Register Now for Form I-9 and E-Verify Two-Part WebEd Series
U.S. Immigration and Customs Enforcement (ICE) has ramped up workplace inspections, increasing audits and arrests as part of an effort to find illegal workers and deter businesses from hiring them.  According to recently released data, ongoing worksite cases have already doubled in fiscal year 2018 in comparison to last year.  In light of these developments, don’t miss out on this valuable AGC WebEd series and learn how to stay a step ahead of a potential audit.
From Oct. 1, 2017, through May 4, the agency’s Homeland Security Investigations (HSI) opened 3,510 worksite investigations; initiated 2,282 I-9 audits; and made 594 criminal and 610 administrative worksite-related arrests, respectively. In comparison, for fiscal year 2017 – running October 2016 to September 2017 – HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement. Derek Benner, the Acting Executive Associate Director for ICE’s Homeland Security Investigation division, has indicated ICE would like to open 15,000 audits per year if possible.
As for penalties, ICE calculates them by dividing the number of violations by the total number of employees to reach a “violation percentage”. The penalties, which range from $220 to $2,191 per violation, go up depending on whether it’s a first, second, or third offense. A recent agency fact sheet makes it appear that violation percentages are calculated separately depending on whether you’re talking about an I-9 violation--such as failing to properly complete a section of the form--or to knowingly hiring and/or continuing to employ an unauthorized immigrant. But in practice, it is being reported that ICE is combining the two types of offenses to reach a higher percentage and impose a higher fine.
For more information, contact Claiborne Guy at [email protected] or 703-837-5382.

AGC Fights Back Against Obama-Era Rule that Would Have Slowed Project Approval
On May 22, the Federal Highway Administration (FHWA) repealed a regulation put in place in the waning days of the Obama administration that would have required states to measure greenhouse gas (GHG) emissions on highways as part of the planning process for transportation improvement projects. AGC was actively involved in fighting this rule from its inception, raising concerns about its legality and application in a 14-page comment letter. AGC also joined with 38 other organizations in challenging FHWA’s authority to mandate the measurements.  And, AGC submitted a second round of comments to Transportation Secretary Chao last November. AGC’s comments were cited multiple times in the final repeal notice.
AGC’s comments argued that the rule undermines the transportation planning process, could adversely impact air quality and duplicates other federal initiatives related to GHG already underway.  AGC also raised the issue in a meeting with Transportation Secretary Chao in her first days on the job following Senate confirmation.
For more background on this issue, please see prior AGC articles here and here.  If you have additional questions, contact Brian Deery at [email protected] or (703) 837-5319.

Construction Equipment, Products and Materials Could be Included
On May 29, the White House announced its intent to impose 25 percent tariffs on $50 billion worth of imported Chinese goods, some of which could include construction equipment, products and materials (e.g., concrete or mortar mixers; electric signaling items for traffic or safety control; elevators and conveyors; tower cranes; tunneling machinery; water pumps, etc.). AGC previously urged the administration to remove construction-related goods from the proposed tariff list, as they do not appear to meet the intended purpose of the tariffs: retaliation for China’s state-directed intellectual property theft.  The final list of Chinese goods subject to the tariffs is expected by June 15, with the tariffs set for imposition shortly thereafter.
For more information, contact Jimmy Christianson at [email protected].

AGC Provides Tariff Resources for Construction Contractors
On May 31, U.S. Department of Commerce Secretary Wilbur Ross announced steel and aluminum tariffs for Canada, Mexico and the European Union effective June 1. These countries were previously spared from the March 23-imposed 25 percent tariff on steel and 10 percent tariff on aluminum. According to reports, at least 30 percent of imported steel came from these nations in 2017. As a result, contractors may expect further increases in domestic steel prices and mill delivery delays. AGC has put together several resources for construction contractors regarding the various trade actions affecting construction, including a primer on tariffs in effect or under consideration, and contractual considerations privateand federal/federal-aid contractors should consider in light of the tariffs.
Construction contractors are encouraged to contact the president and their congressional elected officials to let them know how these tariffs impact their construction markets.  AGC continues to educate the White House and Congress on the impacts these and other potential tariff actions are having on the construction industry.
For more information, contact Jimmy Christianson at [email protected]. 

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 [email protected] or (202) 547-4733.

Change Order Reform; Accelerated Payment to Small Business 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 [email protected] or (703) 837-5368.

Provision for New $150M Corps’ 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 [email protected] or (703) 837-5368.

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 [email protected] or (703) 837-5319.

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 [email protected] or (703) 837-5415.

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 [email protected] or (703) 837-5332 or Melinda Tomaino at [email protected] or (703) 837-5415.