[Federal Register: March 9, 2004 (Volume 69, Number 46)]
[Proposed Rule]
[Page 11233-11241]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09mr04-22]
[[Page 11233]]
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Part V
Department of Labor
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Employment and Training Administration
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20 CFR Parts 667 and 670
29 CFR Parts 2 and 37
Equal Treatment in Department of Labor Programs for Faith-Based and
Community Organizations; Protection of Religious Liberty of Department
of Labor Social Service Providers and Beneficiaries; Proposed Rule
[[Page 11234]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 667
20 CFR Part 670
Office of the Secretary
29 CFR Part 2
29 CFR Part 37
RIN 1290-AA21
Equal Treatment in Department of Labor Programs for Faith-Based
and Community Organizations; Protection of Religious Liberty of
Department of Labor Social Service Providers and Beneficiaries
AGENCY: Employment and Training Administration and the Office of the
Secretary, Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: The United States Department of Labor (DOL or the Department)
is proposing to revise its general regulations. This proposed rule
would clarify, within the framework of constitutional guidelines, that
faith-based and community organizations are able to participate in DOL
social service programs without regard to their religious character or
affiliation, and are able to apply for and compete on an equal footing
with other eligible organizations to receive DOL support. In addition,
in order to consolidate in one place the Department's regulations on
religious activities, this proposed rule would revise both the
Employment and Training Administration (ETA) regulation on religious
services at Job Corps centers and the Workforce Investment Act of 1998
(WIA) regulations relating to the use of WIA Title I financial
assistance to support employment and training in religious activities.
DOL supports the participation of faith-based and community
organizations in its programs.
DATES: Comments must be submitted by May 10, 2004.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1290-AA21, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: Comments may be submitted by e-mail to
GRNDR@dol.gov. Include RIN 1290-AA21 in the subject line of the
message.
Fax: As a convenience to commenters, comments of
five pages or less may be submitted by facsimile (``FAX'') machine to
(202) 693-6146, which is not a toll-free number.
Mail: Brent Orrell, Director, Center for Faith-
Based and Community Initiatives (CFBCI), U.S. Department of Labor,
Frances Perkins Building, 200 Constitution Ave., NW., Room S-2235,
Washington, DC 20210.
Instructions: All submissions received must include the Regulatory
Information Number (RIN) 1290-AA21 for this rulemaking. Receipt of
submissions, whether by U.S. mail, FAX transmittal, or e-mail, will not
be acknowledged. Because DOL continues to experience delays in
receiving postal mail in the Washington, DC area, commenters are
encouraged to submit any comments by mail early, or to transmit them
electronically through the Agency Web site or by FAX or e-mail.
Comments will be available for public inspection during normal
business hours at the CFBCI office, at the address listed above for
mailed comments. Persons who need assistance to review the comments
will be provided with appropriate aids such as readers or print
magnifiers. Copies of this proposed rule will be made available in the
following formats: large print, electronic file on computer disk, and
audiotape. To schedule an appointment to review the comments and/or to
obtain the Proposed Rule in an alternate format, contact CBFCI at (202)
693-6450.
FOR FURTHER INFORMATION CONTACT: On the proposed revisions to the
Office of the Secretary's general regulations, 29 CFR part 2, contact:
Rhett Butler, Associate Director for Policy Development, CFBCI, (202)
693-6450. On the proposed revisions to 20 CFR part 667, contact Maria
K. Flynn, Acting Administrator, Office of Policy Development,
Evaluation and Research, Employment and Training Administration, (202)
693-3700. On the proposed revisions to 20 CFR 670.555, contact: Richard
Trigg, Administrator of the National Office of Job Corps, (202) 693-
3000. On the proposed revisions to 29 CFR 37.6, contact Annabelle T.
Lockhart, Director, Civil Rights Center (CRC), (202) 693-6500. Please
note these are not toll-free numbers. Individuals with hearing or
speech impairments may access these telephone numbers via TTY by
calling the toll-free Federal Information Relay Service at 1-800-877-
8339.
SUPPLEMENTARY INFORMATION:
I. Background
Faith-based (or ``religious'') and community organizations are an
important part of the social services network of the United States,
offering a multitude of social services to those in need. Faith-based
and community groups everywhere, either acting alone or as partners
with other service providers and government programs, serve the poor,
and help to strengthen families and rebuild communities. All too often,
however, Federal policies and programs have not recognized faith-based
and community organizations as resources for providing social
assistance. Federal, State and local governments have often imposed
barriers to the participation of faith-based and community
organizations in social service programs, including unwarranted
regulatory barriers. President Bush has directed Federal agencies,
including DOL, to take steps to ensure that Federal policies and
programs are fully open to faith-based and community organizations in a
manner that is consistent with the Constitution. The Administration
believes that religiously affiliated or faith-based groups possess an
under-appreciated ability to meet the needs of disadvantaged Americans
and to help them enter, succeed, and thrive in the workforce. The
Administration believes that there should be an equal opportunity for
all organizations--both faith-based and otherwise--to participate in
Federal programs.
As part of these efforts, President Bush issued Executive Order
13198 on January 29, 2001. The Order, which was published in the
Federal Register on January 31, 2001 (66 FR 8497), created Centers for
Faith-Based and Community Initiatives in five cabinet departments--
Labor, Education, Health and Human Services, Housing and Urban
Development, and Justice. Executive Order 13198 charged the Centers to
identify and eliminate regulatory, contracting, and other programmatic
obstacles to the equal participation of faith-based and community
organizations in the provision of social services by their Departments.
On December 12, 2002, President Bush issued Executive Order 13280. That
Order, published in the Federal Register on December 16, 2002 (67 FR
77145), created Centers in two additional agencies--the United States
Agency for International Development and the Department of
Agriculture--and charged those Centers with duties similar to those set
forth in Executive Order 13198. On December 12, 2002, President Bush
also issued Executive
[[Page 11235]]
Order 13279, published in the Federal Register on December 16, 2002 (67
FR 77141). Executive Order 13279 charges executive branch agencies to
give equal treatment to faith-based and community organizations that
apply to the Government for Federal financial assistance to meet social
needs in America's communities. President Bush called for an end to
discrimination against faith-based and community organizations and,
consistent with the First Amendment to the United States Constitution,
ordered implementation of these policies throughout the executive
branch, including, among other things, allowing organizations to retain
their religious autonomy over their internal governance and composition
of boards, and over their display of religious art, icons, scriptures,
or other religious symbols, when participating in programs supported
with Federal financial assistance. President Bush directed each
executive agency, including DOL, to implement these policies. This
proposed rule is part of DOL's efforts to fulfill its responsibilities
under both Executive Orders 13198 and 13279.
II. Proposed Rule
A. Purpose of the Proposed Rule
Consistent with the President's initiative, this proposed rule
would revise DOL's general regulations to make clear that faith-based
and community organizations may participate in DOL social service
programs, including as recipients of Federal financial assistance. The
objective of this proposed rule is to ensure that DOL-supported social
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 DOL support related to these
programs and the permissible uses to which such support may be put. In
addition, this proposed rule is designed to ensure that DOL's social
service programs are implemented in a manner consistent with the
requirements of the Constitution, including the Religion Clauses of the
First Amendment.
B. Proposed Amendments to DOL General Regulations
DOL proposes to amend its General Regulations at 29 CFR part 2 by
incorporating a new Subpart D--Equal Treatment in DOL Programs for
Faith-Based and Community Organizations; Protection of Religious
Liberty of DOL Social Service Providers and Beneficiaries--to address
the areas identified below.
1. Participation by Faith-Based and Community Organizations in DOL
Social Service Programs
The proposed rule clarifies in Sec. 2.32 that organizations are
eligible to participate in DOL social service programs without regard
to the religious character or affiliation of such organizations, and
that eligible organizations may not be excluded from the competition
for DOL support related to DOL social service programs simply because
such organizations are faith-based. Specifically, faith-based
organizations are eligible to compete for such support on the same
basis, and under the same eligibility requirements, as all other non-
governmental organizations. DOL, DOL social service intermediary
providers, and State and local governments administering DOL support
are prohibited from discriminating for or against organizations on the
basis of the organizations' religious character or affiliation. This
rule does not, however, preclude DOL programs from accommodating
religious organizations in a manner consistent with the Establishment
Clause. Of course, all DOL programs must be implemented in a manner
consistent with the Establishment, Free Exercise, and Free Speech
Clauses of the First Amendment to the Constitution, as well as with
other applicable constitutional provisions.
2. Inherently Religious Activities
The proposed rule describes in Sec. 2.33 the requirements related
to inherently religious activities in DOL-supported social service
programs. Specifically, as described in Sec. 2.33(b), an organization
may not use direct DOL support \1\ for inherently religious activities,
such as worship, religious instruction, or proselytization. If the
organization engages in such activities, the activities must be offered
separately, in time or location, from the social service programs
receiving direct DOL support, and participation in any such inherently
religious activities must be voluntary for the beneficiaries of such
programs. This requirement ensures that DOL support provided directly
to a faith-based organization is not used for inherently religious
activities. Thus, direct DOL support may not be used, for example, to
conduct prayer meetings, worship services, or any other activity that
is inherently religious.
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\1\ As used in this proposed rule, the term ``direct DOL
support'' refers to DOL support provided directly to a religious or
other non-governmental organization within the meaning of the
Establishment Clause of the First Amendment. For example, direct DOL
support may occur where the Federal Government, a State or local
government administering DOL support, or a DOL social service
intermediary provider selects an organization and obtains the needed
services straight from the organization (e.g., via a grant or
cooperative agreement).
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This restriction does not mean that a DOL social service provider
cannot engage in inherently religious activities. Such activities are
permissible, but DOL social service providers that receive DOL support
directly must take steps to separate, in time or location, their
inherently religious activities from services that they offer with
direct DOL support.
These restrictions on inherently religious activities do not apply,
as explained in Sec. 2.33(c), where DOL support is provided indirectly
to organizations. Indirect DOL support refers to DOL support that is
indirect within the meaning of the Establishment Clause of the First
Amendment to the Constitution. An organization may receive such
indirect DOL support if, for example, a program beneficiary redeems a
voucher, coupon, certificate, or similar mechanism that was provided to
that individual using DOL financial assistance under a program that is
designed to give that individual a genuine and independent private
choice among providers or program options. See Zelman v. Simmons-
Harris, 536 U.S. 639 (2002). Vouchers might be provided, for example,
as part of an Individual Training Account (ITA) under the Workforce
Investment Act (WIA). Accordingly, if a WIA program beneficiary chose
to redeem an ITA voucher at a seminary that had qualified as an
eligible training provider, this proposed rule would not prohibit the
seminary from using such indirect financial assistance to offer a
program that integrated faith into its training program.
Correctional institutions are heavily regulated, and the degree of
government control over correctional environments means that prison
officials must sometimes take affirmative steps, in the form of
chaplaincies and similar programs, to introduce religion into the
environment. Without such efforts to make religious accommodations,
religious freedom would not exist for Federal prisoners. See Cruz v.
Beto, 405 U.S. 319, 322 n.2 (1972) (explaining that ``reasonable
opportunities must be afforded to all prisoners to exercise the
religious freedom guaranteed by the First and Fourteenth Amendment
without fear of penalty''); Abington School District v. Schempp, 374
U.S. 203, 299 (1963) (Brennan, J., concurring) (observing that
``hostility, not neutrality,
[[Page 11236]]
would characterize the refusal to provide chaplains and places of
worship to prisoners * * * cut off by the State from all civilian
opportunities for public communion''). Accordingly, the proposed rule
at Sec. 2.33(b)(3) recognizes that the legal restrictions applied to
religious activities in DOL social service programs that may be
implemented in correctional facilities may sometimes be different from
the legal restrictions that are applied to other DOL-supported social
service programs.
In addition, as addressed in Sec. 2.33(b)(3), the legal
restrictions that apply to religious activities within some DOL-
supported social service programs, e.g. isolated residential Job Corps
facilities, may sometimes be different from legal restrictions that are
applied to other DOL programs. This is because where there is extensive
government control over the environment of a DOL-supported social
service program, program officials may sometimes need to take
affirmative steps, in the form of access to ministers and similar
programs, to provide an opportunity for beneficiaries in such DOL
programs to exercise their religion. Cf. Katcoff v. Marsh, 755 F.2d
223, 234 (2d Cir. 1985) (finding it ``readily apparent'' that the
Government is obligated by the First Amendment to make religion
available to members of the Army who otherwise would not have access to
their religion because they are often in isolated areas without access
to religious opportunities). Without such efforts, religious freedom
might not exist for these DOL program beneficiaries. Of course,
religious activities must be voluntary for all beneficiaries of DOL
programs.
Finally, as referenced in Sec. 2.33(b)(2), nothing in this
regulation is intended to restrict the exercise of rights or duties
guaranteed by the Constitution. For example, program officials must not
impermissibly restrict program beneficiaries' ability to freely express
their views and to exercise their right to religious freedom.
Additionally, subject to reasonable time, place and manner
restrictions, residential facilities receiving DOL support must permit
residents opportunities to engage in voluntary religious activities,
including holding religious services, at these facilities.
3. Independence of Faith-Based and Community Organizations
The proposed rule clarifies in Sec. 2.32(b) that a faith-based or
community organization that is a DOL social service provider or
participates in DOL social service programs retains its independence
and may continue to carry out its mission, including the definition,
development, practice, and expressions of its religious beliefs. Such
an organization, however, must not use direct DOL support for any
inherently religious activities, such as worship, religious
instruction, or proselytization. Among other things, a faith-based or
community organization that is a DOL social service provider or
participates in DOL social service programs may use space in its
facilities to provide social services, without removing religious art,
icons, scriptures, or other religious symbols. In addition, such a
faith-based or community organization may retain religious terms in the
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.
4. Nondiscrimination in DOL-Supported Social Service Programs
The proposed rule clarifies in Sec. 2.33(a) that DOL, DOL social
service intermediary providers, DOL social service providers in their
use of direct DOL support, and State and local governments, must not,
in providing social services (including outreach for such services),
discriminate for or against a current or prospective program
beneficiary on the basis of religion or religious belief.
The proposed rule would not prohibit organizations receiving DOL
support indirectly (for example, organizations receiving DOL support as
the result of the genuine and independent private choice of a
beneficiary of a program offering choice among providers or program
options) from offering assistance that integrates faith and social
services and requiring participation in all aspects of the
organizations' programs and activities, including the religious
aspects. In such programs, voluntariness is ensured by the provision of
genuine choice by the beneficiary, consistent with constitutional
requirements. However, as noted in Section II.B.8 of this preamble, the
proposed rule would have no effect on existing statutes. Thus, to the
extent that such statutes restrict the activities of organizations
receiving indirect DOL support, such restrictions remain in effect.
Accordingly, the statute that applies to each program should be
reviewed for the scope of its applicability, along with any regulations
that implement specific provisions of the statute.
5. Assurance Requirements
This rule proposes in Sec. 2.32(c) to direct the removal and
prohibit the institution of any provision in agreements, covenants,
memoranda of understanding, policies, or regulations used by DOL, or by
a DOL social service intermediary provider or a State or local
government administering DOL support, that requires only faith-based
organizations receiving DOL support to provide assurances that they
will not use such support for inherently religious activities. It is
unfair to require faith-based organizations alone to provide additional
assurances that other organizations are not required to provide. All
DOL social service providers, as well as State and local governments
administering DOL support, must carry out DOL-supported activities in
accordance with all program requirements and other applicable
requirements governing the conduct of DOL-supported activities,
including those requirements prohibiting the use of direct DOL support
for inherently religious activities. In addition, to the extent that
provisions in agreements, covenants, memoranda of understanding,
policies, or regulations used by DOL, or by a DOL social service
intermediary provider or a State or local government administering DOL
support, disqualify faith-based and community organizations from
participating in DOL's programs because such organizations are
motivated or influenced by religious faith to provide social services,
or because of the organizations' religious character or affiliation,
the proposed rule would remove such restrictions, which are
inconsistent with governing law.
6. Definitions
The proposed definitions included in Sec. 2.31 of subpart D for
``Federal financial assistance'' and ``social service program'' were
based on the definitions of the same terms in Executive Order 13279.
The definitions of the terms ``DOL-supported social service program,''
``DOL social service program,'' ``DOL program,'' ``DOL social service
provider,'' ``DOL social service intermediary provider'' and ``DOL
support'' were developed to make the rule more reader-friendly.
7. Application to State and Local Funds
The proposed rule clarifies in Sec. 2.34 that if a State or local
government contributes its own funds (voluntarily or in accordance with
a matching funds program) to supplement Federal funds received to
support DOL social service programs, the State or local government has
the option to segregate the Federal funds or commingle them. However,
if the funds are commingled, the proposed
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rule would apply to both the Federal and the State or local funds.
8. Effect on Title VII Employment Nondiscrimination Requirements and on
Other Existing Statutes
The proposed rule clarifies in Sec. 2.35 that the receipt of DOL
support does not cause a religious organization to forfeit its
exemption from Title VII of the Civil Rights Act of 1964's prohibitions
on employment discrimination on the basis of religion. In addition, the
proposed rule does not alter the effect of other statutes, including
those that include requirements that recipients of certain types of DOL
support refrain from discriminating on the basis of religion. See,
e.g., section 188(a)(2) of the Workforce Investment Act of 1998, 29
U.S.C. 2938(a)(2).
9. Status of Nonprofit Organizations
The proposed rule also establishes in Sec. 2.36 certain
alternative mechanisms by which organizations can prove they are
nonprofit, which is sometimes an eligibility requirement for receiving
DOL support. The availability of these alternative mechanisms will
reduce the administrative burden required to prove nonprofit status and
make it easier to prove eligibility when seeking DOL support, thereby
allowing more organizations with limited resources to qualify for DOL
support where nonprofit status is a requirement. Because many faith-
based and community organizations have limited resources, the addition
of these alternate mechanisms is consistent with the President's policy
of enlarging eligibility for social services provision to include a
broader spectrum of providers, including faith-based and community
organizations. However, such alternative mechanisms would not apply
where a statute requires a specific method for establishing nonprofit
status.
C. Proposed Amendments to Job Corps and WIA Regulations
Consistent with the Administration's policy regarding the
participation of faith-based organizations in the Government's social
service programs as reflected in Executive Orders 13198 and 13279, and
in order to consolidate the Department's regulations regarding
religious activities and the participation of faith-based organizations
and equal treatment of such organizations, this proposed rule includes
changes to the Job Corps regulation on religious services found at 20
CFR 670.555 and to the WIA regulations on religious activities found at
29 CFR 37.6, and at 20 CFR 667.266 and 667.275, relating to the use of
WIA Title I financial assistance to support employment or training in
otherwise eligible religious activities.
1. Job Corps
With regard to the Job Corps regulation, the Department proposes to
delete paragraphs (b) and (c) of 20 CFR 670.555. Currently paragraph
(b) states that religious services may not be held on the premises of a
Job Corps center unless the center is so isolated that transportation
to and from community religious facilities is impracticable. Paragraph
(c) provides that if religious services are held on center, no Federal
funds may be paid to those who conduct such services, services may not
be confined to one denomination, and centers may not require students
to attend services. The standards for conducting religious activities
at Job Corps centers would now instead be addressed by 29 CFR part 2,
subpart D as set forth in this NPRM. Accordingly, the Department
proposes to delete paragraphs (b) and (c), redesignate existing
paragraph (d) as paragraph (b), and insert a new paragraph (c) that
would cross reference 29 CFR part 2, subpart D.
2. WIA
With regard to the WIA regulations, the Department proposes to
delete paragraph (1) of 29 CFR 37.6(f). Currently, paragraph (1) bars
recipients of WIA Title I financial assistance from permitting
``participants'' ``to be employed or trained in sectarian activities.''
(WIA ``participants'' are defined at 29 CFR 37.4 to be individuals who
have been determined to be eligible to participate in, and who are
receiving aid, benefits, services or training under, a program or
activity funded in whole or in part under Title I of WIA.) This broad
prohibition is inconsistent with current law, which permits the use of
Federal financial assistance to provide religious training if the
assistance is provided indirectly within the meaning of the
Establishment Clause of the First Amendment to the Constitution and the
providers of training otherwise satisfy the requirements of the program
(as discussed in Section II.B.2 of this preamble). The conditions under
which WIA Title I financial assistance may be used for religious
employment and training would now instead be addressed by 29 CFR part
2, subpart D, as set forth in this NPRM. Accordingly, the Department
proposes to revise paragraph (1) by deleting the existing language and
inserting new language that would cross reference 29 CFR part 2,
subpart D, as set forth in this NPRM.
For the same reasons, the Department also proposes to revise
paragraph (b)(1) of 20 CFR part 667.266. Currently, this paragraph
refers to and summarizes the restrictions set forth in paragraph (1) of
29 CFR 37.6(f). The Department proposes to revise paragraph (b)(1) by
deleting the existing language and inserting new language that would
cross reference 29 CFR part 2, subpart D, as set forth in this NPRM.
The Department also proposes to revise paragraph (b) of 20 CFR part
667.275. Like 20 CFR 667.266(b)(1), this paragraph currently refers to
and summarizes the restrictions on employment and training in otherwise
eligible religious activities that are set forth in 29 CFR 37.6(f)(1).
Therefore, the first sentence of the proposed revision of this
paragraph would parallel the proposed language for 20 CFR
667.266(b)(1), discussed above.
In addition, the existing language of 20 CFR 667.275(b) summarizes
the restrictions set forth in 29 CFR 37.6(f)(2) regarding the
employment of WIA participants to carry out the construction,
operation, or maintenance of religious facilities. To be consistent
with the revisions to 20 CFR part 667 described in the preceding
paragraphs of this preamble, the second sentence of the proposed
revisions to 20 CFR part 667 would simply cross-reference 29 CFR
37.6(f)(2), and the existing language of 20 CFR 667.275(b) would be
deleted.
Finally, the Department proposes to amend 20 CFR 667.266(b)(2). In
discussing the limitations imposed by section 188(a)(3) regarding the
employment of WIA participants to carry out the construction,
operation, or maintenance of religious facilities, the current language
of the paragraph refers incorrectly to 29 CFR 37.6(f)(1). The correct
reference is to 29 CFR 37.6(f)(2), as described above. For consistency,
the proposed revision of this paragraph is identical to the language in
the proposed revision of 20 CFR 667.275(b) regarding the same issue.
III. Regulatory Procedures
Executive Order 12866
OMB determined that this rule is a ``significant regulatory
action'' as defined in section 3(f) of the Order (although not an
economically significant regulatory action under the Order). The Office
of Management and Budget (OMB) reviewed this rule under Executive Order
12866, Regulatory Planning and Review.
Regulatory Flexibility Act
The Department has notified the Chief Counsel for Advocacy, Small
Business
[[Page 11238]]
Administration, and made the certification pursuant to the Regulatory
Flexibility Act (RFA) at 5 U.S.C. 605(b), that this proposed rule will
not have a significant economic impact on a substantial number of small
entities. The proposed rule would not impose any new costs, or modify
existing costs, applicable to recipients of DOL support. Rather, the
purpose of the proposed rule is to clarify that DOL's social service
programs are open to all qualified organizations, regardless of their
religious character, and to establish clearly the permissible uses to
which DOL support may be put. Notwithstanding the Secretary's
determination that this rule will not have a significant economic
effect on a substantial number of small entities, DOL specifically
invites comments regarding any less burdensome alternatives to this
rule that will meet DOL's objectives as described in this preamble.
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.
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
Executive Order 13132, Federalism, prohibits an agency from
publishing any rule that has federalism implications if the rule either
imposes substantial direct compliance costs on State and local
governments and is not required by statute, or the rule preempts State
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. Consistent with Executive Order
13132, DOL specifically solicits comments from State and local
government officials on this proposed rule.
List of Subjects
20 CFR Part 667
Employment; Grant programs--labor; Reporting and recordkeeping
requirements.
20 CFR Part 670
Employment; Grant programs--labor; Job Corps; Religious
discrimination.
29 CFR Part 2
Administrative practice and procedure; Claims; Courts; Government
employees; Religious discrimination.
29 CFR Part 37
Administrative practice and procedure; Aged; Aliens; Civil rights;
Discrimination; Equal educational opportunity; Equal employment
opportunity; Grant programs-labor; Individuals with disabilities;
Investigations; Manpower training programs; Political affiliation
discrimination; Religious discrimination; Reporting and recordkeeping
requirements; Sex discrimination.
For the reasons set forth in the preamble, the Department of Labor
proposes to amend 20 CFR part 667; 20 CFR part 670; 29 CFR part 2; and
29 CFR part 37 as set forth below.
Signed at Washington, DC, this 3rd day of March 2004.
Elaine L. Chao,
Secretary of Labor.
Emily S. DeRocco,
Assistant Secretary for Employment and Training.
Title 20--Employees' Benefits
Chapter V--Employment and Training Administration, Department of Labor
PART 667--ADMINISTRATIVE PROVISIONS UNDER TITLE I OF THE WORKFORCE
INVESTMENT ACT
1. The authority citation for part 667 is revised to read as
follows:
Authority: Subtitle C of Title I, Sec. 506(c), Pub. L. 105-220,
112 Stat. 936 (20 U.S.C. 9276(c)); Executive Order 13198, 66 FR
8497, 3 CFR 2001 Comp., p. 750; Executive Order 13279, 67 FR 77141,
3 CFR 2002 Comp., p. 258.
2. In Sec. 667.266, paragraph (b) is revised to read as follows:
Sec. 667.266 What are the limitations related to religious
activities?
* * * * *
(b)(1) The circumstances under which DOL support, including WIA
Title I financial assistance, may be used to employ or train
participants in religious activities are described in 29 CFR part 2,
subpart D, which also contains requirements related to equal treatment
in Department of Labor programs for religious organizations, and to
protecting the religious liberty of Department of Labor social service
providers and beneficiaries.
(2) Limitations on the use of WIA Title I financial assistance for
the maintenance of facilities used for religious instruction or worship
are described in the WIA nondiscrimination regulations at 29 CFR
37.6(f)(2).
3. In Sec. 667.275, paragraph (b) is revised to read as follows:
Sec. 667.275 What are a recipient's obligations to ensure
nondiscrimination and equal opportunity, and what are a recipient's
obligations with respect to religious activities?
* * * * *
(b) The circumstances under which recipients may use DOL support,
including WIA Title I financial assistance, to employ or train
participants in religious activities are described in 29 CFR part 2,
subpart D, which also contains requirements related to equal treatment
of religious organizations in Department of Labor programs, and to
protection of religious liberty of Department of Labor social service
providers and beneficiaries. Limitations on the use of WIA Title I
financial assistance for the maintenance of facilities used for
religious instruction or worship are described in the WIA
nondiscrimination regulations at 29 CFR 37.6(f)(2). See section
188(a)(3) of the Workforce Investment Act of 1998, 29 U.S.C.
2938(a)(3).
PART 670--THE JOB CORPS UNDER TITLE I OF THE WORKFORCE INVESTMENT
ACT
4. The authority citation for part 670 is revised to read as
follows:
Authority: Subtitle C of Title I, Sec. 506(c), Pub. L. 105-220,
112 Stat. 936 (20 U.S.C. 2881 et seq. and 9276(c)); 5 U.S.C. 301;
Executive Order 13198, 66 FR 8497, 3 CFR 2001 Comp., p. 750);
Executive Order 13279, 67 FR 77141, 3 CFR 2002 Comp., p. 258.
5. Section 670.555 is amended by removing paragraph (b),
redesignating paragraph (d) as paragraph (b), and revising paragraph
(c) to read as follows:
Sec. 670.555 What are the center's responsibilities in ensuring that
students' religious rights are respected?
* * * * *
(c) Requirements related to equal treatment of religious
organizations in Department of Labor programs, and to protection of
religious liberty of Department of Labor social service providers and
beneficiaries, are found at subpart D of 29 CFR part 2. See also
Sec. Sec. 667.266 and 667.275 of 20 CFR; 29 CFR part 37.
[[Page 11239]]
Title 29--Labor
Chapter I--Office of the Secretary of Labor
PART 2--GENERAL REGULATIONS
7. The authority citation for part 2 is revised to read as follows:
Authority: 5 U.S.C. 301; Executive Order 13198, 66 FR 8497, 3
CFR 2001 Comp., p. 750; Executive Order 13279, 67 FR 77141, 3 CFR
2002 Comp., p. 258.
8. Part 2 is amended by adding a new subpart D to read as follows:
PART 2--GENERAL REGULATIONS
* * * * *
Subpart D--Equal Treatment in Department of Labor Programs for
Religious Organizations; Protection of Religious Liberty of
Department of Labor Social Service Providers and Beneficiaries
2.30 Purpose.
2.31 Definitions.
2.32 Equal participation of religious organizations.
2.33 Responsibilities of DOL, DOL social service providers and State
and local governments administering DOL support.
2.34 Application to State and local funds.
2.35 Effect of DOL support on Title VII employment nondiscrimination
requirements and on other existing statutes.
2.36 Status of nonprofit organizations.
Sec. 2.30 Purpose.
The purpose of the regulations in this subpart is to ensure that
DOL-supported social service programs are open to all qualified
organizations, regardless of the organizations' religious character,
and to establish clearly the permissible uses to which DOL support for
social service programs may be put, and the conditions for receipt of
such support. In addition, this proposed rule is designed to ensure
that the Department's social service programs are implemented in a
manner consistent with the requirements of the Constitution, including
the Religion Clauses of the First Amendment.
Sec. 2.31 Definitions.
As used in the regulations in this subpart:
(a) The term Federal financial assistance means assistance that
non-Federal entities (including State and local governments) receive or
administer in the form of grants, contracts, loans, loan guarantees,
property, cooperative agreements, direct appropriations, or other
direct or indirect assistance, but does not include a tax credit,
deduction or exemption.
(b) The term social service program means a program that is
administered or supported by the Federal Government, or by a State or
local government using Federal financial assistance, and that provides
services directed at reducing poverty, improving opportunities for low-
income children, revitalizing low-income communities, empowering low-
income families and low-income individuals to become self-sufficient,
or otherwise helping people in need. Such programs include, but are not
limited to, the following:
(1) Child care services and services to meet the special needs of
children, older individuals, and individuals with disabilities
(including physical, mental, or emotional disabilities);
(2) Job training and related services, and employment services;
(3) Information, referral, and counseling services;
(4) Literacy and mentoring programs; and
(5) Services for the prevention and treatment of juvenile
delinquency and substance abuse, services for the prevention of crime
and the provision of assistance to the victims and the families of
criminal offenders, and services related to intervention in, and
prevention of domestic violence.
(c) The term DOL means the U.S. Department of Labor.
(d) The term DOL-supported social service program, DOL social
service program, or DOL program means a social service program, as
defined in paragraph (b) of this section, that is administered by or
for DOL with DOL support. Such programs include, but are not limited
to, the One Stop Career Center System, the Job Corps, and other
programs supported through the Workforce Investment Act.
(e) The term DOL social service provider means any non-Federal
organization, other than a State or local government, that seeks or
receives DOL support as defined in paragraph (g) of this section, or
participates in DOL programs other than as the ultimate beneficiary of
such programs.
(f) The term ``DOL social service intermediary provider'' means any
DOL social service provider that, as part of its duties, selects
subgrantees to receive DOL support or subcontractors to provide DOL-
supported services, or has the same duties under this part as a
governmental entity.
(g) The term DOL support means Federal financial assistance, as
well as procurement funding provided to a non-Federal organization,
including a State or local government, to support the organization's
administration of or participation in a DOL social service program as
defined in paragraph (d) of this section.
Sec. 2.32 Equal participation of religious organizations.
(a) Religious organizations must be eligible, on the same basis as
any other organization, to seek DOL support or participate in DOL
programs for which they are otherwise eligible. DOL, DOL social service
intermediary providers, as well as State and local governments
administering DOL support, must not discriminate for or against an
organization on the basis of the organization's religious character or
affiliation, although this requirement does not preclude DOL, DOL
social service providers, or State and local governments administering
DOL support from accommodating religion in a manner consistent with the
Establishment Clause. In addition, DOL, DOL social service intermediary
providers, and State and local governments administering DOL support
must continue to comply with otherwise applicable constitutional
principles, including, among others, those articulated in the
Establishment, Free Speech, and Free Exercise Clauses of the First
Amendment to the Constitution.
(b) A religious organization that is a DOL social service provider
retains its independence from Federal, State, and local governments and
must be permitted to continue to carry out its mission, including the
definition, practice, and expression of its religious beliefs, subject
to the provisions of Sec. 2.33 of this subpart. Among other things,
such a religious organization must be permitted to:
(1) Use its facilities to provide DOL-supported social services
without removing or altering religious art, icons, scriptures, or other
religious symbols from those facilities; and
(2) Retain its authority over its internal governance, including
retaining religious terms in its name, selecting its board members on a
religious basis, and including religious references in its mission
statements and other governing documents.
(c) A grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by DOL, a State or
local government administering DOL support, or a DOL social service
intermediary provider must not require only religious organizations to
provide assurances that they will not use direct DOL support for
inherently religious activities. Any such requirements must apply
equally to both religious and other organizations. All organizations,
including religious ones,
[[Page 11240]]
that are DOL social service providers must carry out DOL-supported
activities in accordance with all applicable legal and programmatic
requirements, including those prohibiting the use of direct DOL support
for inherently religious activities. A grant document, agreement,
covenant, memorandum of understanding, policy, or regulation that is
used by DOL, a State or local government, or a DOL social service
intermediary provider in administering a DOL social service program
must not disqualify religious organizations from receiving DOL support
or participating in DOL programs on the grounds that such organizations
are motivated or influenced by religious faith to provide social
services, or on the grounds that such organizations have a religious
character or affiliation.
Sec. 2.33 Responsibilities of DOL, DOL social service providers and
State and local governments administering DOL support.
(a) DOL, DOL social service intermediary providers, DOL social
service providers in their use of direct DOL support, and State and
local governments administering DOL support must not, when providing
social services, discriminate for or against a current or prospective
program beneficiary on the basis of religion or religious belief. This
requirement does not preclude DOL, DOL social service intermediary
providers, or State or local governments administering DOL support from
accommodating religion in a manner consistent with the Establishment
Clause of the First Amendment to the Constitution.
(b)(1) DOL, DOL social service providers, and State and local
governments administering DOL support must ensure that they do not use
direct DOL support for inherently religious activities such as worship,
religious instruction, or proselytization. DOL social service providers
must be permitted to offer inherently religious activities so long as
they offer those activities separately in time or location from social
services receiving direct DOL support, and participation in the
inherently religious activities is voluntary for the beneficiaries of
social service programs receiving direct DOL support. For example,
participation in an inherently religious activity must not be a
condition for participating in a directly-supported social service
program.
(2) This regulation is not intended to and does not restrict the
exercise of rights or duties guaranteed by the Constitution. For
example, program officials must not impermissibly restrict the ability
of program beneficiaries or DOL social service providers to freely
express their views and to exercise their right to religious freedom.
Additionally, subject to reasonable and permissible time, place and
manner restrictions, residential facilities that receive DOL support
must permit residents to engage in voluntary religious activities,
including holding religious services, at these facilities.
(3) Notwithstanding the requirements of paragraph (b)(1), and to
the extent otherwise permitted by Federal law (including constitutional
requirements), direct DOL support may be used to support inherently
religious activities, and such activities need not be provided
separately in time or location from other DOL-supported activities,
under the following circumstances:
(i) Where DOL support is provided to chaplains to work with inmates
in prisons, detention facilities, or community correction centers
through social service programs;
(ii) Where DOL support is provided to social service programs in
prisons, detention facilities, or community correction centers, in
which such organizations assist chaplains in carrying out their duties;
or
(iii) Where DOL-supported social service programs involve such a
degree of government control over the program environment that
religious exercise would be significantly burdened absent affirmative
steps by DOL or its social service providers.
(c) To the extent otherwise permitted by Federal law, the
restrictions set forth in this section regarding the use of direct DOL
support do not apply to social service programs where DOL support is
provided to a religious or other non-governmental organization
indirectly within the meaning of the Establishment Clause of the First
Amendment to the Constitution. Religious or other non-governmental
organizations will be considered to have received support indirectly,
for example, if as a result of a program beneficiary's genuine and
independent choice the beneficiary redeems a voucher, coupon, or
certificate that allows the beneficiary to choose the service provider,
or some other mechanism is provided to ensure that beneficiaries have a
genuine and independent choice among providers or program options. All
organizations must, however, satisfy all applicable legal and
programmatic requirements.
Sec. 2.34 Application to State and local funds.
If a State or local government contributes its own funds
(voluntarily or in accordance with a matching funds program) to
supplement activities carried out under the applicable programs, the
State or local government has the option to separate out the Federal
funds or commingle them. If the funds are commingled, then the
provisions of this subpart apply to all of the commingled funds in the
same manner, and to the same extent, as the provisions apply to the
Federal assistance.
Sec. 2.35 Effect of DOL support on Title VII employment
nondiscrimination requirements and on other existing statutes.
A religious organization's exemption from the Federal prohibition
on employment discrimination on the basis of religion, set forth in
Sec. 702(a) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-1, is not
forfeited when the organization receives direct or indirect DOL
support. Some DOL programs, however, were established through Federal
statutes containing independent statutory provisions requiring that
recipients refrain from discriminating on the basis of religion.
Accordingly, to determine the scope of any applicable requirements,
recipients and potential recipients should consult with the appropriate
DOL program official or with the Civil Rights Center, U.S. Department
of Labor, 200 Constitution Avenue, NW., Room N4123, Washington, DC
20210, (202) 693-6500. Individuals with hearing or speech impairments
may access this telephone number via TTY by calling the toll-free
Federal Information Relay Service at 1-800-877-8339.
Sec. 2.36 Status of nonprofit organizations.
(a) In general, DOL does not require that an organization,
including a religious organization, obtain tax-exempt status under
section 501(c)(3) of the Internal Revenue Code in order to be eligible
for Federal financial assistance under DOL social service programs.
Many such programs, however, do require an organization to be a
``nonprofit organization'' in order to be eligible for such support.
Individual solicitations that require organizations to have nonprofit
status must specifically so indicate in the eligibility section of the
solicitation. In addition, any solicitation for a program that requires
an organization to maintain tax-exempt status must expressly state the
statutory authority for requiring such status. For assistance with
questions about a particular solicitation, applicants should contact
the DOL program office that issued the solicitation.
(b) Unless otherwise provided by statute, in DOL programs in which
an
[[Page 11241]]
applicant must show that it is a nonprofit organization, the applicant
must be permitted to do so by any of the following means:
(1) Proof that the Internal Revenue Service currently recognizes
the applicant as tax exempt under section 501(c)(3) of the Internal
Revenue Code;
(2) A statement from a State taxing body or the State Secretary of
State certifying that:
(i) the organization is a nonprofit organization operating within
the State; and
(ii) no part of its net earnings may lawfully benefit any private
shareholder or individual;
(3) A certified copy of the applicant's certificate of
incorporation or similar document that clearly establishes the
nonprofit status of the applicant; or
(4) Any item described in paragraphs (b)(1) through (b)(3) of this
section, if that item applies to a State or national parent
organization, together with a statement by the State or national parent
organization that the applicant is a local nonprofit affiliate of the
organization.
PART 37--IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL
OPPORTUNITY PROVISIONS OF THE WORKFORCE INVESTMENT ACT OF 1998
(WIA)
9. The authority citation for part 37 is revised to read as
follows:
Authority: Sections 134(b), 136(d)(2)(F), 136(e), 172(a),
183(c), 185(d)(1)(E), 186, 187 and 188 of the Workforce Investment
Act of 1998, 29 U.S.C. 2801, et seq.; Title VI of the Civil Rights
Act of 1964, as amended, 42 U.S.C. 2000d, et seq.; section 504 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794; the Age
Discrimination Act of 1975, as amended, 42 U.S.C. 6101; Title IX of
the Education Amendments of 1972, as amended, 29 U.S.C. 1681;
Executive Order 13198, 66 FR 8497, 3 CFR 2001 Comp., p. 750; and
Executive Order 13279, 67 FR 77141, 3 CFR 2002 Comp., p. 258.
10. In Sec. 37.6, paragraph (f)(1) is revised to read as follows:
Sec. 37.6 What specific discriminatory actions, based on prohibited
grounds other than disability, are prohibited by this part?
* * * * *
(f)(1) The circumstances under which recipients may use DOL
support, including WIA Title I financial assistance, to employ or train
participants in religious activities are described in 29 CFR part 2,
subpart D, which also contains requirements related to equal treatment
of religious organizations in Department of Labor programs, and to
protection of religious liberty for Department of Labor social service
providers and beneficiaries. See also Sec. Sec. 667.266 and 667.275 of
20 CFR.
* * * * *
[FR Doc. 04-5133 Filed 3-8-04; 8:45 am]
BILLING CODE 4510-23-P