Federal Highway Administration Includes Climate Change Calculations in New Performance Rules

DOT Issues Environmental Review Document
In an effort to impose new environmental constraints on transportation infrastructure development prior to the start of the new administration on Jan. 20, the U.S. Department of Transportation issued final rules on performance measures for congestion and freight movement that include requirements for states to measure and report CO2 (Greenhouse Gas- GHG) emissions from on-road vehicles for projects receiving federal funding. AGC, along with numerous other groups and Members of Congress, had advised U.S. DOT in formal comments that it lacked authority to expand into CO2 emissions; however the Department did not agree. In one victory for AGC, the performance measures do not require measuring emissions from off-road construction vehicles and equipment as had been suggested by DOT and opposed by AGC.
The 2013 highway authorization legislation, MAP-21, directed the Department to establish performance measures on a variety of different factors to determine if federal investment in infrastructure was achieving its goals and how to target future investments. However, MAP-21 specifically limited the items that the Transportation Department was to include in these measures and did not include GHGs. AGC will urge the new administration to reconsider this rule once the new transportation secretary is confirmed.
In a separate action, the Transportation Department released updated implementation procedures for states to use to comply with the National Environmental Policy Act (NEPA). Not only did the Department rush these procedures out for publication with limited (21 days) opportunity for public comment, the document adds a new level of oversight to the environmental review process. This undermines efforts by Congress in the past three transportation authorization bills and previous administrations to streamline environmental review and shrink the time it takes for project approval.
In addition, the document limits the use of “categorical exclusions” which provide an expedited review process for the everyday transportation projects expected to have limited environmental impact. The new procedures also expand requirement for states to consider climate change as part of the review process. U.S. DOT also references in the document that it will be developing additional guidance documents but chose to not wait until these were completed so as to gather additional public comment. AGC provided written comments on these proposed procedures but believes that more informed comments could have been submitted if the normal 60 day comment period was provided as is called for in an Executive Order issued by President Obama.
For more information, contact Brian Deery at [email protected] or (703) 837-53149.

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Confirmation Hearing Held for Trump’s Pick for Transportation Secretary

Signals Support for Federal Spending and Addressing the Highway Trust Fund
The Senate Commerce Committee held a confirmation hearing this week for President-elect Trump’s nominee to head the Department of Transportation, Elaine Chao.  Ms. Chao – who previously served as the Secretary of Labor under President George W. Bush and the Deputy Secretary of Transportation in President George H.W. Bush’s Administration – is expected to help shape an infrastructure plan that has been promised by President-elect Trump.  Her confirmation to the position is all but guaranteed and is likely to occur soon after Trump takes office on January 20.
Secretary Chao offered no specifics of what a Trump infrastructure plan would include but she did acknowledge that the challenges with any plan lie in how it is paid for. During the hearing she expressed the belief that both direct federal spending and private financing will be a part of the incoming administration’s proposal.  She went on the say that seeing a patch for the Highway Trust Fund – which will be facing insolvency in 2020 – will be a “top priority” for the Department.  Additionally, Chao said one of her first orders of business will be to create an infrastructure task force.
Although the hearing was short on specifics, Secretary Chao made it clear she plans on working closely with Congress as the Secretary of Transportation. AGC supports Secretary Chao’s nomination and looks forward to working with her to promote a pro-construction agenda at the Department of Transportation.
For more information, contact Sean O’Neill at [email protected] or (202) 547-8892.

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AGC Fights Against Government Mandated Project Labor Agreements

Urges Trump Administration to Repeal and Replace
This week AGC, and others, urged President-elect Trump’s administration to repeal President Obama’s executive order that encourages federal agencies to require project labor agreements (PLAs) on federal construction projects exceeding $25 million, and replace it with a policy that prevents agencies from forcing contractors to enter into a labor agreement as a condition for winning a federal construction contract.  Last year, AGC requested this PLA reform when it shared its federal agency regulatory, compliance and enforcement plan with members of the Trump Presidential Transitional Team.
AGC neither supports nor opposes contractors’ voluntary use of PLAs on government projects, but strongly opposes any government mandate for contractors’ use of PLAs.  AGC strongly believes that the choice of whether to adopt a collective bargaining agreement should be left to the contractor-employers and their employees.  Such a choice should not be imposed as a condition to competing for, or performing on, a publicly funded project.
To view more details on AGC’s Regulatory Road ahead, click here.
To view more details on AGC efforts opposing government mandated PLAs, click here.
For more information, contact Jordan Howard at [email protected] or (703) 837-5368.

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AGC-Backed Regulatory Reform Legislation Passes House

Could Help Roll Back Obama Administration Regulations
On Jan. 4, the House passed AGC-backed legislation that would help Congress repeal more Obama administration regulations, as well as future administration’s regulations. The Midnight Rules Relief Act—introduced by Rep. Darrell Issa (R-Calf.)—would enable Congress to include multiple regulations for repeal in one bill under the Congressional Review Act. As it stands, Congress can only include one regulation for repeal in single bill, which is a time-consuming process that severely restricts the number of regulations that could be repealed. To provide context, in 2016, federal agencies issued 3,853 regulations.  This exceeds the number of bills Congress passed by a factor of 18.
Today, the House will also consider legislation that would require regulations with a total cost to the economy of $100 million or more to be approved by Congress before they become effective. In addition to placing a congressional check on such major regulations, the Regulations in Need of Scrutiny (REINS) Act—introduced by Doug Collins (R-Ga.)—would allow Congress to disapprove of non-major regulations below the $100 million threshold. House passage of this bill is expected. Upon passage, the Senate may consider both bills after President-elect Trump is sworn into office. AGC will continue to press for such common sense regulatory reform in the new Congress.
For more information, contact Jimmy Christianson at [email protected] or 703-837-5325.

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SBA Finalizes Small Business Subcontractor Counting Rule

AGC-Enacted Law Leads to Rule
As a result of past AGC legislative success, the U.S. Small Business Administration (SBA) recently finalized a rule allowing direct-federal large business prime contractors to count lower tier small business subcontractors towards their small business subcontracting goals. Prior to this rule, such prime contractors were only able to count first tier small business subcontractors towards those goals. Although the rule goes “into effect” on Jan. 23, there will be no way for prime contractors to receive credit for small business subcontractors until the Federal Acquisition Regulation (FAR) Council issues a final rule to include this in federal contracts. That FAR rule and a new FAR clause could come in 2017.
In lieu of a FAR rule and clause, direct-federal large business prime contractors interested in taking credit for lower tier small business subcontractors may consider beginning preparations to comply with the SBA rule. To receive such credit, there are some strings attached under the rule. Those include:

  • Prime contractors, not federal agencies, establishing two sets of small business subcontracting goals: (1) one goal for the first subcontracting tier; and (2) another for lower tier subcontracts. Ultimately, however, federal agencies will evaluate the prime contractor’s small business subcontracting goal performance based on its combined performance under the first and lower tier goal;

  • Prime contractors and their large business subcontractors must assign a specific North American Industry Classification System (NAICS) Code and corresponding size standard that best describes the principal purpose of the subcontract to each small business subcontract;

  • Prime contractors and large business subcontractors are responsible for making a good faith effort to meet or exceed the small business subcontracting goals established in their respective subcontracting plans. Failure to make this effort could result in liquidated damages, default termination and negative performance reviews; and

  • Prime contractors are ultimately responsible for approving and policing their large business subcontractors’ subcontracting plans.

It should also be noted that the Electronic Subcontracting Reporting System will be the database used to capture lower tier small business subcontractor information, as it is currently used to collect information at the first subcontracting tier. AGC will provide additional information as it further examines this rule and monitors progress of a FAR rule and clause.
For more information, contact Jimmy Christianson at [email protected] or 703-837-5325.

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AGC Recommends Improvements for Davis-Bacon Wage Survey Process

In response to a request for comments from the U.S. Department of Labor’s Wage and Hour Division, on Dec. 19, AGC notified the agency that improvements are needed to the way it collects wage data from construction contractors.  The Wage and Hour Division is responsible for setting the prevailing wage rate for federal and federally assisted construction projects covered by the Davis-Bacon Act and currently uses wage surveys to collect wage data from contractors.  The agency’s request for comments is a required part of the regulatory process as the agency seeks to extend the use of its current wage survey form (Form WD-10), which expires in 2017.
In its comments, AGC expressed that it understands the difficulty involved with getting contractors to voluntarily submit wage data to the government – particularly to the same agency that is authorized to take enforcement action against them.  Additionally, AGC explained that the twenty-minute time estimate to accurately complete the survey is grossly underestimated, particularly when there are multiple classifications, sub-classifications, and fringe benefits to include.  To ease the burden of submitting such data, help the agency fulfill its need to collect wage data to set prevailing wage rates, and improve the wage collection process overall, AGC made the following recommendations

  • WHD should consider using third-party wage survey specialists with specific knowledge of the construction industry that already collect wage data from construction contractors;

  • WHD should collect construction contractor wage data more frequently to more accurately reflect the current conditions of the market (currently, the maximum is once every three years);

  • WHD must ensure that wages are solicited and incorporated by both public and private contractors to reflect the totality of the market; and

  • WHD should allow the adoption of state prevailing wage rates when the method for setting such wages meets WHD’s requirements.

To learn more about how the WHD determines Davis-Bacon prevailing wages and how contractors can influence those wages, read AGC’s whitepaper, Impacting Davis-Bacon Wage Determinations: A Guide for Contributing to the Accuracy of Published Prevailing Wage Rates in Construction.
For more information, contact Tamika Carter at [email protected] or 703-837-5382.

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AGC Shares Regulatory Plan with Trump Transition Team

This week, AGC shared its federal agency regulatory, compliance and enforcement plan with members of the Trump Presidential Transitional Team. Entitled “Make Federal Agencies Responsible Again,” the document calls for the repeal of dozens of unnecessary and overly burdensome executive orders, presidential memoranda, and federal regulations that have made it more difficult for construction contractors to safely, efficiently and effectively build the nation’s civil and social infrastructure.
In addition to charting a regulatory reform path forward, AGC calls for the Trump Administration to implement a critical paradigm shift within federal agencies. Specifically, the association calls for construction contractors to be treated as industry partners and not “industry opponents;” a term that can categorize the attitude many agencies have taken with the construction industry.  To do so, AGC calls for agency enforcement initiatives to focus on bad actors, rather than lumping innocent contractors in with bad actors. Additionally, AGC recommends a return to federal agencies helping construction contractors comply with the law through reestablishing industry partnership programs and developing educational materials.
For more information, contact Jimmy Christianson at [email protected] or 703-837-5325.

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OSHA’s Publishes Second Controversial Recordkeeping Regulation in 2016

On Dec. 19, the Occupational Safety and Health Administration (OSHA) published a final rule to revise existing language in the recordkeeping regulation to emphasize an employer’s responsibility to make and maintain accurate OSHA 300 Logs and all related incident reports.  The new rule drastically expands on the existing regulatory language and in some cases added new provisions.  While the newly published rule does make clear OSHA’s expectations involving the maintenance of injury and illness records, the true impetus for the rulemaking is to drastically expand the agency’s statute of limitation granted by the OSH Act. The OSH Act clearly states that “no citations may be issued after the expiration of six months following the occurrence of any violation.” However, this new rule will allow contractors to be cited for honest mistakes, or inaccuracies, related to recordkeeping dating back as far as five-and-a-half years.  OSHA’s justification is that an omission of an injury or illness from the OSHA 300 Log constitutes an ongoing occurrence until corrected during the five-year retention period under the recordkeeping regulation.
AGC submitted comments opposing this rulemaking as part of the Coalition for Workplace Safety in 2015. On Nov. 22, 2016, AGC staff met with the White House Office of Information and Regulatory Affairs to raise concerns while the rule was under their review.  OSHA’s false interpretation of their statute of limitation, and subsequent justification, not only raised concerns among the regulated community but also members of the U.S. House of Representatives Committee on Education and the Workforce who recently sent a letter to the White House demanding they reject the rulemaking.
Unfortunately, none of the efforts were successful.  AGC encourages all of its contractor members to be extra diligent in investigating and documenting all facts related to reported injuries and illnesses to determine if they meet the recording criteria for entry on the OSHA 300 Log.  The final rule becomes effective on Jan. 18, 2017.
For more information, contact Kevin Cannon at [email protected] or (703) 837-5410.

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Visit Your Congressmen Next Week and Urge Them to Fix the Highway Trust Fund

Talking Points Can be Found at
While Members of Congress are back home for the remainder of the year, the AGC co-chaired Transportation Construction Coalition (TCC) is urging our members to contact their Members of Congress – either in person or via email – and encourage them to permanently fix for the Highway Trust Fund.  A new Congress and administration could provide the opportunity to fix the trust fund either through tax reform and/or an infrastructure package (as promised by President-Elect Trump).
If you do contact your members of Congress over the next couple of weeks, talking points and background material can be found on the Hardhats for Highways webpage.
For more information, contact Sean O’Neill at [email protected] or (202) 547-8892.

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“Civilian BRAC” Becomes Law 

$8 Billion in Federal Real Property Up for Consideration 
Last week, the President signed into law the AGC-supported Federal Assets Sale and Transfer Act. This bipartisan law will shrink the federal footprint and streamline the disposal of excess or underutilized federal buildings. AGC has long been involved in pushing for federal real property reform and strongly supports these efforts.
The disposal of unneeded federal real property could allow for millions and potentially billions of dollars in private and federal construction work throughout the nation, as excess federal buildings exist in every state. According to the most recent Federal Real Property Summary, the government owns more than 254,000 buildings, comprising 2.5 billion square feet of space, costing the taxpayer $14.4 billion annually. Recent estimates show 77,000 buildings are underutilized, costing $1.7 billion annually.
For more information, contact Jordan Howard at [email protected] or 703-837-5325.

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