Follows AGC’s Recommend Path
Following AGC’s recommendation to the presidential transition team in December, President Trump issued an Executive Order on Feb. 28 that begins the process of unwinding the “Waters of the United States” (WOTUS) rule.  Also in line with AGC’s recommendation, the Order calls for a new “review” of the WOTUS rule, stating that for any revised proposed rule, the EPA and Corps shall consider interpreting the term ‘navigable waters’ in a manner consistent with the opinion of the late Justice Antonin Scalia in the 2007 Supreme Court case, Rapanos v. United States. In keeping with the Executive Order, EPA and the Corps have issued a notice of intent to review/revise the WOTUS rule.
The Executive Order in and of itself does not remove the WOTUS rule from the books. Rather it merely directs the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers — who issued the rule in 2015 — to begin the lengthy and complex regulatory process necessary to rescind or revise the rule. That process will take time, as it is subject to the same notice and comment rulemaking process that the rule underwent when it was written.  It will also be subject to legal challenge by environmental groups, which may use the government reports and documentation that the agencies used to justify the rule as ammunition against any changes.
The Order also directs the agencies to notify the U.S. Attorney General about the pending review of the WOTUS rule so he may take any such measures as he deems appropriate concerning any pending litigation related to the rule. But at this point, it remains unclear how this Order will impact current litigation. In the midst of this uncertainty, the Corps continues to use the 1986 regulations and applicable jurisdictional guidance (status quo as it existed before the new rule) in making jurisdictional determinations or taking other actions based on the definition of WOTUS.
AGC has been advocating on behalf of its members on this issue since the beginning. AGC submitted four sets of comments on the agencies’ 2014 proposed rule on the scope of their jurisdiction.  The agencies finalized a modestly improved rule in May 2015 and scheduled it to take effect in August 2015.  Many states and others challenged the rule in court.  The U.S. Court of Appeals for the Sixth Circuit has at least temporarily blocked the agencies’ implementation of the rule.  There is no deadline for the Sixth Circuit to make a final decision. AGC has spoken about the implementation of the 2015 rule with EPA and the Corps, including its potential impact on Clean Water Act permitting.  For information on the WOTUS rule and where it generally stands, click here and here, respectively.
For more information, contact Leah Pilconis at [email protected] or (703) 837-5332. 

President Signs New Regulatory Reform Order
On March 1, the House passed three AGC-backed regulatory reforms that will help eliminate regulations that are obsolete, ineffective, overly burdensome or duplicative. These reforms bills come on the heels of several others that passed the House in January with AGC support.
While these reforms advance in Congress, the president issued another executive order aimed at reducing the regulatory burden. The Executive Order on Enforcing the Regulatory Agenda establishes task forces within each federal agency whose mission is to evaluate existing regulations and make recommendations to the agency head regarding their repeal, replacement or modification. This order complements the president's previous order that requires agencies to eliminate two regulations for each new regulation it issues.
For more information, contact Jimmy Christianson at [email protected] or (703) 837-5325.

Contact your Members of Congress and Help Us to Repeal this OSHA Rule
This week, legislation was introduced in the U.S. House of Representatives to block an OSHA rule that would allow OSHA to issue citations for recordkeeping violations beyond the current six month limit, up to five and a half years. This expansion of the statute of limitations from six months to five and a half years exposes employers to unfair liability for honest and inadvertent paperwork mistakes related to recordkeeping. Please contact your federal elected officials and urge them to support repeal of this burdensome rule.
The December 2016 rule was issued in response to a federal court ruling that OSHA could no longer issue citations beyond the six month statute of limitation window. The rule is often referred to as the “Volks” rule after the construction company that successfully challenged the rule in court in 2012. Prior to the bill’s introduction, a broad representation of 73 employer organizations joined AGC in a letter urging Congress to swiftly disapprove of the Volks Rule.
For more information, contact Jim Young at [email protected] or (202) 547-0133.

On Feb. 17, the U.S. Senate confirmed President Trump’s nominee to head the U.S. Environmental Protection Agency (EPA), former Oklahoma Attorney General Scott Pruitt, after contentious debate and on a 52-46 vote that fell largely along party lines.  Pruitt addressed EPA staff for the first time in his official capacity earlier this week, expressing the need for the agency to follow the “rule of law” and to bring regulatory clarity to businesses. Although he did not go into detail in his remarks, he also signaled an interest in partnering with states through federalism.
At this point, we are not clear on the specifics of President Trump’s plans for environmental policy. It has been widely reported in the press that Trump will issue significant new executive orders now that Pruitt is installed at EPA.  For his part, Pruitt made it clear during his appointment process that he plans to fulfill President Trump’s campaign promises to focus on “job-killing” regulations, and has focused on the Clean Power Plan and Waters of the US regulations specifically. One point where Pruitt has signaled bipartisanship is his vocal support for the Agency’s water & wastewater infrastructure mission. This comes on the heels of the Trump campaign’s promise to triple the funding for the State Revolving Loan Fund programs.
AGC supports AG Pruitt’s appointment and will work with him to promote a pro-construction agenda at EPA.
For more information, please contact Scott Berry at [email protected] or Melinda Tomaino at [email protected].

The House Oversight and Government Reform Committee passed three AGC-backed regulatory reform bills on Tuesday. The Searching for and Cutting Regulations that are Unnecessarily Burdensome (SCRUB) Act, Regulatory Integrity Act, and Office of Information and Regulatory Affairs (OIRA) Insight, Reform and Accountability Act collectively would establish mechanisms to unwind obsolete, duplicative, overly burdensome, and ineffective regulations. The bills will likely move to the House floor for consideration in the coming weeks.
AGC also supported several other regulatory reform bills that the House passed in January. Those bills are pending action in the Senate, which has been preoccupied with protracted cabinet confirmations.
For more information, contact Jimmy Christianson at [email protected] or (703) 837-5325.

This week, AGC submitted comments to the House Energy & Commerce Subcommittee on the Environment for their hearing on “Modernizing Environmental Laws: Challenges and Opportunities for Expanding Infrastructure and Promoting Development and Manufacturing.” Representative David McKinley (R-W.V.) submitted AGC’s comments for the record during the hearing.
AGC’s comments focused on the need for fewer and smarter regulations, greater industry assistance and involvement, and reduced barriers to approving and moving forward on important infrastructure projects.  We have previously reached out to the Trump Administration and Congress with comprehensive recommendations on improving the regulatory landscape for the construction and industry and will continue to push for an infrastructure plan that not only provides increased funding but also removes the roadblocks to investment in infrastructure, development and manufacturing.
For more information, contact Sean O’Neill at [email protected] or (202) 547-8892.

What it May Mean for Construction Contractors
Today President Trump nominated Alexander Acosta to serve as the next U.S. Secretary of Labor.  The news comes one day after Andrew Puzder withdrew his nomination. AGC issued a statement on the nomination of Acosta, click here to read.
Despite today’s nomination, the DOL Secretary position is likely to remain vacant for some time longer, construction contractors are unlikely to see regulatory actions to delay, change or unwind the previous administration's most controversial regulations any time soon.  In the absence of a confirmed Trump administration secretary and his staff, career DOL personnel are generally reluctant to make significant policy decisions--like withdrawing from litigation against the silica or overtime rules; revisiting the injury and illness record-keeping rule with controversial positions on post-injury drug testing and safety incentive programs; or rolling back the paid sick leave regulation for direct-federal contractors.
Acosta will have to undergo review by a government ethics office, meet with senators, have a confirmation hearing and a confirmation vote. Despite Mr. Acosta having been previously confirmed by the Senate for prior government positions this could take several weeks. In the meantime, uncertainty will remain concerning the future of the previous administration's regulatory legacy.
For more information, contact Jim Young at [email protected] or Jimmy Christianson at [email protected].

AGC joined a broad group of employer organizations on a letter to the Committee on Education and the Workforce for a hearing it held this week on “Restoring Balance and Fairness to the National Labor Relations Board.” The letter highlights the concerns with the NLRB’s August 2015 “joint employer” standard. AGC remains hopeful that the new board will eventually restore the traditional, common sense standard of joint employment liability based on “direct control”. At the same time, AGC is advocating that Congress enact a permanent legislative solution to the joint employer standard that provides certainty to employers.
For more information, contact Jim Young at [email protected] or (202) 547-0133.

The Federal Highway Administration (FHWA) has delayed implementation of a rule requiring states to develop performance measurements for tracking Greenhouse Gas (GHG) emissions for federal-aid highway projects. The delay was in response to a memorandum issued by President Trump on the first day of his administration freezing pending regulations until they can be reviewed. The freeze gives agencies time to determine if pending rules should be issued as proposed or if they should be rewritten or withdrawn entirely. The GHG rule was issued by the Obama Administration in its final days in response to a Congressional directive in MAP-21 to develop metrics to determine the effectiveness of federal investment in the performance of freight movement, congestion relief and the air quality program.
AGC questioned FHWA’s authority to issue the rule at the time and has since written to new Transportation Secretary Chao suggesting that it be rescinded, as AGC believes that the regulation goes beyond MAP-21 requirements. Not only did MAP-21 specify what performance standards were to be adopted, it also specifically did not include GHG emissions and furthermore told U.S. DOT to not go beyond the performance measurements articulated in the law.
For more information, contact Brian Deery at [email protected] or (703) 837-5319.

Also in response to the Trump Administration’s regulatory freeze memo, the Federal Motor Carrier Safety Administration (FMCSA) announced postponement of the entry-level driver training final rule that was to go into effect on February 6. The effective date of the rule is being delayed until March 21. However, the rule will not be enforced for three years after it becomes effective. FMCSA said the delay is consistent with the memorandum’s directive to postpone for 60 days to allow time for a thorough review of certain regulations.
The rule established comprehensive national minimum training standards for entry-level commercial truck operators seeking to obtain a commercial driver’s license (CDL). The rule’s standards include mandatory training for the safe operation of commercial motor vehicles and the establishment of minimum qualifications for entities and individuals who provide entry-level driver training. AGC submitted comments on the rule when it was proposed and suggested that a requirement that entry level drivers must have 30 hours of behind-the-wheel driving before they could become eligible for a CDL was excessive. FMCSA accepted AGC’s comment and dropped the 30 hour behind-the-wheel requirement.
For more information, contact Brian Deery at [email protected] or (703) 837-5319.