Construction Legislative Week in Review
www.agc.org December 6, 2018
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On the Inside
Safety
AGC-Backed Trenching & Damage Prevention Best Practices Now OSHA-Recognized
Public Private Partnerships
IRS Guidance Reflects AGC P3 Comments
Workforce Development
Congress Continues to Consider Criminal Justice Reform
Environment
Supreme Court Ruling Sets Limits on Critical Habitat under Endangered Species Act
U.S. EPA and DOJ Announce Sensible Enforcement Efforts
Events
AGC Financial Issues Committee Winter Meeting Registration Open
Safety Management Training Course | February 11-13, 2019 | Omaha, NE
Awards
20th Annual AGC-Willis Towers Watson Construction Safety Excellence Awards (CSEA)
Surveys
CLWIR Subscription Survey
Safety
AGC-Backed Trenching & Damage Prevention Best Practices Now OSHA-Recognized
 
AGC along with the Common Ground Alliance (CGA) successfully advocated for CGA’s underground utility safety and damage prevention Best Practices to be OSHA recognized. These best practices are now included in an OSHA Instruction on the National Emphasis Program on Trenching and Excavation. This means that contractors have a OSHA-recognized best practices guide for meeting trenching and damage prevention requirement. 
 
AGC has been actively involved with CGA as a founding member, key developer of policies and procedures, and a key participation by both members and staff. Since day one of the USDOT’s Common Ground Study, CGA has advocated for their Best Practices to make their way into laws, safety programs and regulations. The group has fought to make sure each best practice addressed all stakeholders responsibilities, assigned risk to the most appropriate party and enhanced safety.
 
These Best Practices are now recognized by the USDOT, state legislatures, corporations, construction industry and now OSHA as the underground utility safety and damage prevention guidelines. 
 
Congratulations to our members for their foresight and commitment of their time to the CGA and supporting AGC’s participation in the effort.
 
For more information contact, Allan Gray at allen.gray@agc.org or (703) 837-5321.
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Public Private Partnerships
IRS Guidance Reflects AGC P3 Comments
 
The Internal Revenue Service (IRS) recently released guidance clarifying that a tax limitation included in last year’s tax reform law was not intended to apply to infrastructure related public private partnerships (P3s).  In May, AGC joined industry allies in providing comments to the IRS expressing our concern that Section 163(j) of the Internal Revenue Code may have the unintended consequence of creating a substantial disincentive for private investment in public infrastructure through the use of P3s because of substantially increased costs.   
 
This increase would have been caused as a result of the tax reform law’s restriction on the ability of a company to utilize interest deductions to the extent that its interest expense exceeds 30% of adjusted taxable income.  The law, however, did provide an exception for “real property trades or businesses” to elect out of the restriction at the cost of losing access to the expensing allowance. Our comments in May asked for P3s to be considered as real property trades or business.  
 
As such, AGC is pleased to see the new IRS guidance providing a safe harbor that allows certain trades or businesses that are conducted in connection with the “designing, building, managing, operating, or maintaining of certain core infrastructure projects” as real property trades or businesses.
 
For more information, please contact Sean O’Neill at oneills@agc.org, or (202) 547-8992.
 
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Workforce Development
Congress Continues to Consider Criminal Justice Reform
AGC supports Job Training Provisions
 
In the few remaining days of the current Congress, there remains an effort to pass sweeping criminal justice reforms in the FIRST STEP Act. This legislation includes numerous policy changes with the goal to reduce recidivism and help ex-offenders lead productive lives after leaving the criminal justice system. Among those provisions that AGC supports, are the employment and job training opportunities for ex-offenders. AGC recognizes the construction industry struggles to find qualified workers and ex-offenders struggle to find jobs. AGC outlined that it hopes the FIRST STEP Act will increase job training programs and prepare ex-offenders in a letter to Congress earlier this week. 

For more information, contact Jim Young at youngj@agc.org or (202) 547-0133.
 
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Environment
Supreme Court Ruling Sets Limits on Critical Habitat under Endangered Species Act
 
A recent U.S. Supreme Court (SCOTUS) decision found that critical habitat must be actual habitat for a species and that decisions not to exclude areas from critical habitat are subject to judicial review—a ruling that many are heralding as a check on regulatory overreach. In Weyerhaeuser Co. v. the U.S. Fish and Wildlife Service (FWS), the plaintiff challenged the FWS on its designation of an unoccupied area, not currently habitable to the species, as critical habitat for the dusky gopher frog. The Fifth Circuit court deferred to the Service. However, SCOTUS remanded the case back to the circuit court to determine the meaning of “habitat” specific to the facts in this case and whether FWS’s designation of critical habitat was “arbitrary and capricious.”
 
In its decision, the USSC found that critical habitat must first be habitat; reasoning that, because “[a]djectives modify nouns,” “critical habitat” must be a subset of “habitat.” However, it left unanswered the key question of whether areas not currently occupied by a listed species must be capable of supporting the species at the time of designation, in order to qualify as critical habitat. The Court also did not address the Service’s practice of designating unoccupied areas as habitat.

For more information, contact Melinda Tomaino at tomainom@agc.org or (703) 837-5415. 
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U.S. EPA and DOJ Announce Sensible Enforcement Efforts
Policy Revisions Track AGC Recommendations
 
The U.S. Environmental Protection Agency (EPA) is piloting a new inspection policy that addresses several of AGC's long-standing concerns and has the potential to improve the enforcement process and overall industry compliance. Similarly, the Department of Justice (DOJ) recently announced changes to enforcement policies regarding individual accountability for corporate wrongdoing set forth in the 2015 memorandum from then-Deputy Attorney General Sally Yates “Yates Memo.” Click “read more” for further details. 
 
Regarding the EPA’s approach, the policy calls for “real-time” feedback, including a discussion of potential deficiencies and opportunities to promptly correct problems and sets a 60-day goal for completing inspection reports.  When put into practice, these procedures would avoid compounding environmental harm and penalties, which may occur when a company learns of a violation several months after an inspection takes place or even after a construction project is completed. Click here for more.
 
Turning to DOJ’s new policy, the most notable revision is to change the approach set out in the Yates Memo that “[t]o be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct.” AGC had raised significant concerns about this “all or nothing” approach that encouraged fishing expeditions rather than calculated  enforcement efforts to address the actions of bad actors.  
 
Furthermore, under the new, revised DOJ policy – spelled out in the Justice Manual (formerly the United States Attorneys’ Manual) and announced by Deputy Attorney General Rod Rosenstein on Nov. 29 – to qualify for “any cooperation credit” companies now have to identify only individuals who play a significant role or were “substantially involved in or responsible” for wrongdoing.  For civil cases, companies now “must identify all wrongdoing by senior officials, including members of senior management or the board of directors.”    
 
For additional information, please contact Leah Pilconis at pilconisl@agc.org or (703) 837-5332.  
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Events
AGC Financial Issues Committee Winter Meeting Registration Open
 
The AGC Financial Issues Committee (FIC) winter meeting will be held January 10-11 at the JW Marriott Turnberry Resort in Miami, Florida. Visit the meeting site to register and book your stay!
 
Member company CFOs, controllers, tax directors, sureties, and other senior accounting professionals who seek an opportunity to learn about and discuss financial issues facing the construction industry as well as formulate positions on tax and accounting matters for the association should attend. Meetings center around discussions with the Financial Accounting Standards Board (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 matters like audit issues, executive and congressional action on federal tax policy, and best practices for industry professionals.
 
At the committee’s earlier meeting this summer in Washington, D.C., U.S. Senator Steve Daines (R-Mont.) addressed attendees and provided them with a legislative update. He also addressed the recently passed tax reform legislation and discussed how it impacts the construction industry and industry priorities. The group was also privy to a presentation on the new “Opportunity Zones,” created in the Tax Cuts and Jobs Act from Shay Hawkins, tax counsel to U.S. Senator Tim Scott (R-S.C.), received an update on the implementation of new accounting standards, and heard from AGC Chief Economist Ken Simonson about the economic outlook for construction.
 
For more information, contact Matthew Turkstra at matt.turkstra@agc.org or (202) 547-4733.
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Safety Management Training Course | February 11-13, 2019 | Omaha, NE
 
The AGC Safety Management Training Course (SMTC) provides attendees with three days of training on the basic skills needed to manage a company safety program in the construction industry. The SMTC program builds on Focus Four training and prepares attendees to manage key safety issues on the job site and provides techniques for delivering basic safety training to field personnel. Participants will receive intensive instruction and training that will allow them to return to their firms with readily applicable new skills to positively impact their company’s safety and health program. Visit the Safety Management Course page for more information.
 
For more information, contact Nazia Shah at (703) 837-5409 or nazia.shah@agc.org.  
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Awards
20th Annual AGC-Willis Towers Watson Construction Safety Excellence Awards (CSEA)
Deadline for Submitting Applications is December 14, 2018
 
The AGC-Willis Towers Watson Construction Safety Excellence Awards (CSEA) is the industry’s elite safety excellence awards program for contractors, service providers, and suppliers of all types and sizes. CSEA recognizes companies that develop and implement premier safety and risk control programs and showcases companies that achieve continuous improvement and maintenance of their safety and health management system. So, don’t miss this opportunity to be recognized for your best-in-class safety program! Please visit agc.org/csea for more information on the AGC-WTW CSEA program.
 
For more information, contact Nazia Shah at (703) 837-5409 or nazia.shah@agc.org.  
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Surveys
CLWIR Subscription Survey
 
Thank you for subscribing to the Associated General Contractors’ Construction Legislative Week in Review (CLWIR) Newsletter.
 
The newsletter is designed to provide AGC members with weekly information on federal legislation and regulatory efforts impacting the commercial construction industry. 
 
If you haven’t already, please complete this brief survey to continue your subscription and provide AGC with feedback on how we may better serve our readers. 
 
For more information, contact Jenni Traver at jennifer.traver@agc.org or (703) 837-5435.
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