44284 Federal Register / Vol. 74, No. 166 / Friday, August 28, 2009 / Rules and Regulations 

1 (Executive Order 13202 was signed by President 

George W. Bush on February 17, 2001 (published 

in the Federal Register on February 22, 2001 (66 

FR 11225)) and later amended by Executive Order 

13208, signed by President Bush on April 6, 2001 

(published in the Federal Register on April 11, 

2001 (66 FR 18717)). 

Dated: August 21, 2009. 

Joseph T. Rannazzisi, 

Deputy Assistant Administrator, Deputy Chief 

of Operations, Office of Diversion Control. 

[FR Doc. E9–20768 Filed 8–27–09; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

24 CFR Part 5 

[Docket No. FR–5331–F–01] 

RIN 2501–AD47 

Use of Project Labor Agreements for 

Federal Construction Projects 

AGENCY: Office of the Secretary, HUD. 

ACTION: Final rule. 

SUMMARY: This final rule removes a 

HUD regulation that prohibits the use of 

project labor agreements in HUDassisted construction contracts. 

Executive Order 13502, entitled ‘‘Use of 

Project Labor Agreements for Federal 

Construction Projects,’’ and signed by 

President Obama on February 6, 2009, 

revoked Executive Order 13202, which 

had prohibited federal agencies from 

requiring or prohibiting project labor 

agreements as a condition for award of 

any federally funded contract or 

subcontract for construction. Executive 

Order 13502, which applies to direct 

federal procurement of construction, 

encourages federal agencies to consider 

requiring the use of project labor 

agreements in connection with federally 

procured large-scale construction 

projects. The Executive Order also 

allows the use of project labor 

agreements in circumstances not 

covered by the Order, including projects 

receiving federal financial assistance. 

In a previously published Federal 

Register notice pertaining to HUD’s 

Fiscal Year 2009 (FY 2009) funding, 

participants in HUD programs and 

prospective recipients of HUD funds 

were notified of the issuance of 

Executive Order 13502, of its removal of 

the restrictions on the use of project 

labor agreements, and of the invalidity 

of the HUD regulation promulgated to 

enforce the earlier Executive Order. 

With the revocation of Executive Order 

13202, there is no longer a legal basis for 

HUD’s regulation that implemented that 

executive order with respect to HUDassisted projects. Therefore, this rule 

removes the regulation from the Code of 

Federal Regulations. 

DATES: Effective Date: September 28, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Camille E. Acevedo, Associate General 

Counsel for Legislation and Regulations, 

Office of General Counsel, Department 

of Housing and Urban Development, 

451 7th Street, SW., Room 10282, 

Washington, DC 20410; telephone 

number 202–402–5132 (this is not a tollfree number). Persons with hearing or 

speech impairments may access this 

number through TTY by calling the tollfree Federal Information Relay Service 

at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Background—Executive Order 13502, 

‘‘Use of Project Labor Agreements for 

Federal Construction Projects’’ 

Executive Order 13502, entitled ‘‘Use 

of Project Labor Agreements for Federal 

Construction Projects,’’ and signed by 

President Barack Obama on February 6, 

2009, while directed to federal agency 

procurement of construction, also 

allows federal agencies to consider 

requiring the use of project labor 

agreements in connection with largescale federally assisted construction 

projects. (Executive Order 13502 was 

subsequently published in the Federal 

Register on February 11, 2009 (74 FR 

6985).) The Executive Order revokes 

Executive Order 13202, ‘‘Preservation of 

Open Competition and Government 

Neutrality towards Government 

Contractors’ Labor Relations on Federal 

and Federally Funded Construction 

Projects,’’ which prohibited federal 

agencies from requiring or prohibiting 

project labor agreements as a condition 

for award of any federally funded 

contract or subcontract for 

construction.1 In order to bind 

participants in HUD programs to the 

provisions of Executive Order 13202, 

HUD established regulations at 24 CFR 

5.108 that barred recipients of HUD 

funds from requiring or prohibiting 

project labor agreements in their 

procurements using HUD funds. The 

HUD regulations applied to HUDassisted construction contracts. 

Construction contracts awarded directly 

by HUD were covered separately by 

provisions in the government-wide 

Federal Acquisition Regulation (FAR). 

Executive Order 13502 restores to 

federal agencies the discretion to 

determine when project labor 

agreements may be appropriate and 

beneficial in federally assisted 

construction projects, through the 

revocation of Executive Order 13202. As 

a result of the revocation, Executive 

Order 13502 also removes the 

prohibition on recipients of HUD funds 

from requiring the use of project labor 

agreements in their procurements. 

Because the foundation for HUD’s 

regulation in 24 CFR 5.108 was the prior 

Executive Order, which has been 

revoked, the rule no longer has effect. 

Accordingly, in an update of 

requirements applicable to HUD 

funding for FY 2009, published in the 

Federal Register on April 16, 2009 (74 

FR 17685), HUD notified prospective 

recipients and participants in HUD 

programs that the new Executive Order 

revoked Executive Order 13202 and that 

the regulation in 24 CFR 5.108 was no 

longer in effect. 

Executive Order 13502 was issued to 

address the challenges to efficient and 

timely procurement presented to the 

federal government by large-scale 

construction projects. Because 

construction employers often do not 

have a permanent workforce, it can be 

difficult for them to predict labor costs 

when bidding on contracts and to 

ensure a steady stream of labor on 

contracts being performed. Often, 

multiple employers are involved at a 

single location, and a labor dispute 

concerning even one employer can 

delay an entire project. A lack of 

coordination between employers or 

uncertainties about the terms and 

conditions of employment of various 

groups of workers can create friction 

and disputes in the absence of an 

agreed-upon resolution mechanism. 

Project labor agreements can present a 

means for addressing these problems by 

providing structure and stability to 

large-scale construction projects, 

thereby promoting the efficient and 

expeditious completion of federal 

construction contracts. 

Executive Order 13502 declares that it 

is the policy of the federal government 

to encourage the executive agencies to 

consider requiring the use of project 

labor agreements in connection with 

large-scale construction projects in 

order to promote economy and 

efficiency in federal procurement. The 

Executive Order, however, does not 

require an executive agency to use a 

project labor agreement on any 

construction project, nor does it 

preclude the use of a project labor 

agreement in circumstances not covered 

by the Order, including leasehold 

arrangements and projects receiving 

federal financial assistance. The 

Executive Order also does not require 

contractors or subcontractors to enter 

into a project labor agreement with any 

particular labor organization. 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 74, No. 166 / Friday, August 28, 2009 / Rules and Regulations 44285 

II. This Final Rule 

In addition to removing the 

prohibition on the use of project labor 

agreements in federal and federally 

assisted construction contracts, 

Executive Order 13502 directs agencies 

to revoke any regulations based on the 

prior Executive Order 13202. Consistent 

with those directions and the lack of a 

legal foundation for HUD’s regulation in 

24 CFR 5.108, this rule removes that 

regulatory section from the Code of 

Federal Regulations. 

Executive Order 13502 further directs 

the Director of the Office of 

Management and Budget (OMB), in 

consultation with the Secretary of Labor 

and with other officials, as appropriate, 

to provide recommendations to the 

President, within 180 days of the 

signing of Executive Order 13502, on 

whether broader use of project labor 

agreements with respect to both 

construction projects undertaken under 

federal contracts and construction 

projects receiving federal financial 

assistance would help to promote the 

economical, efficient, and timely 

completion of such projects. HUD is 

therefore deferring any rulemaking to 

implement Executive Order 13502 in 

HUD-assisted construction contracts, 

pending OMB’s recommendations on 

this issue. 

III. Justification for Final Rulemaking 

Generally, HUD publishes a rule for 

public comment before publishing a 

rule for effect, in accordance with 

HUD’s regulations on rulemaking at 24 

CFR part 10. Part 10, however, allows in 

§ 10.1 for exceptions from that general 

rule where the Department finds good 

cause to omit advance notice and public 

participation. The good cause 

requirement is satisfied when the prior 

public procedure is ‘‘impracticable, 

unnecessary, or contrary to the public 

interest.’’ In this case, HUD has 

determined that prior public comment 

is unnecessary. Because this final rule 

removes a rule for which the legal basis 

has been revoked, HUD is left with no 

discretion on which public comment 

could be considered on the subject of 

removal of the regulation. 

IV. Findings and Certifications 

Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) reviewed this rule under 

Executive Order 12866 (entitled, 

‘‘Regulatory Planning and Review’’). 

This rule was determined to be a 

‘‘significant regulatory action’’ as 

defined in section 3(f) of the Order 

(although not an economically 

significant regulatory action, as 

provided under section 3(f)(1) of the 

Order). The docket file is available for 

public inspection between the hours of 

8 a.m. and 5 p.m. weekdays in the 

Regulations Division, Office of General 

Counsel, Room 10276, Department of 

Housing and Urban Development, 451 

7th Street, SW., Washington, DC 20410– 

0500. Due to security measures at the 

HUD Headquarters building, please 

schedule an appointment to review the 

docket file by calling the Regulations 

Division at (202) 708–3055 (this is not 

a toll-free number). Persons with 

hearing or speech impairments may 

access the above telephone number via 

TTY by calling the toll-free Federal 

Information Relay Service at 800–877– 

8339. 

Environmental Impact 

This final rule does not direct, 

provide for assistance or loan and 

mortgage insurance for, or otherwise 

govern or regulate, real property 

acquisition, disposition, leasing, 

rehabilitation, alteration, demolition, or 

new construction, nor does it establish, 

revise, or provide for standards for 

construction or construction materials, 

manufactured housing, or occupancy. 

Accordingly, under 24 CFR 50.19(c)(1), 

this final rule is categorically excluded 

from environmental review under the 

National Environmental Policy Act of 

1969 (42 U.S.C. 4321 et seq.). 

Executive Order 13132, Federalism 

Executive Order 13132 (entitled 

‘‘Federalism’’) prohibits an agency from 

publishing any rule that has federalism 

implications, if the rule either imposes 

substantial direct compliance costs on 

state and local governments and is not 

required by statute, or the rule preempts 

state law, unless the agency meets the 

consultation and funding requirements 

of section 6 of the Executive Order. This 

final rule does not have federalism 

implications and does not impose 

substantial direct compliance costs on 

state and local governments nor 

preempt state law within the meaning of 

the Executive Order. 

Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (2 U.S.C. 1531– 

1538) (UMRA) establishes requirements 

for federal agencies to assess the effects 

of their regulatory actions on state, 

local, and tribal governments and the 

private sector. This final rule does not 

impose any federal mandates on any 

state, local, or tribal governments or the 

private sector within the meaning of 

UMRA. 

List of Subjects in 24 CFR Part 5 

Administrative practice and 

procedure, Aged, Claims, Crime, 

Government contracts, Grant 

programs—housing and community 

development, Individuals with 

disabilities, Intergovernmental relations, 

Loan programs—housing and 

community development, Low and 

moderate income housing, Mortgage 

insurance, Penalties, Pets, Public 

housing, Rent subsidies, Reporting and 

recordkeeping requirements, Social 

Security, Unemployment compensation, 

Wages. 

■ Accordingly, for the reasons described 

in the preamble, 24 CFR part 5 is 

amended as follows: 

PART 5—GENERAL HUD PROGRAM 

REQUIREMENTS; WAIVERS 

■ 1. The authority citation for part 5 

continues to read as follows: 

Authority: 42 U.S.C. 1437a, 1437c, 1437d, 

1437f, 1437n, 3535(d). 

§ 5.108 [Removed] 

■ 2. Remove § 5.108. 

Dated: August 24, 2009. 

Shaun Donovan, 

Secretary. 

[FR Doc. E9–20831 Filed 8–27–09; 8:45 am] 

BILLING CODE 4210–67–P 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

24 CFR Parts 5, 92, and 908 

[Docket No. FR–4998–F–05] 

RIN 2501–AD16 

Refinement of Income and Rent 

Determination Requirements in Public 

and Assisted Housing Programs; 

Delay of Effective Date 

AGENCY: Office of the Secretary, HUD. 

ACTION: Final rule; delay of effective 

date. 

SUMMARY: HUD is delaying the effective 

date of the rule entitled ‘‘Refinement of 

Income and Rent Determination 

Requirements in Public and Assisted 

Housing Programs’’ published in the 

Federal Register on January 27, 2009. 

The January 27, 2009, final rule, which 

was scheduled to become effective on 

September 30, 2009, will become 

effective on January 31, 2010. Today’s 

action will provide the Department with 

the necessary additional time to review 

the subject matter of the January 27, 

2009, final rule and to consider the 

public comments on HUD’s February 

11, 2009, Federal Register notice that 


jlentini on DSKJ8SOYB1PROD with RULES