Arcane Budget Rules Block Reasonable Real Estate Transactions
On Nov. 28, AGC and industry allies urged President Trump to make common sense changes to arcane accounting rules that will help provide flexibility for federal construction public-private partnership (P3) opportunities. As it stands, federal accounting rules require that federal agencies—like the U.S. Army Corps of Engineers and U.S. General Services Administration—pay up front (or “score”) the complete cost of a construction project. These “scoring” rules do not allow for the fact that the federal government will actually pay for the project incrementally over its lifetime. Consequently, the rule stymies many P3 opportunities, which are structured based on long-term capital planning realities, not upfront financing fantasies.
For more information on these scoring rules and how they have negatively impacted federal construction, click here.
For more information, contact Jimmy Christianson at 703-837-5325 or [email protected].

For this month’s episode of the ConstructorCast, we sit down with Leah Pilconis, AGC’s Senior Counsel of Environmental Law, to talk about the complex world of environmental permitting and what AGC is doing to try to make it easier for construction companies. Our discussion examines the breadth of requirements, the opportunities to streamline regulations and make environmental protection more efficient, and where environmental regulations might be headed in the coming years. Search for the ConstructorCast in your podcasts app to subscribe.
Stream or download the episode here.

AGC is calling on the U.S. Environmental Protection Agency (EPA) to apply federally approved “Recommended Best Practices for Environmental Reviews and Authorizations for Infrastructure Projects” in delegated states that EPA has authorized to implement and enforce a federal environmental permit program. In response to EPA’s request for input, AGC’s Nov. 22 letter explains that where states have taken over the responsibility for executing federal authorizations and environmental reviews, the obligation to use best practices should transfer to the state permitting authority. A majority of states have been delegated authority to implement and enforce one or more provisions of the federal pollution control laws.
The “recommended” management practices and streamlining measures include processes to enhance coordination, transparency, predictability, administrative burdens and oversight of reviews and permitting required prior to construction. They were published by a Federal Permitting Improvement Steering Council (FPISC) – an oversight council established by the Fixing America’s Surface Transportation Act (FAST Act) of 2015 to oversee the cross-agency federal environmental review and authorization process for a defined set of large-scale infrastructure projects. The FPISC includes members from 13 Federal agencies, the Council on Environmental Quality and the Office of Management and Budget. AGC has urged the White House, Congress and the regulatory agencies to more widely apply the FAST Act environmental streamlining measures (contained mostly in Title 41); most recently focusing on the FPISC’s recommended best practices.
For more information, contact Leah Pilconis at [email protected] or (703) 837-5332.

Latest Update on WOTUS Rule Status
On Nov. 28, AGC commented on the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers’ (Corps) request for pre-proposal feedback on revising the definition of “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). The definition of WOTUS, which dictates the scope of the federal control and CWA (e.g., 404/wetlands) permitting responsibility, is of fundamental importance to the construction industry. AGC members perform many construction activities on land and water that often require a jurisdictional determination from the Corps. A broad definition of WOTUS will result in more projects falling under federal jurisdiction and requiring expensive and time-consuming permits to proceed.
AGC highlighted the industry’s general concerns with a broad expansion of federal authority over water and land use. AGC recommends the agencies “draw bright lines” for the regulated community and the agencies’ field staff and urges the agencies to:

• Exclude roadside ditches and other components of a municipality’s storm sewers;


• Exclude other stormwater features such as retention/detention ponds; and


• Clarify and exclude “water filled depressions” such as those caused from the use of construction equipment.

As for the latest on the WOTUS rulemaking, the EPA and Corps recently proposeddelaying implementation of the 2015 Obama-era WOTUS rule by two years (until 2020). According to the agencies, postponing the rule will provide regulatory certainty while they work to repeal and replace the rule, which is currently underway. The rule is also currently under a nationwide stay after it was challenged by environmental and industry groups. That litigation remains pending before the Supreme Court and the Sixth Circuit.
For more information, contact Melinda Tomaino at [email protected] or 703-837-5415.

This week, AGC joined our partners in the Beyond the Runway Coalitionin urging the House and Senate appropriators to retain provisions in the FY 2018 Senate Transportation, Housing and Urban Development Appropriations bill that would dramatically improve aviation infrastructure across the country by increasing the Passenger Facility Charge (PFC) user fee and increasing funding for the Airport Improvement Program (AIP). The PFC and AIP programs are the two main funding sources for airports and runway infrastructure projects.
AGC will continue to work with our coalition partners to ensure that the final funding bill for 2018 includes these critical provisions to our nation’s aviation infrastructure.
For more information, contact Sean O’Neill at [email protected] or (202) 547-8892.

AGC submitted comments in support of three separate Federal Highway Administration (FHWA) regulatory proposals to expedite project delivery by streamlining the federal environmental review process. The FHWA proposals implement various AGC-supported provisions in the Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Fixing America’s Surface Transportation Act (FAST Act) – legislation intended to make the National Environmental Protection Act (NEPA) procedures work better. In one proposal, AGC supported the state of Arizona taking responsibility for undertaking part the NEPA review process and, in so doing, eliminating federal review. Eight states have or are seeking assignment of this review authority and AGC’s comments pointed out that FHWA and these states report significant reduction in the time it takes to complete the NEPA process. FHWA’s report indicates that states that have undertaken this responsibility have, “a greater awareness, understanding, and opportunity for improving environmental outcomes.”
A second FHWA proposal takes this NEPA assignment one step further by allowing states to substitute their own environmental laws and procedures for the federal process as long as the state procedures are “at least as stringent” as the Federal rules. AGC’s comments said that this is the next logical step in delegating authority to states for the NEPA process and urged that these regulatory changes be adopted quickly. AGC’s comments also offered suggestions on how the federal government should judge whether state laws are as “stringent” as the federal law.
The third FHWA proposal (made jointly with the Federal Transit Administration and Federal Railroad Administration) makes revisions in the NEPA process itself and in historic preservation requirements. Many of the proposed changes will allow all of the U.S. DOT agencies to use similar criteria in judging which construction projects need to go through an extensive environmental review or whether they can be assessed under less cumbersome procedures (called categorical exclusions. Under the historical preservation revisions, certain steel and concrete bridges as well as historic rail and transit lines would be exempt from cumbersome review requirements.
For more information, contact Brian Deery at [email protected] or (703) 837-5319.

On Oct. 23, the U.S. Occupational Safety & Health Administration began full enforcement of its respirable crystalline silica standard for construction. To help educate members, AGC developed the “Respirable Crystalline Silica in Construction” webpage with a host of resources—sample forms, webinars, flowcharts, FAQs, and more—to help AGC members understand their compliance responsibilities.
Most recently, AGC developed a silica inspection reporting form to track enforcement. OSHA has not yet released the standard’s companion compliance directive and their interim enforcement guidance is incomplete. AGC believes that this could result in inconsistent enforcement across regions. If your site has been subjected to an OSHA silica compliance inspection or silica compliance was assessed as part of another OSHA inspection, please consider sharing the details of the inspection with AGC by completing this form. No identifying information will be collected. AGC will report the findings to OSHA’s national office and use it to continue our advocacy efforts on behalf of the regulated community.
For more information, contact Nazia Shah at (703) 837-5409 or [email protected].

New Deadline: Dec. 15, 2017
On Nov., 24, the Occupational Safety and Health Administration (OSHA) published a final rule extending the deadline for submitting injury and illness data to Dec. 15 to allow affected entities sufficient time to familiarize themselves with the electronic reporting system. In August, OSHA launched the web-based Injury Tracking Application (ITA), which allows employers to electronically submit the required data from their completed 2016 OSHA Form 300A – the only information required for the 2017 submission. The application will be accessible from the ITA webpage.
The data submission process involves four steps: (1) Creating an establishment; (2) adding 300A summary data; (3) submitting data to OSHA; and (4) reviewing the confirmation email. The secure website offers three options for data submission. One option will enable users to manually enter data into a web form. Another option will give users the ability to upload a CSV file to process single or multiple establishments at the same time. A third option will allow users of automated recordkeeping systems to transmit data electronically via an application programming interface.
The ITA webpage also includes information on reporting requirements, a list of frequently asked questions and a link to request assistance with completing the form.
It is also important to note that the following OSHA-approved State Plans have not yet adopted the requirement to submit injury and illness reports electronically: CA, MD, MN, SC, UT, WA and WY. Establishments in these states are not currently required to submit their summary data through the ITA.
For more information, contact Kevin Cannon at (703) 837-5410 or [email protected].

Tell Your Elected Officials to Include Construction Industry Priorities
The Senate made significant progress towards passing tax reform legislation this week. However, AGC still has concerns with the legislation as-is and asks you to continue contacting your members of Congress, urging them to treat S-corps fairly as compared to C-corps and maintain incentives for public and private construction in tax reform.
On Nov. 29, the Senate passed a key procedural hurdle by voting to “proceed” on the legislation, allowing the Senate to consider the legislation under a time-limited debate (20 hours) and a 50 vote basis. Typically, this expedited procedure results in a large number of amendments being offered by the minority party with very little time for debate.
Before the debate began, two Senators (Sens. Ron Johnson (R-Wis.) and Steve Daines (R-Mont.)) had raised concerns—shared by AGC—that the Senate bill would disproportionately favor C-corporations, relative to pass-through businesses such as S-corporations, LLC’s, partnerships, and sole proprietorships.
It was widely reported that, as a result of the efforts of these two Senators, the bill would increase the size of the “pass-through deduction” from 17.4 percent to 20 percent. While this is certainly an improvement over the original legislation, the deduction is still somewhat limited, as outlined in this chart, based on the characteristics of each business. AGC will continue to monitor the amendments filed during the Senate debate and support any that would improve the legislation to benefit the construction industry.
If the legislation passes – as expected – later this week, the House and Senate will convene a “conference committee” to resolve the differences between the House and Senate legislation. AGC will work to ensure that the final conference report contains the best provisions from each bill for construction.
For any questions, please contact Matthew Turkstra at [email protected], or (202) 547-4733.

Help Us Generate a Comprehensive Outlook for 2018 by Taking the Survey Today
Each year around this time, AGC asks you – our members – to predict what next year will be like for your business.  This year AGC has partnered with Sage to prepare questions that focus on expectations for market performance, hiring, labor market conditions, etc.  Please take a moment to complete the survey here: 2018 Construction Industry Hiring and Business Outlook. 
For more information, contact Nahee Rosso at [email protected] or (703) 837-5348.