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EPA Seeks Comment on Review of Existing Regulations

The U.S. Environmental Protection Agency (EPA) announced that it is seeking public input on its evaluation of existing rules pursuant to President Trump's government-wide Executive Order 13777 on Enforcing the Regulatory Agenda and Executive Order 13771 that directs agencies to “identify” at least two existing regulations for elimination whenever any new rule is proposed or issued (the 2-for-1 EO, Reducing Regulation and Controlling Regulatory Costs).
April 13th's Federal Register published an EPA notice titled Evaluation of Existing Regulations directing the public to submit comments by May 15.  AGC will provide EPA with detailed recommendations on existing regulations that should be considered for repeal, replacement or modification to make them less burdensome.  Click here to access the online docket.
For more information, contact Leah Pilconis at pilconisl@agc.org or (703) 837-5332.

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President Trump Signs Executive Order on “Buy American, Hire American”

President Trump signed a new executive order concerning the use of American made products and materials and American labor on federal and federally assisted procurements and projects. The “Buy American” portion of the order intends to narrow the universe of iron, steel, and manufactured goods that are able to comply with domestic materials and products sourcing laws already on the books. This web of confusing laws and regulations governs which products can be incorporated on federal and federally assisted construction projects.
The longstanding Buy American Act (BAA) has required U.S. products to be used on federal procurements since the Great Depression, but additional layers of statutes to modify the underlying law, as well as execute a growing international body of trade law, have changed the original Act over time. Under the Buy American Act, an “American-made” product means a product that is substantially transformed within the U.S. or comes from a country we have an existing trade agreement with.
For Federal Highway Administration and Federal Transit Administration projects a different, though similarly named law, called “Buy America” applies. This law also requires iron, steel and manufactured goods to be made in America, but its implementing regulations define “American made” more narrowly, requiring all processes involved in the iron or steel products (including melting and pouring) to take place in the U.S. The Executive Order takes this more narrow definition of “American-made” and applies it government-wide. The Order also intends to discourage the use of waivers to these laws and to study the effects of the various international trade agreements the U.S. is party to on American products in government procurements.
The Executive Order also included a provision that instructs government agencies to review the H-1B visa program and recommend reforms to the program. The H-1B program is a temporary, with a statutory limit, visa for foreigners to fill “specialty occupations” such as engineering. No changes are required at this time for employers currently utilizing the H-1B visa program.
For more information, contact Scott Berry at berrys@agc.org or (703) 837-5321.

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AGC Submits Comments on Administration’s “Buy America” Executive Order for Pipeline Construction

President Trump issued an Executive Memorandum Regarding Pipeline Construction, which directed the Department of Commerce to develop a plan to use only materials produced in the United States for all pipeline construction. AGC submitted comments to the Department of Commerce detailing the construction industry’s concerns with the Memorandum and its practical implications on members.
AGC objected to the overly narrow definition of what kinds of products would constitute being “produced in the United States.” The definition would require all processes for a given iron or steel product to take place in the U.S., including melting and pouring, which pits some U.S. companies against other U.S. producers and picks winners and losers. By defining “produced in the United States” as “melting,” the Memorandum excludes U.S. facilities and workers that heat or “hot roll” steel but don’t melt it from continuing to participate in the private pipeline market, ultimately punishing U.S. companies and their workers alongside foreign producers.
AGC also questioned the legality of applying such domestic content requirements on construction materials to private projects altogether. Attaching such conditions to the receipt of a federal permit is a very dangerous slippery slope that opens the door to all sorts of federal requirements that have never before been conditions on privately funded construction work. Such an action could lead to the creation of more federal impediments—not fewer—to building infrastructure. The federal government denying U.S. companies access to private markets is unprecedented and will result in job losses for U.S. workers.
AGC will continue to monitor this issue and work with the federal agencies to make sure that new impediments to construction don’t arise from executive actions.
For more information, contact Scott Berry at berrys@agc.org or (703) 837-5321.

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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 christiansonj@agc.org.

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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 cannonk@agc.org 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 youngj@agc.org 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 berrys@agc.org 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 shoafj@agc.org 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 oneills@agc.org 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 cannonk@agc.org or (703) 837-5410.

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