On Jan. 11, the House of Representatives passed an AGC-backed, comprehensive regulatory reform package. The Regulatory Accountability Act, H.R. 5, would help ensure that regulations undergo thorough economic analysis, are based in sound science and/or substantial empirical data, and are transparent with clear and feasible methods and goals. Five Democrats—Reps. Jim Costa (Calf.), Henry Cuellar (Tex.), Patrick Murphy (Fla.), Collin Peterson (Minn.), and Kurt Schrader (Ore.)—joined Republicans to pass the measure.
The House last week passed other AGC-supported regulatory reform legislation that would help roll back Obama administration midnight rules and require Congress to approve major regulations before they take effect.  AGC will continue to press for passage of this sensible and needed regulatory reform legislation in the Senate.
For AGC’s regulatory plan for the Trump Administration, click here.
For more information, contact Jimmy Christianson at [email protected] or 703-837-5325.

Corps Refrains from Adding More Restrictions, Limits on Use of General Permits

In a notable victory for the business community, the U.S. Army Corps of Engineers (Corps) last week published its final nationwide permit (NWP) rule. This rule reissues the 50 existing Clean Water Act (CWA) permits that are set to expire on March 18, and adds two new permits and one new general condition. The timely reissuance of an efficient and streamlined general permit process was informed by extensive feedback from AGC and its industry allies. AGC’s effective advocacy work – including a 14-page comment letter and a meeting with the regulator leading the permit reissuance effort – had a positive impact on the final 2017 NWP package.

Early on, AGC was concerned when the Corps’ proposal considered changes in the impact limits and notification requirements for certain nationwide permits.  The Corps also sought comment on the relationship between the nationwide permit program and the 2015 revisions to the definition of ‘Waters of the U.S.’ (which dictates the scope of the federal control and CWA permitting responsibility).  Also high on AGC’s radar, were possible changes in how compensatory mitigation is conducted and changes in the Corps’ use of waiver provisions. Despite a strong push from the environmentalist community to reduce the acreage limits, making less projects eligible for nationwide permits and forcing them into the much more arduous individual permit category, the Corps held the limits steady. The Corps also removed references to the 2015 changes to the definition of Waters of the US, which is currently stayed nationwide by order of a District court while the many lawsuits over this rule proceed.

Nationwide permits are valid for five years; however, if your project is currently under construction, or is under contract to commence prior to March 18, 2017, you can obtain a one-year extension to complete the project under the existing permit authorization.  If that is not the case, you will need to request authorization under a new permit (i.e., renew the nationwide permit during construction or secure individual permit coverage).  Next, AGC Chapters and members may wish to engage in the regional conditioning process that is currently underway at the Corps district level. For more information, look here.

For more information, contact Scott Berry at [email protected] or (703) 837-5321.

AGC members, particularly its highway contractors, may breathe a sigh of relief when learning that the U.S. Environmental Protection Agency (EPA) has finalized a rule to relax a mandate for smaller cities to install near-road nitrogen dioxide (NO2) emissions monitoring stations.  Indeed, it would not have been easy to administer a comprehensive monitoring network near roadways and obtain results that can be easily understood.  Bad data could have pushed more areas into “nonattainment,” which puts highway/transit funding and new construction in jeopardy.  AGC was also concerned about the increased use of roadway concentration data in future standard-setting processes or to inform transportation planning and decision making. (For instance, AGC recently responded unfavorably to a U.S. Department of Transportation proposal that contemplates measuring greenhouse gas emissions from on-road mobile sources as a way of evaluating highway performance.)
AGC had urged EPA to avoid imposing costly and unsubstantiated requirements on states to monitor and measure NO2 levels near roadways.  EPA chose to finalize a wide-ranging monitoring provision in early 2010, despite AGC’s objections.  Now, EPA is scaling back those requirements.
For more information, contact Leah Pilconis at [email protected] or (703) 837-5332.

DOT Issues Environmental Review Document
In an effort to impose new environmental constraints on transportation infrastructure development prior to the start of the new administration on Jan. 20, the U.S. Department of Transportation issued final rules on performance measures for congestion and freight movement that include requirements for states to measure and report CO2 (Greenhouse Gas- GHG) emissions from on-road vehicles for projects receiving federal funding. AGC, along with numerous other groups and Members of Congress, had advised U.S. DOT in formal comments that it lacked authority to expand into CO2 emissions; however the Department did not agree. In one victory for AGC, the performance measures do not require measuring emissions from off-road construction vehicles and equipment as had been suggested by DOT and opposed by AGC.
The 2013 highway authorization legislation, MAP-21, directed the Department to establish performance measures on a variety of different factors to determine if federal investment in infrastructure was achieving its goals and how to target future investments. However, MAP-21 specifically limited the items that the Transportation Department was to include in these measures and did not include GHGs. AGC will urge the new administration to reconsider this rule once the new transportation secretary is confirmed.
In a separate action, the Transportation Department released updated implementation procedures for states to use to comply with the National Environmental Policy Act (NEPA). Not only did the Department rush these procedures out for publication with limited (21 days) opportunity for public comment, the document adds a new level of oversight to the environmental review process. This undermines efforts by Congress in the past three transportation authorization bills and previous administrations to streamline environmental review and shrink the time it takes for project approval.
In addition, the document limits the use of “categorical exclusions” which provide an expedited review process for the everyday transportation projects expected to have limited environmental impact. The new procedures also expand requirement for states to consider climate change as part of the review process. U.S. DOT also references in the document that it will be developing additional guidance documents but chose to not wait until these were completed so as to gather additional public comment. AGC provided written comments on these proposed procedures but believes that more informed comments could have been submitted if the normal 60 day comment period was provided as is called for in an Executive Order issued by President Obama.
For more information, contact Brian Deery at [email protected] or (703) 837-53149.

Signals Support for Federal Spending and Addressing the Highway Trust Fund
The Senate Commerce Committee held a confirmation hearing this week for President-elect Trump’s nominee to head the Department of Transportation, Elaine Chao.  Ms. Chao – who previously served as the Secretary of Labor under President George W. Bush and the Deputy Secretary of Transportation in President George H.W. Bush’s Administration – is expected to help shape an infrastructure plan that has been promised by President-elect Trump.  Her confirmation to the position is all but guaranteed and is likely to occur soon after Trump takes office on January 20.
Secretary Chao offered no specifics of what a Trump infrastructure plan would include but she did acknowledge that the challenges with any plan lie in how it is paid for. During the hearing she expressed the belief that both direct federal spending and private financing will be a part of the incoming administration’s proposal.  She went on the say that seeing a patch for the Highway Trust Fund – which will be facing insolvency in 2020 – will be a “top priority” for the Department.  Additionally, Chao said one of her first orders of business will be to create an infrastructure task force.
Although the hearing was short on specifics, Secretary Chao made it clear she plans on working closely with Congress as the Secretary of Transportation. AGC supports Secretary Chao’s nomination and looks forward to working with her to promote a pro-construction agenda at the Department of Transportation.
For more information, contact Sean O’Neill at [email protected] or (202) 547-8892.

Urges Trump Administration to Repeal and Replace
This week AGC, and others, urged President-elect Trump’s administration to repeal President Obama’s executive order that encourages federal agencies to require project labor agreements (PLAs) on federal construction projects exceeding $25 million, and replace it with a policy that prevents agencies from forcing contractors to enter into a labor agreement as a condition for winning a federal construction contract.  Last year, AGC requested this PLA reform when it shared its federal agency regulatory, compliance and enforcement plan with members of the Trump Presidential Transitional Team.
AGC neither supports nor opposes contractors’ voluntary use of PLAs on government projects, but strongly opposes any government mandate for contractors’ use of PLAs.  AGC strongly believes that the choice of whether to adopt a collective bargaining agreement should be left to the contractor-employers and their employees.  Such a choice should not be imposed as a condition to competing for, or performing on, a publicly funded project.
To view more details on AGC’s Regulatory Road ahead, click here.
To view more details on AGC efforts opposing government mandated PLAs, click here.
For more information, contact Jordan Howard at [email protected] or (703) 837-5368.

Could Help Roll Back Obama Administration Regulations
On Jan. 4, the House passed AGC-backed legislation that would help Congress repeal more Obama administration regulations, as well as future administration’s regulations. The Midnight Rules Relief Act—introduced by Rep. Darrell Issa (R-Calf.)—would enable Congress to include multiple regulations for repeal in one bill under the Congressional Review Act. As it stands, Congress can only include one regulation for repeal in single bill, which is a time-consuming process that severely restricts the number of regulations that could be repealed. To provide context, in 2016, federal agencies issued 3,853 regulations.  This exceeds the number of bills Congress passed by a factor of 18.
Today, the House will also consider legislation that would require regulations with a total cost to the economy of $100 million or more to be approved by Congress before they become effective. In addition to placing a congressional check on such major regulations, the Regulations in Need of Scrutiny (REINS) Act—introduced by Doug Collins (R-Ga.)—would allow Congress to disapprove of non-major regulations below the $100 million threshold. House passage of this bill is expected. Upon passage, the Senate may consider both bills after President-elect Trump is sworn into office. AGC will continue to press for such common sense regulatory reform in the new Congress.
For more information, contact Jimmy Christianson at [email protected] or 703-837-5325.

AGC-Enacted Law Leads to Rule
As a result of past AGC legislative success, the U.S. Small Business Administration (SBA) recently finalized a rule allowing direct-federal large business prime contractors to count lower tier small business subcontractors towards their small business subcontracting goals. Prior to this rule, such prime contractors were only able to count first tier small business subcontractors towards those goals. Although the rule goes “into effect” on Jan. 23, there will be no way for prime contractors to receive credit for small business subcontractors until the Federal Acquisition Regulation (FAR) Council issues a final rule to include this in federal contracts. That FAR rule and a new FAR clause could come in 2017.
In lieu of a FAR rule and clause, direct-federal large business prime contractors interested in taking credit for lower tier small business subcontractors may consider beginning preparations to comply with the SBA rule. To receive such credit, there are some strings attached under the rule. Those include:

• Prime contractors, not federal agencies, establishing two sets of small business subcontracting goals: (1) one goal for the first subcontracting tier; and (2) another for lower tier subcontracts. Ultimately, however, federal agencies will evaluate the prime contractor’s small business subcontracting goal performance based on its combined performance under the first and lower tier goal;


• Prime contractors and their large business subcontractors must assign a specific North American Industry Classification System (NAICS) Code and corresponding size standard that best describes the principal purpose of the subcontract to each small business subcontract;


• Prime contractors and large business subcontractors are responsible for making a good faith effort to meet or exceed the small business subcontracting goals established in their respective subcontracting plans. Failure to make this effort could result in liquidated damages, default termination and negative performance reviews; and


• Prime contractors are ultimately responsible for approving and policing their large business subcontractors’ subcontracting plans.

It should also be noted that the Electronic Subcontracting Reporting System will be the database used to capture lower tier small business subcontractor information, as it is currently used to collect information at the first subcontracting tier. AGC will provide additional information as it further examines this rule and monitors progress of a FAR rule and clause.
For more information, contact Jimmy Christianson at [email protected] or 703-837-5325.

In response to a request for comments from the U.S. Department of Labor’s Wage and Hour Division, on Dec. 19, AGC notified the agency that improvements are needed to the way it collects wage data from construction contractors.  The Wage and Hour Division is responsible for setting the prevailing wage rate for federal and federally assisted construction projects covered by the Davis-Bacon Act and currently uses wage surveys to collect wage data from contractors.  The agency’s request for comments is a required part of the regulatory process as the agency seeks to extend the use of its current wage survey form (Form WD-10), which expires in 2017.
In its comments, AGC expressed that it understands the difficulty involved with getting contractors to voluntarily submit wage data to the government – particularly to the same agency that is authorized to take enforcement action against them.  Additionally, AGC explained that the twenty-minute time estimate to accurately complete the survey is grossly underestimated, particularly when there are multiple classifications, sub-classifications, and fringe benefits to include.  To ease the burden of submitting such data, help the agency fulfill its need to collect wage data to set prevailing wage rates, and improve the wage collection process overall, AGC made the following recommendations

• WHD should consider using third-party wage survey specialists with specific knowledge of the construction industry that already collect wage data from construction contractors;


• WHD should collect construction contractor wage data more frequently to more accurately reflect the current conditions of the market (currently, the maximum is once every three years);


• WHD must ensure that wages are solicited and incorporated by both public and private contractors to reflect the totality of the market; and


• WHD should allow the adoption of state prevailing wage rates when the method for setting such wages meets WHD’s requirements.

To learn more about how the WHD determines Davis-Bacon prevailing wages and how contractors can influence those wages, read AGC’s whitepaper, Impacting Davis-Bacon Wage Determinations: A Guide for Contributing to the Accuracy of Published Prevailing Wage Rates in Construction.
For more information, contact Tamika Carter at [email protected] or 703-837-5382.

This week, AGC shared its federal agency regulatory, compliance and enforcement plan with members of the Trump Presidential Transitional Team. Entitled “Make Federal Agencies Responsible Again,” the document calls for the repeal of dozens of unnecessary and overly burdensome executive orders, presidential memoranda, and federal regulations that have made it more difficult for construction contractors to safely, efficiently and effectively build the nation’s civil and social infrastructure.
In addition to charting a regulatory reform path forward, AGC calls for the Trump Administration to implement a critical paradigm shift within federal agencies. Specifically, the association calls for construction contractors to be treated as industry partners and not “industry opponents;” a term that can categorize the attitude many agencies have taken with the construction industry.  To do so, AGC calls for agency enforcement initiatives to focus on bad actors, rather than lumping innocent contractors in with bad actors. Additionally, AGC recommends a return to federal agencies helping construction contractors comply with the law through reestablishing industry partnership programs and developing educational materials.
For more information, contact Jimmy Christianson at [email protected] or 703-837-5325.