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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
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.
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 § 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 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.
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
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.
2. In § 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:
§ 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]
BILLING CODE 4510–CM–P
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