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U.S. House Passes Legislation to Rollback OSHA Rule Extending Statute of Limitations for Recordkeeping Violations

Contact your Senators and Help Us Repeal this OSHA Rule
On March 1, an AGC-supported resolution passed in the U.S. House disapproving an Occupational Safety & Health Administration (OSHA) rule designed to 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 exposes employers to liability for honest and inadvertent paperwork mistakes related to recordkeeping. The U.S. Senate introduced a similar bill (Sponsored by Senator Cassidy (R-La.) and cosponsored by Senators Hatch (R-Utah), Isakson (R-Ga.) and Daines (R-Mont.)) this week with a vote scheduled by April 7. AGC urges the Senate to support the House-passed bill.  Please contact your Senators and urge them to support repeal of this burdensome rule.
The December 2016 rule, Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness, was issued in response to a federal court ruling that found that OSHA could no longer issue citations beyond the six-month statute of limitation window that is detailed in the OSH Act. The rule is often referred to as the “Volks” rule after the construction company that successfully challenged the rule in court in 2012. For several years OSHA had been operating under the theory that it could issue citations for the entire five-year period during which employers are required to keep records for injuries and illnesses. With this rule, OSHA showed a clear attempt to circumvent the judicial branch and congressional intent with this rule.
For more information, contact Jim Young at youngj@agc.org or Kevin Cannon at cannonk@agc.org.

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Senate to Vote to Repeal Blacklisting Regulations Next Week

Contact Your Senators and Urge them to Support Repeal
In the final year of the Obama administration, federal agencies issued nearly 4,000 new regulations. Many of those regulations negatively impact the construction industry. Congress—through the Congressional Review Act (CRA)—has an opportunity to repeal just a handful of Obama-era regulations issued after approximately May 30, 2016.
Among the most unnecessary and burdensome regulations are those implementing the former president’s “Fair Pay and Safe Workplaces” Executive Order 13673, commonly called the Blacklisting Executive Order. The Senate is expected to vote to repeal the Blacklisting regulations early next week.  Contact your senators and ask them to support repeal of these regulations.
Under the Blacklisting regulations, both prime contractors and subcontractors would report violations of 14 federal labor laws and undefined state labor laws before contract award and again every six months after contract award on federal contracts (not federally-assisted contracts) exceeding $500,000. Federal contracting officers would then determine if contractors would be allowed to bid on federal construction work based on their labor law compliance record.
Such a process would introduce a significant degree of subjectively into the federal construction procurement process. It would allow federal contracting officers to effectively debar—or blacklist—companies without the protections of due process afforded under suspension and debarment proceedings. It would also layer a new federal procurement bureaucracy above contracting officers—in the form of labor compliance advisors—which would further delay the procurement process.
For more information, contact Jimmy Christianson at christiansonj@agc.org or (703) 837-5325.

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Trump Orders Unwinding of WOTUS Rule

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 pilconisl@agc.org or (703) 837-5332. 

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AGC-Backed Regulatory Reforms Pass House

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 christiansonj@agc.org or (703) 837-5325.

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Legislation Advances to Rollback OSHA Rule Extending Statute of Limitations for Recordkeeping Violations

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 youngj@agc.org or (202) 547-0133.

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Pruitt Confirmed as New EPA Administrator

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 berrys@agc.org or Melinda Tomaino at tomainom@agc.org.

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House Panel Approves AGC-Supported Regulatory Reforms​

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 christiansonj@agc.org or (703) 837-5325.

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AGC Continues to Advocate for Improved Policies for Infrastructure Projects

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 oneills@agc.org or (202) 547-8892.

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A New DOL Secretary Nominated

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 youngj@agc.org or Jimmy Christianson at christiansonj@agc.org.

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AGC Joins Letter to House Committee Ahead of Hearing on NLRB

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 youngj@agc.org or (202) 547-0133.

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