The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has updated the National Emphasis Program (NEP) on preventing trenching and excavation collapses in response to a recent spike in trenching fatalities. OSHA's NEP will increase education and enforcement efforts while its inspectors will record trenching and excavation inspections in a national reporting system, and each area OSHA office will develop outreach programs.

The emphasis program began October 1, 2018, with a three-month period of education and prevention outreach. During this period, OSHA will continue to respond to complaints, referrals, hospitalizations, and fatalities. Enforcement activities will begin after the outreach period and remain in effect until canceled. OSHA-approved State Plans are expected to have enforcement procedures that are at least as effective as those in the updated NEP. OSHA has developed a series of compliance assistance resources to help educate contractors and to keep workers safe from trenching and excavation hazards. The trenching and excavation webpage provides information on trenching hazards and solutions.

For additional information, please contact Kevin Cannon, Senior Director of Safety & Health Services, at [email protected], or (703) 837-5410. 

Bill Headed to President; Includes AGC-Championed DBE Reform

On Oct. 3, the Senate passed the longest reauthorization of the Federal Aviation Administration (FAA) since 1982 by a vote of 93-6. While AGC supports the legislation – as it included a provision championed by AGC that would adjust the Disadvantaged Business Enterprise (DBE) size standard from $23.98 million to $36.5 million –disappoint remains in that the legislation did not provide a significant funding increase for airport infrastructure.

The bill provides five years of funding certainty for the Airport Improvement Program (AIP); however, it does not raise the funding level for the AIP and instead maintains inadequate, status quo funding levels at $3.35 billion annually through fiscal year 2023. AGC is also disappointed that the bill fails to generate additional infrastructure revenues through an increase in the passenger facility charge (PFC), a user fee that has not increased since 2001. PFC funds help finance scores of airport infrastructure projects including terminal construction, airport roadway and transit expansion, and noise mitigation projects, among others.

Other provisions supported by AGC include language that encourages the FAA to develop rules addressing integrating Unmanned Aircraft Systems (UAS) safely into the national airspace in a manner that will speed the creative use of UAS in construction operations. AGC also supports disaster relief provisions in the bill that will provide meaningful reforms to improve pre-disaster planning and mitigation while providing incentives for building and rebuilding infrastructure to mitigate damages from future disasters.

The President will sign the bill prior to the expiration of the short-term extension on October 7.

For additional information, please contact Sean O’Neill, Senior Director, Vice President, Congressional Relations, Infrastructure Advancement at [email protected], or (202) 547-8992.

Partial Government Shutdown will be Avoided
The House passed fiscal year 2019 spending bills for the departments of Defense, Labor, Health & Human Services, and Education, and a continuing resolution this week to successfully avoid a partial government shutdown this fall. The continuing resolution provides funding through Dec. 7 for the five remaining spending bills that have not yet been passed by Congress. This is the first time since 2007 that any appropriations bills will have been signed into law prior to the expiration of the previous fiscal year.   A full rundown of the status of the 2019 funding bills can be found here.
Of interest to AGC members, the Department of Labor bill includes a $15 million increase in apprenticeship grants and a $70 million increase in career and technical education grants as compared to fiscal year 2018.  The bill also restores previously proposed funding cuts to OSHA’s Susan Harwood Training Grants.
AGC will continue to push for action on the remaining appropriations bills.
For more information, contact Sean O’Neill at [email protected] or (202) 547-8892.

AGC Comments in Support of Reforms
On Sept. 24, AGC commented on three proposed rules that would significantly affect the applicability and implementation of the Endangered Species Act (ESA).  The proposed revisions pertain to regulations governing the listing and delisting of species and plants, the designation of critical habitat and the interagency consultations that are part of the approval process for almost all federal permits and approvals.  AGC’s comment letters (one, two and three) offered examples of why the current process is unpredictable and adds delay and cost to the permitting and construction of infrastructure projects nationwide.
Overall, AGC offered support for the Services efforts to clarify definitions, refine procedures and streamline process.  Significant reforms would: remove the blanket “take” prohibition from threatened species; re-emphasize the role of unoccupied habitat in critical habitat designations by reversing 2016 regulations implemented by the Obama Administration; make economic impacts publicly available – though not considered – in listing decisions; streamline the interagency consultation process required by Section 7 of the ESA, including the scope, process itself and substance of the consultation. AGC also suggested some additional areas for improvement, drawing from concerns that AGC members have raised in the past.
For more information, please contact Melinda Tomaino at [email protected].

Includes AGC-Championed DBE Reform
This week,  the House of Representatives passed the longest reauthorization of the Federal Aviation Administration (FAA) since 1982 by a vote of 392-93. While AGC supported the legislation – as it included a provision championed by AGC that would adjust the Disadvantaged Business Enterprise (DBE) size standard from $23.98 million to $36.5 million –disappoint remains in that the legislation did not provide a significant funding increase for airport infrastructure.
The bill provides five years of funding certainty for the Airport Improvement Program (AIP); however, it does not raise the funding level for the AIP and instead maintains inadequate, status quo funding levels at $3.35 billion annually through fiscal year 2023.   AGC is also disappointed that the bill fails to generate additional infrastructure revenues through an increase in the passenger facility charge (PFC), a user fee that has not increased since 2001. PFC funds help finance scores of airport infrastructure projects including terminal construction, airport roadway and transit expansion, and noise mitigation projects, among others.
Other provisions supported by AGC include language that encourages the FAA to develop rules addressing integrating Unmanned Aircraft Systems (UAS) safely into the national airspace in a manner that will speed the creative use of UAS in construction operations. AGC also supports disaster relief provisions in the bill that will provide meaningful reforms to improve pre-disaster planning and mitigation while providing incentives for building and rebuilding infrastructure to mitigate damages from future disasters.
The Senate is likely to take up and pass the legislation next week.
For more information, contact Sean O’Neill at [email protected] or (202) 547-8892.

On Sept. 26, the House of Representatives is expected to vote on the Protecting Family and Small Business Tax Cuts Act of 2018, which would make permanent a number of AGC-supported tax provisions that will expire in 2025 without Congressional action. The Senate may take up the legislation after the November election.
In December 2017, the president signed into law the Tax Cuts and Jobs Act (TCJA), which – amongst other things – created a new 20 percent deduction for qualified pass-through business income and doubled the exemption for the estate tax from $5 million to $10 million. Unfortunately, due to budgetary constraints, a number of provisions in the Act were made temporary, including the pass-through deduction and the increased estate tax exemption.
On Sept. 12, AGC sent a letter to the Ways and Means Committee supporting the Committee’s consideration of the legislation.  On Sept. 25, AGC sent a letter to the House of Representatives in support of its passage.
For more information, contact Matt Turkstra at [email protected], or (202) 547-4733.

Register today for AGC of America’s 3-part WebEd series on Risk Management, which kicks off next Thursday, Sept. 27, with a discussion between Dave Liverseed, Environmental Director at M. A. Mortenson Company and Sharon Burger, VP & Environmental Practice Leader, IMA Financial Group on managing environmental contamination and pollution liability.
Please join next Thursday for this don’t-miss WebEd program, and you will be able to:

• Describe potential environmental/pollution risks throughout the various stages of a construction project


• Know what questions you should be asking an owner/developer during the bid process


• Understand coverage provided by a Contractor’s Pollution Liability policy


• Understand the general value and shortcomings of indemnification, additional insured, and limitation of liability provisions in a contract

Book your Hotel by Oct. 2
Jointly sponsored by AGC and CFMA, the 22nd Annual AGC/CFMA Construction Financial Management Conference will be held Oct. 24-26 at Caesars Palace in Las Vegas, Nevada. This three-day conference offers programs and workshops designed specifically for financial professionals in the construction industry. The 34 interactive sessions will cover the latest industry issues and their financial implications. Participants may earn up to 20 continuing professional education (CPE) credits. Register at meetings.agc.org/agc_cfma.
For more information, contact Matthew Turkstra at [email protected] or (202) 547-4733.

The National Labor Relations Board (NLRB) on Sept. 14 issued a proposed rule on the standard for determining when a company will be deemed a joint employer of another company’s employees under the National Labor Relations Act.  The proposed rule would re-establish the standard in place before the controversial 2015 Browning-Ferris Industries decision.  That decision made it easier to find joint-employer status by allowing for such a finding when a company merely exercises indirect control over essential employment terms of another company’s employees or even when it has simply reserved the right to control.  The proposed rule requires the exercise of “direct, substantial and immediate control.”  AGC has previously supported such a standard in both litigation and legislation and expects to submit comments supporting the proposed rule before the 60-day comment period expires.
For more information, contact Denise Gold at [email protected] or 703-837-5326 or Claiborne Guy at [email protected] or 703-837-5382.

On Sept. 17, the U.S. Senate approved a bipartisan bill targeting policy changes to help reverse the current opioid crisis.  AGC-supported changes in the bill, which include increasing the number of mental health and substance abuse professionals, providing job training and treatment services to individuals with substance use disorders, and providing support for recovering individuals to transition back into the workforce.
The Senate bill follows a similar effort by the House earlier this year. However, these two bills will need to be reconciled and passed before it goes to the president for signature. AGC will continue to advocate for a final bill prior to the end of the year.
For more information, contact Jim Young at [email protected] or Kevin Cannon at [email protected].