[Federal Register Volume 68, Number 189 (Tuesday, September 30, 2003)]
[Proposed Rules]
[Pages 56410-56415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24294]
[[Page 56409]]
-----------------------------------------------------------------------
Part V
Department of Justice
-----------------------------------------------------------------------
28 CFR Parts 31, 33, 38, 90, 91, and 93
Participation in Justice Department Programs by Religious
Organizations; Providing for Equal Treatment of all Justice Department
Program Participants; Proposed Rule
Federal Register / Vol. 68, No. 189 / Tuesday, September 30, 2003 /
Proposed Rules
[[Page 56410]]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Parts 31, 33, 38, 90, 91, and 93
[Docket No. OAG 106; AG Order No. 2687-2003]
RIN 1105-AA83
Participation in Justice Department Programs by Religious
Organizations; Providing for Equal Treatment of all Justice Department
Program Participants
AGENCY: Office of the Attorney General, Justice.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule proposes to 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 the Department's funding. This proposed rule
would revise Department regulations pertaining to certain programs to
bring them into compliance with this policy and to ensure that these
programs are implemented in a manner consistent with the requirements
of the Constitution, including the Religion Clauses of the First
Amendment.
DATES: Comments must be submitted by December 1, 2003.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Task Force for Faith-Based and Community
Initiatives, Office of the Deputy Attorney General, Room 4413,
Department of Justice, 950 Pennsylvania Avenue, NW., Washington, DC
20530. Communications should refer to the above docket number and
title. Facsimile (FAX) comments are not acceptable. A copy of each
communication submitted will be available for inspection and copying
between 8:30 a.m. and 5:30 p.m. at the above address.
FOR FURTHER INFORMATION CONTACT: Patrick Purtill, Director, Task Force
for Faith-Based and Community Initiatives, Department of Justice, Room
4409, 950 Pennsylvania Avenue, NW., Washington, DC 20530; telephone:
(202) 305-8283 (this is not a toll-free number). Hearing or speech-
impaired individuals may access this telephone number via TTY by
calling the toll-free Federal Information Relay Service at 1-800-877-
8339. For program-specific information, contact the following offices:
Office of Justice Programs--Bureau of Justice Assistance, (202) 307-
0635; Office of Juvenile Justice Delinquency Prevention, (202) 307-
5924; National Institute of Justice, (202) 307-2942; Drug Court
Programs Office, (202) 616-5001; Office of Victims of Crime, (202) 514-
4696; Office of Violence Against Women, (202) 307-6026; Executive
Office for Weed and Seed, (202) 616-1152; Bureau of Prisons, 202-307-
3198; National Institute of Corrections, (202) 307-3106; Community
Oriented Policing Services (COPS), (202) 307-1480 (these are not toll-
free numbers). Hearing or speech-impaired individuals 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
Religious organizations, including religiously affiliated
organizations, are an important part of the social services network of
the United States, offering a multitude of social services to those in
need. In addition to places of worship, religious organizations include
small nonprofit organizations created to provide one program or
multiple services, as well as neighborhood groups formed to respond to
a crisis or to lead community renewal. Religious groups everywhere,
either acting alone or as partners with other service providers and
government programs, serve the poor, help to reduce crime, addiction,
and delinquency, and help to strengthen families and rebuild
communities.
All too often, however, Federal policy and programs have not
recognized religious groups as resources for providing social
assistance. Federal, state, and local governments have often imposed
barriers to the participation of religious organizations in social
service programs, including unwarranted regulatory barriers.
President Bush has directed the federal agencies, including the
Justice Department, to take steps to ensure that federal policy and
programs are fully open to faith-based and community groups 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,
including those within the criminal justice system, and to revitalize
distressed neighborhoods. The Administration believes that there should
be an equal opportunity for all organizations--both religious and
nonreligious--to participate as partners 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 8499), created Centers for
Faith-Based and Community Initiatives in five cabinet departments--HUD,
Health and Human Services, Education, Labor, and Justice. The Executive
Order 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 (66 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 Order 13279, published in the Federal Register on December
12, 2002 (67 FR 77141). That Executive Order charges executive branch
agencies to give equal treatment to faith-based and community groups
that apply for funds to meet social needs in America's communities.
President Bush called for an end to discrimination against faith-based
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 government-funded programs. President Bush directed
each executive branch agency, including the Department of Justice, to
implement these policies. This proposed rule is part of the
Department's efforts to fulfill its responsibilities under these
Executive Orders.
II. This Proposed Rule
A. Purpose of Proposed Rule
Consistent with the President's initiative, this proposed rule
would revise the Department's regulations to remove unwarranted
barriers to the equal participation of faith-based organizations in the
Department's programs. The objective of this proposed rule is to ensure
that the Department's programs are open to all qualified organizations,
regardless of their religious character, and to establish clearly the
proper uses to
[[Page 56411]]
which funds may be put, and the conditions for receipt of funding. In
addition, this proposed rule is designed to ensure that the
implementation of the Department's programs is conducted in a manner
consistent with the requirements of the Constitution, including the
Religion Clauses of the First Amendment.
B. Justice Department Program Regulations Amended by Proposed Rule
This rule proposes to amend the regulations for the following
Justice Department components or offices:
1. Office of Justice Programs (OJP)
2. Bureau of Prisons (BOP)
3. National Institute of Corrections (NIC)
4. Community Oriented Policing Services (COPS)
5. Office for Violence Against Women (OVW)
6. United States Marshals Service
7. Asset Forfeiture and Money Laundering Section of the Criminal
Division
8. Civil Rights Division
C. Proposed Regulatory Amendments
This rule proposes to make the following regulations applicable to
all discretionary grant, formula grant, contract, and cooperative
agreement programs listed above.
1. Participation by faith-based organizations in Justice Department
programs. The proposed rule would make clear that organizations are
eligible to participate in Department programs without regard to their
religious character or affiliation, and that organizations may not be
excluded from the competition for Department funds simply because they
are religious. Specifically, religious organizations are eligible to
compete for funding on the same basis, and under the same eligibility
requirements, as all other nonprofit organizations. The Federal
government, as well as state and local governments administering funds
under Department programs, are prohibited from discriminating against
organizations on the basis of religion, religious belief, or religious
character in the administration or distribution of Federal financial
assistance under social service programs, including grants, contracts,
and cooperative agreements.
2. Inherently religious activities. The proposed rule describes the
requirements applicable to all recipient organizations regarding the
use of Department funds for inherently religious activities.
Specifically, a participating organization may not use direct financial
assistance \1\ from the Department to support 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 programs or services
funded with direct Department assistance, and participation must be
voluntary for the beneficiaries of the Department-funded programs or
services. This requirement ensures that direct financial assistance
from the Department to religious organizations is not used to support
inherently religious activities. Such assistance may not be used, for
example, to conduct prayer meetings, studies of sacred texts, or any
other activity that is inherently religious.
---------------------------------------------------------------------------
\1\ The term ``direct financial assistance'' is used here to
describe funds that are provided ``directly'' by a governmental
entity or an intermediate organization with the same
responsibilities as a governmental entity, as opposed to funds that
an organization receives as the result of the genuine and
independent private choice of a beneficiary. In other contexts, the
term ``direct financial assistance'' may be used to refer to those
funds that an organization receives directly from the Federal
government (also known as ``discretionary'' funding), as opposed to
funding that it receives from a State or local government (also
known as ``indirect'' or ``block grant'' funding). Again, in these
proposed regulations, the term ``direct financial assistance'' has
the former meaning.
---------------------------------------------------------------------------
This restriction does not mean that an organization that receives
Department funds cannot engage in inherently religious activities. It
simply means that such an organization cannot fund these activities
with direct financial assistance from the Department. Thus, faith-based
organizations that receive direct financial assistance from the
Department must take steps to separate, in time or location, their
inherently religious activities from the direct Department-funded
services that they offer.
These restrictions on inherently religious activities do not apply
where Department funds are provided to religious organizations as a
result of a genuine and independent private choice of a beneficiary,
provided the religious organizations otherwise satisfy the secular
requirements of the program. A religious organization may receive such
funds as the result of a beneficiary's genuine and independent choice
if, for example, a beneficiary redeems a voucher, coupon, certificate,
or similar funding mechanism that was provided to that beneficiary
using Department funds under a program that is designed to give that
beneficiary a choice among providers.
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. Accordingly,
the proposed rule recognizes that the legal restrictions applied to
religious programs within correctional facilities will sometimes be
different from the legal restrictions that are applied to other
Department programs.
3. Independence of faith-based organizations. The proposed rule
clarifies that a religious organization that participates in Department
programs will retain its independence and may continue to carry out its
mission, including the definition, practice, and expression of its
religious beliefs, provided that it does not use direct financial
assistance from the Department to support any inherently religious
activities, such as worship, religious instruction, or proselytization.
Among other things, a faith-based organization may use space in its
facilities to provide Department-funded services, without removing
religious art, icons, scriptures, or other religious symbols. In
addition, a Department-funded religious organization 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.
4. Nondiscrimination in providing assistance. The proposed rule
clarifies that an organization that receives direct financial
assistance from the Department shall not, in providing program
assistance, discriminate against a program beneficiary or prospective
program beneficiary on the basis of religion or religious belief.
Accordingly, religious organizations, in providing services directly
funded in whole or in part by the Department, may not discriminate
against current or prospective program beneficiaries on the basis of
religion or religious belief.
5. Assurance requirements. This rule proposes to direct the removal
of those provisions of the Department's agreements, covenants,
memoranda of understanding, policies, or regulations that require only
Department-funded religious organizations to provide assurances that
they will not use monies or property for inherently religious
activities. The Department imposes no comparable assurance requirements
in any other context, and the Department believes it is unfair to
require religious
[[Page 56412]]
organizations alone to provide additional assurances, above and beyond
those any other organization is required to provide, that they will
comply with Department requirements. All organizations that participate
in Department programs, including religious ones, must carry out
eligible activities in accordance with all program requirements and
other applicable requirements governing the conduct of Department-
funded activities, including those prohibiting the use of direct
financial assistance from the Department to engage in inherently
religious activities. In addition, to the extent that provisions of the
Department's agreements, covenants, policies, or regulations disqualify
religious organizations from participating in the Department's programs
because they are motivated or influenced by religious faith to provide
social services, or because of their religious character or
affiliation, the proposed rule removes that restriction, which is
inconsistent with governing law.
III. Findings and Certifications
Executive Order 12866--Regulatory Planning and Review
The Office of Management and Budget (OMB) reviewed this rule under
Executive Order 12866, Regulatory Planning and Review. 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) and, accordingly, has reviewed the
rule. Any changes made to the rule as a result of that review are
identified in the docket file, which is available for public inspection
in the office of the Task Force for Faith-based and Community
Initiatives, Room 4409, 950 Pennsylvania Ave, NW., Washington, DC
20530.
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.
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, the Department specifically solicits comments from state and
local government officials on this proposed rule.
Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made in accordance with Department regulations at 28 CFR part
61, which implement section 102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332). The Finding of No Significant
Impact is available for public inspection between the hours of 8:30
a.m. and 5:30 p.m. weekdays in the Task Force for Faith-based and
Community Initiatives, Office of the Deputy Attorney General, Room
4413, Department of Justice, 950 Pennsylvania Ave., NW., Washington, DC
20530.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed and approved this proposed rule and
in so doing certifies that this 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 Department grantees. Rather, the purpose of the proposed
rule is to remove policy prohibitions that currently restrict the equal
participation of religious or religiously affiliated organizations
(large and small) in the Department's programs. Notwithstanding the
Department's determination that this rule will not have a significant
economic effect on a substantial number of small entities, the
Department specifically invites comments regarding any less burdensome
alternatives to this rule that will meet the Department's objectives as
described in this preamble.
Catalog of Federal Domestic Assistance Numbers
The Catalog of Federal Domestic Assistance program numbers for the
programs affected by this rule are 16.579, 16.592, 16.593, 16.523,
16.540, 16.548, 16.549, 16.575, 16.588, 16.580, 16.613, 16.202, 16.585,
16.595, 16.560, 16.563, 16.541, 16.542, 16.728, 16.729, 16.730, 16.731,
16.732, 16.543, 16.544, 16.547, 16.726, 16.547, 16.582, 16.583, 16.524,
16.525, 16.587, 16.589, 16.602, 16.005, 16.108, 16.320, 16.526, 16.710,
16.110.
List of Subjects
28 CFR Part 31
Grant programs--law, Juvenile delinquency, Reporting and
recordkeeping requirements.
28 CFR Part 33
Administrative practice and procedure, Grants.
28 CFR Part 38
Administrative practice and procedure, Grant programs, Reporting
and recordkeeping requirements, Nonprofit organizations.
28 CFR Part 90
Grant programs, Judicial administration--violence against women.
28 CFR Part 91
Grant Programs--correctional facilities.
28 CFR Part 93
Grant programs, Judicial administration.
For the reasons stated in the preamble, the Department proposes to
amend chapter I of Title 28 of the Code of Federal Regulations as
follows:
PART 31--OJJDP GRANT PROGRAMS
1. The authority citation for part 31 is revised to read as
follows:
Authority: 42 U.S.C 5601 through 5785; Pub. L. 108-7, 117 Stat.
11; 5 U.S.C. 301.
2. Add Sec. 31.404 to subpart A to read as follows:
Sec. 31.404 Participation by faith-based organizations.
The funds provided under this part shall be administered in
compliance with the standards set forth in part 38 (Equal Treatment for
Faith-based Organizations) of this chapter.
3. In Sec. 31.502, add paragraph (a)(3) to read as follows:
Sec. 31.502 Assurances and plan information.
(a) * * *
(3) The funds provided under this part shall be administered in
compliance with the standards set forth in part 38 (Equal Treatment for
Faith-based Organizations) of this chapter.
* * * * *
PART 33--BUREAU OF JUSTICE ASSISTANCE GRANT PROGRAMS
4. The authority section for part 33 is revised to read as follows:
[[Page 56413]]
Authority: 42 U.S.C. 3701 through 3797y-4; 5 U.S.C. 301.
5. In suppart A under the heading Additional Requirements, add
Sec. 33.53 to read as follows:
Sec. 33.53 Participation by faith-based organizations.
The funds provided under this part shall be administered in
compliance with the standards set forth in part 38 (Equal Treatment for
Faith-based Organizations) of this chapter.
6. Add part 38 to read as follows:
PART 38--EQUAL TREATMENT FOR FAITH-BASED ORGANIZATIONS
Sec.
38.1 Discretionary grants, contracts, and cooperative agreements.
38.2 Formula grants.
Authority: 28 U.S.C. 509; 5 U.S.C. 301; E.O. 13279, 67 FR 77141,
3 CFR, 2002 Comp., p. 258; 18 U.S.C. 4001, 4042, 5040; 20 U.S.C.
1152; 21 U.S.C. 871; 25 U.S.C. 3681; Pub. L. 107-273, 116 Stat. 1758
(42 U.S.C. 3751, 3753, 3762b, 3782, 3796dd-1, 3796dd-7, 3796gg-1,
3796gg-0b, 3796gg-3, 3796h, 3796ii-2, 3797u-3, 3797w, 5611, 5672,
10604, 14071).
Sec. 38.1 Discretionary grants, contracts, and cooperative
agreements.
(a) Religious organizations are eligible, on the same basis as any
other organization, to participate in any Department program for which
they are otherwise eligible. No State or Local government receiving
funds under any Department program shall discriminate against an
organization on the basis of the organization's religious character or
affiliation. As used in this section, ``program'' refers to a grant,
contract, or cooperative agreement funded by a discretionary grant from
the Department. As used in this section, the term ``grantee'' includes
a recipient of a grant, a signatory to a cooperative agreement, or a
contracting party.
(b) (1) Organizations that receive direct financial assistance from
the Department under any Department program may not engage in
inherently religious activities, such as worship, religious
instruction, or proselytization, as part of the programs or services
funded with direct financial assistance from the Department. If an
organization conducts such activities, the activities must be offered
separately, in time or location, from the programs or services funded
with direct financial assistance from the Department, and participation
must be voluntary for beneficiaries of the programs or services funded
with such assistance.
(2) The restrictions on inherently religious activities set forth
in paragraph (b)(1) of this section do not apply to programs where
Department funds are provided to chaplains to work with inmates in
prisons, detention facilities, or community correction centers, or
where Department funds are provided to religious or other organizations
for programs in prisons, detention facilities, or community correction
centers, in which such organizations assist chaplains in carrying out
their duties.
(c) A religious organization that participates in the Department-
funded programs or services 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, provided that it does not use direct financial
assistance from the Department to support any inherently religious
activities, such as worship, religious instruction, or proselytization.
Among other things, a faith-based organization that receives financial
assistance from the Department may use space in its facilities, without
removing religious art, icons, scriptures, or other religious symbols.
In addition, a religious organization that receives financial
assistance from the Department retains its authority over its internal
governance, and it may 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.
(d) An organization that participates in programs funded by direct
financial assistance from the Department shall not, in providing
services, discriminate against a program beneficiary or prospective
program beneficiary on the basis of religion or religious belief.
(e) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by the Department or
a state or local government in administering financial assistance from
the Department shall require only religious organizations to provide
assurances that they will not use monies or property for inherently
religious activities. Any such restrictions shall apply equally to
religious and non-religious organizations. All organizations that
participate in Department programs, including religious ones, must
carry out eligible activities in accordance with all program
requirements and other applicable requirements governing the conduct of
Department-funded activities, including those prohibiting the use of
direct financial assistance from the Department to engage in inherently
religious activities. No grant document, agreement, covenant,
memorandum of understanding, policy, or regulation that is used by the
Department or a state or local government in administering financial
assistance from the Department shall disqualify religious organizations
from participating in the Department's programs because such
organizations are motivated or influenced by religious faith to provide
social services, or because of their religious character or
affiliation.
(f) Exemption from Title VII Employment Discrimination
Requirements. A religious 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 receives direct or
indirect financial assistance from the Department. Some Department
programs, however, contain independent statutory provisions requiring
that all grantees agree not to discriminate in employment on the basis
of religion. Accordingly, grantees should consult with the appropriate
Department program office to determine the scope of any applicable
requirements.
(g) In general, the Department does not require that a grantee,
including a religious organization, obtain tax-exempt status under
section 501(c)(3) of the Internal Revenue Code to be eligible for
funding under Department programs. Many grant programs, however, do
require an organization to be a ``nonprofit organization'' in order to
be eligible for funding. Individual solicitations that require
organizations to have nonprofit status will specifically so indicate in
the eligibility section of a solicitation. In addition, any
solicitation that requires an organization to maintain tax-exempt
status will expressly state the statutory authority for requiring such
status. Grantees should consult with the appropriate Department program
office to determine the scope of any applicable requirements. In
Department programs in which an applicant must show that it is a
nonprofit organization, the applicant may do so by any of the following
means:
(1) Proof that the Internal Revenue Service currently recognizes
the applicant as an organization to which contributions are tax
deductible 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:
[[Page 56414]]
(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 (3) of this
section if that item applies to a state or national parent
organization, together with a statement by the State or parent
organization that the applicant is a local nonprofit affiliate.
(i) Effect on State and local funds. If a State or local government
voluntarily contributes its own funds 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, the provisions of this section shall apply to all
of the commingled funds in the same manner, and to the same extent, as
the provisions apply to the Federal funds.
(h) To the extent otherwise permitted by federal law, the
restrictions on inherently religious activities set forth in this
section do not apply where Department funds are provided to religious
organizations as a result of a genuine and independent private choice
of a beneficiary, provided the religious organizations otherwise
satisfy the requirements of the program. A religious organization may
receive such funds as the result of a beneficiary's genuine and
independent choice if, for example, a beneficiary redeems a voucher,
coupon, or certificate, allowing the beneficiary to direct where funds
are to be paid, or a similar funding mechanism provided to that
beneficiary and designed to give that beneficiary a choice among
providers.
Sec. 38.2 Formula grants.
(a) Religious organizations are eligible, on the same basis as any
other organization, to participate in any Department program for which
they are otherwise eligible. No state or local government receiving
funds under any Department program shall discriminate against an
organization on the basis of the organization's religious character or
affiliation. As used in this section, ``program'' refers to a grant,
contract, or cooperative agreement funded by a formula or block grant
from the Department. As used in this section, the term ``grantee''
includes a recipient of a grant, a signatory to a cooperative
agreement, or a contracting party.
(b) (1) Organizations that receive direct financial assistance from
the Department may not engage in inherently religious activities, such
as worship, religious instruction, or proselytization, as part of the
programs or services funded with direct financial assistance from the
Department. If an organization conducts such activities, the activities
must be offered separately, in time or location, from the programs or
services funded with direct financial assistance from the Department,
and participation must be voluntary for beneficiaries of the programs
or services funded with such assistance.
(2) The restrictions on inherently religious activities set forth
in paragraph (b)(1) of this section do not apply to programs where
Department funds are provided to chaplains to work with inmates in
prisons, detention facilities, or community correction centers, or
where Department funds are provided to religious or other organizations
for programs in prisons, detention facilities, or community correction
centers, in which such organizations assist chaplains in carrying out
their duties.
(c) A religious organization that participates in the Department-
funded programs or services 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, provided that it does not use direct financial
assistance from the Department to support any inherently religious
activities, such as worship, religious instruction, or proselytization.
Among other things, a faith-based organization that receives financial
assistance from the Department may use space in its facilities, without
removing religious art, icons, scriptures, or other religious symbols.
In addition, a religious organization that receives financial
assistance from the Department retains its authority over its internal
governance, and it may 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.
(d) An organization that participates in programs funded by direct
financial assistance from the Department shall not, in providing
services, discriminate against a program beneficiary or prospective
program beneficiary on the basis of religion or religious belief.
(e) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by the Department or
a state or local government in administering financial assistance from
the Department shall require only religious organizations to provide
assurances that they will not use monies or property for inherently
religious activities. Any such restrictions shall apply equally to
religious and non-religious organizations. All organizations that
participate in Department programs, including religious ones, must
carry out eligible activities in accordance with all program
requirements and other applicable requirements governing the conduct of
Department-funded activities, including those prohibiting the use of
direct financial assistance to engage in inherently religious
activities. No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by the Department or
a state or local government in administering financial assistance from
the Department shall disqualify religious organizations from
participating in the Department's programs because such organizations
are motivated or influenced by religious faith to provide social
services, or because of their religious character or affiliation.
(f) Exemption from Title VII Employment Discrimination
Requirements. A religious 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 religious organization receives
direct or indirect financial assistance from Department. Some
Department programs, however, contain independent statutory provisions
requiring that all grantees agree not to discriminate in employment on
the basis of religion. Accordingly, grantees should consult with the
appropriate Department program office to determine the scope of any
applicable requirements.
(g) In general, the Department does not require that a grantee,
including a religious organization, obtain tax-exempt status under
section 501(c)(3) of the Internal Revenue Code to be eligible for
funding under Department programs. Many grant programs, however, do
require an organization to be a ``nonprofit organization'' in order to
be eligible for funding. Individual solicitations that require
organizations to have nonprofit status will specifically so indicate in
the eligibility section of a solicitation. In addition, any
solicitation that requires an organization to maintain tax-exempt
status will expressly state the statutory authority for requiring such
status. Grantees should consult with the appropriate
[[Page 56415]]
Department program office to determine the scope of any applicable
requirements. In Department programs in which an applicant must show
that it is a nonprofit organization, the applicant may do so by any of
the following means:
(1) Proof that the Internal Revenue Service currently recognizes
the applicant as an organization to which contributions are tax
deductible 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 (3) of this
section if that item applies to a state or national parent
organization, together with a statement by the State or parent
organization that the applicant is a local nonprofit affiliate.
(h) Effect on State and local funds. If a State or local government
voluntarily contributes its own funds 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, the provisions of this section shall apply to all
of the commingled funds in the same manner, and to the same extent, as
the provisions apply to the federal funds.
(i) To the extent otherwise permitted by federal law, the
restrictions on inherently religious activities set forth in this
section do not apply where Department funds are provided to religious
organizations as a result of a genuine and independent private choice
of a beneficiary, provided the religious organizations otherwise
satisfy the requirements of the program. A religious organization may
receive such funds as the result of a beneficiary's genuine and
independent choice if, for example, a beneficiary redeems a voucher,
coupon, or certificate, allowing the beneficiary to direct where funds
are to be paid, or a similar funding mechanism provided to that
beneficiary and designed to give that beneficiary a choice among
providers.
PART 90--VIOLENCE AGAINST WOMEN
7. The authority citation for part 90 is revised to read as
follows:
Authority: 42 U.S.C. 3711-3796gg-7; Sec. 826, Part E, Title
VIII, Pub. L. 105-244, 112 Stat. 1581, 1815.
8. Add Sec. 90.3 to subpart A to read as follows:
Sec. 90.3 Participation by faith-based organizations.
The funds provided under this part shall be administered in
compliance with the standards set forth in part 38 (Equal Treatment for
Faith-based Organizations) of this chapter.
PART 91--GRANTS FOR CORRECTIONAL FACILITIES
9. The authority citation for part 91 is revised to read as
follows:
Authority: 42 U.S.C. 13701 through 14223.
10. In Sec. 91.3, add paragraph (g) to read as follows:
Sec. 91.3 General eligibility requirements.
* * * * *
(g) The funds provided under this part shall be administered in
compliance with the standards set forth in part 38 (Equal Treatment for
Faith-based Organizations) of this chapter.
11. In Sec. 91.23, add paragraph (d) to read as follows:
Sec. 91.23 Grant authority.
* * * * *
(d) The funds provided under this part shall be administered in
compliance with the standards set forth in part 38 (Equal Treatment for
Faith-based Organizations) of this chapter.
PART 93--PROVISIONS IMPLEMENTING THE VIOLENT CRIME CONTROL AND LAW
ENFORCEMENT ACT OF 1994
12. The authority citation for part 93 is added to read as follows:
Authority: 42 U.S.C. 3797u through 3797y-4.
13. In Sec. 93.4, add paragraph (c) to read as follows:
* * * * *
Sec. 93.4 Grant authority.
(c) The funds provided under this part shall be administered in
compliance with the standards set forth in part 38 (Equal Treatment for
Faith-based Organizations) of this chapter.
Dated: September 17, 2003.
John Ashcroft,
Attorney General.
[FR Doc. 03-24294 Filed 9-29-03; 8:45 am]
BILLING CODE 4410-18-P