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On Dec. 14, 2023, the Biden administration announced a U.S. Department of Labor proposed rule that would make significant and controversial revisions to the National Apprenticeship System.

On Dec. 18, ABC issued a press release in response to the ABC-opposed proposal:

“ABC supports government-registered apprenticeship programs and offers more than 450 such education programs across the country as part of its all-of-the-above approach to meet the workforce needs of the construction industry,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “ABC is thoroughly reviewing the Biden DOL’s overreaching, 779-page proposal and is concerned that aspects of the proposed rule will limit the number of apprentices and employers participating in GRAPs.

“Already, the government-registered apprenticeship system is woefully inadequate in meeting the workforce needs of the construction industry,” said Brubeck. “Recent data suggests that it would take 12 years for the current broken GRAP system to educate the more than half a million workers needed by the construction industry in 2023 alone. Additional unclear and onerous requirements in the DOL proposal are likely to exacerbate the construction industry’s skilled labor shortage. 

“The misguided proposal will discourage employer participation in the GRAP system by adding more bureaucracy and paperwork requirements while also eliminating flexible competency-based approaches to workforce development that benefit apprentices and employers,” said Brubeck. “As currently written, the Biden’s proposal threatens to undermine significant investments recently made by taxpayers in infrastructure, clean energy and manufacturing projects procured by government and private owners.”

The Biden DOL’s proposed rule was also panned by both the chairwoman of the U.S. House Education and the Workforce Committee Virginia Foxx, R-N.C., and the ranking member of the Senate HELP Committee Bill Cassidy, R-La.

Rep. Foxx’s statement derided the new rule, stating, “If the goal was to make an already dysfunctional registered apprenticeship system less workable and relevant to the needs of workers and employers, this proposed rule appears likely to succeed.”

Sen. Cassidy’s statement criticized the rule’s circumvention of Congress, seeking to implement a new regulation “395 times longer than the legislation it is supposedly interpreting.” According to Cassidy’s statement:

“The regulations would inject political ideology into the National Apprenticeship System, including diversity, equity, and inclusion (DEI) policies. The rule would allow DOL to dissolve the apprenticeship programs of employers accused by labor unions of misconduct without a requirement that the charges are verified by the National Labor Relations Board (NLRB). This would empower unions to intimidate and coerce employers with baseless accusations. It would also give unions veto authority over new apprenticeship programs, limiting job training opportunities for American workers. This comes at a time when workforce shortages continue and the labor force participation rate remains well below pre-COVID levels.

Additionally, the rule gives the U.S. Department of Labor’s Office of Apprenticeship and State Apprenticeship Agencies enforcement authority over labor disputes, a role already performed by the NLRB. Ultimately, the proposed regulation applies more bureaucracy to a system in need of flexibility when responding to pressing workforce needs.”

The Biden proposal was also roasted in a Wall Street Journal editorial (Biden to Apprentices, You’re Fired, Dec. 18):

“DOL’s manifest goal is to limit non-union programs that don’t result in more union jobs. The rule would let the department dissolve programs accused by unions of misconduct or found to be non-compliant with minor government regulations and DEI benchmarks.

One result of DOL’s regulations will be fewer job-training opportunities for minorities. The rule will also undercut the Administration’s industrial policy and climate agenda. The Inflation Reduction Act’s myriad green energy tax credits require employers to utilize apprentices from government-approved programs. Good luck finding them.

President Biden’s message to non-union apprentices: You’re fired.”

Next Steps

In the coming weeks, ABC will provide detailed analysis and resources on the proposal to construction industry stakeholders and government-registered apprenticeship program providers and participants. 

ABC will also request feedback from affected parties on aspects of the proposal that are problematic, as well as those that may be beneficial to the construction industry.

In addition, ABC will submit comments on the proposed rule and make recommendations that will help create a final rule that can deliver value to taxpayers, the construction industry workforce and employer participants in the government-registered apprenticeship system.

Public comments on the DOL proposal must be submitted in early March, which is 60 days after the proposal is expected to be published in the Federal Register later this week.

Please contact Michael Altman for additional information.

Background

On May 9, 2023, an ABC-led coalition of construction and business associations submitted a letter to the Advisory Committee on Apprenticeships opposing the committee’s recommendations to the DOL for dramatic changes to the GRAP system. These recommendations included a proposal to establish a new “Quality Seal” program to give preferential treatment to GRAPs meeting certain requirements.

It appears that some aspects of the ACA’s recommendations opposed by the coalition were incorporated into the proposal, which is likely to undermine employer and employee participation in GRAP system.

Visit abc.org/workforce to learn how ABC is building the people who build America.

On Dec. 22, 2023, the Biden administration published the long-awaited Federal Acquisition Regulatory Council’s final rule, Use of Project Labor Agreements for Federal Construction Projects, implementing President Joe Biden’s Executive Order 14063, which requires federal construction contracts of $35 million or more to be subjected to controversial project labor agreements.

On Dec. 18, ABC issued a statement in response to the White House announcement of the new ABC-opposed rule.

“The Biden administration’s burdensome, inflationary and anti-competitive PLA mandate rule will needlessly raise costs on taxpayer-funded construction projects and steer contracts to unionized contractors and workers,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Absent a successful legal challenge, this executive overreach will reward powerful special interests with government construction contracts at the expense of taxpayers and the principles of free enterprise and fair and open competition in government procurement.

“When mandated by governments, PLAs increase construction costs to taxpayers by 12% to 20%, reduce opportunities for qualified contractors and their skilled craft professionals and exacerbate the construction industry’s worker shortage of more than half a million people in 2023,” said Brubeck. “ABC will continue to fight on behalf of quality, experienced contractors harmed by this rule and the 88.3% of America’s construction industry who have made the choice not to belong to a union and want a fair opportunity to participate in federal construction projects––but cannot do so because of PLA schemes.

“In addition, ABC condemns Biden administration policies independent of this rulemaking that push PLAs on competitive grant programs administered by federal agencies, affecting nearly $260 billion worth of federally assisted infrastructure projects procured by state and local governments, as well as schemes by the Biden administration to coerce private developers of hundreds of billions of dollars’ worth of clean energy and domestic microchip manufacturing projects to mandate PLAs. Biden’s PLA policies circumvent congressional intent as none of these policies were passed in funding legislation.

“ABC plans to challenge this Biden administration scheme in the courts on behalf of taxpayers and the majority of the construction industry,” said Brubeck. “In the interim, ABC will continue to oppose its special interest-favoring policy using all tools in our advocacy and legal toolbox while educating stakeholders about the negative impact of government-mandated PLAs on federal and federally assisted projects.”

ABC’s comments were picked up in dozens of industry publications and media reports.

Next Steps

The rule goes into effect on Jan. 22, 2024, and will take additional time for numerous federal agencies to implement in their procurement policies and forthcoming solicitations for construction services.

A Dec. 18, 2023, White House Office of Management and Budget memo, M-24-06, Use of Project Labor Agreements on Federal Construction Projects, provides guidance about how this rule should be implemented by federal agencies. Of note, it describes when federal contracting officers shall require a PLA in a solicitation and how the PLA requirement can be waived under limited circumstances.

ABC members and chapters are encouraged to register for an ABC members-only webinar from 2 to 3:15 p.m. ET on Wednesday, Jan. 17, 2024, where experts will discuss the rule, the OMB memo and ABC’s legal, advocacy and public relations strategies to fight federal PLA requirements.

In the interim, ABC members are encouraged to flag for ABC National’s advocacy team any solicitations with PLA requirements or pro-PLA language, as well as any federal agency PLA surveys, by emailing [email protected].

In addition, ABC members are strongly encouraged to participate in this ABC Action grassroots campaign and ask their federal lawmakers to fight the Biden administration’s pro-PLA schemes and co-sponsor the Fair and Open Competition Act (H.R. 1209/S. 537), introduced in the 118th Congress by Rep. James Comer, R-Ky., and Sen. Todd Young, R-Ind.

Background on President Biden’s Executive Order 14063

On Feb. 4, 2022, President Biden signed EO 14063, requiring federal construction contracts greater than $35 million to be subjected to PLAs. ABC blasted the EO, calling it anti-competitive for small businesses and costly for taxpayers.

On Aug. 19, 2022, the Federal Acquisition Regulatory Council issued its proposed rule implementing EO 14063.

In October 2022, ABC submitted more than 40 pages of comments to the Federal Acquisition Regulatory Council, calling on the Biden administration to withdraw its controversial proposed rule.

ABC’s opposition was shared by more than 50 members of the U.S. Senate and U.S. House of Representatives, 19 Republican governors and a diverse coalition of construction industry, small business and taxpayer advocates urging the administration to withdraw its proposal and additional policies promoting PLA mandates on federal and federally assisted construction projects.

At least 8,000 stakeholders across the country––including 2,500 ABC member contractors––submitted comments opposed to this proposed rule during the 60-day comment period. According to a September 2022 survey of ABC contractor members, 98% oppose this proposed rule. Additionally, 97% said a construction contract that required a PLA would be more expensive compared to a contract procured via fair and open competition.

The new Biden administration policy replaces President Barack Obama’s 2009 Executive Order 13502, which encouraged, but did not require, federal agencies to mandate PLAs on large-scale federal construction projects exceeding $25 million in total value on a case-by-case basis.

According to government data, of the 2,499 large-scale federal construction contracts valued at $165.6 billion procured from FY 2009 to FY 2023 subject to President Obama’s pro-PLA policy, federal agency contracting officers chose to require PLAs on just 12 large-scale federal construction contracts. There were no reports of widespread cost overruns, delays, labor unrest or poor-quality construction on $164.4 billion worth of non-PLA projects during this time period, indicating that PLA mandates are not needed to ensure economy and efficiency in government contracting.

The Biden administration expects its mandatory PLA rule to affect about 120 federal contracts valued at $10 to $14 billion per year, in total.

ABC and a diverse construction industry coalition strongly support the Fair and Open Competition Act (H.R. 1209/S. 537)––reintroduced in the 118th Congress by Sen. Todd Young, R-Ind., and Rep. James Comer, R-Ky.––which prohibits government-mandated PLAs on federal and federally assisted projects and helps taxpayers get the best possible product at the best possible price.  

Members of the U.S. House and Senate supportive of the Fair and Open Competition Act have written letters to the White House in opposition to anti-competitive, pro-PLA policies championed by the Biden administration.

Currently, 25 states restrict government-mandated PLAs on state, state-assisted and local construction projects to some degree, which has protected more than $1 trillion worth of taxpayer-funded construction projects since 2007. Governors also filed comments with the FAR Council and, in April 2022, expressed disappointment in White House efforts to push government-mandated PLAs on federally assisted construction projects through infrastructure grant programs administered by federal agencies.

To learn more about how corrupt government-mandated PLAs rig the competitive bidding process, hurt taxpayers and endanger plans to rebuild America’s infrastructure, visit BuildAmericaLocal.com, and access additional ABC resources at abc.org/pla.

On Dec. 26, 2023, the U.S. Department of Defense released a proposed rule and guidance documents implementing the Cybersecurity Maturity Model Certification 2.0 Program.

As proposed, CMMC 2.0 would require federal contractors and subcontractors competing for DOD contracts to demonstrate continued compliance with a range of cybersecurity measures to maintain eligibility for performing and winning new federal awards.

The new requirements would apply to all contractors and subcontractors that process, store or transmit information on contractor servers that meet the standards for Federal Contract Information or Controlled Unclassified Information. Requirements vary from a self-assessment of compliance with cybersecurity measures to triennial assessment and certification of compliance by third-party contractors or the DOD, dependent on the data involved in a specific contract.

More than 200,000 companies in the defense industrial base could be affected by the rule.

The Pentagon is planning for a phased implementation. It intends to include CMMC requirements in all solicitations issued on or after Oct. 1, 2026, when applicable, although waivers could be issued in certain cases before solicitations are issued.

Experts expect aspects of this rule to be eventually implemented by additional federal agencies as well as state and local governments.

On Jan. 25, 2023, ABC hosted a webinar, “Cybersecurity Maturity Model Requirements for ABC Members Doing Federal Work,” with two cybersecurity experts who provided practical tips and best practices for businesses to assess their cybersecurity readiness in advance of complying with CMMC 2.0. Additional information and resources are available on ABC’s Cybersecurity Resource Guide website.

Comments on the proposed rule are due to the DOD by Feb. 26.

To inform ABC’s comments on the proposal, ABC members are encouraged to submit feedback to Michael Altman at [email protected].

In the interim, ABC will continue to review the proposed rule and plans to provide additional analysis for ABC member DOD contractors.

On Dec. 13, the U.S. Department of Labor announced its final rule on Nondisplacement of Qualified Workers Under Service Contractors, which will implement Executive Order 14055.

Issued on Nov. 18, 2021, by President Joe Biden, the EO requires that contractors and subcontractors that work on covered federal service contracts, which include most contracts valued at or above $250,000 covered by the Service Contract Act, must in good faith offer service employees employed under the predecessor contract a right of first refusal of employment on the successor contract. ABC opposed the proposed rule and urged the DOL to withdraw the entire rule. To learn more, read ABC general counsel Littler Mendelson’s analysis of the final rule.

According to the DOL press release, the final rule does the following:

  • Establishes standards and procedures for implementing and enforcing EO 14055.
  • Specifies contracting agency and contractor obligations under the order.
  • Creates an investigation process familiar to federal contractors to protect workers from displacement.
  • Specifies how the order applies to subcontracts.
  • Identifies sanctions and remedies that may be imposed by the department under the order.

The final rule is effective Feb. 12, 2024, and will apply to solicitations issued on or after the effective date of the final regulations issued by the Federal Acquisition Regulatory Council. 

More information on the final rule:

Background:

On Aug. 15, ABC submitted comments to the DOL identifying a number of concerns with its proposed rule on Nondisplacement of Qualified Workers Under Service Contracts, which would implement EO 14055.

In its comments, ABC urged the DOL to withdraw the rule in its entirety. The comments state, “ABC is concerned that, as written, the NPRM conflicts with the plain language of the SCA, which does not authorize the DOL, or the president, to require contractors to hire the incumbent employees of predecessor contractors on projects covered by the SCA. Two courts have so held without contradiction by Congress or by any other courts. In each of these cases, the courts rejected efforts by employees and/or labor organizations to assert preferential hiring rights for incumbent employees under the Act.

“In addition to and apart from the above conflict between the NPRM and the governing statute, ABC is also concerned that the proposal would create gross inefficiencies in the procurement process and would disproportionately impact small contractors and subcontractors through the imposition of additional regulatory burdens and substantial costs of compliance.” According to the NPRM, the total number of potentially affected small firms ranges from 74,097 to 329,470.

Further, “ABC observes that neither the EO nor the proposed rule contains any evidentiary support for the claim that the proposed changes will actually achieve greater efficiency in federal procurement. As is evident from the discussion of specific provisions of the NPRM, the proposed rule is likely to create greater inefficiencies as successor contractors are forced to employ workers who are not familiar with the often-different work practices that the successors may wish to implement. Thus, the cost savings that an agency may seek to achieve by hiring a new contractor will be lost or unobtainable if the successor is not allowed to bring its own uniquely qualified workforce onto the project.”

The Obama administration finalized a similar rule which was rescinded by the Trump administration in 2020.

Continue to follow Newsline for any further updates.

The Biden administration recently released its Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions. The agenda lists upcoming rulemakings and other regulatory actions from each agency that the administration expects to publish in 2023 and 2024. ABC has prepared a summary of the actions of interest to ABC members by agency.

Occupational Safety and Health Administration

Read about other OSHA issues that could affect the construction industry on the Office of Information and Regulatory Affairs website at reginfo.gov.

Wage and Hour Division

Office of Apprenticeship

To learn more about these regulatory actions, read ABC’s Regulatory Roundup.

Throughout 2023, the Biden administration has pushed to roll back Trump-era initiatives and institute new, pro-union policies that challenge ABC members’ ability to win work. ABC continues to fight against these proposed rules and regulations affecting merit shop contractors and advocate for open competition and free enterprise.

ABC’s Regulatory Roundup is updated on a regular basis and includes information about federal regulations, guidance and compliance materials from the U.S. Department of Labor, U.S. Department of the Treasury, Federal Acquisition Regulation Council, National Labor Relations Board, Federal Trade Commission, Environmental Protection Agency and Council on Environmental Quality.

Read ABC’s December Regulatory Roundup to learn more about the latest developments affecting the construction industry.

Reports indicate that not a single electric vehicle charging station has been constructed with the $7.5 billion in federal investment available through the Federal Highway Administration’s National Electric Vehicle Infrastructure Formula Program, threatening the Biden administration’s goal to build 500,000 EV chargers by 2030. The final rule implementing the NEVI Formula Program contained a number of ABC-opposed, union-favoring labor requirements that may be contributing to the program’s stagnation.

The NEVI Formula Program is intended to implement provisions of the Infrastructure Investment and Jobs Act, signed into law in 2021, that dedicated $7.5 billion for electric vehicle charging stations. The program’s goal is to support the installation of electric vehicle chargers across the country as part of a domestic push to shift away from gas-powered vehicles.

In order to receive NEVI program funding, EV charging station developers are required to ensure that all electricians working on electric vehicle supply equipment projects either be certified by the International Brotherhood of Electrical Workers’ Electric Vehicle Industry Training Program or be a graduate or recipient of a continuing education certificate from a government-registered apprenticeship program with a focus on EVSE installation approved by the U.S. Department of Labor in consultation with the FHWA. To date, ABC is not aware of any such programs approved by the DOL and FHWA.

 Additionally, the rule requires all NEVI-funded projects that require more than one electrician to use at least one GRAP-enrolled apprentice. Finally, other on-site, nonelectrical workers directly involved in the installation, operation and maintenance of chargers must have graduated from a GRAP or have appropriate licenses, certifications and training as required by the state.

ABC submitted comments in response to both the proposed rule and a request for information strongly urging the FHWA to avoid union labor requirements and to instead welcome all qualified contractors to build EV chargers. Unfortunately, the agency disregarded these recommendations in the final rule.

Under the IIJA, the NEVI funds are administered by states, which can contract out the construction and operation of the charging stations to private companies. So far, every state has taken the initial steps to receive the NEVI cash by submitting a plan to the Joint Office in 2022 and an update in 2023. But if a governor were to reject the funds, municipalities could apply to administer the funds instead.

According to a Politico article, Ohio was the first state to break ground on the nation’s first charger funded by the NEVI program in October. Following Ohio, Pennsylvania also broke ground on its first NEVI-funded charger in November. Another six states have awarded contracts for their first round of charging sites, while 15 states and Puerto Rico are in the process of soliciting bids from the private sector.

But 27 states and the District of Columbia have yet to even start soliciting bids, and some states like Missouri indicate they may not post their solicitation until 2025. (Three of those states—Nevada, New York and Vermont—are procuring some federally funded chargers outside of a public request for bids, but plan to solicit bids in the future.)

Even some states with high rates of EV adoption, like California and Washington, have yet to award any of their funds.

In a June study, the National Renewable Energy Laboratory projected the United States will need 1.2 million public chargers by 2030 to meet charging demand, including 182,000 fast chargers.

In response to unfavorable coverage about the NEVI program’s lack of progress, White House officials maintained that the administration is making progress and is on track to meet their EV charging station goals.

If you are an ABC member, perform EV charging station construction and have a story to share about your experience with projects subject to NEVI funding and regulations, please contact Michael Altman at [email protected].

On Nov. 22, the Federal Highway Administration released its Greenhouse Gas Performance Measure final rule.

The final rule requires that state departments of transportation and metropolitan planning organizations—the state entities responsible for transportation infrastructure construction and maintenance—must measure and report GHG emissions associated with transportation. Further, state DOTs and MPOs must set targets for reducing carbon dioxide emission and report on progress toward these targets. The rule does not mandate particular targets, allowing states to set their own targets as long as they achieve some amount of emission reduction.

Depending on how state DOTs and MPOs implement their emission reduction targets, certain transportation projects such as roadways and bridges could be delayed as the agencies seek to achieve GHG emission goals. ABC will continue to monitor the impact of this rule as state DOTs and MPOs move forward with implementation.

The key components of the STEP Safety Management System work synergistically to build an effective safety culture. Beyond responsibilities, resources and rules are imperative. All three “Rs” work together and missing just one sets a company up for potential failure.

There is one additional “R” that affects the equation: relationships. Safety is all about relationships and planning, and planning requires logical allocation of resources following a specific set of rules.

You must allocate resources for safety during the planning phase of a project. Waiting too long will cause insurmountable issues during later phases and jeopardize employee health and project viability. When resources are lacking, leaders must be willing to immediately stop, reevaluate and move forward after enacting a plan utilizing sufficient resources to mitigate identified and potential hazards.

Success in Safety = Responsibilities Explained + Rules Understood + Resources Allocated + Robust Relationships

Trailing indicators are metrics used to measure past safety performance and are usually based on a calendar or policy year. Two traditional trailing indicators for safety are Total Recordable Incident Rate and Days Away, Restricted or Transferred rate. Both TRIR and DART are compiled using the formula from the OSHA 300 form. These are expressed in the number of incidents per 100 employees. Additionally, your insurance broker can provide you with your Experience Modification Rate, which is another commonly used trailing indicator. Trailing indicators are like the final score of a game: They tell you results, and you can study them when planning for future improvement.

To be more effective, find other metrics that can be expressed in terms that are meaningful to people outside of the safety department. For example, if you’re a concrete company, workers’ comp costs per 100 cubic yards of concrete might make sense, or workers’ comp costs per $100 of payroll may resonate as well. Listen to your executives and front-line workforce and learn to speak their language to build those robust relationships to make your company safer for everyone.


Looking for help building your safety program?

Discover resources available through 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 or Aaron Braun.

Throughout 2023, ABC has been closely monitoring federal regulatory actions and updating ABC members through the ABC Regulatory Roundup. Several federal rules have gone into effect or are scheduled to go into effect in the near future.

See the below list to learn more about important compliance dates. 

NLRB’s Joint Employer Final Rule

On Oct. 27, the National Labor Relations Board published its final rule on Joint Employer Status Under the National Labor Relations Act, which takes an ax to the ABC-supported 2020 NLRB joint employer final rule, which provided clear criteria for companies to apply when determining status. On Nov. 16, the NLRB extended the effective date of its final rule from Dec. 26 to Feb. 26, 2024. The new standard will only be applied to cases filed after the rule becomes effective.

On Nov. 9, ABC joined the U.S. Chamber of Commerce and a coalition of business groups in filing a lawsuit challenging the NLRB’s Joint Employer Final Rule for violating the National Labor Relations Act and for acting arbitrarily and capriciously in violation of the Administrative Procedure Act. Read more about the final rule.

OSHA’s Improve Tracking of Workplace Injuries and Illnesses Final Rule

On July 21, 2023, the U.S. Department of Labor’s Occupational Safety and Health Administration issued its Improve Tracking of Workplace Injuries and Illnesses final rule, which will undo the ABC-supported provisions of the 2019 final rule promulgated under the Trump administration and reprise the 2016 Obama-era rule. The final rule becomes effective on Jan. 1, 2024, for certain employers and OSHA intends to make much of the data it collects publicly available online. Read more about the final rule.

NLRB ‘Ambush’ Election Final Rule

Despite years of litigation, the Biden administration’s NLRB has revived a controversial policy from the Obama era in the form of its Representation-Case Procedures final rule. The direct final rule, issued without notice or the opportunity to comment, essentially restores provisions of the “ambush” election rule of 2014 and rescinds the remaining ABC-supported provisions of the 2019 final rule. The rule will apply to representation petitions filed on or after Dec. 26, 2023, and employers will have less time to respond to representation petitions. Read more about the final rule.

DOL’s Updating the Davis-Bacon and Related Acts Regulations Final Rule

On Aug. 23, the U.S. Department of Labor officially published its final rule, Updating the Davis-Bacon and Related Acts Regulations, in the Federal Register. The regulation’s drastic revisions to existing rules regarding government-determined prevailing wage rates that must be paid to construction workers on federal and federally assisted construction projects funded by taxpayers took effect on Oct. 23.

On Nov. 7, ABC and its Southeast Texas chapter announced the filing of a complaint in the U.S. District Court for the Eastern District of Texas, challenging the controversial final rule. Read more about the final rule.

DOL’s Form LM-10 Employer Report Final Rule

On July 28, the DOL’s Office of Labor-Management Standards published its final revision to the Form LM-10 Employer Report, which adds a checkbox to the Form LM-10 report requiring certain reporting entities to indicate whether such entities were federal contractors or subcontractors in their prior fiscal year, and two lines for entry of filers’ unique entity identifier and federal contracting agency or agencies, if applicable. The revision is effective for reports filed on or after Aug. 28, 2023. Read more about the final rule.

EPA and Army Corps Revised Definition of WOTUS

On Aug. 29, the U.S. Environmental Protection Agency and Army Corps of Engineers issued a final rule regarding amendments to the definition of “waters of the United States” subject to Clean Water Act regulation. This rule is aimed at bringing the January 2023 WOTUS final rule into compliance with the U.S. Supreme Court’s May 25 decision in Sackett v. Environmental Protection Agency. 

The final rule took effect on Sept. 8, 2023, except in states where it has been blocked by a federal court. EPA has provided information on the litigation and a map of impacted states. Read more about the final rule.

Treasury/IRS Inflation Reduction Act Prevailing Wage and Apprenticeship Requirements

The Inflation Reduction Act was signed into law on Aug. 16, 2022, and provides over $270 billion in tax incentives for the construction of energy projects, conditioned on requirements that contractors meet prevailing wage and government-registered apprenticeship requirements.

Following guidance issued in Nov. 2022, these requirements took effect for projects beginning on or after Jan. 30, 2023. On Aug. 29, Treasury issued a proposed rule to provide additional guidance on the requirements. The proposed rule states that taxpayers may now rely on it for guidance regarding IRA tax incentives, until a final rule is published and takes effect. Resources and guidance on the IRA are available on ABC’s website.

CEQ Phase I National Environmental Policy Act Implementation Revisions

On April 19, 2022 the Council on Environmental Quality announced its final rule revising the implementation regulations of the National Environmental Policy Act. The rule reversed elements of the ABC-supported 2020 final rule that modernized and streamlined the federal environmental review process. 

While the rule took effect on May 20, 2022, federal agencies were given until Sept. 14, 2023, to incorporate the revisions into their environmental review processes. Read more about the final rule here.

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