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Recently, federal agencies have taken a number of actions aimed at reducing greenhouse gas emissions in the construction industry. ABC continues to track these initiatives while participating in the regulatory process to ensure that the need to protect our environment is accomplished without imposing unnecessarily costly and burdensome requirements on the construction industry.
The U.S. Environmental Protection Agency announced on Jan. 19 it is seeking input on an Inflation Reduction Act program that will provide $350 million in funding for lowering the levels of embodied carbon and other greenhouse gas emissions associated with the production, use and disposal of construction materials. The EPA is hosting three public webinars to engage stakeholders on this issue, as well as issuing a Request for Information:
Additionally, President Joe Biden’s administration is pursuing a new “Buy Clean” initiative, which aims to reduce emissions by directing federal agencies to purchase lower emission construction materials and encourage states and local governments to do the same in federally assisted construction. The General Services Administration previously issued a Request for Information on this program.
Finally, the Federal Acquisition Regulatory Council issued a proposed rule to require certain federal contractors to disclose their greenhouse gas emissions and set GHG emission reduction targets. Federal contractors receiving between $7.5 million and $50 million in federal contracting obligations in the prior fiscal year would be required to inventory their annual GHG emissions and disclose this information to the federal government, while contractors receiving over $50 million in contracting obligations would also be required to make publicly available CDP climate disclosures and set targets for reducing GHG emissions.
Contractors that fail to comply with these requirements would be deemed nonresponsible and ineligible for federal awards. Comments on the proposed rule are due by Feb. 13, 2023, and may be submitted via regulations.gov. ABC will be submitting comments in opposition to the proposed rule’s expansion of federal authority and imposition of unnecessarily burdensome new requirements on federal contractors.
Please reach out to Michael Altman at [email protected] with any comments or questions on any of these initiatives.
On Feb. 2, ABC submitted comments to the National Labor Relations Board opposing its proposed rule on Representation-Case Procedures, which addresses election-blocking charges, voluntary recognition and construction industry bargaining relationships. The proposal would rescind the ABC-supported 2020 NLRB final rule, which is intended to “better protect employees’ statutory right of free choice on questions concerning representation.”
“ABC strongly opposes the NLRB’s proposed rescission of the three 2020 representation rules in the NPRM,” ABC wrote in the comments. “In particular, ABC is concerned that the proposed rule returns to the precedent set by the Staunton Fuel decision, which purported to permit contract language alone to create a Section 9(a) bargaining relationship in the construction industry, notwithstanding the plain language of Section 8(f) preventing such agreements from acting as bars to employee election petitions. Courts have repeatedly rejected the NLRB’s holding in Staunton Fuel, requiring instead that a Section 9(a) relationship can only be established upon a showing of actual evidence of union-majority status contemporaneous with the agreement. The NLRB’s proposed rule is inconsistent with this judicial authority and with longstanding principles of majority status under Section 9(a). ABC also opposes the NLRB’s proposed change to the blocking charge policies. ABC believes that the proposed return to the Board’s defective blocking charge policies impedes, rather than protects, employee free choice. Finally, ABC opposes the NLRB’s proposed modification to the immediate voluntary recognition bar.”
ABC also signed on to the Coalition for a Democratic Workplace’s comment letter along with 12 other employer organizations. The CDW argued that the proposed rulemaking would “negatively affect the Board’s representation case jurisprudence, undermine the agency’s statutory goals and reputation, diminish employee free choice, and upset the balance of countervailing interests.”
Background:
The NLRB published the proposed rulemaking on Nov. 4, 2022, and on Nov. 22, the ABC-led CDW requested a 30-day extension to the comment deadline. On Nov. 29, the NLRB extended the deadline to Feb. 2, 2023.
The proposed rule has three parts, each rescinding specific parts of the 2020 rule, including:
Continue to monitor Newsline for any further updates on the NLRB proposed rule.
On Feb. 2, the Federal Trade Commission announced it will host a public forum examining the FTC’s proposed rule to prohibit employers from imposing noncompetes on their workers.
According to the press release, the forum will be held virtually on Feb. 16 from 12 to 3 p.m. EDT. It will be webcast on the FTC’s website, transcribed, posted online and included as part of the public record. The FTC will hear from a series of speakers who have been subjected to noncompete restrictions, as well as business owners who have experience with noncompetes. Members of the public will have an opportunity to comment via livestream and can sign up to speak through a webform. Speakers will be heard on a first-come first-serve basis during the time available.
ABC plans to participate in the forum, expressing serious concerns about the FTC’s unprecedented proposal to ban all noncompete agreements. Learn more about the forum.
On Jan. 5, the FTC issued a proposed rule that would ban all noncompete agreements with limited exceptions. According to the FTC, the proposed rule would make it illegal for an employer to:
On Jan. 31, 100 organizations, including ABC, signed a letter urging the FTC to extend the comment deadline by 60 days. ABC will be commenting in opposition to the proposed rule, which is overly restrictive on well-established and reasonable business practices in the construction industry.
On Feb. 2, ABC hosted a webinar to highlight how the proposed rule will impact members and why the FTC’s action is constitutionally suspect and open to a strong legal challenge.
Goal Setting:
Business goals focus an organization on what is important. Goals drive attitude, action and accountability. The same is true for safety goals focused on leading indicators instead of a generalized statement such as “reduce the incident rate by 10%.” Ensuring the workforce is aware of the goal, sees their role and understands why it is important and how it will be measured multiplies the impact. The resources to achieve the goal must be readily available, and the workforce must be supported in the journey to attain the goal. ABC’s STEP Safety Management System helps you craft and measure these goals.
Recordkeeping and Documentation:
A timely key component of the STEP Safety Management System is recordkeeping and documentation. An effective health and safety program prevents injuries and illnesses and includes an appropriate and prompt response if an injury or illness does occur, including documentation and OSHA recordkeeping. Final verification and certification of the OSHA Form 300A is performed each year in January, and it can be posted from Feb. 1 through April 30.
Four Helpful Tips for Submitting OSHA Incident Data:
Learn more about ABC's STEP Safety Management System and other health and safety topics at abc.org/safety.
For more information or assistance, please reach out to:
Joe Xavier Senior Director, Health and Safety ABC National
Aaron Braun Manager of Safety Programs and Initiatives ABC National
In response to the Defense Industrial Base becoming the target of more frequent and complex cyberattacks from foreign and independent bad actors, the U.S. Department of Defense is expected to release new cybersecurity regulations in 2023 designed to enforce protection of sensitive federal contract information and controlled unclassified information that is shared by the DOD with its contractors and subcontractors, including general contractors and subcontractors performing DOD contracts for construction services.
According to the DOD chief information officer, “To protect American ingenuity and national security information, the DOD developed the Cybersecurity Maturity Model Certification 2.0 program to reinforce the importance of DIB cybersecurity for safeguarding the information that supports and enables our warfighters.”
“The forthcoming CMMC 2.0 rulemaking presents an opportunity for ABC members and other construction industry contractors pursuing DOD contracts to examine their cybersecurity hygiene, participate in the rulemaking process and conform with changes outlined in the final rule, or else they will no longer be qualified to win DOD construction contracts,” said Ben Brubeck, ABC vice president of regulatory labor and state affairs. “In an effort to help ABC members win more work, ABC plans to engage in the forthcoming rulemaking process and provide additional educational resources for ABC member contractors to participate in the rulemaking process and comply with the DOD’s eventual cybersecurity changes.” On Jan. 25, 2023, ABC hosted a webinar, “Cybersecurity Maturity Model Requirements for ABC Members Doing Federal Work,” with two cybersecurity experts who provided some practical tips and best practices for businesses to assess their cybersecurity readiness in advance of complying with CMMC 2.0.
Nick Decker, practice leader for the construction industry of Egnyte, an ABC Tech Alliance member, informed webinar participants that the forthcoming CMMC 2.0 policy is expected to affect $2.4 trillion worth of DOD construction contracting opportunities before 2027.
Nick Espinosa, a cybersecurity expert and founder of Security Fanatics––a company dedicated to designing custom cyberdefense strategies for medium to enterprise corporations––presented a thorough “nerd to English translation” of CMMC 2.0 and answered frequently asked questions from DOD contractors about the program and cybersecurity best practices.
Espinosa’s practical tips about how contractors can strengthen cybersecurity policies and prepare for CMMC 2.0 are also of value to contractors who perform construction work for private and federal, state and local government entities.
“CMMC 2.0 experts expect other federal agencies and even state and local governments and private customers to adopt similar cybersecurity requirements in the future,” said Brubeck. “With regulatory change on the horizon and a sharp increase in cybersecurity incidents experienced by public and private contractors, now is the time for all contractors to understand the competitive advantage and other benefits of tackling cybersecurity head on.”
ABC will be rolling out additional resources and educational opportunities on CMMC 2.0 and cybersecurity throughout 2023, including a website solely dedicated to this effort.
On Jan. 31, the U.S. House of Representatives passed H.R. 497, the Freedom for Health Care Workers Act, by a bipartisan vote of 227-203. ABC supported the legislation, which would eliminate the Biden administration’s COVID-19 vaccination mandate on health care workers and repeal the Centers for Medicare & Medicaid Services health care staff vaccination rule that continues to affect ABC members who perform construction work at health care facilities. ABC provided a statement in support of the bill ahead of passage:
“Associated Builders and Contractors has consistently opposed the Biden administration’s insistence on imposing unnecessary and overreaching COVID-19 vaccination mandates on our nation’s construction workforce,” said Kristen Swearingen, ABC’s Vice President of Legislative and Political Affairs. “Throughout the COVID-19 pandemic, ABC member employers consistently demonstrated their commitment and willingness to create safe and healthy jobsite conditions because health and safety are always our No. 1 priority. H.R.497 would eliminate unnecessary compliance costs and burdens imposed on contractors that provide vital services to our nation’s hospitals and health care facilities and would ensure work opportunities for thousands of experienced, skilled construction workers throughout the country.”
The Regulations from the Executive In Need of Scrutiny Act of 2023, or REINS Act, was recently reintroduced to the U.S. House of Representatives by Rep. Kat Cammack (R-Fla.). The bill, which would require every new “major rule” proposed by federal agencies to be approved by both the House and U.S. Senate before going into effect, currently has 179 Republican co-sponsors.
“ABC supports the reintroduction of the REINS Act, a commonsense proposal that acknowledges the devastating impact that federal overreach can have on jobs and the economy,” said ABC Vice President of Legislative & Political Affairs Kristen Swearingen, in a statement included in Rep. Cammack’s news release. “The Biden administration has issued numerous rulemakings resulting in overly burdensome and unnecessary regulations that have increased construction costs, which leads to job cuts and project cancellations that harm hardworking Americans. The REINS Act will ensure improved collaboration between Congress and the White House to provide a more effective and thoughtful regulatory process that promotes a healthy, safe and productive construction industry.”
On Jan. 19, the U.S. Environmental Protection Agency announced opportunities for public input on new programs funded by the Inflation Reduction Act that affect states, developers and builders. The IRA, opposed by ABC, was signed into law on Aug. 16, 2022.
According to an EPA press release, the programs received $350 million in funding from the IRA and are designed to provide grants, technical assistance and tools to help states, tribal nations, manufacturers, institutional buyers, real estate developers, builders and other stakeholders lower the levels of embodied carbon and other greenhouse gas emissions associated with the production, use and disposal of construction materials. These materials include steel, concrete, asphalt and glass. The programs intend to accomplish this goal through the development of environmental product declarations, labelling of construction materials with lower emissions and other activities that assist with measuring, reporting and reducing emissions associated with construction materials.
The EPA is hosting three public webinars to engage key stakeholders:
The EPA has also issued a request for information seeking written comments to inform its creation of the new programs. Comments are due May 1, 2023, and may be submitted via regulations.gov.
Representatives from the Occupational Safety and Health Administration are hosting a webinar on Thursday, Feb. 2, from 10 a.m. to 12 p.m. ET, to give an overview of the agency’s recordkeeping requirements and Injury Tracking Application.
Interested parties can register for the free webinar here.
The deadline to submit the calendar year 2022 Form 300A is March 2. Electronic submissions are required by establishments with 250 or more employees currently required to maintain OSHA injury and illness records and establishments with 20-249 employees classified in specific industries with historically high rates of occupational injury and illness. Read more.
Learn more about OSHA’s injury and illness recordkeeping and reporting requirements.
On Jan. 31, 100 organizations, including ABC, signed a letter urging the Federal Trade Commission to extend the comment period for its proposed rulemaking on banning noncompete agreements for an additional 60 days. The groups argued that the regulated community should be given sufficient time to assess the potential consequences of the rulemaking and develop insightful comments for the FTC to consider. Currently, comments on the proposed rule are due by March 20 through regulations.gov.
A webinar on the rulemaking will be held for ABC members on Feb. 2 at 2 p.m. ET. Learn more about the webinar and register.
On Jan. 5, 2023, the FTC issued a proposed rule that would ban all noncompete agreements with limited exceptions. ABC will be commenting in opposition to the proposed rule, which is overly restrictive on well-established and reasonable business practices in the construction industry.
According to the FTC, the proposed rule would make it illegal for an employer to:
Further, the proposed rule would apply to independent contractors and anyone who works for an employer, whether paid or unpaid. It would also require employers to rescind existing noncompetes and actively inform workers that they are no longer in effect.
To learn more about the new concerning rule, read ABC general counsel Littler’s analysis.