[Federal Register Volume 67, Number 244 (Thursday, December 19, 2002)]
[Rules and Regulations]
[Pages 77667-77668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31682]


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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: 
[email protected].

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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