Construction Legislative Week in Review
www.agc.org November 8, 2018
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On the Inside
Safety
OSHA Issues Final Rule on Crane Operator Certification and New Evaluation Requirements
Special Information Regarding Crane Operator Certification Exams Taken in Spanish
2018 Elections
Implications of 2018 Congressional Elections on Construction
Ballot Initiatives
State & Local Ballot Initiatives Impacting Construction
Events
ConsensusDocs Webinar Series: Successful Construction Contracts Dec 6th at 1pm ET
Safety
OSHA Issues Final Rule on Crane Operator Certification and New Evaluation Requirements
 
On Nov. 7, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) published its final rule that clarifies certification requirements for crane operators, and maintains the employer’s duty to ensure that crane operators can safely operate the equipment. Under the final rule, employers are required to train operators as needed to perform assigned crane activities, evaluate them, and document successful completion of the evaluations. Employers who have evaluated operators prior to Dec. 9, 2018, will not have to conduct those evaluations again, but will only have to document when those evaluations were completed.
 
The rule also requires crane operators to be certified or licensed and receive ongoing training as necessary to operate new equipment. The final rule also revises a 2010 requirement that crane operator certification must specify the rated lifting capacity of cranes for which the operator is certified. Operators can now be certified based on the crane’s type and capacity, or type only. Compliant certifications that were already issued by type and capacity are still compliant under this final rule.
 
The final rule, with the exception of the evaluation and documentation requirements, will become effective on Dec. 9, 2018. The evaluation and documentation requirements will become effective on Feb. 7, 2019. AGC will provide more information as it continues to review the final rule. 
 
For more information please contact Kevin Cannon at (703) 837-5410 or cannonk@agc.org
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Special Information Regarding Crane Operator Certification Exams Taken in Spanish
 
We have heard from AGC members that the National Commission for the Certification of Crane Operators (NCCCO) is not currently issuing cards to candidates passing their Crane Certification exams in Spanish. 
 
Communications from exam proctors to successful candidate may read something like this: 
 
“Unfortunately, the NCCCO will not issue cards to the candidates passing the exams in Spanish, as NCCCO are still awaiting approval/accreditation from ANSI. At this point, NCCCO only issues a letter to the successful candidate and his or her certification can be verified on NCCCO’s website.” 
 
AGC approached OSHA to clarify how enforcement would take place in the absence of a physical card. We have been instructed that the card is not an issue as long as it can be independently verified. NCCCO’s process includes a letter and website verification. As such, AGC is relatively confident that the lack of a card does not present a potential violation of the standard. AGC is basing this estimation on the following communication with OSHA:
“You [AGC] are correct in that a testing organization must be accredited as meeting criteria specified by certification requirements of the cranes standard (subpart CC of 29 CFR Part 1926). As we understand per our discussion, you are aware that particular certifications offered by a testing organization are still under review for accrediting. The organization must first administer enough tests for psychometric evaluations before the reviews can be completed. However, the organization is still accredited to issue other crane operator certifications. In the interim, the organization issues letters to operators who passed certifications that are still under review and makes available all information required by the crane standard about the operators and the tests passed. You ask would this be considered a valid certification. 
 
Because the organization is already accredited to issue other crane operator certifications, it meets the requirements of 29 CFR1926.1427(b)(1) and we have no reason at this time to conclude that the certifications which are still under review and issued by the organization are not valid.”
 
For more information please contact Kevin Cannon at (703) 837-5410 or cannonk@agc.org
 
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2018 Elections
Implications of 2018 Congressional Elections on Construction
 
The results of the Midterm Congressional Elections will have an impact on construction-related federal policies and legislation. Click the “read more” option below to find brief overviews of how the election outcome may impact a wide range of issues impacting your construction business and market. 
 
Transportation & Infrastructure
Infrastructure is a top priority for the incoming Congress Democrat House Leader Nancy Pelosi, President Trump, Republican Majority Leader Mitch McConnell and Democrat Minority Leader Chuck Schumer all made public statements on Nov. 7 citing infrastructure as an issue they can work together on. Rep. Peter DeFazio (D-Ore.) will become Chairman of the House Transportation & Infrastructure (T&I) Committee. With the Federal Aviation Administration reauthorization, Water Resources and Development Act, and Federal Emergency Management Agency authorization passing current Congress, the T&I Committee enters the new Congress able to begin a broader discussion on an infrastructure package. The challenge – as it always is – will be how to pay for a broad infrastructure bill. Rep. DeFazio, along with likely Ways & Means Committee Chairman Richard Neal (D-Mass.), has pledged to put together a package that makes bold new investments in infrastructure. AGC expects expect both committees to devote significant time in the beginning of 2019 to setting the ground work for such a proposal. 
 
Workforce
One of the few areas that saw bipartisanship in Congress were education and workforce policies. Only a couple months ahead of the divisive election, Congress overwhelmingly approved a re-write of the Career and Technical Education (CTE) law in addition to increases in CTE funding during the last two fiscal years. The new Congress is expected to give additional priority to CTE and apprenticeship programs to help address workforce shortages. 
 
Immigration 
House Democrats’ primary focus will be passing stand-alone legislation protecting Deferred Action for Childhood Arrivals (DACA) program recipients with a path to citizenship. However, those efforts will be stymied unless they are coupled with increased border security funds and visa program reforms. Border security—and, more specifically, border wall funding—could dominate the government funding debate ahead of a Dec. 7 deadline to keep several agencies operating, including the Department of Homeland Security. State and local government initiatives to blacklist of contractors involved in the construction of a southern border wall will remain an AGC concern. The change of power in the House and even at the Department of Justice will put renewed pressure on the administration to protect contractors from unlawful discrimination. 

Labor
Earlier this year, Democrat leaders released a laundry list of priorities including restoring “card check,” expanding the joint employer standard, restricting traditional independent contractor roles, and limiting an employer’s ability to seek legal advice during union elections. These efforts are unlikely to advance in a GOP-controlled Senate. One area that could see potential movement in a divided Congress is paid parental leave, thanks largely to Ivanka Trump and the impending 2020 presidential election.
 
Taxation
With Rep. Richard Neal (D-Mass.) likely to lead the Ways and Means Committee in the House, we expect to see a number of hearings on the effects of the new tax reform law on businesses, individuals, and the economy. Provisions in the law, such as the $10,000 cap on the deductibility of state and local taxes (SALT), were highlighted in a number of successful Democrat campaigns and will face greater scrutiny. Expect Democrats to call for raising corporate and/or individual tax rates to pay for anything from infrastructure to paid parental leave. The GOP-Senate very likely ensures that attempts to significantly raise tax rates or repeal the new tax law will not go far. However, minor changes are certainly possible, with President Trump recently noting his willingness to raise corporate and/or wealthy individuals’ tax rates to finance a new middle-class tax cut.
 
Pensions 
The unfinished work and recommendations of the Joint Select Committee on Solvency of Multiemployer Pension Plans will dictate any pension policy changes in the next Congress.  Major reforms are expected to be slow, but with the impending failure of the massive Central States pension fund and the Pension Benefit Guaranty Corporation inching closer to insolvency in 2025 or earlier, there are many political and policy considerations to address a pension overhaul ahead of the 2020 presidential election. With the likelihood of a legislative overhaul in the next Congress growing, AGC will continue to prioritize the adoption of alternative plans designs, like composite plans. 

Environment
A Democratic majority in the House will likely result in a renewed focus on climate and energy issues, which may include carbon taxes or renewables mandates. Indeed, the House may choose to pass legislation that have little chance of becoming law in order to “go on the record” on key policy issues that will shape the 2020 elections. However, some of those policies may survive: legislation to advance top Congressional priorities –perhaps an infrastructure package– may need to include compromises on environmental permitting and reviews to pass both chambers and be signed into law. The federal agencies like the U.S. Environmental Protection Agency continue to actively tackle long-standing environmental inefficiencies and correct past regulatory overreaches. The midterm election is unlikely to change the course or focus of the agencies.
 
For more information, contact Jimmy Christianson at christiansonj@agc.org or (703) 837-5325.
 
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Ballot Initiatives
State & Local Ballot Initiatives Impacting Construction
 
There were a wide range of state and local ballot initiatives decided on Nov. 6 that have ramification for your construction business and market. Click the “read more” option below to find brief overviews of how initiatives regarding the outcomes of transportation and legalized marijuana ballot initiatives across the nation. 
 
Transportation
According to the Eno Transportation Center, there were at least 314 transportation-related ballot measures nationwide this Tuesday totaling more than $50 billion in 33 states. While most major measures passed there were some significant rejections including user fees. Sales tax (27%) and property tax (28%) increases made up the bulk of the initiatives that passed with revenue sources.
 
In California voters—by a 55-45 percent margin—rejected Proposition 6, a measure that would have repealed transportation funding legislation that increases the state’s gasoline user fee by 12 cents per gallon, the diesel fee by 20 cents per gallon and increases other transportation fees. The funding measure will generate approximately $54 billion over the next ten years of additional revenue to be used solely for transportation. In addition to repealing these revenue increases, Prop. 6 would have required that all future transportation revenue measures be approved by a vote of the citizenry. AGC’s Construction Advocacy Fund joined with the AGC California chapters and AGC members in providing significant financial resources to oppose the repeal effort. 
 
In Missouri, voters rejected - 46.4%-53.6% - a measure championed by the AGC of Missouri, that would have raised the gas tax for the first time since 1993 as well as the user fee on diesel, natural gas, and propane. Colorado voters rejected both statewide transportation ballot measures. Prop 109, “Fix Our Damn Roads,” would have directed the state to sell bonds to pay for road improvements; Prop 110, “Let’s Go Colorado,” would have raised the sales tax to pay for road and multimodal improvements. Both failed approximately 40%-60%. AGC’s Colorado Contractors Association (CCA) was a leader in the effort to get Prop 110 adopted. In Utah, voters rejected a nonbinding resolution asking state lawmakers to raise the fuel tax by 10 cents for education and local roads.
 
Marijuana
Michigan voters approved recreational marijuana legalization, but North Dakota voted down the same initiative. And Missouri and Utah approved marijuana for medical use. This brings the number states where recreational marijuana is legal to 10 plus Washington, D.C., and medical marijuana is now legal in 33 states and Washington, D.C. However, there is still a chasm between federal drug laws that places employers in the construction industry in the untenable position of enforcing drug free workplaces and potential discriminatory actions. With public acceptance growing in recent years, there is a possibility that either Congress or the federal government could issue new policies to provide greater clarity to employers. 
 
For more information, contact Jimmy Christianson at christiansonj@agc.org or (703) 837-5325.
 
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Events
ConsensusDocs Webinar Series: Successful Construction Contracts Dec 6th at 1pm ET
 
Studies demonstrate that fair, best practice contracts, achieve superior construction project results versus the one-sided, outdated, and siloed clauses that lead to claims and litigation. What are the most important clauses that you should prioritize in negotiations to set a foundation for success, and which clauses to avoid? The two-main standard construction contract documents, AIA and ConsensusDocs, take different approaches in some areas and similar approaches in others. Learn how you can leverage the advantages in standard construction and architectural agreements to improve your bottom-line. This webinar is free to AGC members. Click here to register today.
 
For more information, please contact Amy Hager at (703) 837-5367 or ahager@consensusdocs.org. 
 
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