Nondiscrimination in Matters Pertaining to Faith-Based Organizations, 2187-2190 [E8-463]
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2187
Proposed Rules
Federal Register
Vol. 73, No. 9
Monday, January 14, 2008
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 19
44 CFR Part 206
[Docket No. DHS–2006–0065]
RIN 1601–AA40
Nondiscrimination in Matters
Pertaining to Faith-Based
Organizations
Office of the Secretary, DHS.
Notice of proposed rulemaking.
AGENCY:
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ACTION:
SUMMARY: This proposed rule would
implement Executive Branch policy
that, within the framework of
constitutional church-state guidelines,
faith-based organizations should be able
to compete on an equal footing with
other organizations for Federal funding
and participate, on an equal footing
with other organizations, in Federallyfunded activities.
DATE: Written comments must be
received on or before February 13, 2008.
ADDRESSES: You may submit comments,
identified by agency name and docket
number DHS–2006–0065, by one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Facsimile: Federal eRulemaking
portal at 866–466–5370. Include the
docket number on the cover sheet.
• Mail: Greg DiNapoli, Deputy
Director, Center for Faith-based and
Community Initiatives, Federal
Emergency Management Agency, 500 C
St., SW., Washington, DC. 20472. To
ensure proper handling, please
reference DHS Docket No. DHS–2006–
0065 on your correspondence. This
mailing address may also be used for
paper, disk, or CD—ROM submissions.
FOR FURTHER INFORMATION CONTACT: Greg
DiNapoli, Deputy Director, Center for
Faith-based and Community Initiatives,
(202) 646–4317.
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SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to
participate in this rulemaking by
submitting written data, views, or
arguments on all aspects of the
proposed rule. The Department of
Homeland Security (DHS) also invites
comments that relate to the potential
economic, environmental, or federalism
effects of this proposed rule. Comments
that will provide the most assistance to
DHS in developing these procedures
will reference a specific portion of the
proposed rule, explain the reason for
any recommended change, and include
data, information, or authority that
support such recommended change.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided. See
ADDRESSES above for information on
how to submit comments.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov. Submitted
comments may also be inspected by
appointment at the Center for Faithbased and Community Initiatives, 500 C
St., NW., Washington, DC 20472. Please
contact (202) 646–4317 for an
appointment.
II. Background
President Bush, through Executive
Order 13279 (‘‘Equal Protection of the
Laws for Faith-Based and Community
Organizations’’), has directed federal
agencies to ensure that Federal policies
and programs are fully open to faithbased and community organizations in
a manner that is consistent with the
United States Constitution. See 67 FR
77141 (Dec. 16, 2002) 1. The President
also directed DHS to create a Center for
Faith-based and Community Initiatives
to, inter alia, lead the Departmental
effort to remove barriers to the
participation of faith-based and
community organizations in the
Department’s programs and initiatives
through reform of regulations,
procurement, and other internal policies
and practices. Executive Order 13397
‘‘Responsibilities of the Department of
Homeland Security with Respect to
1 On May 16, 2006, Executive Order 13279 was
amended by Executive Order 13403 to include DHS.
71 FR 28543.
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Frm 00001
Fmt 4702
Sfmt 4702
Faith-Based and Community
Initiatives,’’ 71 FR 12273 (Mar. 9, 2006).
DHS believes that faith-based
organizations have a significant role to
play in various programs administered
by DHS and in homeland security
generally. For example, faith-based
organizations have long been on the
front lines in matters of disaster
preparedness and relief, providing food,
supplies and shelter to others in need.
The primary reason for past exclusion
of faith-based organizations from receipt
of Federal funds generally has been a
concern with the separation of ‘‘church
and state.’’ The First Amendment
provides that ‘‘Congress shall make no
law respecting an establishment of
religion, or prohibiting the free exercise
thereof * * *’’ U.S. Const., Amdt. I
(1791). The Administration believes,
however, that the First Amendment’s
prohibition against the establishment of
religion is neither offended nor
implicated when a faith-based
organization receives Federal funds or
participates in a Federally-funded
program in order to perform a vital
mission that is not inherently religious
in nature. Further, DHS believes that the
First Amendment does not preclude the
provision of assistance to a faith-based
organization where such assistance is
available on equal terms to similarly
situated non-faith-based organizations.
To that end, in the case of private,
nonprofit faith-based organizations
seeking public assistance to repair,
restore or replace otherwise eligible
facilities damaged in a disaster, DHS has
determined that such organizations
should be eligible for public assistance
on the same terms as similarly situated
non-faith-based, private nonprofit
organizations, which is consistent with
current DHS practice and policy.
III. Proposed Rule
A. Purpose of the Proposed Rule.
Consistent with the President’s
initiative, this proposed rule would
amend DHS’ regulations to make clear
that faith-based organizations are
eligible to participate in any social or
community service programs
established, administered or funded by
DHS (including any component of DHS)
(collectively, ‘‘DHS service programs’’),
and are eligible to seek and receive
Federal financial assistance from DHS
service programs where such assistance
is available to other organizations. The
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objective of this proposed rule is to
ensure that DHS service programs are
open to all qualified organizations,
regardless of their religious character.
This rule also aims to set forth the
conditions for seeking or receiving DHS
support related to DHS service programs
and the permissible uses to which such
support may be put. In addition, this
proposed rule is designed to ensure that
DHS service programs are implemented
in a manner consistent with the
requirements of the Constitution.
Separately, the proposed rule recognizes
the eligibility of faith-based
organizations for repair, restoration or
replacement of certain nonprofit
facilities under Section 406 of the
Robert T. Stafford Disaster Relief and
Emergency Assistance Act, Public Law
93–288, as amended (42 U.S.C. 5172).
program. It could not, however,
proselytize while distributing those
items, or otherwise utilize DHS support
for activities such as worship or
religious instruction.
While the organization is, of course,
free to engage in such activities, the
activities must be offered separately, in
time or location, from the social service
programs receiving direct DHS support.
Moreover, participation in inherently
religious activities must be voluntary for
the beneficiaries of such programs.
Organizations may inform program
beneficiaries of their religious activities,
but, should they do so, they must also
advise them that receipt of any benefits
is not contingent on participation in
religious activity.
B. Proposed Amendments to DHS
Regulations
DHS proposes to amend its
regulations by adding a new Part 19—
Nondiscrimination in Matters Pertaining
to Faith-Based Organizations—and to
further amend its regulations at 44 CFR
206.226, to address the areas identified
below.
The proposed rule clarifies that an
organization that receives direct DHS
financial assistance pursuant to any
DHS Service program shall not favor or
discriminate against a program
beneficiary or prospective program
beneficiary on the basis of religion,
professed belief or religious practice.
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1. Participation by Faith-Based
Organizations in DHS Service Programs
The proposed rule clarifies in section
19.3 that eligible organizations may not
be excluded from the competition for
DHS financial support for, or
participation in, social service programs
simply because such organizations are
faith-based. Specifically, faith-based
organizations are eligible to compete for
DHS financial support, and to
participate in DHS service programs, on
the same basis, and under the same
eligibility requirements, as all other
non-governmental organizations.
DHS, DHS social service intermediary
providers, and State and local
governments administering DHS
support are prohibited from
discriminating for or against
organizations on the basis of the
organizations’ religious character or
affiliation.
2. Inherently Religious Activities
DHS recognizes that Federal funds
disbursed through DHS service
programs cannot be used to advance any
religious agenda. To that end, the
proposed rule describes in section 19.4
the requirements related to inherently
religious activities in DHS service
programs administered or supported by
the department. By way of example, a
faith-based organization could receive
funding to obtain food or clothing to
distribute as part of a disaster relief
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3. Nondiscrimination Requirements
4. Independence of Faith-Based
Organizations
Proposed section 19.6 would clarify
that a faith-based organization that
participates in a DHS program or
activity will retain its independence
from Federal, State and local
governments, and may continue to carry
out its mission, including the definition,
practice, and expression of its religious
beliefs. Among other things, faith-based
organizations may use space in their
facilities to provide services under a
DHS program, without removing
religious items or symbols. In addition,
a faith-based organization participating
in a program funded by DHS retains its
authority over its internal governance,
and it may retain religious terms in its
organization’s name, select its board
members, and otherwise govern itself on
a religious basis and include religious
references in its organization’s mission
statements and other governing
documents.
5. Exemption From Title VII
Employment Discrimination
Requirements
Section 19.7 of the proposed rule
clarifies that a faith-based organization’s
exemption from the Federal prohibition
on employment discrimination on the
basis of religion, set forth in section
702(a) of the Civil Rights Act of 1964 (42
U.S.C. 2000e–1), is not forfeited when
the organization participates in a DHS
program.
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Participation in some DHS programs,
however, is subject to independent
statutory or regulatory provisions that
impose certain nondiscrimination
requirements on all grantees. This
proposed rule is not intended to alter or
waive these requirements for faith-based
or community organizations;
accordingly, grantees should consult
with the appropriate DHS program
office to determine the scope of any
applicable requirements.
6. Commingling of Federal and State
and Local Funds
The proposed rule clarifies that if a
State or local government voluntarily
contributes its own funds to supplement
federally funded activities, the State or
local government has the option to
segregate the Federal funds or
commingle them. However, if the funds
are commingled, the requirements of
proposed section 19.8 will apply to all
of the commingled funds. If a State or
local government is required to
contribute matching funds to
supplement a federally funded activity,
the matching funds are considered
commingled with the Federal assistance
and therefore subject to the
requirements of proposed section 19.8.
As with Title VII issues, grantees should
consult with the appropriate DHS
program office to determine the scope of
any applicable requirements.
7. Grants for Repair, Restoration or
Replacement of Damaged Facilities
The proposed rule would ensure that
private nonprofit organizations that
qualify for public assistance under
disaster relief grant programs, but which
are inherently religious in nature, are
not subjected to discrimination because
of their religious or faith-based status.
DHS believes that private, nonprofit
organizations of a religious nature
which provide education, medical or
custodial care, or other eligible services,
should be eligible to receive public
assistance for the repair, restoration or
replacement of damaged facilities or for
hazard mitigation on the same terms as
similarly situated non-religious private,
nonprofit organizations.
C. Amendments to Emergency
Management Regulations
The proposed rule would also make
specific changes to the regulations
under the Robert T. Stafford Disaster
Relief and Emergency Assistance Act,
Public Law 93–288, as amended. The
amendments would specifically provide
that if an organization is otherwise
eligible to receive funding under this
section, the organization’s status as
faith-based will not be considered in
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determining whether to authorize a
grant or the amount of any such grant.
IV. Regulatory Procedures
Sec.
19.1
A. Executive Order 12866
This rule is not a ‘‘significant
regulatory action’’ as defined in section
3(f) of Executive Order 12866.
B. Regulatory Flexibility Act
The Secretary of Homeland Security,
in accordance with the Regulatory
Flexibility Act, 5 U.S.C. 605(b), has
reviewed this regulation and, by
approving it, certifies that this rule
would not have a significant economic
impact on a substantial number of small
entities as that term is defined in 5
U.S.C. 601(6). The proposed rule would
not impose any new costs, or modify
existing costs, applicable to recipients of
DHS support. Rather, the purpose of the
proposed rule is to clarify that DHS’
social service programs are open to all
qualified organizations, regardless of
their religious character, and to
establish clearly the permissible uses to
which DHS support may be put.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1531–
1538) establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and tribal governments, and on the
private sector. This proposed rule does
not impose any Federal mandates on
any State, local, or tribal governments,
or the private sector, within the
meaning of the Unfunded Mandates
Reform Act of 1995.
D. Federalism
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Pursuant to Executive Order 13132,
DHS has determined that this action
will not have a substantial direct effect
on the States, or the relationship
between the National Government and
the States, or on the distribution of
power and responsibilities among the
various levels of government, and,
therefore, does not have federalism
implications.
For the reasons set forth above, DHS
proposes to amend 6 CFR by adding a
new part 19 and 44 CFR part 206 as
follows:
PART 19—NONDISCRIMINATION IN
MATTERS PERTAINING TO FAITHBASED ORGANIZATIONS
1. Part 19 to title 6 of the Code of
Federal Regulations is added to read as
follows:
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15:19 Jan 11, 2008
PART 19—NONDISCRIMINATION IN
MATTERS PERTAINING TO FAITHBASED ORGANIZATIONS
Jkt 214001
Equal participation of faith-based
organizations in Department of
Homeland Security programs and
activities.
19.2 Definitions.
19.3 Equal participation faith-based
organizations in DHS programs and
activities.
19.4 Inherently religious activities.
19.5 Nondiscrimination requirements.
19.6 Independence of faith-based
organizations.
19.7 Exemption from Title VII employment
discrimination requirements.
19.8 Commingling of Federal and State or
local funds.
Authority: 5 U.S.C. 301; 6 U.S.C. 111, 112;
E.O. 13279, 67 FR 77141 and E.O. 13403, 71
FR 28543.
§ 19.1 Equal participation of faith-based
organizations in Department of Homeland
Security programs and activities.
It is the policy of Department of
Homeland Security (DHS) to ensure the
equal participation of faith-based
organizations in social service programs
administered or supported by DHS or its
component agencies. The equal
participation policies and requirements
contained in this section are generally
applicable to faith-based organizations
participating or seeking to participate in
any such programs. More specific
policies and requirements regarding the
participation of faith-based
organizations in individual programs
may be provided in the regulations
governing those programs.
§ 19.2
Definitions.
(a) Financial assistance means
assistance that non-Federal entities
receive or administer in the form of
grants, contracts, loans, loan guarantees,
property, cooperative agreements, food,
direct appropriations, or other
assistance, including materiel for
emergency response and incident
management.
(b) Social service program means a
program in the United States designed
to provide relief or services to persons
in need of such relief or services, or a
program designed to assist communities
in all-hazards preparedness, response
and recovery activities. Social service
programs include, but are not limited to:
Disaster relief programs; preparedness
programs; the preparation and delivery
of meals and services related to soup
kitchens or food banks; emergency
medical services; health support
services; or services related to the
integration, processing or resettlement
of immigrants and refugees coming into
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2189
the United States. However, it shall not
include any program providing funds
for the repair, restoration or replacement
of, or hazard mitigation for, damaged
private, nonprofit facilities, as provided
for in sections 404 and 406 of the Robert
T. Stafford Act, Public Law 93–288, as
amended (42 U.S.C. 5172).
(c) Inherently religious activities mean
sectarian activities such as worship,
proselytization and religious
instruction. An activity is not inherently
religious merely because it is motivated
by religious faith.
§ 19.3 Equal participation faith-based
organizations in DHS programs and
activities.
(a) Faith-based organizations are
eligible, on the same basis as any other
organization, to seek and receive
financial assistance from the
Department of Homeland Security for
social service programs or to participate
in social service programs administered
or financed by DHS.
(b) Neither DHS, nor a State or local
government, nor any other entity that
administers any program or activity
funded by DHS, shall discriminate for or
against an organization on the basis of
the organization’s religious character or
affiliation.
(c) Nothing in this part shall be
construed to preclude DHS, or any of its
components from accommodating
religious organizations and persons to
the fullest extent consistent with the
Constitution and laws of the United
States.
§ 19.4
Inherently religious activities.
(a) Organizations that receive direct
financial assistance from DHS to
participate in or administer any social
service program or activity may not
engage in inherently religious activities
as part of the programs or services
funded or administered by DHS.
(b) Organizations receiving financial
assistance from DHS pursuant to DHS
social service programs are free to
engage in inherently religious activities,
but such activities must be
(1) Offered separately, in time or
location, from the programs, activities,
or services supported by direct DHS
funds pursuant to DHS social service
programs; and
(2) Voluntary for the beneficiaries of
the programs, activities or services
provided.
(c) It is not a violation of this section
for a faith-based organization to inform
persons of the organization’s religious
activities, provided that the organization
makes it clear that receipt of any
benefits or services supported by direct
financial assistance from DHS pursuant
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to DHS social service programs, or
provided in conjunction with any
benefits or services supported by direct
financial assistance from DHS pursuant
to DHS social service programs, is in no
way contingent on participation or
attendance at such activities.
(d) The restrictions on inherently
religious activities set forth in this
section do not apply to programs where
DHS funds are provided to chaplains to
work with inmates in detention
facilities or where DHS funds are
provided to religious or other
organizations for programs in detention
facilities, in which such organizations
assist chaplains in carrying out their
duties.
§ 19.5
Nondiscrimination requirements.
An organization that receives direct
financial assistance from DHS pursuant
to a social service program for any
program or activity shall not favor or
discriminate against a beneficiary or
prospective beneficiary of said program
or activity on the basis of religion, belief
or religious practice.
§ 19.6 Independence of faith-based
organizations.
(b) Where a DHS program contains
independent statutory or regulatory
provisions that impose
nondiscrimination requirements on all
grantees, the provisions are not waived
or mitigated by this regulation.
Accordingly, grantees should consult
with the appropriate DHS program
office to determine the scope of any
applicable requirements.
§ 19.8 Commingling of Federal and State
or local funds.
(a) If a State or local government
voluntarily contributes its own funds to
supplement federally funded activities,
the State or local government has the
option to segregate the Federal funds or
commingle them.
(b) If the funds are commingled, the
requirements of this section apply to all
of the commingled funds.
(c) If a State or local government is
required to contribute matching funds to
supplement a federally funded activity,
the matching funds are considered
commingled with the Federal assistance
and therefore subject to the
requirements of this section.
44 CFR CHAPTER 1—FEDERAL
EMERGENCY MANAGEMENT AGENCY,
DEPARTMENT OF HOMELAND SECURITY
§ 19.7 Exemption from Title VII
employment discrimination requirements.
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(a) A faith-based organization that
participates in a social services program
administered by DHS or receives direct
financial assistance from DHS for its
own program or activity will retain its
independence from Federal, State, and
local governments, and may continue to
carry out its mission, including the
definition, practice, and expression of
its beliefs.
(b) Faith-based organizations may use
space in their facilities to provide social
services utilizing financial assistance
from DHS without removing or
concealing religious articles, texts, art or
symbols.
(c) A faith-based organization
utilizing financial assistance from DHS
for social services programs retains its
authority over internal governance, and
may also retain religious terms in its
organization’s name, select its board
members on a religious basis, and
include religious references in its
organization’s mission statements and
other governing documents.
§ 206.226
facilities.
(a) A faith-based organization’s
exemption from the Federal prohibition
on employment discrimination on the
basis of religion, set forth in section
702(a) of the Civil Rights Act of 1964 (42
U.S.C. 2000e–1), is not forfeited when
the organization seeks or receives
funding from DHS for a social services
program or otherwise participates in a
DHS program.
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Subchapter A—General
2. The authority citation for 44 CFR
part 206 is revised to read as follows:
Authority: Robert T. Stafford Disaster
Relief and Emergency Assistance Act, 42
U.S.C. 5121–5206; Reorganization Plan No. 3
of 1978, 43 FR 41943, 3 CFR, 1978 Comp.,
p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979, Comp., p. 376; E.O. 12148, 44 FR
43239, 3 CFR 1979 Comp., p. 412; E.O.
12673, 54 FR 12571, 3 CFR, 1989 Comp., p.
214; sections 206.226 and 206.434 are also
issued under the authority of 5 U.S.C. 301;
6 U.S.C. 111, 112; E.O. 13279, 67 FR 77141
and E.O. 13403, 71 FR 28543.
Subpart H—[Amended]
3. A new paragraph (l) to § 206.226 is
added to read as follows:
Restoration of damaged
*
*
*
*
(l) Facilities owned, operated or
controlled by faith-based
organizations—If an organization is
otherwise eligible to receive funding
under this section, the organization’s
status as faith-based shall not be
considered in determining whether to
authorize a grant or the amount of any
such grant.
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Sfmt 4702
4. Section 206.434(a)(2) is revised to
read as follows:
§ 206.434
Eligibility.
(a) * * *
(2) Private nonprofit organizations or
institutions that own or operate a
private nonprofit facility as defined in
§ 206.221. If an organization is
otherwise eligible to receive funding
under this section, the organization’s
status as faith-based shall not be
considered in determining whether to
authorize a grant or the amount of any
such grant.
*
*
*
*
*
Dated: December 31, 2007.
Michael Chertoff,
Secretary.
[FR Doc. E8–463 Filed 1–11–08; 8:45 am]
BILLING CODE 4410–10–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2008–0012; Directorate
Identifier 2007–NM–204–AD]
RIN 2120–AA64
PART 206—[AMENDED]
*
Subpart N—[Amended]
Airworthiness Directives; Boeing
Model 767–200, –300, and –400ER
Series Airplanes
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
SUMMARY: The FAA proposes to adopt a
new airworthiness directive (AD) for
certain Boeing Model 767–200, –300,
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proposed AD would require an
inspection to determine the
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service units and the flight attendant
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applicable. This proposed AD would
also require related investigative/
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proposing this AD to prevent the in-line
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exposure of the passengers and cabin
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[Federal Register Volume 73, Number 9 (Monday, January 14, 2008)]
[Proposed Rules]
[Pages 2187-2190]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-463]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 73, No. 9 / Monday, January 14, 2008 /
Proposed Rules
[[Page 2187]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 19
44 CFR Part 206
[Docket No. DHS-2006-0065]
RIN 1601-AA40
Nondiscrimination in Matters Pertaining to Faith-Based
Organizations
AGENCY: Office of the Secretary, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would implement Executive Branch policy
that, within the framework of constitutional church-state guidelines,
faith-based organizations should be able to compete on an equal footing
with other organizations for Federal funding and participate, on an
equal footing with other organizations, in Federally-funded activities.
DATE: Written comments must be received on or before February 13, 2008.
ADDRESSES: You may submit comments, identified by agency name and
docket number DHS-2006-0065, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Facsimile: Federal eRulemaking portal at 866-466-5370.
Include the docket number on the cover sheet.
Mail: Greg DiNapoli, Deputy Director, Center for Faith-
based and Community Initiatives, Federal Emergency Management Agency,
500 C St., SW., Washington, DC. 20472. To ensure proper handling,
please reference DHS Docket No. DHS-2006-0065 on your correspondence.
This mailing address may also be used for paper, disk, or CD--ROM
submissions.
FOR FURTHER INFORMATION CONTACT: Greg DiNapoli, Deputy Director, Center
for Faith-based and Community Initiatives, (202) 646-4317.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. The Department of Homeland Security (DHS) also invites
comments that relate to the potential economic, environmental, or
federalism effects of this proposed rule. Comments that will provide
the most assistance to DHS in developing these procedures will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change.
All comments received will be posted without change to https://
www.regulations.gov, including any personal information provided. See
ADDRESSES above for information on how to submit comments.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov. Submitted comments
may also be inspected by appointment at the Center for Faith-based and
Community Initiatives, 500 C St., NW., Washington, DC 20472. Please
contact (202) 646-4317 for an appointment.
II. Background
President Bush, through Executive Order 13279 (``Equal Protection
of the Laws for Faith-Based and Community Organizations''), has
directed federal agencies to ensure that Federal policies and programs
are fully open to faith-based and community organizations in a manner
that is consistent with the United States Constitution. See 67 FR 77141
(Dec. 16, 2002) \1\. The President also directed DHS to create a Center
for Faith-based and Community Initiatives to, inter alia, lead the
Departmental effort to remove barriers to the participation of faith-
based and community organizations in the Department's programs and
initiatives through reform of regulations, procurement, and other
internal policies and practices. Executive Order 13397
``Responsibilities of the Department of Homeland Security with Respect
to Faith-Based and Community Initiatives,'' 71 FR 12273 (Mar. 9, 2006).
---------------------------------------------------------------------------
\1\ On May 16, 2006, Executive Order 13279 was amended by
Executive Order 13403 to include DHS. 71 FR 28543.
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DHS believes that faith-based organizations have a significant role
to play in various programs administered by DHS and in homeland
security generally. For example, faith-based organizations have long
been on the front lines in matters of disaster preparedness and relief,
providing food, supplies and shelter to others in need.
The primary reason for past exclusion of faith-based organizations
from receipt of Federal funds generally has been a concern with the
separation of ``church and state.'' The First Amendment provides that
``Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof * * *'' U.S. Const., Amdt. I
(1791). The Administration believes, however, that the First
Amendment's prohibition against the establishment of religion is
neither offended nor implicated when a faith-based organization
receives Federal funds or participates in a Federally-funded program in
order to perform a vital mission that is not inherently religious in
nature. Further, DHS believes that the First Amendment does not
preclude the provision of assistance to a faith-based organization
where such assistance is available on equal terms to similarly situated
non-faith-based organizations.
To that end, in the case of private, nonprofit faith-based
organizations seeking public assistance to repair, restore or replace
otherwise eligible facilities damaged in a disaster, DHS has determined
that such organizations should be eligible for public assistance on the
same terms as similarly situated non-faith-based, private nonprofit
organizations, which is consistent with current DHS practice and
policy.
III. Proposed Rule
A. Purpose of the Proposed Rule.
Consistent with the President's initiative, this proposed rule
would amend DHS' regulations to make clear that faith-based
organizations are eligible to participate in any social or community
service programs established, administered or funded by DHS (including
any component of DHS) (collectively, ``DHS service programs''), and are
eligible to seek and receive Federal financial assistance from DHS
service programs where such assistance is available to other
organizations. The
[[Page 2188]]
objective of this proposed rule is to ensure that DHS service programs
are open to all qualified organizations, regardless of their religious
character. This rule also aims to set forth the conditions for seeking
or receiving DHS support related to DHS service programs and the
permissible uses to which such support may be put. In addition, this
proposed rule is designed to ensure that DHS service programs are
implemented in a manner consistent with the requirements of the
Constitution. Separately, the proposed rule recognizes the eligibility
of faith-based organizations for repair, restoration or replacement of
certain nonprofit facilities under Section 406 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act, Public Law 93-
288, as amended (42 U.S.C. 5172).
B. Proposed Amendments to DHS Regulations
DHS proposes to amend its regulations by adding a new Part 19--
Nondiscrimination in Matters Pertaining to Faith-Based Organizations--
and to further amend its regulations at 44 CFR 206.226, to address the
areas identified below.
1. Participation by Faith-Based Organizations in DHS Service Programs
The proposed rule clarifies in section 19.3 that eligible
organizations may not be excluded from the competition for DHS
financial support for, or participation in, social service programs
simply because such organizations are faith-based. Specifically, faith-
based organizations are eligible to compete for DHS financial support,
and to participate in DHS service programs, on the same basis, and
under the same eligibility requirements, as all other non-governmental
organizations.
DHS, DHS social service intermediary providers, and State and local
governments administering DHS support are prohibited from
discriminating for or against organizations on the basis of the
organizations' religious character or affiliation.
2. Inherently Religious Activities
DHS recognizes that Federal funds disbursed through DHS service
programs cannot be used to advance any religious agenda. To that end,
the proposed rule describes in section 19.4 the requirements related to
inherently religious activities in DHS service programs administered or
supported by the department. By way of example, a faith-based
organization could receive funding to obtain food or clothing to
distribute as part of a disaster relief program. It could not, however,
proselytize while distributing those items, or otherwise utilize DHS
support for activities such as worship or religious instruction.
While the organization is, of course, free to engage in such
activities, the activities must be offered separately, in time or
location, from the social service programs receiving direct DHS
support. Moreover, participation in inherently religious activities
must be voluntary for the beneficiaries of such programs. Organizations
may inform program beneficiaries of their religious activities, but,
should they do so, they must also advise them that receipt of any
benefits is not contingent on participation in religious activity.
3. Nondiscrimination Requirements
The proposed rule clarifies that an organization that receives
direct DHS financial assistance pursuant to any DHS Service program
shall not favor or discriminate against a program beneficiary or
prospective program beneficiary on the basis of religion, professed
belief or religious practice.
4. Independence of Faith-Based Organizations
Proposed section 19.6 would clarify that a faith-based organization
that participates in a DHS program or activity will retain its
independence from Federal, State and local governments, and may
continue to carry out its mission, including the definition, practice,
and expression of its religious beliefs. Among other things, faith-
based organizations may use space in their facilities to provide
services under a DHS program, without removing religious items or
symbols. In addition, a faith-based organization participating in a
program funded by DHS retains its authority over its internal
governance, and it may retain religious terms in its organization's
name, select its board members, and otherwise govern itself on a
religious basis and include religious references in its organization's
mission statements and other governing documents.
5. Exemption From Title VII Employment Discrimination Requirements
Section 19.7 of the proposed rule clarifies that a faith-based
organization's exemption from the Federal prohibition on employment
discrimination on the basis of religion, set forth in section 702(a) of
the Civil Rights Act of 1964 (42 U.S.C. 2000e-1), is not forfeited when
the organization participates in a DHS program.
Participation in some DHS programs, however, is subject to
independent statutory or regulatory provisions that impose certain
nondiscrimination requirements on all grantees. This proposed rule is
not intended to alter or waive these requirements for faith-based or
community organizations; accordingly, grantees should consult with the
appropriate DHS program office to determine the scope of any applicable
requirements.
6. Commingling of Federal and State and Local Funds
The proposed rule clarifies that if a State or local government
voluntarily contributes its own funds to supplement federally funded
activities, the State or local government has the option to segregate
the Federal funds or commingle them. However, if the funds are
commingled, the requirements of proposed section 19.8 will apply to all
of the commingled funds. If a State or local government is required to
contribute matching funds to supplement a federally funded activity,
the matching funds are considered commingled with the Federal
assistance and therefore subject to the requirements of proposed
section 19.8. As with Title VII issues, grantees should consult with
the appropriate DHS program office to determine the scope of any
applicable requirements.
7. Grants for Repair, Restoration or Replacement of Damaged Facilities
The proposed rule would ensure that private nonprofit organizations
that qualify for public assistance under disaster relief grant
programs, but which are inherently religious in nature, are not
subjected to discrimination because of their religious or faith-based
status.
DHS believes that private, nonprofit organizations of a religious
nature which provide education, medical or custodial care, or other
eligible services, should be eligible to receive public assistance for
the repair, restoration or replacement of damaged facilities or for
hazard mitigation on the same terms as similarly situated non-religious
private, nonprofit organizations.
C. Amendments to Emergency Management Regulations
The proposed rule would also make specific changes to the
regulations under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, Public Law 93-288, as amended. The amendments would
specifically provide that if an organization is otherwise eligible to
receive funding under this section, the organization's status as faith-
based will not be considered in
[[Page 2189]]
determining whether to authorize a grant or the amount of any such
grant.
IV. Regulatory Procedures
A. Executive Order 12866
This rule is not a ``significant regulatory action'' as defined in
section 3(f) of Executive Order 12866.
B. Regulatory Flexibility Act
The Secretary of Homeland Security, in accordance with the
Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this
regulation and, by approving it, certifies that this rule would not
have a significant economic impact on a substantial number of small
entities as that term is defined in 5 U.S.C. 601(6). The proposed rule
would not impose any new costs, or modify existing costs, applicable to
recipients of DHS support. Rather, the purpose of the proposed rule is
to clarify that DHS' social service programs are open to all qualified
organizations, regardless of their religious character, and to
establish clearly the permissible uses to which DHS support may be put.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments, and on the private sector. This proposed rule does not
impose any Federal mandates on any State, local, or tribal governments,
or the private sector, within the meaning of the Unfunded Mandates
Reform Act of 1995.
D. Federalism
Pursuant to Executive Order 13132, DHS has determined that this
action will not have a substantial direct effect on the States, or the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and, therefore, does not have federalism implications.
For the reasons set forth above, DHS proposes to amend 6 CFR by
adding a new part 19 and 44 CFR part 206 as follows:
PART 19--NONDISCRIMINATION IN MATTERS PERTAINING TO FAITH-BASED
ORGANIZATIONS
1. Part 19 to title 6 of the Code of Federal Regulations is added
to read as follows:
PART 19--NONDISCRIMINATION IN MATTERS PERTAINING TO FAITH-BASED
ORGANIZATIONS
Sec.
19.1 Equal participation of faith-based organizations in Department
of Homeland Security programs and activities.
19.2 Definitions.
19.3 Equal participation faith-based organizations in DHS programs
and activities.
19.4 Inherently religious activities.
19.5 Nondiscrimination requirements.
19.6 Independence of faith-based organizations.
19.7 Exemption from Title VII employment discrimination
requirements.
19.8 Commingling of Federal and State or local funds.
Authority: 5 U.S.C. 301; 6 U.S.C. 111, 112; E.O. 13279, 67 FR
77141 and E.O. 13403, 71 FR 28543.
Sec. 19.1 Equal participation of faith-based organizations in
Department of Homeland Security programs and activities.
It is the policy of Department of Homeland Security (DHS) to ensure
the equal participation of faith-based organizations in social service
programs administered or supported by DHS or its component agencies.
The equal participation policies and requirements contained in this
section are generally applicable to faith-based organizations
participating or seeking to participate in any such programs. More
specific policies and requirements regarding the participation of
faith-based organizations in individual programs may be provided in the
regulations governing those programs.
Sec. 19.2 Definitions.
(a) Financial assistance means assistance that non-Federal entities
receive or administer in the form of grants, contracts, loans, loan
guarantees, property, cooperative agreements, food, direct
appropriations, or other assistance, including materiel for emergency
response and incident management.
(b) Social service program means a program in the United States
designed to provide relief or services to persons in need of such
relief or services, or a program designed to assist communities in all-
hazards preparedness, response and recovery activities. Social service
programs include, but are not limited to: Disaster relief programs;
preparedness programs; the preparation and delivery of meals and
services related to soup kitchens or food banks; emergency medical
services; health support services; or services related to the
integration, processing or resettlement of immigrants and refugees
coming into the United States. However, it shall not include any
program providing funds for the repair, restoration or replacement of,
or hazard mitigation for, damaged private, nonprofit facilities, as
provided for in sections 404 and 406 of the Robert T. Stafford Act,
Public Law 93-288, as amended (42 U.S.C. 5172).
(c) Inherently religious activities mean sectarian activities such
as worship, proselytization and religious instruction. An activity is
not inherently religious merely because it is motivated by religious
faith.
Sec. 19.3 Equal participation faith-based organizations in DHS
programs and activities.
(a) Faith-based organizations are eligible, on the same basis as
any other organization, to seek and receive financial assistance from
the Department of Homeland Security for social service programs or to
participate in social service programs administered or financed by DHS.
(b) Neither DHS, nor a State or local government, nor any other
entity that administers any program or activity funded by DHS, shall
discriminate for or against an organization on the basis of the
organization's religious character or affiliation.
(c) Nothing in this part shall be construed to preclude DHS, or any
of its components from accommodating religious organizations and
persons to the fullest extent consistent with the Constitution and laws
of the United States.
Sec. 19.4 Inherently religious activities.
(a) Organizations that receive direct financial assistance from DHS
to participate in or administer any social service program or activity
may not engage in inherently religious activities as part of the
programs or services funded or administered by DHS.
(b) Organizations receiving financial assistance from DHS pursuant
to DHS social service programs are free to engage in inherently
religious activities, but such activities must be
(1) Offered separately, in time or location, from the programs,
activities, or services supported by direct DHS funds pursuant to DHS
social service programs; and
(2) Voluntary for the beneficiaries of the programs, activities or
services provided.
(c) It is not a violation of this section for a faith-based
organization to inform persons of the organization's religious
activities, provided that the organization makes it clear that receipt
of any benefits or services supported by direct financial assistance
from DHS pursuant
[[Page 2190]]
to DHS social service programs, or provided in conjunction with any
benefits or services supported by direct financial assistance from DHS
pursuant to DHS social service programs, is in no way contingent on
participation or attendance at such activities.
(d) The restrictions on inherently religious activities set forth
in this section do not apply to programs where DHS funds are provided
to chaplains to work with inmates in detention facilities or where DHS
funds are provided to religious or other organizations for programs in
detention facilities, in which such organizations assist chaplains in
carrying out their duties.
Sec. 19.5 Nondiscrimination requirements.
An organization that receives direct financial assistance from DHS
pursuant to a social service program for any program or activity shall
not favor or discriminate against a beneficiary or prospective
beneficiary of said program or activity on the basis of religion,
belief or religious practice.
Sec. 19.6 Independence of faith-based organizations.
(a) A faith-based organization that participates in a social
services program administered by DHS or receives direct financial
assistance from DHS for its own program or activity will retain its
independence from Federal, State, and local governments, and may
continue to carry out its mission, including the definition, practice,
and expression of its beliefs.
(b) Faith-based organizations may use space in their facilities to
provide social services utilizing financial assistance from DHS without
removing or concealing religious articles, texts, art or symbols.
(c) A faith-based organization utilizing financial assistance from
DHS for social services programs retains its authority over internal
governance, and may also retain religious terms in its organization's
name, select its board members on a religious basis, and include
religious references in its organization's mission statements and other
governing documents.
Sec. 19.7 Exemption from Title VII employment discrimination
requirements.
(a) A faith-based organization's exemption from the Federal
prohibition on employment discrimination on the basis of religion, set
forth in section 702(a) of the Civil Rights Act of 1964 (42 U.S.C.
2000e-1), is not forfeited when the organization seeks or receives
funding from DHS for a social services program or otherwise
participates in a DHS program.
(b) Where a DHS program contains independent statutory or
regulatory provisions that impose nondiscrimination requirements on all
grantees, the provisions are not waived or mitigated by this
regulation. Accordingly, grantees should consult with the appropriate
DHS program office to determine the scope of any applicable
requirements.
Sec. 19.8 Commingling of Federal and State or local funds.
(a) If a State or local government voluntarily contributes its own
funds to supplement federally funded activities, the State or local
government has the option to segregate the Federal funds or commingle
them.
(b) If the funds are commingled, the requirements of this section
apply to all of the commingled funds.
(c) If a State or local government is required to contribute
matching funds to supplement a federally funded activity, the matching
funds are considered commingled with the Federal assistance and
therefore subject to the requirements of this section.
44 CFR CHAPTER 1--FEDERAL EMERGENCY MANAGEMENT AGENCY, DEPARTMENT OF
HOMELAND SECURITY
Subchapter A--General
PART 206--[AMENDED]
2. The authority citation for 44 CFR part 206 is revised to read as
follows:
Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121-5206; Reorganization Plan No. 3 of
1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR
19367, 3 CFR, 1979, Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR
1979 Comp., p. 412; E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp., p.
214; sections 206.226 and 206.434 are also issued under the
authority of 5 U.S.C. 301; 6 U.S.C. 111, 112; E.O. 13279, 67 FR
77141 and E.O. 13403, 71 FR 28543.
Subpart H--[Amended]
3. A new paragraph (l) to Sec. 206.226 is added to read as
follows:
Sec. 206.226 Restoration of damaged facilities.
* * * * *
(l) Facilities owned, operated or controlled by faith-based
organizations--If an organization is otherwise eligible to receive
funding under this section, the organization's status as faith-based
shall not be considered in determining whether to authorize a grant or
the amount of any such grant.
Subpart N--[Amended]
4. Section 206.434(a)(2) is revised to read as follows:
Sec. 206.434 Eligibility.
(a) * * *
(2) Private nonprofit organizations or institutions that own or
operate a private nonprofit facility as defined in Sec. 206.221. If an
organization is otherwise eligible to receive funding under this
section, the organization's status as faith-based shall not be
considered in determining whether to authorize a grant or the amount of
any such grant.
* * * * *
Dated: December 31, 2007.
Michael Chertoff,
Secretary.
[FR Doc. E8-463 Filed 1-11-08; 8:45 am]
BILLING CODE 4410-10-P