[Federal Register: December 19, 2002 (Volume 67, Number 244)]
[Rules and Regulations]
[Page 77667-77668]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de02-4]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Parts 1260 and 1274
Implementation of Executive Order 13202, as Amended by E.O.
13208, in the NASA Grant and Cooperative Agreement Handbook
AGENCY: National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: This is a final rule that revises Sections A, Grants and
Cooperative Agreements, and D, Cooperative Agreements with Commercial
Firms, of the NASA Grant and Cooperative Agreement Handbook to require
that NASA grants and cooperative agreements follow the requirements of
Executive Order 13202, ``Preservation of Open Competition and
Government Neutrality Towards Government Contractors' Labor Relations
on Federal and Federally Funded Construction Projects''.
EFFECTIVE DATE: December 19, 2002.
FOR FURTHER INFORMATION CONTACT: Celeste Dalton, NASA Headquarters,
Office of Procurement, Contract Management Division (Code HK),
Washington, DC 20546-0001, (202) 358-1645, e-mail:
celeste.dalton@hq.nasa.gov.
SUPPLEMENTARY INFORMATION:
A. Background
Executive Order 13202 was signed on February 17, 2001, and amended
on April 6, 2001 (E.O. 13208). The order provides that agencies may not
require or prohibit offerors, contractors, or subcontractors from
entering into or adhering to agreements with one or more labor
organizations. It also permits agency heads to exempt a project from
the requirements of the E.O. under special circumstances, but the
exemption may not be related to a possible or an actual labor dispute.
The amended E.O. also allows for exemption of a project governed by a
project labor agreement in place as of February 17, 2001, which had a
construction contract awarded as of February 17, 2001.
The E.O. applies to any construction project using Federal funds
regardless of whether the award is expected to result in a contract,
grant, or cooperative agreement. The Federal Acquisition Regulation
(FAR) has already been revised to implement the E.O. relative to
contracts. NASA is revising its Grant and Cooperative Agreement
Handbook to implement the E.O. using language substantially the same as
found in FAR section 36.202(d)), to ensure that E.O. 13202 requirements
are consistently followed when funding construction projects under
grants and cooperative agreements.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This final
rule is not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
NASA certifies that this final rule will not have a significant
economic impact on a substantial number of small business entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because
most NASA construction projects are accomplished by contracts subject
to the FAR and very few through grants or cooperative agreements.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because this final rule
does not impose any recordkeeping or information collection
requirements that require the approval of the Office of Management and
Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 14 CFR Parts 1260 and 1274
Grant Programs--Science and Technology.
Tom Luedtke,
Assistant Administrator for Procurement.
Accordingly, 14 CFR Parts 1260 and 1274 are amended as follows:
PART 1260--GRANTS AND COOPERATIVE AGREEMENTS
1. The authority citation for 14 CFR part 1260 continues to read as
follows:
Authority: 42 U.S.C. 2374(c)(1), Pub. L. 97-258, 96 Stat. 1003
(31 U.S.C. 6301 et seq.) and OMB Circular A-110.
2. Amend section 1260.10 by adding paragraph (d) to read as
follows:
Sec. 1260.10 Proposals.
* * * * *
(d)(1) In accordance with E.O. 13202 of February 17, 2001,
``Preservation of Open Competition and Government Neutrality Towards
Government Contractors' Labor Relations on Federal and Federally Funded
Construction Projects'', as amended on April 6, 2001, the Government,
or any construction manager acting on behalf of the Government, shall
not--
(i) Require or prohibit recipients, potential recipients or
subrecipients to enter into or adhere to agreements with one or more
labor organizations (as defined in 42 U.S.C. 2000e(d)) on the same or
other related construction projects; or
(ii) Otherwise discriminate against recipients, potential
recipients or subrecipients for becoming, refusing to become, or
remaining signatories or otherwise adhering to agreements with one or
more organizations, on the same or other related construction projects.
(2) Nothing in this section prohibits the recipient, potential
recipients or subrecipients from voluntarily entering into project
labor agreements.
(3) The Assistant Administrator for Procurement may exempt a
construction project from this policy if, as of February 17, 2001--
(i) The agency or a construction manager acting on behalf of the
Government had issued or was party to bid specifications, project
agreements, agreements with one or more labor organizations, or other
controlling documents with respect to that particular project, which
contained any of the requirements or prohibitions in paragraph (d)(1)of
this section; and
[[Page 77668]]
(ii) One or more construction contracts (includes any contract
awarded by the recipient) subject to such requirements or prohibitions
had been awarded.
(4) The Assistant Administrator for Procurement may exempt a
particular project, contract, or subcontract from this policy upon a
finding that special circumstances require an exemption in order to
avert an imminent threat to public health or safety, or to serve the
national security. A finding of ``special circumstances'' may not be
based on the possibility or presence of a labor dispute concerning the
use of contractors or subcontractors who are nonsignatories to, or
otherwise do not adhere to, agreements with one or more labor
organizations, or concerning employees on the project who are not
members of, or affiliated with, a labor organization.
PART 1274--COOPERATIVE AGREEMENTS WITH COMMERCIAL FIRMS
3. The authority citation for part 1274 continues to read as
follows:
Authority: 31 U.S.C. 6301 to 6308; 42 U.S.C. 2451 et seq.
4. 1274.215 is added to read as follows:
Sec. 1274.215 Federal and federally funded construction projects.
(a) In accordance with E.O. 13202 of February 17, 2001,
``Preservation of Open Competition and Government Neutrality Towards
Government Contractors' Labor Relations on Federal and Federally Funded
Construction Projects'', as amended on April 6, 2001, the Government,
or any construction manager acting on behalf of the Government, shall
not--
(1) Require or prohibit recipients, potential recipients or
subrecipients to enter into or adhere to agreements with one or more
labor organizations (as defined in 42 U.S.C. 2000e(d)) on the same or
other related construction projects; or
(2) Otherwise discriminate against recipients, potential recipients
or subrecipients for becoming, refusing to become, or remaining
signatories or otherwise adhering to agreements with one or more
organizations, on the same or other related construction projects.
(b) Nothing in this section prohibits the recipient, potential
recipients or subrecipients from voluntarily entering into project
labor agreements.
(c) The Assistant Administrator for Procurement may exempt a
construction project from this policy if, as of February 17, 2001--
(1) The agency or a construction manager acting on behalf of the
Government had issued or was party to bid specifications, project
agreements, agreements with one or more labor organizations, or other
controlling documents with respect to that particular project, which
contained any of the requirements or prohibitions in paragraph (d)(1)
of this section; and
(2) One or more construction contracts (includes any contract
awarded by the recipient) subject to such requirements or prohibitions
had been awarded.
(d) The Assistant Administrator for Procurement may exempt a
particular project, contract, or subcontract from this policy upon a
finding that special circumstances require an exemption in order to
avert an imminent threat to public health or safety, or to serve the
national security. A finding of ``special circumstances'' may not be
based on the possibility or presence of a labor dispute concerning the
use of contractors or subcontractors who are nonsignatories to, or
otherwise do not adhere to, agreements with one or more labor
organizations, or concerning employees on the project who are not
members of, or affiliated with, a labor organization.
[FR Doc. 02-31682 Filed 12-18-02; 8:45 am]
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