[Federal Register Volume 73, Number 9 (Monday, January 14, 2008)]
[Proposed Rules]
[Pages 2187-2190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-463]
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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.
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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.
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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: http://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 http://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 http://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).
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\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
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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.
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]
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