Deregulatory Efforts Continue
On October 17, 2018, the Trump Administration unveiled its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions mapping out federal agencies’ priorities for the coming months.  This bi-annual publication informs the public of regulatory or de-regulatory actions under consideration or planned by federal agencies. The present agenda includes several submissions with implications for construction contractors, included in this story.
Labor (Click here for full article)
The U.S. Department of Labor’s submission updates projected timelines for action already in progress and adds several new actions of relevance to construction contractors, such as a:

• proposed rule revising the overtime regulations;


• proposed rule to update the regulations governing apprenticeship programs;


• proposed rule to revise the law governing time-and-a-half overtime calculations by redefining the regular rate of pay;


• proposed rule expanding the usage of HRA’s;


• proposed rule establishing criteria for the sponsorship of association retirement plans; and a


• proposed rule to clarify the joint employer standard under FLSA.

Environment (Click here for full article)
On the environmental side:

• The U.S. Environmental Protection Agency (EPA) is still working to repeal and replace the 2015 Waters of the United States Rule and anticipates finalizing the repeal in March 2019, releasing the proposed replacement rule this fall and finalizing that rule approximately a year later in 2019 (with the Army Corps of Engineers).  The agency also plans to take final action of many issues on which AGC commented this year, such as dust-lead hazard standards.  Looking ahead, the agency will update its stormwater programs, look at sections 401 and 404 of the Clean Water Act, and review national ambient air quality standards.


• In March 2019, the Corps plans to propose revisions to the rules covering the review and approval of mitigation banks and in-lieu fee programs for compensatory mitigation.


• Fish and Wildlife Service intends to propose in December 2018 revisions to the regulations that implement section 10 of the ESA re: permit issuance for the take of endangered/threatened species.  The Service also intends to streamline the permitting process for rights-of-way, address incidental take under the Migratory Bird Treaty Act, and further revise its regulations for the designation of critical habitat.


• The Council on Environmental Quality will propose in February 2019 updates to the existing CEQ regulations implementing the procedural requirements of the National Environmental Policy Act (NEPA) re: the environmental review process pursuant to Executive Order 13807.

Transportation Construction
The Federal Highway Administration (FHWA) indicates that it is considering a change in its current regulations that discourage states from including proprietary products in construction specifications on Federally-assisted projects and may propose streamline procedures for using patented and proprietary products.
The Federal Motor Carrier Safety Administration (FMCSA) indicates that it is considering revising certain provisions in its Hours of Service rules and is seeking public input and data that the agency could use in a future proposal. AGC has already provided input to FMCSA on this request and will continue to pursue a construction exemption from the HOS rules.
Direct-Federal Construction
The Federal Acquisition Regulation (FAR) Council is also looking to put out several rules impacting contractors, including:

• FAR Case 2018-003, Credit for Lower-Tier Small Business Subcontracting will allow large businesses to receive small business subcontracting credit for subcontracts that their subcontractors award to small businesses.


• FAR Case 2016-005, Effective Communication between Government and Industry, encourages agency acquisition personnel to talk to industry.


• FAR Case 2017-004, Use of Acquisition 360 to Encourage Vendor Feedback, will address soliciting contractor feedback on how well agencies are doing in awarding and administering contracts. This will improve the efficiency and effectiveness of agency acquisition activities.

For more information, contact Jimmy Christianson at [email protected] or 703-837-5325.

Spur Private Construction Market & Mitigate Taxes on Capital Gains
On Friday, the Treasury Department and the Internal Revenue Service (IRS) released proposed regulations on Opportunity Zones, a new program created by the Tax Cuts and Jobs Act to spur investment—including construction development—in underserved areas of the country. Anyone who makes a qualified investment in an Opportunity Zone can defer capital-gains from an unrelated investment by up to 15 percent, whether it’s from the sale of other real property or cashing out gains on stocks. Moreover, any gains realized on a zone investment are tax-exempt if they are held for at least 10 years.
Earlier this year, in consultation with Governors, Treasury designated roughly 9,000 underserved and low-income census tracts as Opportunity Zones.  About 35 million people reside in an Opportunity Zone.
The regulations provide additional clarity about the how the program will operate and appear to be very favorable to real property investment and development. AGC will study the regulations and evaluate any chance for improvements that would further benefit construction.
For further information, please contact Matt Turkstra at [email protected] or (202) 547-4733.

Authorizes Billions of Dollars for Corps, Drinking Water and Wastewater Projects
On Oct. 23, President Trump joined by bipartisan members of the House and Senate signed an AGC-supported water resources development bill into law that helps the U.S. Army Corps of Engineers (USACE) maintain much of our nation’s water resources infrastructure.
As previously reported, while not a funding bill, this legislation allows Congress to eventually approve billions of dollars in funding for U.S. Army Corps of Engineers Civil Works projects, including navigation (dredging, locks), flood control (levees), hydropower (dams), recreation (parks), and water supply.  In addition, the bill reauthorizes the Water Infrastructure Finance and Innovation Act (WIFIA) for $50 million annually in fiscal years 2020 and 2021 and provides a new authorization, championed by AGC, for the funding of State Revolving Funds with WIFIA dollars—which can be used for drinking water and wastewater facility projects.
For additional information, please contact Sean O’Neill at [email protected], or (202) 547-8992.

February 11-13, 2019 | Omaha, NE
The AGC Safety Management Training Course (SMTC) provides attendees three days of training on the basic skills needed to manage a company safety program in the construction industry. The SMTC program builds on Focus Four training and prepares attendees to manage key safety issues on the job site and provides techniques for delivering basic safety training to field personnel. Participants will receive intensive instruction and training that will allow them to return to their firms with readily applicable new skills to positively impact their company’s safety and health program. For more information, click here.
For more information, contact Nazia Shah at (703) 837-5409 or [email protected].

January 16-18, 2019 | Miami, FL
The 2019 Winter Safety & Health Conference will take place January 16-18, 2019 at the Marriott Miami Biscayne Bay in Miami, FL. Join more than 250 industry professionals and participate in the development of regulatory and legislative activity on both a national and local level; assist in the development and creation of new safety training programs and products; and hear the latest initiatives from OSHA and other industry experts. Full details on the Conference and links to registration and the hotel room block can be found here.
For more information, contact Nazia Shah at (703) 837-5409 or [email protected].

The White House Office of Management and Budget (OMB) recently released a new memorandum (Memorandum M-18-25) establishing a brand new “accountability system” to track and score federal agencies performance in meeting the President Trump’s two-year timeline for completing environmental reviews and authorization decisions on “major infrastructure projects.” The memo requires, and outlines the procedures by which, all agencies that have a role in environmental approvals for infrastructure must regularly track and measure their performance in meeting a list of goals that aim to expedite and improve infrastructure permitting.  Agencies must submit tracking information to OMB and the Federal Agency Portal of the “Federal Infrastructure Permitting Dashboard.” OMB will score each agency’s performance, issue reports, and “consider each agency's performance during budget formulation and determine whether appropriate penalties... must or should be imposed.”
The guidance, intended to further implement Executive Order 13807, and related government actions are consistent with and complement AGC’s focus and recommended reforms for improving federal environmental review and permitting.  For further details, click here.
For more information, contact Leah Pilconis at (703) 837-5332 [email protected].

On Oct. 17, the Congressional Budget Office (CBO) issued two report detailing public spending and financing tools on transportation and water infrastructure from 1956 to 2017.  The spending report showed that public spending on Transportation and Water Infrastructure has been fairly consistent as a share of Gross Domestic Product (GDP) at about 2.3 percent, which is below the 3.0 percent peak in 1959.   The finance report illustrates that more than half of state and local spending on transportation and water infrastructure has been financed through bonds that provide federal tax preferences or through federally supported loan programs.
The reports provide information on six types of infrastructure: highways, mass transit and rail, aviation, water transportation, water resources, and water utilities.  Public spending – federal, state, and local governments – on transportation and water infrastructure totaled $440 billion in 2017.  The majority of that spending came from state and local governments, providing $342 billion, while the federal government accounted for $98 billion.  Of the state and local government spending, 30 percent was for capital expenditures and 70 percent was for operation and maintenance. While most federal spending – 73 percent – went towards capital expenditures and 27 percent went to operations and maintenance.
AGC will continue to advocate for increased infrastructure investment at all levels of government.
For more information, please contact Sean O’Neill at [email protected] or (202) 547-8992.

AGC’s economic team recently updated its construction industry fact sheets for all 50 states and the District of Columbia. Each fact sheet presents: US and state construction industry wages and salaries; a table showing the five most numerous construction occupations in the state and their median pay relative to all employees in the state; several data points on US and state construction spending put in place and starts; graphs, a table and bullet points on US, state and metro construction employment history and recent trends; and more. You can access those state-specific fact sheets here.
For more information, contact Ken Simonson [email protected] or Allen Chen or [email protected].

In line with AGC recommendations, the U.S. Occupational Safety and Health Administration (OSHA) issued an  October 11 memorandum clarifying the agency's position that its rule prohibiting employer retaliation against employees for reporting work-related injuries or illnesses does not prohibit workplace safety incentive programs or post-incident drug testing. The agency expressed a belief that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. Any action taken under a safety incentive program or post-incident drug testing policy would only violate OSHA's anti-retaliation rule if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.
For more information, contact Kevin Cannon at (703) 837-5410 or [email protected].