On Feb. 15, Congress approved funding for those federal agencies previously operating under a continuing resolution—including the Department of Transportation, General Services Administration and Environmental Protection Agency, among others. This legislation, coupled with previously passed fiscal year (FY) 2019 spending bills, provides annual funding to all agencies of the federal government through September 30, 2019. Overall, federal construction accounts saw about a two percent increase—or $4.5 billion—in funding in comparison to FY 2018 funding levels. A full AGC analysis of federal construction accounts for FY 2019 can be found here.

For more information, contact Cory Gattie at cory.gattie@agc.org or (202) 547-4685.

AGC Highlights Concerns with Redirecting Construction Funds

On Feb. 15, the president issued a national emergency declaration to redirect approximately $6.7 billion towards the construction of barriers along the southern border.  Redirected funds include: $2.5 billion from Department of Defense (DOD) counterdrug activities; nearly $600 million from the Treasury Forfeiture Fund; and $3.6 billion from military construction projects.  As of publication, neither the White House nor any federal agency has identified specific military construction projects—or any other specific federal construction projects for that matter—that would see funds redirected to construction along the southern border. AGC urged Acting Secretary of Defense Shanahan to avoid redirecting funds from long-anticipated or active construction contract solicitations and ensure fair and open competition rules remain in place for any contracts utilizing redirected funds.

To date, 16 states have filed suit against the President asking courts to invalidate the order. Democratic members in the House and Senate have declared their intent to introduce a resolution of disapproval that would invalidate the declaration.  If the resolution passes both chambers, the Administration has singled that the president would veto it. AGC will continue to monitor this emergency declaration as more developments occur and will further review.

For more information, contact Jordan Howard at jordan.howard@agc.org or (703) 837-5368.

Over the decades, determining where federal Clean Water Act jurisdiction lies has added regulatory uncertainty, delay, and cost to construction projects throughout the nation. The U.S. Environmental Protection Agency’s (EPA) recently proposed “Waters of the United States” (WOTUS) rule will help construction projects move forward in a timelier manner, clearly limit federal jurisdiction over water and wetlands, and continue to protect our nation’s clean water. Please contact the EPA today to let them know that you support clear federal clean water permitting guidelines.

For more information contact Melinda Tomaino at tomainom@agc.org or (703) 837-5415.

Break Down of What’s in the Compromise Bill

The House and Senate are scheduled to vote on Feb. 14 on a more than 1,000 page bill that would fund many federal agencies for the remainder of FY 2019. The bill includes some increases for federal construction accounts, including $3 billion over FY2018 funding levels for the Federal-Aid Highway Program. However, the bill fails to include relief for current holders of temporary immigrant work authorizations—impacting 120,000 construction workers with Temporary Protected Status or in the Deferred Action for Childhood Arrivals Program. In addition, the bill does not provide emergency construction project funding for areas impacted by 2018 disasters, including hurricanes, wildfires, earthquakes and volcanic eruptions.
The bill provides the Department of Homeland Security (DHS) with $1.375 billion for 55 miles of border fencing, though there are several restrictions on how border fencing funding can be used. These restrictions include a ban on the use of concrete, limiting fencing designs to those used in 2017, and prohibition on construction in sensitive environmental areas. The funding bill also gives DHS the authority—in consultation with DOL—to increase the H-2 cap (temporary/seasonal work visas) for FY 2019 to 135,320. The increase of visas will be subject to the administrations approval because the bill does not mandate the full allotment.

Other notable funding provisions in the bill include:

• • Federal-Aid Highway funding at $48.6 billion — 3.7% above FY 2018;

• • Build Grants at $900 Million — 40% decrease from FY 2018;

• • Airport Improvement Program Grants at $3.85 Billion — 11.5% decrease from FY 2018;

• • Transit Formula Grants at $10.6 Billion — a slight increase from FY 2018;

• • Capital Improvement grants at $2.6 Billion — slight decrease from FY 2018;

• • Safe Drinking Water State Revolving Fund at $1.2 billion — Equal to the FY 2018;

• • Water Infrastructure Finance and Innovation Act (WIFIA) Grants at $68 million (Title II: $10 million, Title IV: $58 million) — $5 million increase the FY 2018;

• • Rural Development at $3.64 billion for Rural Development.  This includes $625 million in funding dedicated for infrastructure investments in Rural America;

• • Water and Electric Infrastructure for rural water and waste program loans at $1.45 billion — $200 million increase the FY 2018;

• • Water and Waste Grants at $475 million for — $425 million decrease the FY 2018; and

• Clean Water State Revolving Fund at $1.7 billion (Title II: $1.4 billion, Title IV: $300 million) — Equal to FY 2018.

You can read the text of the Conference Report by clicking here. You can read the text of the Joint Explanatory Statement by clicking here.

For more information, contact Jordan Howard at jordan.howard@agc.org or (703) 837-5368.

 

60-Day Comment Period Begins

On Feb. 14, the public comment period officially opened on the administration’s newly proposed replacement of the controversial 2015 Waters of the United States (WOTUS) rule. Legal challenges have placed the 2015 WOTUS rule on hold in 28 states. AGC has been advocating for a clear rule as construction projects in or near federal waters require extensive permitting that comes at a hefty price -- in addition to any state or local water permits a project will need. Over the decades, determining where federal jurisdiction lies and overly broad interpretations have added regulatory uncertainty, delay, and cost to projects.
The proposal is a step in the right direction to correct the regulatory overreach of the old rule and provide clarity to industry, while continuing to protect federal waters. It includes waters that in many cases are readily identifiable as federal waters, such as traditional navigable waters, interstate waters, tributaries and other waters with a surface connection or that regularly flow into those waters. But it excludes ephemeral features, most ditches, stormwater control features in uplands, and earthen depressions caused by construction equipment or activity in uplands that may fill with water, among other things.
Comments on the proposal are due April 15, 2019.

For more information, see AGC's WOTUS one-pager and an overview of the proposed replacement rule.  Or contact Melinda Tomaino at tomainom@agc.org. 

On Feb. 7, the U.S. Occupational Safety and Health Administration (OSHA) issued a temporary enforcement policy for the crane operator evaluation requirements in the cranes and derricks in construction standard.  The effective date for the standard’s evaluation and documentation requirements was Feb. 7, 2019.  OSHA intends to offer compliance assistance, in lieu of enforcement, during the first 60 days of enforcement for employers who have evaluated operators in accordance with the final rule and are making good faith efforts to comply with the documentation requirement. Beginning April 15, 2019, OSHA will fully enforce all applicable requirements of the final rule. To help AGC members understand and comply with these new requirements, please click here for educational resources.

For more information, please contact Kevin Cannon at (703)837-5410 or cannonk@agc.org.  

In this episode of AGC's ConstructorCast, learn tips every supervisor needs to be an efficient manager of people, time, equipment and materials. Also, get a sneak peek of AGC’s new Construction Supervision Fundamentals training course, designed for the onboarding of new supervisors using highly interactive classroom sessions created by general contractors and often taught by general contractors. Learn how and why this program was created and how it fits together to set individuals up for a successful career in construction. Click here to listen.

For more information contact Amy Hager at amy.hager@agc.org or (703) 837-5376.

SBA Says Rule Not Immediately Effective

On Dec. 17, 2018, the Small Business Runway Extension Act (H.R. 6330), which modifies the method for assigning size standards for small businesses, was signed into law. The law modifies Small Business Administration (SBA) reporting requirements to allow businesses to report average earnings over the last five years, rather than three. As AGC has previously reported, the law will need to go through the usual public notice and comment process before small businesses will receive the full benefits of the expanded lookback period. The SBA has acknowledged that there has been some confusion as to whether the five year look back period is effective immediately. SBA recently issued an Information Notice to all of the agency’s Government Contracting and Business Development employees stating: “The change made by the Runway Extension Act is not presently effective and is therefore not applicable to present contracts, offers, or bids until implemented through the standard rulemaking process”… “Until SBA changes its regulations, businesses still must report their receipts based on a three-year average.”

SBA requires that businesses report their average gross receipts over the previous three years in order to be categorized as a "small" business, including for federal contractors.  According to the congressional report, the “modification of SBA’s size formula is designed to reduce the impact of rapid-growth years which result in spikes in revenue that may prematurely eject a small business out of their small size standard.”

To view the text of the bill, click here.

To view the congressional report, click here.

For more information, contact Jordan Howard at jordan.howard@agc.org or (703) 837-5368.

On Feb. 6, the U.S. Environmental Protection Agency (EPA) finalized its 2019 penalty rule that increased the maximum civil penalties per violation of an environmental statute or agency regulation. These annual adjustments are required by the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015.  Below are the new 2019 penalty maximum levels to account for inflations. In practice, fines tend to track the perceived or actual economic benefit derived from the violation(s) – consistent with applicable EPA penalty policies.

• Clean Water Act (permits effluent limits): Violations up to $54,833 per day, per violation (up from $53,484); for purposes of Section 404, a day of violation may be a day that actual discharge of dredged or fill material takes place or may also include any day that such dredged or fill material remains in the waters or wetlands.


• Clean Water Act (oil and hazardous substance discharges): Violations up to $47,357 per day, per violation (up from $46,192).


• Resource Conservation and Recovery Act (hazardous waste storage, management, and disposal requirements): Violations up to $74,552 per day, per violation (up from $72,718).


• Toxic Substances Control Act (chemical management, reporting, and recordkeeping): Violations up to $39,873 per day, per violation (up from $38,892).


• Emergency Planning and Community Right-to-Know Act: Violations up to $57,317 per day, per violation (up from $55,907).

These amounts apply to statutory civil penalties for violations that occurred after November 2, 2015, where penalties are assessed on or after January 15, 2019.
For more information, contact Melinda Tomaino at tomainom@agc.org or Leah Pilconis pilconisl@agc.org.

Includes Multiemployer Pension Plans
On Feb. 6, the House Ways and Means Committee held a hearing focused on improving retirement security for American workers, which identified challenges including the funding of multiemployer pension plans. The hearing comes on the heels of legislation introduced at the beginning of January, the Butch Lewis Act. The bill, first introduced in 2017, would offer loans to troubled plans through a new agency at Treasury, the Pension Rehabilitation Authority. While the proposal was well vetted during the previous Congress and during the Joint Select committee on Solvency of Multiemployer Pension Plans, it appears as though congressional leaders are shifting their interest from a loan proposal to one that provides assistance to troubled plans by giving the Pension Benefit Guaranty Corporation (PBGC) greater partitioning authority.

Ahead of the hearing, AGC joined with other industry stakeholders provided a letter to the committee outlining our recommendations and priorities for multiemployer pension reform. AGC reiterates our commitment to the authorization of composite plans in any multiemployer pension reform efforts and will advocate against any changes that destabilize plans or make providing retirements benefits to workers more expensive.

For more information, contact Jim Young at youngj@agc.org.