NO FAKE NEWS HERE of America Presentation.pdfU.S. ARMY CORPS OF ENGINEERS • Improving admin. of the Clean Water Act 404 Permitting • Streamlining Rivers & Harbors Act 408 Permission

NO FAKE NEWS HERE(D.C. Legislative & Regulatory Update)

Joint AGC – USACE MeetingOmaha, NE

Jordan F. HowardDirector of Federal & Heavy Construction

Associated General Contractors of [email protected]

THE POLITICAL

ATMOSPHERE IN

WASHINGTON, D.C.

New Congress

Democrats’ Legislative Priorities for the 116th Congress

Presenter

Presentation Notes

Of House Democrats’ plans, the most likely to gain GOP support are improving infrastructure and cutting drug prices

Government shutdowns in the last four decades and the party in control of Congress

Congress Funds the Government• Congress funds government for FY 2019

• The bill is a mixed bag and includes some increases for federal construction accounts

• Grand Bargain Bare Minimum

• The bill failed to include TPS and DACA • impacting 120,000 construction workers

• No emergency construction project funding for disaster areas impacted by 2018 disasters

• Hurricanes, wildfires, earthquakes and volcanic eruptions will need to be addressed

National Emergency

Defense Department military construction budget: $3.5 billion

44%

Defense Department drug interdiction program: $2.5

billion 31%

Treasury Department drug forfeiture fund:

$600 million8%

Appropriation for 55 miles of border

fencing: $1.375 billion17%

Breakdown of Wall Funding from the Emergency Declaration

Defense Department military constructionbudget: $3.5 billion

Defense Department drug interdiction program:$2.5 billion

Treasury Department drug forfeiture fund:$600 million

Appropriation for 55 miles of border fencing:$1.375 billion

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Presentation Notes

President Trump declared a national emergency on February 15, 2019 The February 14 government funding bill allocated $1.375 billion for 55 miles of steel-post border fencing The Treasury Department’s drug forfeiture fund consists of money seized through drug trafficking-related asset forfeiture and can be used to fund programs assisting drug interdiction The Defense Department’s (DoD) drug interdiction program allows the DoD to fund construction supporting counterdrug efforts The DoD’s military construction budget allows it to fund military construction projects in the event of a national emergency declaration

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Presentation Notes

The United States is currently under 31 active national emergencies, the earliest dating back to 1979

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Raise the Debt Ceiling reached next month. Likely extend it into the summer. NFIP runs out in June Maxine Waters FY 2020 Healthcare Reform FAA?

Sources: Roll Call, 2019 Congressional Calendar, December 11, 2018.

■ Both chambers in session ■ Senate only in session

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Infrastructure in 2019?“Can we get along? Maybe. There is a possibility. They want infrastructure, I want infrastructure.”-Donald Trump, Fox News, October 11, 2018

“…I have to. If we think that there’s a way that we can build the infrastructure of our country working in a bipartisan way, we have that responsibility…”-Nancy Pelosi, Chicago Stories, May 7, 2019

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Presentation Notes

Trump, House and Senate Dems, last Chair of the House Transportation and Infrastructure Committee. House T&I, Peter DeFazio, plan is expected in May.

What we know about an infrastructure package…

• It will not likely change the tax code

• Likely rule out a change to the gas tax which has not been increased since 1993?

• It will be roughly $2 trillion in total

• Meet again in two weeks to determine how to fund

Washington Post

Infrastructure InvestmentSurface TransportationCurrent Funding $941 B Solutions

Highway Trust Fund: Increasing the gas tax by 20 cents would raise $340 billion over 10 years.Private Activity Bonds (PABs): Increasing the volume cap for transportation PABs by $5 billion would result in an additional $19 billion in investment.Dedicate Partial Revenue from Repatriation to Surface Transportation – $125 billionDedicate 15% of Customs Revenue to Infrastructure Investment—$58.3 billion$100 Annual Registration Fee on Electric Cars, $50 on Hybrid Electric – $2.971 billionOne Cent Car and Four Cent Truck Vehicle Mile Traveled Fee – $408 billion

Gap $1.1 T

Total Needs: $2.042 T

AGC Solutions $545 to 613B

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Presentation Notes

AGC has provided an outline of what a $1 Trillion infrastructure package should look like. Won’t go through it all, but here you can see surface transportation.

• “Strengthening Buy-American Preferences for Infrastructure Projects”

• Recommends, but does not Require

• Encourages new Federal Financial Assistance Awards to use iron, aluminum, steel, cement, and other manufactured products in every contract, subcontract, or purchase order.

• Applies to U.S. Army Corps of Engineers

Buy American Executive Order

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Presentation Notes

On Jan. 31st trump signed E.O. AGC remains committed to ensuring that domestic preference programs are executed in a manner that does not increase project costs and delays and reasonably implements compliance requirements.

PREPARED FOR TRUMP ADMIN.

U.S. DEPARTMENT OF LABOR• REVISED: Drug Testing / Safety Incentive Program Policy • REVISED: Crane Operator Certification• SUSPENDED: Obama’s Overtime Rule • RESCINDED: Obama’s Guidance Granting Walk Around

Rights for Unions At Open Shop Jobsites• RESCINDED: Withdrawal of 2015 and 2016 Guidance on

Joint Employment and Independent Contractors• IN QUESTION: OFCCP’s Audit Selection Policy for

Construction Contractors• RESCINDED: The Obama Persuader Rule

NATIONAL LABOR RELATIONS BOARD• UNDER REVIEW: Joint Employer Standard• UNDER REVIEW: Ambush/Quickie Election

EQUAL EMPLOYMENT OPPORUNITY COMMISSION• SUSPENDED: Obama Revised EEO-1 Report

U.S. DEPARTMENT OF TRANSPORTATION• WITHDRAWN: Local Hiring Proposed Rule and Pilot Program• WITHDRAWN: National Performance Management

Measures relating to GHG

U.S. ENVIRONMENTAL PROTECTION AGENCY• UNDERWAY: Repeal & Replace of WOTUS Rule• REVISED: Permitting Process to follow “1 Agency Decision” • SUSPENDED: Pursuit to revise stormwater regs governing

post-construction discharges• SUSPENDED: Lead paint work practice rules for public and

commercial buildings• RESCINDED: Sue and Settle Policy w/ Environmentalists• RESCINDED: Obama directive establishing preference for

compensatory mitigation where unavoidable adverse impacts may occur.

• RESCINDED: NEPA Guidance encouraging agencies to quantify direct and indirect GHG emissions for construction projects during NEPA Review

U.S. DEPARTMENT OF THE TREASURY• WITHDRAWN: Rule eliminating Estate Tax valuation

discounts for family members receiving interest in a family controlled business.

U.S. DEPARTMENT OF JUSTICE• NULLIFIED: Policy actively seeking to hold individuals

criminal liable for company’s environmental violations

AGC DE-REGULATORY HIGHLIGHTS

AGC REGULATORY WORK AHEADU.S. DEPARTMENT OF COMMERCE

• Addressing Steel & Aluminum Tariffs• Evaluating Proposed Tariffs on Chinese Construction Products &

Materials• Evaluating impact of new NAFTA Agreement

U.S. DEPARTMENT OF LABOR• Ensuring New Apprenticeship Rule Helps Construction Industry• Reevaluating Youth Laws from Workforce Development Perspective• Implementing Crane Operator Certification Final Rule• Updating Existing Overtime Rules• Updating and Reforming Davis-Bacon• Revisiting Federal Contractor Paid Sick Leave Rule• Monitoring Expansion of Association Health Plans / Retirement

Plans

U.S. DEPARTMENT OF TRANSPORTATION• Modernizing Disadvantaged Business Enterprise Program• Revising Commercial Truck Driver Hours of Service Rules• Addressing Required Use of Proprietary Products• Revisiting Agency’s P3 Documents to Better Consider and Account

for Contractor Risk

U.S. DEPARTMENT OF THE TREASURY• Ensuring new regulations issued as a result of new Tax Reform Law

work for Construction Contractors (e.g., 20% Pass-Thru Deduction)

U.S. ENVIRONMENTAL PROTECTION AGENCY• Preventing EPA from regulating stormwater discharges to

groundwater under the Clean Water Act through the National Pollutant Discharge Elimination System Permit

• Revisiting the Construction General Permit for stormwater to address owner/contractor liability

• Working to ensure that revisions to Ozone and NAAQs standards/rules do not put areas at risk of non-attainment, jeopardizing federal-aid transportation funding

• Streamlining regulation of hazardous waste aerosol cans

U.S. ARMY CORPS OF ENGINEERS• Improving admin. of the Clean Water Act 404 Permitting• Streamlining Rivers & Harbors Act 408 Permission Process

U.S. DEPARTMENT OF THE INTERIOR• Modifying rules regarding critical habitats under the Endangered

Species Act• Addressing Obama-era mitigation policies• Revisiting interpretation of Migratory Bird Treaty Act that

criminalizes incidental takes of migratory birds/nests/eggs.

U.S. DEPARTMENT OF JUSTICE• Pressing for action against state and local govts that blacklist border

wall construction contractors

Alice Johnson | Slide last updated on: February 20, 2019

Sources: “Tracking how many key positions Trump has filled so far,” Washington Post and Partnership for Public Service, published Dec. 3, 2016; updated last Feb. 19, 2019.

AS OF FEBRUARY 20, 2019

Status of key positions requiring Senate confirmation

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128 nominees to key positions are awaiting confirmation, while 147 positions have no nominee

States Effected by 2015 WOTUS Rule

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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. Over the decades, determining where federal jurisdiction lies and overly broad interpretations have added regulatory uncertainty, delay, and cost to projects. Comments on the proposal are due April 15, 2019.

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Presentation Notes

The proposal identifies the six (6) categories of jurisdictional waters and the exclusion of certain water features from federal jurisdiction. Included in the exclusions are three main construction-specific concerns of import: Most ditches, Stormwater features (such as those constructed in accordance with meeting Clean Water Act Section 402 requirements) constructed in uplands, and Water-filled depressions created in uplands (such as those made by construction equipment). Also of note is that the proposal would: Excludes ephemeral features, Creates an important distinction between ephemeral and intermittent features in that ephemeral features flow in response to precipitation, Defines uplands, and Reaffirms the long-held agency practice that excludes groundwater as a waters of the United States. The new proposal is intended to correct the regulatory overreach of the old rule while continuing to protect federal waters.

EEO-1 Pay Data Federal court ruled that employers must submit two years of EEO-1 pay data by Sept. 30, 2019.

Component 1 vs Component 2• The traditional EEO-1 report (“Component 1”) requires employers to tally

employment data by race/ethnicity, gender and job categories.• “Component 2” requires employers to query their databases for W-2 pay

data and FLSA hours worked information• Even though individual pay data is not actually reported to the EEOC.

Applies to:• The EEO-1 is an annual survey that requires all private employers with 100 or more

employees, and• Federal contractors or first-tier subcontractors with 50 or more employees and a

federal contract, subcontract or purchase order amounting to $50,000 or more to file the EEO-1 report.

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Presentation Notes

On March 18, 2019, the U.S. Equal Employment Opportunity Commission (EEOC) opened its EEO-1 online reporting portal for the 2018 survey. The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a federal contract, subcontract or purchase order amounting to $50,000 or more to file the EEO-1 report. The traditional EEO-1 report (“Component 1”) requires employers to tally employment data by race/ethnicity, gender and job categories. “Component 2” of the EEO-1 report requires employers to query their databases for W-2 pay data and FLSA hours worked information, even though individual pay data is not actually reported to the EEOC. The filing of the EEO-1 report is not voluntary and is required by federal law, but we await a court order regarding the timing of any filing using Component 2 data fields

AGC’s Recommendations to USACE HQ• Leading Project Indicators

• Such as:• Failure to Partner/Practice Formal Partnering• Number of disputes and/or claims• Time to issue/resolve modifications• Dispute letters issued• Trending of average schedule float

• Key Personnel Performance Indicators• Such as:

• Open/Unresolved Issues• Acquisition 360

• 60 Day Change Order Process• Standardize the Change Order Process• Establish Automatic Escalation • Increase Transparency

Starting in June 2019, a series of Democratic forums and debates are expected to take place

2020 Iowa caucuses are scheduled for Feb. 3, 2020

Expected to be most expensive Presidential election in U.S. history

2020 Election

2019 AGC Federal Contractors Conference• June 10-12th in Washington, D.C.• Website: http://meetings.agc.org/Fedcon

http://meetings.agc.org/Fedcon

Questions, Comments, Advice?

• Jordan Howard

• Email: [email protected]

• Phone: 703-837-5368