The Senate passed the conference report to H.R. 4173, Dodd-Frank Wall Street Reform and Consumer Protection Act. The bill will now go to the President for his signature.The legislation was opposed by the banking industry because it would significantly impact fees banks charge while adding new regulations and oversight over lenders, and create the Consumer Financial Protection Bureau. While this legislation does not directly address the construction industry, small lenders that work with the construction industry were concerned about the treatment of trust preferred securities. The final version allowed banks under $15 billion in assets to keep current trust preferred securities in place while requiring bigger banks to divest these assets over the next five years.Robert A. Murray, McGraw-Hill Construction's vice president for economic affairs, says its short-term impact on construction lending would be "neutral to somewhat negative." He says, "The [bill's] greater emphasis on regulation and the adaptation of the banking industry to this new environment may push back the timing when lending conditions can improve."It will take a while to really understand the impact of the new law on the construction industry (or really any other industry). The bill calls for 399 individual rule makings and 46 studies before it is fully implemented.

 EPA Administrator Lisa Jackson has declared the cement-lined Los Angeles river as "navigable," allowing her agency to enforce Clean Water Act protections throughout the river's 834-square-mile watershed.Recent Supreme Court rulings have strictly interpreted "navigable" as the means of determining which water bodies deserve federal regulatory protections aimed at limiting industrial discharges and protecting wetlands.Repeated efforts by Democrats in Congress to strike the word "navigable" from the Clean Water Act and expand federal regulatory power have failed in the face of intense opposition from agricultural and other industry opponents. The most recent effort appears stalled.The L.A. River's new designation represents a dramatic change from two years ago, when the Army Corps of Engineers proposed declaring limited stretches of the river navigable.Confusion over what waters should be deemed "navigable" stems from two Supreme Court decisions -- Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers in 2001 and Rapanos v. United States in 2006.EPA sources report the agency is currently looking at another river, the Santa Cruz in Arizona, to evaluate its legal status as a "traditional navigable water."AGC will continue to monitor these efforts by EPA and oppose legislative efforts to expand the reach of the Clean Water Act in this manner.

AGC submitted comments this week on an advance notice of proposed rulemaking (ANPR) issued May 13, titled Enhancing Contract Transparency. The rule presupposes that, given the direction the administration is moving with the president's Freedom of Information Act (FOIA) memo, Transparency and Open Government memo, andOpen Government Initiative, as well as the Attorney General's new FOIA Guidelines and the Office of Science and Technology Policy's Open Government Plan, a requirement is likely forthcoming to post the text of contracts, task orders, and delivery orders online.In order to best be able to execute this future requirement, the rule asks for public comment concerning how best to implement a system of posting these documents online. AGC was pleased that the ANPR was concerned with facilitating the posting without violating statutory and regulatory prohibitions against disclosing protected information (belonging to either contractors or the government), but had serious reservations with the ANPR's conclusion that it may not be practical to apply full FOIA procedures in every case.AGC requested in its comments that FOIA procedures for protection of information be applied as the minimum standard of protection for disclosure of any text of the documents. AGC also provided a non-exhaustive list of information that the construction contracting community expected to be protected (and the accompanying regulatory citations that guaranteed their protection). AGC will continue to monitor the progression of this rule and fight to protect against the disclosure of sensitive and important contractor information.

An interim rule was issued that brings many of the reporting requirements first made public in the American Recovery and Reinvestment Act to the broader scope of federal contracting. The rule calls for reporting executive compensation and first-tier subcontract awards if the prime contractor and its subcontractors meet certain thresholds. It is based on the same point of law, the amended Federal Funding Accountability and Transparency Act of 2006 (a product of then-Senator Obama and Senator Tom Coburn [R-Okla.]).Under this rule, a prime contractor is required to report for disclosure on www.usaspending.gov the names and compensation of their five most highly compensated officers if in the preceding year the contractor received $25 million or more in revenues from federal contracts and subcontracts and 80 percent or more of its annual gross revenues from federal contracts and it does not already file this information with the SEC. All three must be satisfied to trigger the compensation reporting. The prime contractor is also required to collect and report this compensation information for its first-tier subcontractors if the subcontractor meets the three triggers and the subcontract is for $25 thousand or more.The prime contractor is also required to report to the system every subcontract if the prime contract is $25 thousand or greater. This requirement is phased in however, as follows:1.     Until September 30, 2010, any newly awarded subcontract must be awarded if the prime contract award amount was $20 million or more.2.     From October 1, 2010 until February 28, 2011 any newly awarded subcontract must be reported if the prime contract award was $550 thousand or more.3.     Starting March 1, 2011, any newly awarded subcontract must be reported if the prime contract award amount was $25 thousand or more.This is an interim rule, and as such it became effective upon publication and will operate unless and until a final rule is enacted. User guides, FAQs, and an online demonstration are available at the Federal Subaward Reporting System website, www.fsrs.gov. AGC will submit comments on the interim rule before the September 7 deadline.

As reported in The Hill, AGC has repeatedly urged Congress and the Administration to act on a range of infrastructure bills, given that the stimulus is running out but private sector demand has yet to pick up. Several key pieces of infrastructure legislation remain is Congressional limbo, including authorizations for the surface transportation program, airport construction, and the drinking water and wastewater SRFs. All are in various states of completion, but given the relatively few remaining legislative days, action now is critical to the long-term health of the construction industry and the economy.Read more in the article from The Hill.

The last three weeks in July could be the busiest of the 111th Congress. Many issues are left outstanding, particularly in the Senate, and several others are crowding the legislative calendar.Dominating the news cycles has been the Senate's failure to extend federal unemployment insurance. It is likely that the Senate will again take up this vote when members return from the week-long July 4th recess on July 12. The outcome, however, is very unclear. The extension failed to pass late last month because of the $33.3 billion price tag. Budget concerns also stopped the annual tax extenders package, which contained provisions supported by AGC, from moving forward.Also waiting on Senators' desks will be the confirmation vote for President Obama's nominee for the Supreme Court, Elena Kagan. While her confirmation is expected, the debate and vote will use precious floor time. In addition, the Senate must also take up the final post-conference version of the Financial Regulatory reform legislation that passed the House late last month, and may resume consideration of a small business jobs bill.Also passed by the House last month and waiting for potential Senate pickup is the AGC-opposed DISCLOSE Act, which stifles the right of trade associations and corporations to speak out on behalf of the political candidates they support. Read more about that bill here. Democrats particularly are looking to get this bill passed to help their prospects in the midterm elections this November, where they are forecasted to receive substantial losses in both chambers.Other outstanding issues include authorizations for the Surface Transportation Program and the water and wastewater state revolving loan fund (SRF) programs. The SRF program has been stalled in the Senate over disagreement about the bill's application of Davis-Bacon prevailing wage requirements. While the transportation program has been granted a short-term extension until the end of the year, the Senate has yet to unveil its version of a longer-term bill, which would then have to go through markup and approval by multiple committees before seeing floor time. The future of the majority of federal-aid work that AGC members perform is locked up in these two bills.Also left outstanding in the House and Senate is the next Department of Defense Authorization bill, which has several important possible changes to federal contracting as well as billions in military construction work. A permanent fix to the estate tax seemed to have momentum behind it earlier in the year, particularly because the rate fell from 45 percent in 2009 to zero percent for this year and is scheduled to jump up to 55 percent next year, but the outlook is murky at best. Other big issues include administration priorities like climate change and immigration reform, and, potentially, contracting reform. Also looming is possible legislation dealing with the BP oil spill from the Deepwater Horizon site, as well as Congressional repeal of the military's "Don't Ask, Don't Tell" policy.

In the upcoming weeks, Government Affairs will send PAC regional coordinators, state chairmen, Chapter executives and government affairs representatives a PAC and grassroots toolkit. 

Following months of AGC and other transportation construction stakeholders successfully lobbying Congress and the administration to restore $8.7 billion of rescinded highway contract authority, the House of Representatives is poised to take $2 billion of that unobligated money away to offset a $10 billion appropriation to preserve teachers' jobs included in the House supplemental appropriations bill.  This provision will not impact overall spending but may have an impact on what types of projects states can fund in the future.The intent of the bill is to provide funding for U.S. troops; however, the House Appropriations Committee added additional funding that required an offset of $11.7 billion.  As co-chair of the Transportation Construction Coalition, AGC sent a letter to Congress opposing the House supplemental proposal, and argued that the rescission creates further uncertainty in an already-suffering transportation construction marketplace. AGC also argued that it raises questions about future federal transportation investment commitments.  A copy of the letter can be found here.For more information, contact Sean O'Neill at (202) 547-8892 or oneills@agc.org.

Three of the five rules from the Federal Acquisition Regulation Councils that govern the American Recovery and Reinvestment Act were released this week. Final versions of the rules governing GAO/IG access to contractors and their employees, whistleblower protections, and publicizing contract actions now permanently govern Recovery Act contracts.AGC submitted comments on the GAO/IG Access rule. AGC requested that an IG provide reasonable advance notice to contractors and their employees before a review of contractor transactions, including when and where the review and interviews will occur; the topics to be covered; the employees affected; and the total amount of time required to conduct the review.The FAR Councils disagreed, and stated that the purpose of the rule is to put contractors on notice that they may need to make their records and employees available in the event a review is requested. The Councils prefer to leave the exact review procedures that the Comptroller General or his authorized representatives use to execute such procedures and not detail them in the FAR. The two remaining rules, governing the reporting requirements and 'Buy American' regulations, have not yet been released in final form.

More progress on the Buy American front this week as yet another agency recognized the complex impact these Recovery Act rules have on projects. The Indian Health Service (IHS) issued a nationwide di minimis waiver for incidental components of sanitation facilities construction projects funded by ARRA.As with the di minimis waivers in place from EPA and USDA, the waiver covers components that are incorporated into the project, yet cumulatively comprise no more than a total of 5 percent of the total materials used in a project. For many of these incidental components, the country of origin and the availability of alternatives is not always readily or reasonably identifiable prior to procurement in the normal course of business; for other incidental components, the country of origin may be known but the miscellaneous nature of the products in conjunction with their low cost (both individually and procured in bulk) characterize them as incidental to the facility or project.The majority of the services sanitation facilities projects are in remote locations. The service argued that a disproportionate cost and delay would be imposed on projects if they did not issue this waiver.  IHS said it would be inconsistent with the public interest to apply the Buy American requirement to incidental components.  AGC last year urged agencies like HIS to issue di minimis waivers to avoid costly delays caused by the stimulus' Buy American provisions.Also on the Buy American front is a pair of new waivers from the EPA. These waivers are unique in that they are retroactive, applying to materials that were already put in place, rather than requesting a waiver for the purposes of moving forward with construction. Waivers for two cities in Washington State, Richland and Bridgeport, were requested under the public interest section of the waiver authority. Neither waiting for domestic suppliers nor pulling out previously installed goods was deemed in the public interest because of unacceptable delays and cost overruns on these projects. AGC supports the waivers and will continue to monitor progress on this front.