Construction Legislative Week in Review
www.agc.org August 16, 2018
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On the Inside
SAFETY & HEALTH
OSHA Publishes New Silica Frequently Asked Questions for Construction
ENVIRONMENT
AGC Seeks Continuity as EPA, Corps Repeal and Replace the 2015 WOTUS Rule
AGC Urges EPA to Use Accurate Data and Consider Full Range of Costs in Cost-Benefit Analysis
New Bill Would Help Prevent States from Delaying Projects Based on Water Quality Certification
AGC’s Environmental Conference Makes Managing Compliance Manageable
FEDERAL CONSTRUCTION
AGC-Backed Change Order and Past Performance Reforms Become Law
MULTIEMPLOYER PENSIONS
Special Congressional Pension Committee Continues to Review Reform Options
ELECTIONS
AGC of America Joins Capital One, Microsoft, Starbucks, Target, and Others to Promote Voter Participation in 2018 Elections
EVENTS
Early Bird Cutoff Date Extended One Week Only!
SAFETY & HEALTH
OSHA Publishes New Silica Frequently Asked Questions for Construction
AGC Provides Overview of FAQs
 

The Occupational Safety and Health Administration (OSHA) recently released a set of 53 Frequently Asked Questions (FAQs) to provide guidance to employers and employees regarding OSHA’s respirable crystalline silica standard for construction.  The FAQs are extensive and organized by topic.  A short introductory paragraph is included for each group of questions and answers to provide background information about the underlying regulatory requirements.  AGC has assembled a  four-page document with some of the clarifications and a PDF version of all the FAQs for members’ convenience.  AGC encourages its members to review all the FAQs to assist in their compliance efforts.

Through the Construction Industry Safety Coalition, AGC was heavily involved in the formulation of these FAQs.  The development of the FAQs stemmed from litigation filed against OSHA by numerous construction industry trade associations – including AGC – challenging the legality of OSHA’s rule.  OSHA has also agreed to issue a Request for Information (RFI) on Table 1 to revise the Table to improve its utility.  AGC will continue to look for ways to work with OSHA to improve the workability of this significant rule.

For more information, contact Kevin Cannon at (703)837-5410 or cannonk@agc.org or Nazia Shah at (703)837-5409 or nazia.shah@agc.org.   Return to Top

ENVIRONMENT
AGC Seeks Continuity as EPA, Corps Repeal and Replace the 2015 WOTUS Rule
 

In response to a U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers request for comment, AGC submitted an August 13 letter reiterating its support of the agencies’ efforts to repeal and replace the 2015 “Waters of the United States” (WOTUS) rule while maintaining the current regulatory “status quo” in the interim.  The construction industry depends on receiving Clean Water Act permits to secure financing and approval to construct new projects.  AGC urges the agencies to provide continuity and predictability for near-term business planning under the current framework while they continue to work on the next steps. 

AGC also joined three other comment letters regarding the agencies’ supplemental proposal: the Waters Advocacy Coalition’s (WAC) comments, the Federal Stormwater Association’s comments, and joint comments that specifically look at the Supreme Court ruling in the SWANCC v. U.S. Army Corps of Engineers case and its implications for the 2015 rule as well as any future definition of WOTUS.  As an active member of the U.S. Chamber of Commerce Environment and Agriculture Committee, AGC also incorporated the Chamber’s comments by reference.

For more information, contact Melinda Tomaino at tomainom@agc.org. Return to Top

AGC Urges EPA to Use Accurate Data and Consider Full Range of Costs in Cost-Benefit Analysis
 

In response to a U.S. Environmental Protection Agency (EPA) request for comment on updating its cost-benefit analysis of its regulations, AGC submitted an August 13 letter to the agency stating that consistent and transparent cost-benefit analysis can improve regulations and limit arbitrary and capricious decisions.  AGC highlights six rulemakings affecting construction where EPA’s cost benefit analysis is particularly troublesome.  In these examples: the costs significantly outweighed the benefits; the analysis was performed with deficient data; the agency relied on non-quantified or indirect benefits to justify tighter controls; or the baseline assumptions about industry practices were outdated or ill-informed.

The construction industry is extensively regulated by the agency; and EPA regulations account for most of the annual estimated benefits and costs of all major federal regulations.  AGC urges the agency to apply cost-benefit analysis principles to the maximum extent possible under law and consider the full range of costs imposed on small businesses.

For more information, contact Leah Pilconis at pilconisl@agc.org. Return to Top

New Bill Would Help Prevent States from Delaying Projects Based on Water Quality Certification
 

AGC and other industry allies recently urged the Senate Environment and Public Works Committee to advance a new bill that would help prevent states from improperly delaying infrastructure projects based on water quality certifications. Among other reforms, the legislation—the Water Quality Certification Improvement Act of 2018 (S. 3303)—would require states to grant or deny requests by developers of federally-permitted projects for state water quality certifications in a timely fashion. In addition, states would be required to inform applicants within 90 days as to whether any additional information is needed to complete the review.

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

AGC’s Environmental Conference Makes Managing Compliance Manageable
Hear Regulatory Updates from Federal Agencies and Industry Experts
 

If your goal is an excellent compliance record, then AGC’s 2018 Construction Environmental Conference is the conference for you.  Join us Sept. 12 and 13 in Crystal City, Virginia, and learn how to manage environmental requirements with information straight from federal regulatory agencies and industry experts covering: stormwater, groundwater, species, Clean Water Act section 404 permitting and Waters of the United States, aerosol cans, lead-based paint, hazardous materials, and the Emergency Planning and Community Right-to-Know Act.  Register today!

For more information, contact Melinda Tomaino at tomainom@agc.org Return to Top

FEDERAL CONSTRUCTION
AGC-Backed Change Order and Past Performance Reforms Become Law
President Signs the National Defense Authorization Act
 

On August 13, President Trump signed into law the FY2019 National Defense Authorization Act (NDAA).  The law includes an AGC-backed bipartisan provision that will require federal construction agencies to publish their change order policies and procedures on any small business federal construction contract (see Sec. 855).  The provision will help provides prospective federal construction contractors with information they need to factor into their bids and offers to the federal government the risk and resulting cost of delayed payment for change.  Also included in the 2019 NDAA is the AGC-backed provision on past performance reporting for individual joint venture partners (see Sec. 823), which allows for past performance ratings for each partner of a joint venture. 

AGC of America’s CEO Steve Sandherr stated that “[t]he 2019 NDAA, like previous NDAAs, contain a host of laws related to the construction industry.  AGC will monitor each NDAA and continue to advocate for reforms that will benefit the construction industry as a whole.”

Some other notable provisions in the FY2019 NDAA that are important to AGC members include:

  • Sec. 880 - Use of lowest price technically acceptable source selection process.  This section further limits federal agencies from using LPTAs and requires agencies to adequately describe the minimum requirements for what amounts to “technically acceptable” in the procurement.
  • Sec. 878 - Procurement administrative lead time definition and plan.  Requires a government wide definition Procurement Administrative Lead Time (PALT) and requires federal agencies to work with the Department of Defense and the General Services Administration to develop a plan for measuring and reporting on PALT. 
  • Sec. 933, 934, 936 – Expediting the backlog of Security Clearances.  These provisions are designed to expediate the backlog of nearly 700,000 background investigations and security clearances for agency and contract personnel.  It will also require regular and transparent reports on the progress of these investigations.

Before many of these provisions are added to new federal construction contracts, they must first go through the rulemaking process to be implemented. It could be some time before that regulatory process is completed.

The above mentioned change order provision is a product of a congressional hearing where AGC members testified at the House Small Business Committee on change order delays and the impacts they have on federal construction contractors.  AGC continues to be at the forefront in advocating for greater accountability of the change order process among the various federal agencies.  AGC has previously called on the Federal Acquisition Regulation Council to improve the data federal agencies collect regarding the administration of change orders in response to the Council’s information request. AGC’s recommendations would require federal agencies to collect a range of data regarding the timeliness of action by the contracting officer to encourage greater accountability.  

For more information, contact Jordan Howard at jordan.howard@agc.org. Return to Top

MULTIEMPLOYER PENSIONS
Special Congressional Pension Committee Continues to Review Reform Options
AGC Provides Construction Industry Positions to Committee
 

On August 13, AGC—along with other construction employer associations—delivered a letter to Congress focusing on issues important to construction employers that are under consideration by the Congressional Joint Select Committee on Solvency of Multiemployer Pension Plans (JSC). The letter outlines the case for composite plans; the case against investment assumption mandates; and the case for not raising premiums. In addition, it outlines the efforts contractors have taken for years to address funding issues and emphasizes that time is running out. The outcome of the JSC remains uncertain but AGC will continue advocating for policies that benefit the construction industry and strengthen participants’ retirement security.

Congress established the JSC to improve the solvency of multiemployer pension plans and the Pension Benefit Guaranty Corporation (PBGC). The JSC has a statutory deadline to present a legislative solution by November 30, which means the Committee will be assessing solutions to the pension crisis this fall.

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

ELECTIONS
AGC of America Joins Capital One, Microsoft, Starbucks, Target, and Others to Promote Voter Participation in 2018 Elections
 

The construction industry and the millions of workers it employs have much at stake this November. At a time when the industry is rebounding from the longest and deepest slump of any sector, it is especially important to elect local, state, and federal leaders willing to work for common-sense solutions to the challenges facing the construction industry and its workforce. That’s why the association, along with leading brands and organizations, is partnering in the TurboVote Challenge to help America reach 80% voter turnout. AGC makes it very easy to receive election reminders via email or text, register to vote, and apply for an absentee ballot using the TurboVote tool. Sign up today at agc.turbovote.org.

In order for our voices to be heard in this ever-changing political landscape, we must register to vote and cast our ballots early or on Election Day. Please share this information with your colleagues, friends, and family. Download this sample communication and send them an email today! Help make the construction industry’s voice heard loudly and clearly in this year’s elections! Get registered. Get informed. Vote!

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

EVENTS
Early Bird Cutoff Date Extended One Week Only!
2018 AGC HR/TED Conference: Oct. 10-12 in Fort Worth, TX
 

Don’t miss out on early registration discounts for the 2018 Construction HR and Training Professionals Conference and pre-conference Federal Construction HR Workshop being held October 10-12, 2018 in Fort Worth, TX!

AGC's HR/TED Conference provides two days of education and networking for HR, training, and workforce development professionals in the construction industry. Educational sessions for training professionals cover the most cutting-edge techniques in training and development currently in use and envisioned for the future in the industry. The HR sessions help HR professionals in the industry remain up to date and compliant with employment laws and best practices. Some sessions interest both HR and training professionals alike.

Back by popular demand is the pre-conference Federal Construction HR Workshop, which will be held the afternoon of Oct. 10. This half-day workshop is designed to help staff responsible for compliance on federal and federally assisted projects. This year’s session topics include “Meeting EEO/AA Obligations of a Federal (sub) Contractor”, “OFCCP Update 2018”, and “Federal Contractor Pay Practices and Requirements”. 

Walk away from this year's conference with practical skills that you can begin to implement immediately. Plus, take away insights from colleagues who face the same challenges you see every day.

To register or for more information, click here Return to Top

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