In the Final Rules section, you will find new federal regulations of critical importance to the merit shop construction industry. We have provided the responsible agency, the official title of the regulation, pertinent background information, as well as any additional agency compliance information and/or guidance.
For additional information, please contact
regulatory@abc.org.
Environmental Protection Agency (EPA)
Final Rule
December 1, 2009
February 1, 2010*
On December 1, 2009, the Environmental Protection Agency (EPA) issued a final rule intended to control pollutants and stormwater runoff from construction sites. EPA was under a court-ordered deadline to implement a rule by the end of the year.
EPA's final rule calls for:
- Adherence to the rule's non-numeric effluent limitations in residential and commercial construction, as well as road, highway and infrastructure work.
- A numeric standard of 280 NTU to be applied in two phases*:
- Sites disturbing 20+ acres at one time: Effective August 1, 2011
- Sites disturbing 10+ acres at one time: Effective February 2, 2014
ABC maintains that the benefits of the EPA rule do not outweigh its astronomical cost. At a price tag of nearly $1 billion annually, it will be difficult, if not impossible, for businesses to pass through costs. In a letter to EPA, ABC reminded the agency that cost concerns are especially true for thousands of small businesses that would be impacted (some of which will have to close their doors, according to EPA's economic analysis).
ABC is on record opposing the mandated use of cost-prohibitive treatment and filtration systems, and has recommended that EPA limit requirements to the continued use of the current erosion and sediment control best management practices (BMPs). ABC has also urged EPA to identify causative factors other than jobsite size to determine when certain BMPs must be utilized, and suggested that a more thorough costing analysis should be conducted before the final rule is implemented.
EPA officials have informed ABC that, while the rule is officially effective February 1, 2010, the final rule's provisions will not go into effect until a state updates its construction general permit (CGP). A table of state CGP expiration dates is provided below. (Exceptions are ID, MA, NH and NM these states have CGPs issued by EPA. EPA will update its CGP in June 2011).
Department of Labor (DOL), Employment Standards Administration (ESA): Office of Labor Management Standards (OLMS)
Rescission of Final Rule
January 21, 2009
On October 13, 2009, the U.S. Department of Labor’s (DOL) Office of Labor-Management Standards (OLMS) announced that a final rule revising the current LM-2 financial disclosure form for larger unions had been officially rescinded.
The rule, originally published on January 21, was scheduled to take effect in late February. However, on January 20, 2009, the White House issued a memorandum, directing agencies to delay the implementation of many rulemakings issued in the last months of the Bush administration. The White House memo prompted a directive from the Office of Management and Budget (OMB) that outlined a set of criteria that any recently finalized regulations would need to meet in order to avoid additional review and/or postponement.
In comments filed with DOL on February 12 and April 7, ABC strongly opposed the implementation delay and subsequent rescission, and pointed out that the LM-2 rule clearly meets OMB’s stated criteria for acceptable regulations. ABC maintains that the LM-2 rule is necessary for OLMS to carry out DOL’s statutory mandate to combat union-related corruption, as directed by the Labor-Management Reporting and Disclosure Act (LMRDA).
AGENCY: Civilian Acquisition Council & Defense Acquisition Regulations Council (FAR Councils)
: Final Rule
: November 14, 2008
: September 8, 2009*
: On November 14, 2008, the Civilian Acquisition Council and the Defense Acquisition Regulations Council (FAR Council) issued a final rule on E-Verify which requires federal contractors and subcontractors to use the federal E-Verify system to confirm the eligibility of their new, as well as many existing employees, to work in the United States.
Federal contractors and subcontractors will be required to use the E-Verify system for all new hires on contracts awarded after the rule’s effective date. The rule also applies to existing personnel “directly performing work” on federal contracts. Existing “indefinite-delivery/indefinite-quantity” contracts will also be modified to incorporate the provisions of the rule.
The new rule is intended to implement Executive Order 13465 , which President Bush amended on June 6, 2008, in order to mandate that federal contractors agree to electronically verify the employment eligibility of their employees.
Under the governing statute, employees are only permitted to use E-Verify to validate new hires. Consequently, ABC and many other employer organizations believe the Executive Order and the majority of the new requirements exceed the President’s authority.
In December, ABC and its coalition partners challenged the authority of the government to promulgate this regulation and sought an injunction from a federal court. The legal challenge echoed ABC's position in previous comments on the rule, arguing that to require broader use of E-Verify would be illegal and expose contractors to needless liabilities.
: Implementation of the E-Verify rule went into effect .
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Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS)
Interim Final Rule
December 17, 2008
April
3, 2009
On December 17, 2008, the Department of Homeland Security (DHS) published a Final Rule revising Form I-9, which is used to verify the employment eligibility of newly-hired employees. Employers must begin using the revised Form by April 3.
The current edition of Form I-9, dated 06/05/2007, will no longer be valid after April 3 (please note that the new form is dated 06/30/2009). Employers who use outdated editions of Form I-9 are subject to fines and penalties. Additionally, the I-9 process may not be used to pre-screen potential employees for hiring unless it is a regular policy or practice to do so.
Employers will be required to use the revised form for all new hires and to re-verify any employee with expiring employment authorization. The most significant revision is the requirement that all documents presented during the I-9 completion process be unexpired. Links to the updated form, a full list of the form revisions, and guidance from DHS can be accessed through the links provided below.
Please note that a Spanish version of Form I-9 is available, but may only be submitted by employers and employees in Puerto Rico. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print the Spanish version for reference, but must submit the form to DHS in English to remain in compliance.
Department of Labor (DOL), Employment Standards Administration (ESA)
Final Rule
November 17, 2008
January 16, 2009
On November 17, 2008, the Department of Labor’s (DOL) Employment Standards Administration (ESA) issued a final rule updating the Family and Medical Leave Act (FMLA) for the first time in more than 13 years. The final rule provides additional leave for military families and further guidance for both employees and employers, and is scheduled to take effect in January 2009.
FMLA was enacted in 1993 to allow workers to take unpaid leave to address important family and medical issues. Under the new rules, employees will still be able to take time off for the birth or adoption of a child, to take care of a family member with a serious illness, or seek treatment themselves when seriously ill.
Under the new rule, employers are required to provide employees with information about FMLA including a general notice, an eligibility notice, a designation notice and a notice of rights and responsibilities. Employees who need to use FMLA leave are now required, under the final rule, to follow the employer’s usual and customary call-in procedure when reporting an absence, unless there are unusual circumstances that prevent it.
Also included in the final rule was a provision passed in January 2008 that allows up to three months for active duty leave and allows family members of injured military personnel to take up to six months of unpaid leave during the rehabilitation process.
Additionally, the has been revised to reflect the changes in the Final Rule. An e mployer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions.
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Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE)
Supplemental Final Rule
October 23, 2008
October 28, 2008
: On October 23, 2008, the Department of Homeland Security (DHS) issued a supplemental final rule intended to provide a safe harbor from liability for employers who follow certain procedures after receiving a “no-match” letter—a notice from DHS or the Social Security Administration (SSA) that an employee’s name does not match the Social Security number provided.
DHS first issued its final rule on the no-match procedures in August 2007, but a coalition of business groups, labor organizations and immigrant rights groups challenged the rule in the U.S. District Court for the Northern District of California. As a result, an injunction was issued and SSA suspended the distribution of employer no-match letters until the lawsuit was resolved.
The supplemental final rule attempts to address the issues raised in the lawsuit, including the allegation that DHS did not properly analyze the impact of its proposed regulations on small businesses, in violation of the Federal Regulatory Flexibility Act. DHS has requested that the court lift the injunction.
The supplemental final rule offers few changes from the previous version; however, DHS insists that it now contains additional background information and clarifies steps that employers can take to resolve discrepancies and avoid penalties.
Recently, SSA stated that it does not intend to distribute any no-match letters to employers for tax year 2007 while the injunction is still in place. However, at this time it is unclear exactly how long SSA’s moratorium will last if additional legal steps are taken. ABC recommends that employers consult with their legal counsel before taking any action.
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Department of Homeland Security (DHS); Department of Justice (DOJ)
Final Rule
February 26, 2008
: March 27, 2008
: The Department of Homeland Security (DHS) published a final rule that increases civil fines against employers who violate federal immigration laws by as much as 25 percent under the Immigration and Nationality Act (INA)
As a result of the increase, the maximum civil penalty for multiple violations will rise to $16,000. The maximum penalty for a first violation increases to $3,200.
The impact of the increases has the potential to be significant for some employers because penalties are assessed on a per-worker basis. For example, an employer who knowingly employed, or continued to employ, five undocumented workers will be subject to five separate fines.
The new rule was published by DHS without offering the public, including ABC, the opportunity to submit comments, as is customary procedure for most final rules. Under federal law, DHS is authorized to publish final rules without publishing a proposed rule and providing the public the opportunity to comment.
Civilian Acquisition Council & Defense Acquisition Regulations Council (FAR Councils)
Final Rule
November 23, 2007
December 24, 2007
: The Civilian Agency Acquisition Council and the Defense Council published a final rule amending the federal acquisition regulation (FAR), the process through which all services and goods are acquired by the federal government. The amended regulations became effective on December 24, 2007, and require all government contractors and subcontractors to comply with new ethics regulations in order to be awarded government contracts.
Contractors must establish a formal code of business ethics and conduct, complete with compliance awareness efforts and internal reporting controls. Additionally, contractors must display Government fraud hotline posters in offices and at job sites. Failure to comply with the requirements may result in the withholding of contract payments and the loss of contract award fees, so it is important that affected members fully understand the new requirements.
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Because the regulations require ongoing compliance, ABC recommends that contractors consult with their legal counsel before finalizing their code.