[Federal Register Volume 76, Number 58 (Friday, March 25, 2011)]
[Proposed Rules]
[Pages 16712-16714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6974]
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AGENCY FOR INTERNATIONAL DEVELOPMENT
22 CFR Part 205
RIN 0412 AA-69
Participation by Religious Organizations in USAID Programs
AGENCY: United States Agency for International Development (USAID).
ACTION: Proposed rule.
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SUMMARY: USAID is proposing to amend part 205 to more accurately
reflect current Establishment Clause jurisprudence with respect to the
use of Federal funds for inherently religious activities.
DATES: Comments must be submitted by May 9, 2011.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to: The Center for Faith-Based and Community
Initiatives, U.S. Agency for International Development, Room 6.07-023,
1300 Pennsylvania Avenue, NW., Washington, DC 20523. Communications
should refer to the ``proposed rule.'' You may submit your comments by
fax to 202-216-0077 or by e-mail to [email protected]. A copy of each
communication submitted will be available for inspection and copying
[[Page 16713]]
between 8:30 a.m. and 5:30 p.m. at the above address.
FOR FURTHER INFORMATION CONTACT: Ari Alexander, Director, Center for
Faith-Based and Community Initiatives, USAID, Room 6.07-023, 1300
Pennsylvania Avenue, NW., Washington, DC 20523; telephone: (202) 712-
4080 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Background
On October 20, 2004, USAID published its final rule (the ``Final
Rule'') on participation by religious organizations in USAID programs
(69 FR 61716, codified at 22 CFR parts 202, 205, 211, and 226). The
Final Rule implemented Executive Branch policy that, within the
framework of constitutional guidelines, religious organizations should
be able to compete on an equal footing with other organizations for
USAID funding. The Final Rule revised USAID regulations pertaining to
grants, cooperative agreements and contracts awarded for the purpose of
administering grant programs to ensure their compliance with this
policy and to clarify that religious organizations are eligible to
participate in programs on the same basis as any other organization,
with respect to programs for which such other organizations are
eligible.
Among other things, the Final Rule provided that USAID funds could
be used for the acquisition, construction, or rehabilitation of
structures only to the extent that those structures were used for
conducting eligible activities under the specific USAID program. Where
a structure is used for both eligible and inherently religious
activities, the Final Rule clarified that USAID funds could not exceed
the cost of those portions of the acquisition, construction, or
rehabilitation that were attributable to eligible activities. The Final
Rule went on to state that USAID funds could not be used for
acquisition, construction, or rehabilitation of sanctuaries, chapels,
or any other room that a religious congregation that is a recipient or
sub-recipient of USAID assistance uses as its principal place of
worship.
II. This Proposed Rule
Based on further legal review, USAID has concluded that some
provisions in the Final Rule go beyond the requirements of the
Establishment Clause and other Federal law, are not supported by
Establishment Clause jurisprudence, and constrict USAID's ability to
pursue the national security and foreign policy interests of the United
States overseas. As such, these provisions unnecessarily and unduly
restrict and interfere with the ability of USAID to effectively
implement the bilateral foreign assistance programs of the United
States. Accordingly, USAID proposes to amend the Final Rule to provide
that, in general, nothing in USAID's regulations should be construed to
prohibit USAID funds from being used for activities that are permitted
under Establishment Clause jurisprudence or otherwise by law and that,
in particular, USAID funds may be used for the acquisition,
construction, or rehabilitation of structures that are used, in whole
or in part, for inherently religious activities, so long as the program
for which USAID assistance is provided (i) Is authorized by law and has
a secular purpose, (ii) is made generally available to a wide range of
organizations and beneficiaries which are defined without reference to
religion, (iii) has the effect of furthering a development objective,
(iv) the criteria upon which structures are selected for acquisition,
construction, or rehabilitation are religiously neutral, and (v) the
selection criteria are amenable to neutral application. Examples of
programs where USAID funds may be used for the acquisition,
construction, or rehabilitation of structures that are used, in whole
or in part, for inherently religious activities include, but are not
limited to, rehabilitation or reconstruction programs in a defined
geographic area following a natural or manmade disaster; rehabilitation
or reconstruction programs for schools; cultural or historical
preservation of structures that are architectural, artistic, cultural,
or historical landmarks; and rehabilitation or reconstruction programs
to promote tourism or other related economic activities.
III. Findings and Certifications or Impact Assessment
Regulatory Planning and Review
This is not a significant regulatory action and, therefore, is not
subject to review under section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
Regulatory Flexibility Act
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601 et seq.), USAID has considered the economic
impact of the proposed rule and has determined that its provisions
would not have a significant economic impact on a substantial number of
small entities.
List of Subjects of 22 CFR Part 205
Foreign aid, Grant programs, Nonprofit organizations.
For the reasons stated in the preamble, USAID proposes to amend
chapter II of title 22 of the Code of Federal Regulations as follows:
PART 205--PARTICIPATION BY RELIGIOUS ORGANIZATIONS IN USAID
PROGRAMS
1. The authority citation for part 205 continues to read as
follows:
Authority: 22 U.S.C. 2381(a).
2. Revise Sec. 205.1(d), revise paragraph (d) and add paragraph
(j) to read as follows:
Sec. 205.1 Grants and cooperative agreements.
* * * * *
(d) USAID funds may be used for the acquisition, construction, or
rehabilitation of structures that are used, in whole or in part, for
inherently religious activities so long as the program for which USAID
assistance is provided is authorized by law and has a secular purpose,
is made generally available to a wide range of organizations and
beneficiaries which are defined without reference to religion, has the
effect of furthering a development objective, the criteria upon which
structures are selected for acquisition, construction, or
rehabilitation are religiously neutral, and the selection criteria are
amenable to neutral application. Examples of programs where USAID funds
may be used for the acquisition, construction, or rehabilitation of
structures that are used, in whole or in part, for inherently religious
activities include, but are not limited to, rehabilitation or
reconstruction programs in a defined geographic area following a
natural or manmade disaster; rehabilitation or reconstruction programs
for schools; rehabilitation or reconstruction of structures that are
architectural, artistic, cultural, or historical landmarks for cultural
or historical preservation; and rehabilitation or reconstruction
programs to promote tourism or other related economic activities.
* * * * *
(j) Recognizing that USAID pursues the national security and
foreign policy interests of the United States overseas, nothing in this
Part shall be construed to prohibit USAID funds from being used for
activities that are permitted by Establishment Clause jurisprudence or
otherwise by law.
[[Page 16714]]
Dated: March 4, 2011.
Ari Alexander,
Director, Center for Faith-Based and Community Initiatives.
[FR Doc. 2011-6974 Filed 3-24-11; 8:45 am]
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