[Federal Register Volume 72, Number 55 (Thursday, March 22, 2007)]
[Rules and Regulations]
[Pages 13586-13588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1357]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 22 and 52

[FAC 2005-16; FAR Case 2006-019; Item III Docket 2006-0020, Sequence 
12]
RIN 9000-AK66


Federal Acquisition Regulation; FAR Case 2006-019, Contracts with 
Religious Entities

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

[[Page 13587]]


ACTION: Interim rule with request for comments.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on an interim 
rule amending the Federal Acquisition Regulation (FAR) to implement 
Executive Order (E.O.) 11246, as amended, Equal Employment Opportunity, 
to incorporate the exemption for religious entities prescribed in E.O. 
13279.

DATES: Effective Date: March 22, 2007.
    Comment Date: Interested parties should submit written comments to 
the FAR Secretariat on or before May 21, 2007 to be considered in the 
formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-16, FAR case 2006-
019, by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Search for any document by first selecting the proper document types 
and selecting ``Federal Acquisition Regulation'' as the agency of 
choice. At the ``Keyword'' prompt, type in the FAR case number (for 
example, FAR Case 2006-019) and click on the ``Submit'' button. Please 
include any personal and/or business information inside the document.
    You may also search for any document by clicking on the ``Advanced 
search/document search'' tab at the top of the screen, selecting from 
the agency field ``Federal Acquisition Regulation'', and typing the FAR 
case number in the keyword field. Select the ``Submit'' button.
    <bullet> Fax: 202-501-4067.
    <bullet> Mail: General Services Administration, Regulatory 
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann 
Duarte, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-16, FAR 
case 2006-019, in all correspondence related to this case. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal and/or business confidential information 
provided.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. Ernest Woodson, Procurement Analyst, at (202) 501-3775. Please cite 
FAC 2005-16, FAR case 2006-019. For information pertaining to status or 
publication schedules, contact the FAR Secretariat at (202) 501-4755.

SUPPLEMENTARY INFORMATION:

A. Background

    This rule amends FAR Part 22 to implement Executive Order (E.O.) 
11246, as amended, to incorporate the exemption for religious entities 
prescribed in E.O. 13279. E.O. 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 E.O. 13279 amended 
Section 204 of E.O. 11246 to exempt religious corporations, 
associations, educational institutions and societies from certain 
nondiscrimination requirements. E.O. 11246, as amended, permits 
religious entities to consider employment of individuals of a 
particular religion to perform work connected with carrying on the 
entity's activities. Religious entities are not exempt from other 
requirements of the Executive order.
    The Department of Labor (DOL) implemented the exemption at 41 CFR 
part 60-1, Obligations of Contractors and Subcontractors, in the 
Federal Register at 68 FR 56392 on September 30, 2003. The FAR 
incorporates the DOL exemptions at 41 CFR part 60-1 at FAR 22.807. This 
rule adds the exemption for religious entities to FAR 22.807(b) and the 
associated clause at FAR 52.222-26, Equal Opportunity, to maintain 
consistency with DOL rules. Under FAR 22.807(b), the exemption applies 
even though a contract or subcontract contains the clause at FAR 
52.222-26. When awarding a contract to a religious entity that contains 
the clause at FAR 52.222-26, Equal Opportunity, the requirements of the 
clause with respect to employment of individuals of a particular 
religion to perform work connected with the carrying on of the 
contractor's activities do not apply to a contractor that is a 
religious corporation, association, educational institution, or 
society.
    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 rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The interim rule is not expected to have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act,5 U.S.C. 601, et seq., because this rule 
only aligns the FAR with the DOL exemption for consistency and clarity. 
The DOL stated in the Federal Register at 68 FR 56392 on September 30, 
2003, that the rule will not have a significant economic impact on a 
substantial number of small business entities. Therefore, an Initial 
Regulatory Flexibility Analysis has not been performed. The Councils 
will consider comments from small entities concerning the affected FAR 
Parts 22 and 52 in accordance with 5 U.S.C. 610. Interested parties 
must submit such comments separately and should cite 5 U.S.C 601, et 
seq. (FAC 2005-16, FAR case 2006-019), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq. The rule does not affect any certification, 
representation, or other proposal submission requirements.

D. Determination to Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary to ensure compliance with Executive Order 11246 and 
consistency with the Department of Labor regulations. Contracting 
officers need to be aware of the exemption for religious entities and 
to understand when and how to apply it. This will avoid confusion and 
potential disagreements between the Government and religious entities 
competing for Federal contracts. The Executive order was published on 
December 16, 2002 and the DOL regulations went into effect on October 
30, 2003. However, pursuant to Public Law 98-577 and FAR 1.501, the 
Councils will consider public comments received in response to this 
interim rule in the formation of the final rule.

List of Subjects in 48 CFR Parts 22 and 52

    Government procurement.


[[Page 13588]]


    Dated: March 15, 2007.
Ralph De Stefano,
Director, Contract Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 22 and 52 as set forth 
below:
0
1. The authority citation for 48 CFR parts 22 and 52 continues to read 
as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and42 U.S.C. 
2473(c).

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

0
2. Amend section 22.807 by adding paragraph (b)(7) to read as follows:


22.807  Exemptions

* * * * *
    (b) * * *
    (7) Contracts with religious entities. Pursuant to E.O. 13279, 
Section 202 of E.O. 11246, 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 the order.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


52.212-5  [Amended]

0
3. Amend section 52.212-5 by--
0
a. Revising the date of the clause to read ``(MAR 2007)''; and
0
b. Removing from paragraphs (b)(17) and (e)(1)(ii) ``(APR 2002)'' and 
adding ``(MAR 2007)'' in its place.


52.213-4  [Amended]

0
4. Amend section 52.213-4 by--
0
a. Revising the date of the clause to read ``(MAR 2007)'';
0
b. Removing from paragraph (a)(1)(iii) ``(APR 2002)'' and adding ``(MAR 
2007)'' in its place; and
0
c. Removing from paragraph (a)(2)(vi) ``(SEPT 2006)'' and adding ``(MAR 
2007)'' in its place.
0
5. Amend section 52.222-26 by--
0
a. Revising the date of the clause to read ``(MAR 2007)'';
0
b. Redesignating paragraphs (b)(1) through (b)(11), and (c) as 
paragraphs (c)(1) through (c)(11), and (d), respectively; removing 
paragraph (b) introductory text and adding paragraphs (b)(1) and 
(b)(2); and
0
c. Removing from newly designated paragraph (c)(10) ``paragraphs (b)(1) 
through (11) of''.
    The revised text reads as follows:


52.222-26  Equal Opportunity.

* * * * *
    (b)(1) If, during any 12-month period (including the 12 months 
preceding the award of this contract), the Contractor has been or is 
awarded nonexempt Federal contracts and/or subcontracts that have an 
aggregate value in excess of $10,000, the Contractor shall comply with 
this clause, except for work performed outside the United States by 
employees who were not recruited within the United States. Upon 
request, the Contractor shall provide information necessary to 
determine the applicability of this clause.
    (2) If the Contractor is a religious corporation, association, 
educational institution, or society, the requirements of this clause do 
not apply with respect to the employment of individuals of a particular 
religion to perform work connected with the carrying on of the 
Contractor's activities (41 CFR 60-1.5).
* * * * *


52.244-6  [Amended]

0
6. Amend section 52.244-6 by--
0
a. Revising the date of the clause to read ``(MAR 2007)''; and
0
b. Removing from paragraph (c)(1)(ii) ``(MAY 2002)'' and adding ``(MAR 
2007)'' in its place.
[FR Doc. 07-1357 Filed 3-21-07; 8:45 am]
BILLING CODE 6820-EP-S