permit Discharges to Groundwater
Trump Releases New Executive Order to Promote Efficient Federal Operations
TRANSPORTATION
House Transportation Funding Bill Provides Significant Increases for Highways
FEDERAL CONTRACTING
House and Senate Committees Pass 2018 WRDA Bills
House-Passed Defense Bill Includes AGC Priorities
TAX/ACCOUNTING
Congressional Tax Writing Committees Hold Hearings on Tax Reform Law
SAFETY
OSHA Issues Proposed Rule to Address Crane Operator Qualification
 

On May 21, the Occupational Safety and Health Administration (OSHA) issued a Notice of Proposed Rulemaking to revise crane operator training, certification/licensing, and competency. The proposed changes would: (1) require comprehensive training of operators; (2) remove the provision that requires certification by capacity; (3) clarify and permanently extend the employer’s responsibility to evaluate crane operator competency; and (4) require documentation of that evaluation.

The proposed rule was released ahead of the November 10 compliance deadline for enforcement of crane operator certification. AGC has been following this rulemaking closely and will be working with members to draft and submit comments by June 20.

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

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ENVIRONMENT
EPA Considers Using the Clean Water Act to Permit Discharges to Groundwater
 

On May 21, AGC challenged the U.S. Environmental Protection Agency’s consideration of using the Clean Water Act (CWA) permit program to regulate discharges to groundwater eventually making their way to a jurisdictional surface water.  EPA’s considered action could impact contractors who employ stormwater collection systems (such as detention ponds) as well as green infiltration practices to control stormwater.  CWA programs cover point source discharges to jurisdictional waters, not releases to groundwater.  AGC further argued that groundwater is currently protected under other laws, such as, for example, the Safe Drinking Water Act.

For more information, contact Leah Pilconis at pilconisl@agc.org or (703) 837-5332 or Melinda Tomaino at tomainom@agc.org or (703) 837-5415.  Return to Top

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Trump Releases New Executive Order to Promote Efficient Federal Operations
 

Following in the tradition of Presidents Bush’s “greening the government” and Obama’s “federal sustainability” efforts, President Trump ordered federal agencies to meet statutory requirements for environmental performance and prioritize actions that reduce waste and enhance the resilience of federal infrastructure and operations. Trump’s May 17 Executive Order Regarding Efficient Federal Operations takes a less prescriptive approach and provides agencies greater flexibility in meeting existing requirements than Obama’s now rescinded 2015 order – which set far-reaching goals for federal buildings and fleets beginning in 2016 through 2025 and beyond. 

In the coming months, the Office of Federal Sustainability will work with agency-level Chief Sustainability Officers to develop metrics and provide guidance on improving the efficiency (and reducing costs) of the federal government’s more than 350,000 buildings and 600,000 vehicles.  According to the White House, “Federal agencies spent more than $6 billion on energy for buildings and $635 million on water” last year.

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

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TRANSPORTATION
House Transportation Funding Bill Provides Significant Increases for Highways
 

On May 23, the House Appropriations Committee approved its fiscal year 2019 funding bill, which provides significant increases for infrastructure programs at the U.S. Department of Transportation. The bill includes $49.52 billion in funding for highways by adding $4.25 billion from the general fund to the FAST Act-authorized level of $45.27 billion, a 9.3 percent increase. Of that amount, $3.8 billion will be distributed via formula as apportioned under the Surface Transportation Block Grant Program, and $250 million is for highway safety projects. An additional $310 million was added to transit Capital Investment Grants, increasing the FAST Act-authorized level from $2.3 billion to $2.614 billion. The formula transit program would be funded at the FAST Act level of $9.939 billion (See chart below).

Fiscal Year 2019 Highway and Transit Appropriations

(In Billions)

FY 2017

FY 2018

FY 2019 (House)

FAST Act – Highways (HTF)

$43.27

$44.23

$45.27

Additional General Fund

$2.53

$4.25

Total Highways

$43.27

$46.76

$49.52

FAST Act Transit Capital Grants (General Fund)

$2.3

$2.3

$2.3

Additional General Fund

0.2

$.35

$0.31

Total Transit Capital Grants

$2.5

$2.65

$2.61

Transit Formula Grants (HTF)

$9.733

$9.733

$9.939

Additional General Fund

$0.834

$0.800

Total Transit Formula

$9.733

$10.567

$10.739

Airport Improvement (AIP) Aviation TF

$3.35

$3.35

$3.35

Additional General Fund

$1.0

$0.50

Total AIP

$3.35

$4.35

$3.85

Build (TIGER) Grants – General Fund

$0.50

$1.50

$0.75

The bill also includes $750 million for BUILD Grants (formerly known as TIGER), down $250 million from fiscal year 2018 but a $250 million increase over 2017 and previous fiscal year levels.  For aviation, the bill provides $3.85 billion down $500 million from FY 2018 but an additional $500 million over FY 2017 and previous fiscal years.

The bill is not yet scheduled for floor action. AGC will continue to weigh-in and ensure that these significant increases are realized.

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

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FEDERAL CONTRACTING
House and Senate Committees Pass 2018 WRDA Bills
Provision for New $150M Corpsí Owned/Operated Hopper Dredge Dropped
 

On May 22, the Senate Environment and Public Works Committee unanimously passed its version of a Water Resources Development Act (WRDA) bill, which—thanks to AGC and other allies’ advocacy efforts—dropped a provision that would have authorized $150 million for the construction of a new Army Corps’ owned and operated hopper dredge. A day later, the House Transportation and Infrastructure Committee overwhelmingly passed its 2018 Water Resources Development Act.  WRDA authorizes U.S. Army Corps of Engineers Civil Works projects, including navigation (dredging, locks), flood control (levees), hydropower (dams), recreation (parks), and water supply.  AGC followed both bills closely and advocated for construction industry priorities in both the Senate and House bills.

Disappointingly, neither the Senate nor the House WRDA bills include provisions from the president’s infrastructure plan or AGC’s recommendations that will streamline duplicative environmental reviews before USACE can initiate a water infrastructure project. AGC testified before the committee earlier this year.

Notable provisions in the Senate bill include:

  • SRF WIN Act – authorizes the Securing Required Funding for Water Infrastructure Now Act. This program provides funding for State Infrastructure Financing Authorities to utilize WIFIA funds and would authorize $200 million annually ($1 billion over 5 years) in additional funds for the Drinking Water and Clean Water State Revolving Loan Funds.
  • WIFIA – Reauthorizes of the Water Infrastructure Finance and Innovation Act at $50 million for both FY2020 and FY2021. WIFIA provides long-term, low-cost supplemental loans for regionally and nationally significant projects
  • Five Year Plan – Requires USACE to provide Congress with a work plan and four-year projected budget on an annual basis

Notable provisions in the House WRDA bill include:

  • Harbor Maintenance Trust Fund – Requires the full use of funds taken into the HTMF to be entirely spent on harbor maintenance by the year 2029
  • Post-disaster Projects – Modifies the repair standard for post-disaster Corps projects to all repairs to be done at either pre-storm conditions or the “design level of protection”
  • Real Property Database – Requires USACE to publicly post its real property portfolio as a means to help owners and contractors determine the potential for a Rivers and Harbors Act Section 408 permission, often a regulatory chokepoint that delays issuance of Clean Water Act Section

Both the Senate and House WRDA bills authorize seven Chief’s Reports and 10 studies. 

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

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House-Passed Defense Bill Includes AGC Priorities
Change Order Reform; Accelerated Payment to Small Businesses and More
 

This week, the House of Representative overwhelmingly passed (351-66) the National Defense Authorization Act for Fiscal Year 2019 (House NDAA). The Senate Armed Services Committee is currently marking up its version of the NDAA (Senate NDAA) and is expected to finish before the end of this week. The House NDAA contains a host of AGC-backed federal construction procurement provisions important to construction contractors.  Once the Senate NDAA is passed, the House and Senate will go to conference. 

As previously reported, the House NDAA bill includes several AGC-backed federal procurement reform provisions, such as requiring federal agencies to accelerate payment to small businesses, requiring federal agencies to publish their change orders policy and procedures on any small federal construction contract, and addressing the shortage in acquisition workforce by expanding the hiring authority for the federal agency.

Additionally, the House NDAA authorizes $11.3 billion for military construction, including family housing, and other infrastructure projects. AGC will continue to monitor the NDAA as it makes its way through the legislative process, and will advocate for further reforms in Congress.

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

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TAX/ACCOUNTING
Congressional Tax Writing Committees Hold Hearings on Tax Reform Law
 

Over the past few weeks, the Congressional tax writing committees—the House Ways and Means Committee and the Senate Finance Committee—have held a series of hearings on the implementation of the new tax reform law, The Tax Cuts and Jobs Act. In all three hearings, the new deduction for pass-through businesses has emerged as one of the strongest points of disagreement between supporters and opponents of the legislation. This new deduction, which AGC strongly supported, provides a 20 percent deduction for owners of pass-through businesses, which is how the vast majority of construction firms are organized. 

Unfortunately, this provision was only enacted on a temporary basis, and, absent Congressional action, will expire at the end of 2025. AGC will continue to defend this important deduction for our members, and push for legislation to make the deduction permanent.

For more information, contact Matthew Turkstra at matt.turkstra@agc.org or (202) 547-4733. Return to Top

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