Federal Acquisition Regulation; FAR Case 2009-005, Use of Project Labor Agreements for Federal Construction Projects, 33953-33957 [E9-16619]
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Federal Register / Vol. 74, No. 133 / Tuesday, July 14, 2009 / Proposed Rules
required by statute, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments, or EPA consults with
State and local officials early in the
process of developing the proposed
regulation. EPA also may not issue a
regulation that has federalism
implications and that preempts State
law unless the Agency consults with
State and local officials early in the
process of developing the proposed
regulation.
This rule will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132, because it
merely approves a State rule
implementing a Federal standard, and
does not alter the relationship or the
distribution of power and
responsibilities established in the Clean
Air Act. Thus, the requirements of
section 6 of the Executive Order do not
apply to this rule.
sroberts on DSKD5P82C1PROD with PROPOSALS
F. Executive Order 13175, Coordination
With Indian Tribal Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
Tribal officials in the development of
regulatory policies that have Tribal
implications.’’ This proposed rule does
not have Tribal implications, as
specified in Executive Order 13175. It
will not have substantial direct effects
on Tribal governments, on the
relationship between the Federal
government and Indian Tribes, or on the
distribution of power and
responsibilities between the Federal
government and Indian Tribes. Thus,
Executive Order 13175 does not apply
to this rule.
EPA specifically solicits additional
comment on this proposed rule from
Tribal officials.
approves a State rule implementing a
Federal standard.
H. Executive Order 13211, Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not subject to Executive
Order 13211, ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use’’ (66
FR 28355, May 22, 2001) because it is
not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and
Advancement Act
Section 12 of the National Technology
Transfer and Advancement Act
(NTTAA) of 1995 requires Federal
agencies to evaluate existing technical
standards when developing a new
regulation. To comply with NTTAA,
EPA must consider and use ‘‘voluntary
consensus standards’’ (VCS) if available
and applicable when developing
programs and policies unless doing so
would be inconsistent with applicable
law or otherwise impractical.
The EPA believes that VCS are
inapplicable to this action. Today’s
action does not require the public to
perform activities conducive to the use
of VCS.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 30, 2009.
Jane Diamond,
Acting Regional Administrator, Region IX.
[FR Doc. E9–16642 Filed 7–13–09; 8:45 am]
BILLING CODE 6560–50–P
G. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets Executive Order 13045
(62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that concern health or safety
risks, such that the analysis required
under section 5–501 of the Executive
Order has the potential to influence the
regulation. This rule is not subject to
Executive Order 13045, because it
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33953
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 2, 17, 22, 36, and 52
[FAR Case 2009–005; Docket 2009–0024;
Sequence 1]
RIN 9000–AL31
Federal Acquisition Regulation; FAR
Case 2009–005, Use of Project Labor
Agreements for Federal Construction
Projects
AGENCY: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to
implement Executive Order (E.O.)
13502, Use of Project Labor Agreements
for Federal Construction Projects. The
new E.O. encourages Federal
departments and agencies to consider
requiring the use of project labor
agreements for Federal construction
projects where the total cost to the
Government is more than $25 million in
order to promote economy and
efficiency in Federal procurement.
DATES: Interested parties should submit
written comments to the Regulatory
Secretariat on or before August 13, 2009
to be considered in the formulation of
a final rule.
ADDRESSES: Submit comments
identified by FAR case 2009–005 by any
of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘FAR Case 2009–005’’ under
the heading ‘‘Comment or Submission’’.
Select the link ‘‘Send a Comment or
Submission’’ that corresponds with FAR
Case 2009–005. Follow the instructions
provided to complete the ‘‘Public
Comment and Submission Form’’.
Please include your name, company
name (if any), and ‘‘FAR Case 2009–
005’’ on your attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VPR), 1800 F Street, NW., Room 4041,
ATTN: Hada Flowers, Washington, DC
20405.
Instructions: Please submit comments
only and cite FAR case 2009–005 in all
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correspondence related to this case. All
comments received will be posted
without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Mr.
Ernest Woodson, Procurement Analyst,
at (202) 501–3775. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at (202) 501–4755. Please
cite FAR case 2009–005.
SUPPLEMENTARY INFORMATION:
A. Background
On February 6, 2009, the President
issued E.O. 13502 which encourages
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 E.O. encourages executive
departments and agencies to consider
the use of project labor agreements for
construction projects where the total
cost to the Government is valued at $25
million or more and permits agencies on
a project-by-project basis to require the
use of a project labor agreement where
certain criteria would be met.
The term ‘‘project labor agreement’’
means a pre-hire collective bargaining
agreement with one or more labor
organizations that establishes the terms
and conditions of employment for a
specific construction project and is an
agreement described in 29 U.S.C. 158(f).
The E.O. describes how project labor
agreements may help agencies manage
workforce challenges that arise in
connection with large-scale construction
projects. For example, large-scale
construction projects typically involve
multiple employers at a single location.
The E.O. explains that a ‘‘lack of
coordination among various 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 and
mechanism’’. The use of project labor
agreements may ‘‘prevent these
problems from developing by providing
structure and stability to large-scale
construction projects thereby promoting
the efficient and expeditious completion
of Federal construction contracts.’’ A
project labor agreement may help an
agency manage these problems by
providing an agreed-upon resolution
mechanism that promotes the efficient
and expeditious completion of Federal
construction projects.
In accordance with E.O. 13502, this
proposed rule amends the FAR to—
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• Provide a new FAR Subpart 22.5,
Use of Project Labor Agreements for
Federal Construction Projects.
• Add a new provision at 52.222–XX,
Notice of Requirement for Project Labor
Agreement, to be included in
solicitations where the agency has
exercised its discretion to require a
project labor agreement as prescribed at
FAR 22.505(a).
• Add a new clause 52.222–YY,
Project Labor Agreement, to be included
in contracts in accordance with FAR
22.505(b).
The Councils invite comment on the
process, in which the solicitation
incorporates the provision providing for
submission of the project labor
agreement prior to the contract award
(i.e., should agencies require this from
each offeror as part of its bid or only
from an apparent successful offeror).
The Councils are also considering
factors for the contracting officer to
consider, on a project-by-project basis,
in determining whether use of a project
labor agreement will be in the best
interest of the Government. The
Councils welcome public comment on
the factors that should be considered,
such as the difficulty of coordinating
multiple contracts in the absence of a
project labor agreement, the importance
of timely project completion, etc.
The Director of the Office of
Management and Budget (OMB) is
working with the Secretary of Labor and
other officials, to provide
recommendations to the President on
whether to broaden the application of
project labor agreements on both
construction projects awarded under
Federal contracts and construction
projects receiving Federal financial
assistance, to promote the economical,
efficient, and timely completion of such
projects.
This is a significant regulatory action
and, therefore, was subject to review
under Section 6(b) of Executive Order
12866, Regulatory Planning and Review,
dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Councils do not expect this
proposed rule to have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., because the
rationale for this determination is based
on the discretionary nature of the
regulation being promulgated and the
fact that the application of the rule is
only in connection with large scale
construction projects over $25 million
(those that would likely impact large
businesses). Therefore, an Initial
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Regulatory Flexibility Analysis has not
been performed. The Councils will
consider comments from small entities
concerning the affected FAR Parts 2, 17,
22, 36, and 52, in accordance with 5
U.S.C. 610. Interested parties must
submit such comments separately and
should cite 5 U.S.C. 601, et seq.; (FAR
case 2009–005), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) addresses the
collection of information by the Federal
government from individuals, small
businesses and state and local
governments and seeks to minimize the
burdens such information collection
requirements might impose. A
collection of information includes
providing answers to identical questions
posed to, or identical reporting or
record-keeping requirements imposed
on ten or more persons, other than
agencies, instrumentalities, or
employees of the United States. In
accordance with the requirements of the
Paperwork Reduction Act, agencies may
not conduct or sponsor, and the
respondent is not required to respond
to, an information collection unless it
displays a currently valid Office of
Management and Budget (OMB) control
number or the number appears in the
Code of Federal Regulations (see FAR
1.106).
The Paperwork Reduction Act (Pub.
L. 104–13) applies because the proposed
rule contains information collection
requirements. Accordingly, the
Regulatory Secretariat will submit a
request for approval of a new
information collection requirement
concerning FAR Case 2009–005 to the
OMB under 44 U.S.C. Chapter 35, et seq.
Pursuant to 44 U.S.C. 3506(c)(2)(B),
the Councils solicit comments
concerning: whether these information
collection requirements are necessary
for the Government to properly perform
its functions, including whether the
information has practical utility; the
accuracy of the estimates of the burden
of the information collection
requirements; the quality, utility, and
clarity of the information to be
collected; and whether the burden of
collecting information on those who are
to respond, including through the use of
automated collection techniques or
other forms of information technology,
may be minimized.
The rule will apply to large-scale
construction projects where the cost to
the Government is $25 million or more
and where agencies have determined
that use of a project labor agreement, in
accordance with requirements
prescribed by this rule, will advance the
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Government’s interest in achieving
economy and efficiency in the resulting
procurement. Most prime contractors for
such projects are large business
concerns. We estimate the annual total
burden hours as follows:
Based on Fiscal Year 2008 data
regarding the types of contracts to
which this information collection
applies, it is estimated that there are
approximately 300 large-scale
construction contracts (including
Architectural and Engineering contracts)
exceeding $25 million that could be
subject to an agency determination for
use of project labor agreements. Based
on advice of labor advisors,
approximately 10 percent of these types
of projects may be deemed appropriate
for a project labor agreement. Therefore,
it is estimated the information
collection requirement would apply to
approximately 30 large-scale
construction contracts per year. Each
contract would require one project labor
agreement submission prior to or after
award; therefore, the estimated number
of annual respondents is 30. Project
labor agreements are often negotiated in
advance of the solicitation phase for a
procurement, as the large-scale projects
are defined. The estimated time for
reporting of this information is 1 hour
to cover copying and submitting the
agreement to the Government.
We estimate the total annual public
cost burden for these elements to be
$900, based on the following:
30
×1
Responses .........................................
Hours per response ..........................
30
×1
Total hours ...............................
Cost per hour ...................................
30
× $30
Total annual cost to public ......
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Respondents .....................................
Responses/respondent .....................
$900
D. Request for Comments Regarding
Paperwork Burden
Submit comments, including
suggestions for reducing this burden,
not later than August 13, 2009 to: FAR
Desk Officer, OMB, Room 10102, NEOB,
Washington, DC 20503, and a copy to
the General Services Administration,
Regulatory Secretariat (VPR), 1800 F
Street, NW, Room 4041, Washington,
DC 20405.
Public comments are particularly
invited on: Whether this collection of
information is necessary for the proper
performance of functions of the FAR,
and will have practical utility; whether
our estimate of the public burden of this
collection of information is accurate,
and based on valid assumptions and
methodology; ways to enhance the
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quality, utility, and clarity of the
information to be collected; and ways in
which we can minimize the burden of
the collection of information on those
who are to respond, through the use of
appropriate technological collection
techniques or other forms of information
technology.
Requester may obtain a copy of the
justification from the General Services
Administration, Regulatory Secretariat
(VPR), Room 4041, Washington, DC
20405, telephone (202) 501–4755. Please
cite OMB Control Number 9000–00XX,
Use of Project Labor Agreements for
Federal Construction Projects, in all
correspondence.
List of Subjects in 48 CFR Parts 2, 17,
22, 36, and 52
Government procurement.
Dated: July 9, 2009.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, the Councils propose
amending 48 CFR parts 2, 17, 22, 36,
and 52 as set forth below:
1. The authority citation for 48 CFR
parts 2, 17, 22, 36, and 52 continues to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
PART 2—DEFINITIONS OF WORDS
AND TERMS
2.101
[Amended]
2. Amend section 2.101(b)(2) in the
third sentence in the definition
‘‘Construction’’ by removing the words
‘‘personal property’’ and adding
‘‘personal property (except that for use
in Subpart 22.5, see the definition at
22.502).’’
33955
Subpart 22.5 Use of Project Labor
Agreements for Federal Construction
Projects.
Sec.
22.501 Scope of subpart.
22.502 Definitions.
22.503 Policy.
22.504 General requirements for project
labor agreements.
22.505 Solicitation provision and contract
clause.1
22.501 Scope of subpart.
This subpart prescribes policies and
procedures to implement Executive
Order 13502, February 6, 2009.
22.502
Definitions.
As used in this subpart—
Construction means construction,
rehabilitation, alteration, conversion,
extension, repair, or improvement of
buildings, highways, or other real
property.
Labor organization means a labor
organization as defined in 29 U.S.C.
152(5).
Large-scale construction project
means a construction project, including
all contracts associated with the project,
where the total cost to the Federal
Government is $25 million or more.
Project labor agreement means a prehire collective bargaining agreement
with one or more labor organizations
that establishes the terms and
conditions of employment for a specific
construction project and is an agreement
described in 29 U.S.C. 158(f).
22.503
Policy.
PART 17—SPECIAL CONTRACTING
METHODS
Project labor agreements are a tool
that agencies may use to promote
economy and efficiency in Federal
procurement. Pursuant to Executive
Order 13502, agencies are encouraged to
consider requiring the use of project
labor agreements in connection with
large-scale construction projects.
3. In section 17.603 revise paragraph
(c) to read as follows:
22.504 General requirements for project
labor agreements.
17.603
Limitations.
*
*
*
*
*
(c) For use of project labor
agreements, see Subpart 22.5.
PART 22—APPLICATION OF LABOR
LAWS TO GOVERNMENT
ACQUISITIONS
4. In section 22.101–1 revise
paragraph (b)(2) to read as follows:
*
*
*
*
*
(b)(1) * * * *
(2) For use of project labor
agreements, see Subpart 22.5.
5. Add Subpart 22.5 to Part 22 to read
as follows:
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(a)(1) Agencies may require the use of
project labor agreements where use of
such agreements will—
(i) Advance the Federal Government’s
interest in achieving economy and
efficiency in Federal procurement,
producing labor-management stability,
and ensuring compliance with laws and
regulations governing safety and health,
equal employment opportunity, labor
and employment standards, and other
matters; and,
(ii) Be consistent with law.
(2) If an agency determines that use of
a project labor agreement will meet the
standards set forth in paragraphs
(a)(1)(i) and (ii) of this section, the
agency has complete discretion—
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(i) To require that every contractor
and subcontractor on the project agree,
for that project, to negotiate or become
a party to a project labor agreement with
one or more appropriate labor
organizations; or
(ii) To decide not to require the use
of a project labor agreement.
(b) Project labor agreements
established under this subpart shall—
(1) Bind all contractors and
subcontractors on the construction
project to comply with the project labor
agreement;
(2) Allow all contractors and
subcontractors to compete for contracts
and subcontracts without regard to
whether they are otherwise parties to
collective bargaining agreements;
(3) Contain guarantees against strikes,
lockouts, and similar job disruptions;
(4) Set forth effective, prompt, and
mutually binding procedures for
resolving labor disputes arising during
the term of the project labor agreement;
(5) Provide other mechanisms for
labor-management cooperation on
matters of mutual interest and concern,
including productivity, quality of work,
safety, and health; and
(6) Fully conform to all statutes,
regulations, and Executive orders.
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22.505 Solicitation provision and contract
clause.
(a)(1) For acquisition of large-scale
construction projects, if the agency
makes a determination pursuant to this
subpart that a project labor agreement
will be required, the contracting officer
shall insert the provision at 52.222–XX,
Notice of Requirement for Project Labor
Agreement, in all solicitations
associated with the project.
(2) If an agency allows submission of
the project labor agreement after
contract award, the contracting officer
shall use the provision with its
Alternate I in accordance with agency
procedures.
(b)(1) For acquisition of large-scale
construction projects, if the agency
makes a determination pursuant to this
subpart that a project labor agreement
will be required, the contracting officer
shall insert the clause at 52.222–YY,
Project Labor Agreement in all contracts
associated with the project.
(2) If an agency allows submission of
the project labor agreement after
contract award, the contracting officer
shall use the clause with its Alternate I
in accordance with agency procedures.
PART 36—CONSTRUCTION AND
ARCHITECT-ENGINEER CONTRACTS
6. In section 36.202 revise paragraph
(d) to read as follows:
36.202
*
*
Specifications.
*
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*
*
18:27 Jul 13, 2009
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(d) For requirements on the use of
project labor agreements for Federal
construction projects, see part 22,
Subpart 22.5 of this chapter.
*
*
*
*
*
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
7. Add section 52.222–XX to read as
follows:
52.222–XX Notice of Requirement for
Project Labor Agreement.
As prescribed in 22.505(a)(1), insert
the following provision:
NOTICE OF REQUIREMENT FOR
PROJECT LABOR AGREEMENT
(DATE)
(a) Definitions. Labor organization and
project labor agreement, as used in this
provision, are defined in the clause of this
solicitation entitled Project Labor Agreement.
(b) Consistent with applicable law, the
apparent successful offeror will be required
to execute a project labor agreement with one
or more appropriate labor organizations for
the term of the resulting construction
contract.
(c) Any project labor agreement reached
pursuant to this provision shall—
(1) Bind the offeror and all subcontractors
on the construction project to comply with
the project labor agreement;
(2) Allow the offeror and all subcontractors
to compete for contracts and subcontracts
without regard to whether they are otherwise
parties to collective bargaining agreements;
(3) Contain guarantees against strikes,
lockouts, and similar job disruptions;
(4) Set forth effective, prompt, and
mutually binding procedures for resolving
labor disputes arising during the project labor
agreement;
(5) Provide other mechanisms for labormanagement cooperation on matters of
mutual interest and concern, including
productivity, quality of work, safety, and
health; and
(6) Fully conform to all statutes,
regulations, and Executive orders.
(d) Any project labor agreement reached
pursuant to this provision does not change
the terms of this contract or provide for any
price adjustment by the Government.
(e) The Government will not participate in
the negotiations of any project labor
agreement.
(f) The apparent successful offeror shall
submit to the Contracting Officer a copy of
the project labor agreement—reached
pursuant to this provision prior to contract
award.
(End of Provision)
Alternate I (DATE) As prescribed in
22.505(a)(2), substitute the following
paragraph (b) in lieu of paragraphs (b)
through (f) of the basic clause:
(b) Consistent with applicable law, the
contractor agrees to bargain in good faith to
a project labor agreement with one or more
appropriate labor organizations for the term
of the resulting construction contract.
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8. Add section 52.222–YY to read as
follows:
52.222–YY
Project Labor Agreement.
As prescribed in 22.505(b)(1), insert
the following clause:
PROJECT LABOR AGREEMENT
(DATE)
(a) Definitions. As used in this clause—
Labor organization means a labor
organization as defined in 29 U.S.C. 152(5).
Project labor agreement means a pre-hire
collective bargaining agreement with one or
more labor organizations that establishes the
terms and conditions of employment for a
specific construction project and is an
agreement described in 29 U.S.C. 158(f).
(b) The Contractor shall maintain in a
current status throughout the life of the
contract the project labor agreement entered
into prior to the award of this contract in
accordance with solicitation provision
52.222–XX, Notice of Requirement for Project
Labor Agreement.
(c) Subcontracts. The Contractor shall
include the substance of this clause,
including this paragraph (c), in all
subcontracts.
(End of Clause)
Alternate I (Date). As prescribed in
22.505(b)(2), substitute the following
paragraphs (b) through (g) for
paragraphs (b) and (c) of the basic
clause:
(b) Consistent with applicable law, the
contractor agrees to bargain in good faith to
a project labor agreement with one or more
appropriate labor organizations for the term
of this construction contract. The contractor
shall submit an executed copy of the project
labor agreement to the Contracting Officer.
(c) Any project labor agreement reached
pursuant to this clause shall—
(1) Bind the Contractor and all
subcontractors on the construction project to
comply with the project labor agreement;
(2) Allow the Contractor and all
subcontractors to compete for contracts and
subcontracts without regard to whether they
are otherwise parties to collective bargaining
agreements;
(3) Contain guarantees against strikes,
lockouts, and similar job disruptions;
(4) Set forth effective, prompt, and
mutually binding procedures for resolving
labor disputes arising during the project labor
agreement;
(5) Provide other mechanisms for labormanagement cooperation on matters of
mutual interest and concern, including
productivity, quality of work, safety, and
health; and
(6) Fully conform to all statutes,
regulations, and Executive orders.
(d) Any project labor agreement reached
pursuant to this provision does not change
the terms of this contract or provide for any
price adjustment by the Government.
(e) The Government will not participate in
the negotiations of any project labor
agreement.
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(f) The Contractor shall maintain in a
current status throughout the life of the
contract the project labor agreement entered
into pursuant to this clause.
(g) Subcontracts. The Contractor shall
include the substance of this clause,
including this paragraph (g), in all
subcontracts.
(End of Provision)
[FR Doc. E9–16619 Filed 7–10–09; 11:15 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R9-IA-2009-0016; 96100-1671-9FLSB6]
Endangered and Threatened Wildlife
and Plants; 90-Day Finding on a
Petition to List 14 Parrot Species as
Threatened or Endangered
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AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Notice of 90–day petition
finding and initiation of status review.
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), announce a
90–day finding on a petition to list as
threatened or endangered under the
Endangered Species Act of 1973, as
amended (Act), the following 14 parrot
species: Blue-throated macaw (Ara
glaucogularis), blue-headed macaw
(Primolius couloni), crimson shining
parrot (Prosopeia splendens), great
green macaw (Ara ambiguus), greycheeked parakeet (Brotogeris
pyrrhoptera), hyacinth macaw
(Anodorhynchus hyacinthinus), military
macaw (Ara militaris), Philippine
cockatoo (Cacatua haematuropygia),
red-crowned parrot (Amazona
viridigenalis), scarlet macaw (Ara
macao), thick-billed parrot
(Rhynchopsitta pachyrhyncha), white
cockatoo (Cacatua alba), yellow-billed
parrot (Amazona collaria), and yellowcrested cockatoo (Cacatua sulphurea).
The thick-billed parrot is listed as an
endangered species under the Act
throughout its range. As such, we will
not be addressing it further as part of
this petition. We have also previously
determined that the blue-throated
macaw warrants listing in response to a
1991 petition and has been a candidate
species since. Because we have recently
re-evaluated the status of this species as
part of our 2008 Annual Notice of
Review, we will not address it further as
part of this petition. We find that the
petition presents substantial scientific
VerDate Nov<24>2008
16:06 Jul 13, 2009
Jkt 217001
or commercial information indicating
that listing the remaining 12 species of
parrots may be warranted. Therefore,
with the publication of this notice, we
are initiating a status review of these 12
species of parrots to determine if listing
is warranted. To ensure that the status
reviews are comprehensive, we are
soliciting scientific and commercial data
regarding these 12 species.
Additionally, we are seeking any recent
information concerning the bluethroated macaw so that it can be taken
into consideration in our evaluation of
its status when we do our re-evaluation
as part of the 2009 Annual Notice of
Review.
DATES: We made the finding announced
in this document on July 14, 2009. To
allow us adequate time to conduct the
12–month status review, we request that
we receive information on or before
September 14, 2009.
ADDRESSES: You may submit
information by one of the following
methods:
• Federal rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: FWS-R9IA-2009-0016; Division of Policy and
Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We
will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see the
Information Solicited section below for
more information).
FOR FURTHER INFORMATION CONTACT:
Douglas Krofta, Chief, Branch of Listing,
Endangered Species, U.S. Fish and
Wildlife Service, 4401 North Fairfax
Drive, Room 420, Arlington, Virginia
22203; telephone 703-358-2105. If you
use a telecommunications device for the
deaf (TDD), call the Federal Information
Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Solicited
When we make a finding that
substantial information is presented to
indicate that listing a species may be
warranted, we are required to promptly
commence a review of the status of the
species. To ensure that the status review
is complete and based on the best
available scientific and commercial
information, we are soliciting
information on the following 12 parrot
species: Blue-headed macaw (Primolius
couloni), crimson shining parrot
(Prosopeia splendens), great green
macaw (Ara ambiguus), grey-cheeked
PO 00000
Frm 00033
Fmt 4702
Sfmt 4702
33957
parakeet (Brotogeris pyrrhoptera),
hyacinth macaw (Anodorhynchus
hyacinthinus), military macaw (Ara
militaris), Philippine cockatoo (Cacatua
haematuropygia), red-crowned parrot
(Amazona viridigenalis), scarlet macaw
(Ara macao), white cockatoo (Cacatua
alba), yellow-billed parrot (Amazona
collaria), and yellow-crested cockatoo
(Cacatua sulphurea). We request
scientific and commercial information
from the public, concerned
governmental agencies, the scientific
community, industry, or any other
interested parties on the status of the 12
parrot species that will be addressed as
part of this petition, as well as the bluethroated macaw (Ara glaucogularis),
throughout their range, including but
not limited to:
(1) Information on taxonomy,
distribution, habitat selection and
trends (especially breeding and foraging
habitats), diet, and population
abundance and trends (especially
current recruitment data) of these
species.
(2) Information on the effects of
habitat loss and changing land uses on
the distribution and abundance of these
species and their principal prey species
over the short and long term.
(3) Information on the effects of other
potential threat factors, including live
capture and hunting, domestic and
international trade, predation by other
animals, and diseases of these species or
their principal prey over the short and
long term.
(4) Information on management
programs for parrot conservation,
including mitigation measures related to
conservation programs, and any other
private, tribal, or governmental
conservation programs that benefit these
species.
(5) Information relevant to whether
any populations of these species may
qualify as distinct population segments.
(6) Information on captive
populations and captive breeding and
domestic trade of these species in the
United States.
We will base our 12–month finding
on a review of the best scientific and
commercial information available,
including all information received
during the public comment period.
Please note that comments merely
stating support or opposition to the
actions under consideration without
providing supporting information,
although noted, will not be part of the
basis of this determination, as section
4(b)(1)(A) of the Act (16 U.S.C. 1531 et
seq.) directs that determinations as to
whether any species is a threatened or
endangered species shall be made
‘‘solely on the basis of the best scientific
E:\FR\FM\14JYP1.SGM
14JYP1
]]>Agencies
[Federal Register Volume 74, Number 133 (Tuesday, July 14, 2009)]
[Proposed Rules]
[Pages 33953-33957]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-16619]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 17, 22, 36, and 52
[FAR Case 2009-005; Docket 2009-0024; Sequence 1]
RIN 9000-AL31
Federal Acquisition Regulation; FAR Case 2009-005, Use of Project
Labor Agreements for Federal Construction Projects
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to implement Executive Order
(E.O.) 13502, Use of Project Labor Agreements for Federal Construction
Projects. The new E.O. encourages Federal departments and agencies to
consider requiring the use of project labor agreements for Federal
construction projects where the total cost to the Government is more
than $25 million in order to promote economy and efficiency in Federal
procurement.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before August 13, 2009 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2009-005 by any of
the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2009-005'' under the heading ``Comment or Submission''. Select the link
``Send a Comment or Submission'' that corresponds with FAR Case 2009-
005. Follow the instructions provided to complete the ``Public Comment
and Submission Form''. Please include your name, company name (if any),
and ``FAR Case 2009-005'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2009-
005 in all
[[Page 33954]]
correspondence related to this case. All comments received will be
posted without change to https://www.regulations.gov, including any
personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Ernest Woodson, Procurement Analyst, at (202) 501-3775. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAR case 2009-
005.
SUPPLEMENTARY INFORMATION:
A. Background
On February 6, 2009, the President issued E.O. 13502 which
encourages 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
E.O. encourages executive departments and agencies to consider the use
of project labor agreements for construction projects where the total
cost to the Government is valued at $25 million or more and permits
agencies on a project-by-project basis to require the use of a project
labor agreement where certain criteria would be met.
The term ``project labor agreement'' means a pre-hire collective
bargaining agreement with one or more labor organizations that
establishes the terms and conditions of employment for a specific
construction project and is an agreement described in 29 U.S.C. 158(f).
The E.O. describes how project labor agreements may help agencies
manage workforce challenges that arise in connection with large-scale
construction projects. For example, large-scale construction projects
typically involve multiple employers at a single location.
The E.O. explains that a ``lack of coordination among various
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 and mechanism''.
The use of project labor agreements may ``prevent these problems from
developing by providing structure and stability to large-scale
construction projects thereby promoting the efficient and expeditious
completion of Federal construction contracts.'' A project labor
agreement may help an agency manage these problems by providing an
agreed-upon resolution mechanism that promotes the efficient and
expeditious completion of Federal construction projects.
In accordance with E.O. 13502, this proposed rule amends the FAR
to--
Provide a new FAR Subpart 22.5, Use of Project Labor
Agreements for Federal Construction Projects.
Add a new provision at 52.222-XX, Notice of Requirement
for Project Labor Agreement, to be included in solicitations where the
agency has exercised its discretion to require a project labor
agreement as prescribed at FAR 22.505(a).
Add a new clause 52.222-YY, Project Labor Agreement, to be
included in contracts in accordance with FAR 22.505(b).
The Councils invite comment on the process, in which the
solicitation incorporates the provision providing for submission of the
project labor agreement prior to the contract award (i.e., should
agencies require this from each offeror as part of its bid or only from
an apparent successful offeror).
The Councils are also considering factors for the contracting
officer to consider, on a project-by-project basis, in determining
whether use of a project labor agreement will be in the best interest
of the Government. The Councils welcome public comment on the factors
that should be considered, such as the difficulty of coordinating
multiple contracts in the absence of a project labor agreement, the
importance of timely project completion, etc.
The Director of the Office of Management and Budget (OMB) is
working with the Secretary of Labor and other officials, to provide
recommendations to the President on whether to broaden the application
of project labor agreements on both construction projects awarded under
Federal contracts and construction projects receiving Federal financial
assistance, to promote the economical, efficient, and timely completion
of such projects.
This is a significant regulatory action and, therefore, was subject
to review under Section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Councils do not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the rationale for this determination is based on the
discretionary nature of the regulation being promulgated and the fact
that the application of the rule is only in connection with large scale
construction projects over $25 million (those that would likely impact
large businesses). Therefore, an Initial Regulatory Flexibility
Analysis has not been performed. The Councils will consider comments
from small entities concerning the affected FAR Parts 2, 17, 22, 36,
and 52, in accordance with 5 U.S.C. 610. Interested parties must submit
such comments separately and should cite 5 U.S.C. 601, et seq.; (FAR
case 2009-005), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
addresses the collection of information by the Federal government from
individuals, small businesses and state and local governments and seeks
to minimize the burdens such information collection requirements might
impose. A collection of information includes providing answers to
identical questions posed to, or identical reporting or record-keeping
requirements imposed on ten or more persons, other than agencies,
instrumentalities, or employees of the United States. In accordance
with the requirements of the Paperwork Reduction Act, agencies may not
conduct or sponsor, and the respondent is not required to respond to,
an information collection unless it displays a currently valid Office
of Management and Budget (OMB) control number or the number appears in
the Code of Federal Regulations (see FAR 1.106).
The Paperwork Reduction Act (Pub. L. 104-13) applies because the
proposed rule contains information collection requirements.
Accordingly, the Regulatory Secretariat will submit a request for
approval of a new information collection requirement concerning FAR
Case 2009-005 to the OMB under 44 U.S.C. Chapter 35, et seq.
Pursuant to 44 U.S.C. 3506(c)(2)(B), the Councils solicit comments
concerning: whether these information collection requirements are
necessary for the Government to properly perform its functions,
including whether the information has practical utility; the accuracy
of the estimates of the burden of the information collection
requirements; the quality, utility, and clarity of the information to
be collected; and whether the burden of collecting information on those
who are to respond, including through the use of automated collection
techniques or other forms of information technology, may be minimized.
The rule will apply to large-scale construction projects where the
cost to the Government is $25 million or more and where agencies have
determined that use of a project labor agreement, in accordance with
requirements prescribed by this rule, will advance the
[[Page 33955]]
Government's interest in achieving economy and efficiency in the
resulting procurement. Most prime contractors for such projects are
large business concerns. We estimate the annual total burden hours as
follows:
Based on Fiscal Year 2008 data regarding the types of contracts to
which this information collection applies, it is estimated that there
are approximately 300 large-scale construction contracts (including
Architectural and Engineering contracts) exceeding $25 million that
could be subject to an agency determination for use of project labor
agreements. Based on advice of labor advisors, approximately 10 percent
of these types of projects may be deemed appropriate for a project
labor agreement. Therefore, it is estimated the information collection
requirement would apply to approximately 30 large-scale construction
contracts per year. Each contract would require one project labor
agreement submission prior to or after award; therefore, the estimated
number of annual respondents is 30. Project labor agreements are often
negotiated in advance of the solicitation phase for a procurement, as
the large-scale projects are defined. The estimated time for reporting
of this information is 1 hour to cover copying and submitting the
agreement to the Government.
We estimate the total annual public cost burden for these elements
to be $900, based on the following:
Respondents.................................................... 30
Responses/respondent........................................... x 1
--------
Responses...................................................... 30
Hours per response............................................. x 1
--------
Total hours................................................ 30
Cost per hour.................................................. x $30
--------
Total annual cost to public................................ $900
D. Request for Comments Regarding Paperwork Burden
Submit comments, including suggestions for reducing this burden,
not later than August 13, 2009 to: FAR Desk Officer, OMB, Room 10102,
NEOB, Washington, DC 20503, and a copy to the General Services
Administration, Regulatory Secretariat (VPR), 1800 F Street, NW, Room
4041, Washington, DC 20405.
Public comments are particularly invited on: Whether this
collection of information is necessary for the proper performance of
functions of the FAR, and will have practical utility; whether our
estimate of the public burden of this collection of information is
accurate, and based on valid assumptions and methodology; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways in which we can minimize the burden of the
collection of information on those who are to respond, through the use
of appropriate technological collection techniques or other forms of
information technology.
Requester may obtain a copy of the justification from the General
Services Administration, Regulatory Secretariat (VPR), Room 4041,
Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control
Number 9000-00XX, Use of Project Labor Agreements for Federal
Construction Projects, in all correspondence.
List of Subjects in 48 CFR Parts 2, 17, 22, 36, and 52
Government procurement.
Dated: July 9, 2009.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, the Councils propose amending 48 CFR parts 2, 17, 22,
36, and 52 as set forth below:
1. The authority citation for 48 CFR parts 2, 17, 22, 36, and 52
continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
2.101 [Amended]
2. Amend section 2.101(b)(2) in the third sentence in the
definition ``Construction'' by removing the words ``personal property''
and adding ``personal property (except that for use in Subpart 22.5,
see the definition at 22.502).''
PART 17--SPECIAL CONTRACTING METHODS
3. In section 17.603 revise paragraph (c) to read as follows:
17.603 Limitations.
* * * * *
(c) For use of project labor agreements, see Subpart 22.5.
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
4. In section 22.101-1 revise paragraph (b)(2) to read as follows:
* * * * *
(b)(1) * * * *
(2) For use of project labor agreements, see Subpart 22.5.
5. Add Subpart 22.5 to Part 22 to read as follows:
Subpart 22.5 Use of Project Labor Agreements for Federal
Construction Projects.
Sec.
22.501 Scope of subpart.
22.502 Definitions.
22.503 Policy.
22.504 General requirements for project labor agreements.
22.505 Solicitation provision and contract clause.1
22.501 Scope of subpart.
This subpart prescribes policies and procedures to implement
Executive Order 13502, February 6, 2009.
22.502 Definitions.
As used in this subpart--
Construction means construction, rehabilitation, alteration,
conversion, extension, repair, or improvement of buildings, highways,
or other real property.
Labor organization means a labor organization as defined in 29
U.S.C. 152(5).
Large-scale construction project means a construction project,
including all contracts associated with the project, where the total
cost to the Federal Government is $25 million or more.
Project labor agreement means a pre-hire collective bargaining
agreement with one or more labor organizations that establishes the
terms and conditions of employment for a specific construction project
and is an agreement described in 29 U.S.C. 158(f).
22.503 Policy.
Project labor agreements are a tool that agencies may use to
promote economy and efficiency in Federal procurement. Pursuant to
Executive Order 13502, agencies are encouraged to consider requiring
the use of project labor agreements in connection with large-scale
construction projects.
22.504 General requirements for project labor agreements.
(a)(1) Agencies may require the use of project labor agreements
where use of such agreements will--
(i) Advance the Federal Government's interest in achieving economy
and efficiency in Federal procurement, producing labor-management
stability, and ensuring compliance with laws and regulations governing
safety and health, equal employment opportunity, labor and employment
standards, and other matters; and,
(ii) Be consistent with law.
(2) If an agency determines that use of a project labor agreement
will meet the standards set forth in paragraphs (a)(1)(i) and (ii) of
this section, the agency has complete discretion--
[[Page 33956]]
(i) To require that every contractor and subcontractor on the
project agree, for that project, to negotiate or become a party to a
project labor agreement with one or more appropriate labor
organizations; or
(ii) To decide not to require the use of a project labor agreement.
(b) Project labor agreements established under this subpart shall--
(1) Bind all contractors and subcontractors on the construction
project to comply with the project labor agreement;
(2) Allow all contractors and subcontractors to compete for
contracts and subcontracts without regard to whether they are otherwise
parties to collective bargaining agreements;
(3) Contain guarantees against strikes, lockouts, and similar job
disruptions;
(4) Set forth effective, prompt, and mutually binding procedures
for resolving labor disputes arising during the term of the project
labor agreement;
(5) Provide other mechanisms for labor-management cooperation on
matters of mutual interest and concern, including productivity, quality
of work, safety, and health; and
(6) Fully conform to all statutes, regulations, and Executive
orders.
22.505 Solicitation provision and contract clause.
(a)(1) For acquisition of large-scale construction projects, if the
agency makes a determination pursuant to this subpart that a project
labor agreement will be required, the contracting officer shall insert
the provision at 52.222-XX, Notice of Requirement for Project Labor
Agreement, in all solicitations associated with the project.
(2) If an agency allows submission of the project labor agreement
after contract award, the contracting officer shall use the provision
with its Alternate I in accordance with agency procedures.
(b)(1) For acquisition of large-scale construction projects, if the
agency makes a determination pursuant to this subpart that a project
labor agreement will be required, the contracting officer shall insert
the clause at 52.222-YY, Project Labor Agreement in all contracts
associated with the project.
(2) If an agency allows submission of the project labor agreement
after contract award, the contracting officer shall use the clause with
its Alternate I in accordance with agency procedures.
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
6. In section 36.202 revise paragraph (d) to read as follows:
36.202 Specifications.
* * * * *
(d) For requirements on the use of project labor agreements for
Federal construction projects, see part 22, Subpart 22.5 of this
chapter.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
7. Add section 52.222-XX to read as follows:
52.222-XX Notice of Requirement for Project Labor Agreement.
As prescribed in 22.505(a)(1), insert the following provision:
NOTICE OF REQUIREMENT FOR PROJECT LABOR AGREEMENT (DATE)
(a) Definitions. Labor organization and project labor agreement,
as used in this provision, are defined in the clause of this
solicitation entitled Project Labor Agreement.
(b) Consistent with applicable law, the apparent successful
offeror will be required to execute a project labor agreement with
one or more appropriate labor organizations for the term of the
resulting construction contract.
(c) Any project labor agreement reached pursuant to this
provision shall--
(1) Bind the offeror and all subcontractors on the construction
project to comply with the project labor agreement;
(2) Allow the offeror and all subcontractors to compete for
contracts and subcontracts without regard to whether they are
otherwise parties to collective bargaining agreements;
(3) Contain guarantees against strikes, lockouts, and similar
job disruptions;
(4) Set forth effective, prompt, and mutually binding procedures
for resolving labor disputes arising during the project labor
agreement;
(5) Provide other mechanisms for labor-management cooperation on
matters of mutual interest and concern, including productivity,
quality of work, safety, and health; and
(6) Fully conform to all statutes, regulations, and Executive
orders.
(d) Any project labor agreement reached pursuant to this
provision does not change the terms of this contract or provide for
any price adjustment by the Government.
(e) The Government will not participate in the negotiations of
any project labor agreement.
(f) The apparent successful offeror shall submit to the
Contracting Officer a copy of the project labor agreement--reached
pursuant to this provision prior to contract award.
(End of Provision)
Alternate I (DATE) As prescribed in 22.505(a)(2), substitute the
following paragraph (b) in lieu of paragraphs (b) through (f) of the
basic clause:
(b) Consistent with applicable law, the contractor agrees to
bargain in good faith to a project labor agreement with one or more
appropriate labor organizations for the term of the resulting
construction contract.
8. Add section 52.222-YY to read as follows:
52.222-YY Project Labor Agreement.
As prescribed in 22.505(b)(1), insert the following clause:
PROJECT LABOR AGREEMENT (DATE)
(a) Definitions. As used in this clause--
Labor organization means a labor organization as defined in 29
U.S.C. 152(5).
Project labor agreement means a pre-hire collective bargaining
agreement with one or more labor organizations that establishes the
terms and conditions of employment for a specific construction
project and is an agreement described in 29 U.S.C. 158(f).
(b) The Contractor shall maintain in a current status throughout
the life of the contract the project labor agreement entered into
prior to the award of this contract in accordance with solicitation
provision 52.222-XX, Notice of Requirement for Project Labor
Agreement.
(c) Subcontracts. The Contractor shall include the substance of
this clause, including this paragraph (c), in all subcontracts.
(End of Clause)
Alternate I (Date). As prescribed in 22.505(b)(2), substitute the
following paragraphs (b) through (g) for paragraphs (b) and (c) of the
basic clause:
(b) Consistent with applicable law, the contractor agrees to
bargain in good faith to a project labor agreement with one or more
appropriate labor organizations for the term of this construction
contract. The contractor shall submit an executed copy of the
project labor agreement to the Contracting Officer.
(c) Any project labor agreement reached pursuant to this clause
shall--
(1) Bind the Contractor and all subcontractors on the
construction project to comply with the project labor agreement;
(2) Allow the Contractor and all subcontractors to compete for
contracts and subcontracts without regard to whether they are
otherwise parties to collective bargaining agreements;
(3) Contain guarantees against strikes, lockouts, and similar
job disruptions;
(4) Set forth effective, prompt, and mutually binding procedures
for resolving labor disputes arising during the project labor
agreement;
(5) Provide other mechanisms for labor-management cooperation on
matters of mutual interest and concern, including productivity,
quality of work, safety, and health; and
(6) Fully conform to all statutes, regulations, and Executive
orders.
(d) Any project labor agreement reached pursuant to this
provision does not change the terms of this contract or provide for
any price adjustment by the Government.
(e) The Government will not participate in the negotiations of
any project labor agreement.
[[Page 33957]]
(f) The Contractor shall maintain in a current status throughout
the life of the contract the project labor agreement entered into
pursuant to this clause.
(g) Subcontracts. The Contractor shall include the substance of
this clause, including this paragraph (g), in all subcontracts.
(End of Provision)
[FR Doc. E9-16619 Filed 7-10-09; 11:15 am]
BILLING CODE 6820-EP-P
