[Federal Register Volume 68, Number 189 (Tuesday, September 30, 2003)]
[Rules and Regulations]
[Pages 56392-56393]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 03-24295]



[[Page 56391]]

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Part III





Department of Labor





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Office of Federal Contract Compliance Programs



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41 CFR Part 60-1



Affirmative Action and Nondiscrimination Obligations of Government 
Contractors, Executive Order 11246, as Amended; Exemption for Religious 
Entities; Final Rule

Federal Register / Vol. 68, No. 189 / Tuesday, September 30, 2003 / 
Rules and Regulations

[[Page 56392]]


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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Part 60-1

RIN 1215-AB39


Affirmative Action and Nondiscrimination Obligations of 
Government Contractors, Executive Order 11246, as amended; Exemption 
for Religious Entities

AGENCY: Office of Federal Contract Compliance Programs, Employment 
Standards Administration, Labor.

ACTION: Final rule.

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SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is 
amending the regulations implementing Executive Order 11246, as 
amended, to incorporate the exemption for religious entities prescribed 
by Executive Order 13279. Executive Order 11246, as amended, prohibits 
Government contractors and subcontractors, and federally assisted 
construction contractors and subcontractors from discriminating in 
employment, and requires these contractors to take affirmative action 
to ensure that employees and applicants are treated without regard to 
race, color, religion, sex, or national origin. Section 4 of Executive 
Order 13279 amends Section 204 of Executive Order 11246, as amended, to 
exempt religious corporations, associations, educational institutions 
and societies from certain nondiscrimination requirements.

EFFECTIVE DATES: These regulations are effective October 30, 2003.

FOR FURTHER INFORMATION CONTACT: James I. Melvin, Director, Division of 
Policy, Planning and Program Development, OFCCP, Room C-3325, 200 
Constitution Avenue, NW., Washington, DC 20210. Telephone (202) 693-
0102 (voice), (202) 693-1308 (TTY). Copies of this rule in alternative 
formats may be obtained by calling (202) 693-0102 (voice) or (202) 693-
1308 (TTY). The alternative formats available are large print, 
electronic file on computer disk, and audiotape. The rule also is 
available on the Internet at http://www.dol.gov/dol/esa.

SUPPLEMENTARY INFORMATION:

Background

    Executive Order 11246, as amended, prohibits employment 
discrimination and establishes affirmative action requirements for 
nonexempt Government contractors and subcontractors, and federally 
assisted construction contractors and subcontractors. Section 202 of 
Executive Order 11246, as amended, requires that every non-exempt 
contract and subcontract include an equal opportunity clause, which 
specifies the nondiscrimination and affirmative action obligations each 
contractor or subcontractor assumes as a condition of its Government 
contract or subcontract. Each non-exempt contractor and subcontractor 
agrees, as a condition of its Government contract, not to discriminate 
on the basis of race, color, religion, sex, or national origin and to 
take affirmative action to ensure that applicants are employed, and 
employees are treated during employment, without regard to their race, 
color, religion, sex, or national origin.
    On December 12, 2002, President George W. Bush issued Executive 
Order 13279, ``Equal Protection of the Laws for Faith-Based and 
Community Organizations,'' reprinted at 67 FR 77141 (December 16, 
2002). Section 4 of Executive Order 13279 amends Section 204 of 
Executive Order 11246, as amended, by adding an exemption for religious 
corporations, associations, educational institutions and societies. The 
amendment to Section 204 of Executive Order 11246, as amended, in 
pertinent part, reads:

    (c) Section 202 of this Order shall not apply to a Government 
contractor or subcontractor that is a religious corporation, 
association, educational institution, or society, with respect to 
the employment of individuals of a particular religion to perform 
work connected with the carrying on by such corporation, 
association, educational institution, or society of its activities. 
Such contractors and subcontractors are not exempted or excused from 
complying with the other requirements contained in this Order.

    The exemption for religious entities added to Executive Order 
11246, as amended, is modeled on the exemption for religious 
institutions and organizations under Title VII of the Civil Rights Act 
of 1964. Section 702 of the Civil Rights Act provides that:

    This subchapter shall not apply to * * * a religious 
corporation, association, educational institution, or society with 
respect to the employment of individuals of a particular religion to 
perform work connected with the carrying on by such corporation, 
association, educational institution, or society of its activities. 
42 U.S.C. 2000e-1(a).

Revised Section

Section 60-1.5 Exemptions

    Today's final rule amends the regulation at 41 CFR 60-1.5(a) by 
adding a new paragraph (5) that sets forth the text of the amendment to 
Section 204 of Executive Order 11246, as amended, which provides the 
exemption for religious corporations, associations, educational 
institutions and societies. In the final rule, the text of the 
amendment to Section 204 has been modified slightly; for purposes of 
clarity ``Executive Order 11246, as amended'' has been substituted for 
``this Order.'' The existing paragraphs (5) and (6) in Sec.  60-1.5(a) 
have been redesignated as paragraphs (6) and (7) respectively, in the 
final rule.

Regulatory Procedures

Publication in Final

    The Department of Labor has determined that this rulemaking need 
not be published as a proposed rule, as generally required by the 
Administrative Procedure Act (APA), 5 U.S.C. 553. Rulemaking is not 
required to implement the new exemption for religious entities. The 
exemption for religious corporations, associations, educational 
institutions, and societies was effected by the President's amendment 
to Section 204 of Executive Order 11246, as amended, which was 
published in the Federal Register. This rule simply incorporates the 
amendment to Section 204 in the regulation at 41 CFR 60-1.5(a) so as to 
provide additional notice of this change in coverage under Executive 
Order 11246, as amended. The amendment to the rule directly tracks the 
President's amendment to that Order, and the Department of Labor may 
not, in response to public comment, change or decline to implement this 
amendment. Consequently, there is good cause for finding that the 
notice and public comment procedure is unnecessary and contrary to the 
public interest, pursuant to Section 553(b)(B) of the APA.

Executive Order 12866

    The Office of Management and Budget (OMB) has reviewed this rule 
under Executive Order 12866, Regulatory Planning and Review. OMB has 
determined that this rule is a ``significant regulatory action'' as 
defined in section 3(f) of the Order. However, this rule is not an 
economically significant regulatory action under the Order, and 
therefore, no regulatory impact analysis is has been prepared.

Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required for the rule 
under 5 U.S.C. 553(b)(B), the requirements of the Regulatory

[[Page 56393]]

Flexibility Act, pertaining to regulatory flexibility analysis, do not 
apply to this rule. In any event, the rule will not have a significant 
economic impact on a substantial number of small business entities.

Unfunded Mandates Reform

    For purposes of the Unfunded Mandates Reform Act of 1995, as well 
as Executive Order 12875, this rule does not include any Federal 
mandate that may result in increased expenditures by State, local, and 
tribal governments, or by the private sector.

Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this rule does 
not contain any information collection requirements that require the 
approval of the Office of Management and Budget.

Executive Order 13132 (Federalism)

    This final rule has been reviewed in accordance with Executive 
Order 13132 regarding Federalism. 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. Therefore, the 
requirements of Section 6 of Executive Order 13132 do not apply to this 
rule.

Congressional Review Act

    This final rule is not a major rule for purposes of the 
Congressional Review Act.

List of Subjects in 41 CFR Part 60-1

    Administrative practice and procedure, Equal employment 
opportunity, Government contracts, Reporting and recordkeeping 
requirements.

0
For the reasons set forth in the preamble, 41 CFR Part 60-1 is amended 
as set forth below:

    Signed at Washington, DC, this 22 day of September 2003.
Elaine L. Chao,
Secretary of Labor.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Charles E. James, Sr.,
Deputy Assistant Secretary for Federal Contract Compliance.

PART 60-1--OBLIGATIONS OF CONTRACTORS AND SUBCONTRACTORS

0
1. The authority citation for part 60-1 is revised to read as follows:

    Authority: Sec. 201, E.O. 11246, 30 FR 12319, 3 CFR, 1964-1965 
Comp., p. 339, as amended by E.O. 11375, 32 FR 14303, 3 CFR, 1966-
1970 Comp., p. 684, E.O. 12086, 43 FR 46501, 3 CFR, 1978 Comp., p. 
230 and E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258.


0
2. In Sec.  60-1.5(a), paragraphs (a)(5) and (a)(6) are redesignated as 
paragraphs (a)(6) and (a)(7) respectively, and a new paragraph (a)(5) 
is added to read as follows:


Sec.  60-1.5  Exemptions

    (a) * * *
    (5) Contracts with religious entities. Section 202 of Executive 
Order 11246, as amended, shall not apply to a Government contractor or 
subcontractor that is a religious corporation, association, educational 
institution, or society, with respect to the employment of individuals 
of a particular religion to perform work connected with the carrying on 
by such corporation, association, educational institution, or society 
of its activities. Such contractors and subcontractors are not exempted 
or excused from complying with the other requirements contained in this 
Order.
* * * * *

[FR Doc. 03-24295 Filed 9-29-03; 8:45 am]
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