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Trump Admin. Seeks Advice on Construction Permitting/Regulatory Issues

AGC Provides Comprehensive, Detailed Response
In a comprehensive, 64 page response, AGC answered the Dept. of Commerce’s (DOC) request for information (RFI) on the impact of federal permitting/regulatory requirements on the construction and expansion of domestic manufacturing facilities. AGC noted a host of federal environmental permitting hurdles and other regulatory burdens that extensively delay and increase costs for construction of these facilities.
For more information, contact Jimmy Christianson at 703-837-5325 or [email protected].

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OSHA Delays Silica Enforcement

Enforcement Begins on Sept. 23, 2017
On April 6, the U.S. Occupational Safety and Health Administration (OSHA) announced that it will delay enforcement of the respirable crystalline standard for construction for three months—until Sept. 23, 2017. In its announcement, OSHA explained that the construction silica standard has a number of unique features warranting development of additional guidance and educational materials before enforcement begins. AGC continues to believe that implementation of this standard is technically infeasible and continues to challenge it in court.
Although OSHA enforcement of the standard is delayed, the notice does not alter the compliance date of June 23, 2017. OSHA will not take enforcement action against contractors that fail to meet the standard on their sites between June 23, 2017 and Sept. 22, 2017, but legally, the standard will still be in effect.
While an interested group could file a lawsuit challenging the three month delay, that appears to be unlikely given the short duration of the delay and the broad enforcement discretion federal agencies—like OSHA—have traditionally enjoyed. AGC will continue to fight this standard in court and advise OSHA on the problematic issues the construction industry faces with implementation. In addition, members should review AGC educational resources on its comprehensive silica website, found here.
For more information, contact Kevin Cannon at [email protected] or (703) 837-5410.

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Misguided OSHA Rule Permanently Repealed

On Monday, the president repealed the OSHA “Volks” Rule by signing the congressional resolution of disapproval. AGC led a lobbying effort in passing the bill and issued a statement after the vote that the bill will preserve worker safety while protecting the Constitution and respecting court rulings.

At the heart of the Volks matter was an Obama Administration OSHA rule – issued in December 2016 – that exposed employers to unfair liability for honest and inadvertent paperwork mistakes related to recordkeeping. The rule extended the statute of limitations on recordkeeping violations from six months to five and a half years, and did nothing to improve the safety or health of a company’s workers. The rule was initially issued by OSHA to circumvent a court decision involving a construction company that challenged an OSHA citation for a recordkeeping violation issued beyond six months. Two federal courts have since rebuked OSHA’s theory for issuing recordkeeping citations after six months.

The signing of the congressional resolution of disapproval formally repeals the rule and any other substantially similar rules from OSHA in the future. This is the second labor and employment rule repealed by President Trump that AGC played an integral role in, the other being the bill invalidating the blacklisting regulations, which was signed into law on March 27.

For more information, contact Jim Young at [email protected] or (202) 547-0133.

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Supreme Court Decides to Hear Controversial WOTUS Case, Despite New Administration’s Objections

Earlier in 2017, the US Supreme Court decided it would hear the case about which level of court had the authority to hear a challenge to the Obama Administration’s rule expanding federal jurisdiction over waters. In the interim, after the new administration began to settle, President Trump issued a new Executive Order that began the process of unwinding the rule. Because the intent of the Administration is to rescind the Obama-era rule and replace it with a new rule, the Administration moved the Supreme Court to hold the briefing in abeyance until the new rule is issued.
The Supreme Court, however decided that whenever the new WOTUS rule is issued, all parties need to know which court has jurisdiction to hear any challenge to the rule. It is likely that the decisions to rescind the Obama rule and the substance of the new rule are each likely to end up in litigation. The Court agreed that there was no sense in delaying the answer to this question. The case will proceed as scheduled.
For more information, contact Scott Berry at [email protected] or (703) 837-5321.

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Senate Votes to Change Filibuster Rules for Supreme Court Nominees

Today the Senate voted to change the filibuster rules for consideration and approval of Supreme Court nominees. This does not change the rules that often require at least 60 votes to pass legislation in the Senate.  Senate Majority Leader Mitch McConnell said publicly this week that he will not change the rules for legislation while he is Majority Leader (see coverage here).  The Senate will vote Friday to approve Neil Gorsuch to be a Supreme Court Justice.  Then, the House and Senate will adjourn for a two week Easter recess.
It will be interesting to see what the mood is when Congress returns to D.C. the week of April 24.  They have a lot of work to do; they will need to pass legislation to fund the government for the rest of the fiscal year (FY 2017), start the process for funding the government for next year (FY 2018), reconsider how to address Obamacare, continue work on tax reform and an infrastructure bill. The Senate also has the job of confirming another 527 of the 553 key nominees for senior Trump administration positions.  So far, the Senate has approved just 22 of the 43 people nominated.  At this same point in the Obama administration there were 174 total nominations formally delivered to the Senate from the White House with 54 key personnel approved.
For more information, contact Jeff Shoaf at [email protected] or (202) 547-3350.

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Administration Continues to Focus on Infrastructure Plan

On two separate occasions this week, President Trump indicated that he intends to accelerate the time frame in which he will propose his $1 trillion dollar infrastructure plan.  Additionally, Transportation Secretary Chao briefed a small group of Republican House Members on an infrastructure package that may be moving as soon as the middle of May.  Neither the President nor Secretary Chao provided any level of detail other than that the plan will rely on both private and public funds and will cut red tape that contributes to a delay in infrastructure projects.
However, the timing for any infrastructure plan remains in flux.  It appears that the Administration is moving forward sooner than previously thought and the House and Senate Committees have held several infrastructure-related hearings.  AGC will continue to work with both the Administration and Congress to ensure that the promise of a $1 trillion infrastructure package that provides direct federal spending, increased private sector investment and cuts red tape is kept.
For more information, contact Sean O’Neill at [email protected] or (202) 547-8892.

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AGC, Along with National Partners, Launch National Work Zone Awareness Week

On Tuesday, April 4, AGC of America staff along with the AGC Highway and Transportation Division chairman, Don Diederich, joined national partners from the U.S. Department of Transportation, U.S. Department of Labor, and the Maryland Department of Transportation to launch the 2017 National Work Zone Awareness Week.  The event, which runs from April 3-7, 2017, raises awareness that – for the safety of everyone – work zones require drivers to remain focused and stay alert.  According to the latest data available, approximately 700 fatalities occurred in highway work zones in 2015 with 130 being workers.
For more information, contact Kevin Cannon at [email protected] or (703) 837-5410.

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“Blacklisting” Rule Finally Dies, Marking Big Win for AGC Members 

Thanks in part to AGC’s advocacy efforts, contractors are enjoying a major victory today:  permanent nullification of regulations implementing President Obama’s Fair Pay and Safe Workplaces Executive Order, often referred to as the “blacklisting” rule.  On March 27, President Trump signed into law a joint resolution under the Congressional Review Act (CRA) by which Congress expressed disapproval of the rule and stripped it of all force and effect.
Under the blacklisting rule, both prime and subcontractors were required to report violations and alleged violations of 14 federal labor laws and “equivalent” state labor laws during the previous three years, and again every six months, on federal contracts over $500,000.  Prime contractors were also responsible for evaluating the labor law violations of subcontractors at all tiers.  A single alleged violation could have led a contracting officer to remove a contractor from an ongoing project or to deny to a contractor the right to compete for a contract.  The rule also required contractors to provide certain pay information to employees and independent contractors, and it limited the use of mandatory arbitration of employment disputes.  All but the paycheck transparency provisions had been on temporary hold since a federal court issued preliminary injunction in October 2016.
“To be clear, there should be no place in federal contracting for unsafe or unscrupulous firms.  Yet the former president’s measure did nothing to reform or improve the existing suspension and debarment process,” said AGC Chief Executive Officer Steve Sandherr.  “Instead, it created a new layer of bureaucracy that would have given federal officials broad discretion to punish construction firms based on any number of unsubstantiated allegations without establishing a process for those firms to defend themselves.  That is why the Associated General Contractors worked so aggressively to push for passage of today’s repeal measure.”
The CRA enables Congress to invalidate recently-issued federal agency regulations under certain circumstances.  Once Congress passes a joint resolution under the CRA and the president signs it into law, federal agencies may not issue the same, or a substantially similar, regulation absent authorization from Congress.  Accordingly, Congress’s and the president’s use of the CRA to “kill” the blacklisting rule is considered a better outcome than the President simply withdrawing the executive order and regulations.  Enactment of the present resolution also renders continued litigation over the rule moot.
Unwinding the paycheck transparency requirements that were already in effect at the time president Trump signed the resolution may take time, and some federal contracting officers may not be aware of this development.  Contractors responding to a request for proposal that includes FAR 52.22-60, Paycheck Transparency (Executive Order 13673), should ask the contracting officer to remove the provision in light of this development.  Contractors already performing work on a contract that incorporates FAR 52.222-60 should consider evaluating the burden of continued compliance, and, if significant, ask the contracting officer to remove the clause by modification.
For more information, contact Jimmy Christianson at 703-837-5325 or [email protected] or Denise Gold at 703-837-5326 or [email protected].

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New Executive Order Scraps Several Permitting Review Hurdles

On March 28, 2017, President Trump signed a new executive order that rescinds, as recommended by AGC, several Obama administration environmental review/permitting hurdles that could have delayed construction projects. The order, entitled “Promoting Energy Independence and Economic Growth,” rescinds Council on Environmental Quality guidance that required federal agencies to quantify and additionally consider direct and indirect greenhouse gas emissions for construction projects during the National Environmental Policy Act (NEPA) review, for which environmental impact statements already take 4.6 years on average to complete. The order also rescinds an Obama presidential memoranda that created sweeping new authority for several federal permitting agencies, establishing a preference for compensatory mitigation to restore, establish, or enhance the environment within the scope of a construction project where unavoidable adverse environmental impacts may occur.
The order notes that changing or rescinding some of these actions may involve additional notice and comment period to be consistent with the law, which will take time. It does not address how existing case law that upholds certain considerations of greenhouse gasses during NEPA review will continue to affect how agencies handle those impacts. AGC will follow up with additional analysis of the impact of this order on the construction industry.
For more information, contact Melinda Tomaino at (703) 837-5415 or [email protected].

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Legislation to Prohibit Government Mandated PLAs Advances in Congress 

Contact Your Members of Congress and the President
The AGC-supported “Fair and Open Competition Act” passed the House Oversight and Government Reform Committee this week. The legislation would prohibit federal contracting agencies from mandating that contractors and unions enter project labor agreements (PLAs) on direct federal projects. In addition, the bill would preserve the right of contractors and unions to voluntarily negotiate and execute project labor agreements on federal projects, if they so choose. There is no timeline for if or when the full House would consider the legislation, or if the Senate would consider its companion bill. AGC is committed to full and open competition for all public projects and urged the Committee to support the legislation. Contact your members of Congress and urge them to support passage of the “Fair and Open Competition Act” and petition President Trump to repeal President Obama’s Government-Mandated PLA executive order.
On February 6, 2009, President Obama issued Executive Order 13502, which encourages government agencies to use PLA’s in large-scale federal construction projects where the total cost to the government is $25 million or more. AGC strongly believes that the choice of whether to adopt a collective bargaining agreement should be left to the contractor-employers and their employees, and that choice should not be imposed as a condition to competing for, or performing on, a publicly funded project. Government mandates and preferences for PLAs can restrain competition, drive up costs, cause delays, lead to jobsite disputes, and disrupt local collective bargaining. In cases where use of a PLA would benefit a project, the construction contractors otherwise qualified to perform the work would be the first to recognize that fact and to adopt a PLA voluntarily.
For more information, contact Jim Young at [email protected] or (202) 547-0133.

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