02-31682. 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.

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, [phone], e-mail: [e-mail].

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:

§ 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

(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:

§ 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.