[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]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 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.

-----------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \1\ On May 16, 2006, Executive Order 13279 was amended by 
Executive Order 13403 to include DHS. 71 FR 28543.
---------------------------------------------------------------------------

    DHS believes that faith-based organizations have a significant role 
to play in various programs administered by DHS and in homeland 
security generally. For example, faith-based organizations have long 
been on the front lines in matters of disaster preparedness and relief, 
providing food, supplies and shelter to others in need.
    The primary reason for past exclusion of faith-based organizations 
from receipt of Federal funds generally has been a concern with the 
separation of ``church and state.'' The First Amendment provides that 
``Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof * * *'' U.S. Const., Amdt. I 
(1791). The Administration believes, however, that the First 
Amendment's prohibition against the establishment of religion is 
neither offended nor implicated when a faith-based organization 
receives Federal funds or participates in a Federally-funded program in 
order to perform a vital mission that is not inherently religious in 
nature. Further, DHS believes that the First Amendment does not 
preclude the provision of assistance to a faith-based organization 
where such assistance is available on equal terms to similarly situated 
non-faith-based organizations.
    To that end, in the case of private, nonprofit faith-based 
organizations seeking public assistance to repair, restore or replace 
otherwise eligible facilities damaged in a disaster, DHS has determined 
that such organizations should be eligible for public assistance on the 
same terms as similarly situated non-faith-based, private nonprofit 
organizations, which is consistent with current DHS practice and 
policy.

III. Proposed Rule

A. Purpose of the Proposed Rule.

    Consistent with the President's initiative, this proposed rule 
would amend DHS' regulations to make clear that faith-based 
organizations are eligible to participate in any social or community 
service programs established, administered or funded by DHS (including 
any component of DHS) (collectively, ``DHS service programs''), and are 
eligible to seek and receive Federal financial assistance from DHS 
service programs where such assistance is available to other 
organizations. The

[[Page 2188]]

objective of this proposed rule is to ensure that DHS service programs 
are open to all qualified organizations, regardless of their religious 
character. This rule also aims to set forth the conditions for seeking 
or receiving DHS support related to DHS service programs and the 
permissible uses to which such support may be put. In addition, this 
proposed rule is designed to ensure that DHS service programs are 
implemented in a manner consistent with the requirements of the 
Constitution. Separately, the proposed rule recognizes the eligibility 
of faith-based organizations for repair, restoration or replacement of 
certain nonprofit facilities under Section 406 of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act, Public Law 93-
288, as amended (42 U.S.C. 5172).

B. Proposed Amendments to DHS Regulations

    DHS proposes to amend its regulations by adding a new Part 19--
Nondiscrimination in Matters Pertaining to Faith-Based Organizations--
and to further amend its regulations at 44 CFR 206.226, to address the 
areas identified below.
1. Participation by Faith-Based Organizations in DHS Service Programs
    The proposed rule clarifies in section 19.3 that eligible 
organizations may not be excluded from the competition for DHS 
financial support for, or participation in, social service programs 
simply because such organizations are faith-based. Specifically, faith-
based organizations are eligible to compete for DHS financial support, 
and to participate in DHS service programs, on the same basis, and 
under the same eligibility requirements, as all other non-governmental 
organizations.
    DHS, DHS social service intermediary providers, and State and local 
governments administering DHS support are prohibited from 
discriminating for or against organizations on the basis of the 
organizations' religious character or affiliation.
2. Inherently Religious Activities
    DHS recognizes that Federal funds disbursed through DHS service 
programs cannot be used to advance any religious agenda. To that end, 
the proposed rule describes in section 19.4 the requirements related to 
inherently religious activities in DHS service programs administered or 
supported by the department. By way of example, a faith-based 
organization could receive funding to obtain food or clothing to 
distribute as part of a disaster relief program. It could not, however, 
proselytize while distributing those items, or otherwise utilize DHS 
support for activities such as worship or religious instruction.
    While the organization is, of course, free to engage in such 
activities, the activities must be offered separately, in time or 
location, from the social service programs receiving direct DHS 
support. Moreover, participation in inherently religious activities 
must be voluntary for the beneficiaries of such programs. Organizations 
may inform program beneficiaries of their religious activities, but, 
should they do so, they must also advise them that receipt of any 
benefits is not contingent on participation in religious activity.
3. Nondiscrimination Requirements
    The proposed rule clarifies that an organization that receives 
direct DHS financial assistance pursuant to any DHS Service program 
shall not favor or discriminate against a program beneficiary or 
prospective program beneficiary on the basis of religion, professed 
belief or religious practice.
4. Independence of Faith-Based Organizations
    Proposed section 19.6 would clarify that a faith-based organization 
that participates in a DHS program or activity will retain its 
independence from Federal, State and local governments, and may 
continue to carry out its mission, including the definition, practice, 
and expression of its religious beliefs. Among other things, faith-
based organizations may use space in their facilities to provide 
services under a DHS program, without removing religious items or 
symbols. In addition, a faith-based organization participating in a 
program funded by DHS retains its authority over its internal 
governance, and it may retain religious terms in its organization's 
name, select its board members, and otherwise govern itself on a 
religious basis and include religious references in its organization's 
mission statements and other governing documents.
5. Exemption From Title VII Employment Discrimination Requirements
    Section 19.7 of the proposed rule clarifies that a faith-based 
organization's exemption from the Federal prohibition on employment 
discrimination on the basis of religion, set forth in section 702(a) of 
the Civil Rights Act of 1964 (42 U.S.C. 2000e-1), is not forfeited when 
the organization participates in a DHS program.
    Participation in some DHS programs, however, is subject to 
independent statutory or regulatory provisions that impose certain 
nondiscrimination requirements on all grantees. This proposed rule is 
not intended to alter or waive these requirements for faith-based or 
community organizations; accordingly, grantees should consult with the 
appropriate DHS program office to determine the scope of any applicable 
requirements.
6. Commingling of Federal and State and Local Funds
    The proposed rule clarifies that if a State or local government 
voluntarily contributes its own funds to supplement federally funded 
activities, the State or local government has the option to segregate 
the Federal funds or commingle them. However, if the funds are 
commingled, the requirements of proposed section 19.8 will apply to all 
of the commingled funds. If a State or local government is required to 
contribute matching funds to supplement a federally funded activity, 
the matching funds are considered commingled with the Federal 
assistance and therefore subject to the requirements of proposed 
section 19.8. As with Title VII issues, grantees should consult with 
the appropriate DHS program office to determine the scope of any 
applicable requirements.
7. Grants for Repair, Restoration or Replacement of Damaged Facilities
    The proposed rule would ensure that private nonprofit organizations 
that qualify for public assistance under disaster relief grant 
programs, but which are inherently religious in nature, are not 
subjected to discrimination because of their religious or faith-based 
status.
    DHS believes that private, nonprofit organizations of a religious 
nature which provide education, medical or custodial care, or other 
eligible services, should be eligible to receive public assistance for 
the repair, restoration or replacement of damaged facilities or for 
hazard mitigation on the same terms as similarly situated non-religious 
private, nonprofit organizations.

C. Amendments to Emergency Management Regulations

    The proposed rule would also make specific changes to the 
regulations under the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, Public Law 93-288, as amended. The amendments would 
specifically provide that if an organization is otherwise eligible to 
receive funding under this section, the organization's status as faith-
based will not be considered in

[[Page 2189]]

determining whether to authorize a grant or the amount of any such 
grant.

IV. Regulatory Procedures

A. Executive Order 12866

    This rule is not a ``significant regulatory action'' as defined in 
section 3(f) of Executive Order 12866.

B. Regulatory Flexibility Act

    The Secretary of Homeland Security, in accordance with the 
Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this 
regulation and, by approving it, certifies that this rule would not 
have a significant economic impact on a substantial number of small 
entities as that term is defined in 5 U.S.C. 601(6). The proposed rule 
would not impose any new costs, or modify existing costs, applicable to 
recipients of DHS support. Rather, the purpose of the proposed rule is 
to clarify that DHS' social service programs are open to all qualified 
organizations, regardless of their religious character, and to 
establish clearly the permissible uses to which DHS support may be put.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments, and on the private sector. This proposed rule does not 
impose any Federal mandates on any State, local, or tribal governments, 
or the private sector, within the meaning of the Unfunded Mandates 
Reform Act of 1995.

D. Federalism

    Pursuant to Executive Order 13132, DHS has determined that this 
action will not have a substantial direct effect on the States, or the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, and, therefore, does not have federalism implications.
    For the reasons set forth above, DHS proposes to amend 6 CFR by 
adding a new part 19 and 44 CFR part 206 as follows:

PART 19--NONDISCRIMINATION IN MATTERS PERTAINING TO FAITH-BASED 
ORGANIZATIONS

    1. Part 19 to title 6 of the Code of Federal Regulations is added 
to read as follows:

PART 19--NONDISCRIMINATION IN MATTERS PERTAINING TO FAITH-BASED 
ORGANIZATIONS

Sec.
19.1 Equal participation of faith-based organizations in Department 
of Homeland Security programs and activities.
19.2 Definitions.
19.3 Equal participation faith-based organizations in DHS programs 
and activities.
19.4 Inherently religious activities.
19.5 Nondiscrimination requirements.
19.6 Independence of faith-based organizations.
19.7 Exemption from Title VII employment discrimination 
requirements.
19.8 Commingling of Federal and State or local funds.

    Authority: 5 U.S.C. 301; 6 U.S.C. 111, 112; E.O. 13279, 67 FR 
77141 and E.O. 13403, 71 FR 28543.


Sec.  19.1  Equal participation of faith-based organizations in 
Department of Homeland Security programs and activities.

    It is the policy of Department of Homeland Security (DHS) to ensure 
the equal participation of faith-based organizations in social service 
programs administered or supported by DHS or its component agencies. 
The equal participation policies and requirements contained in this 
section are generally applicable to faith-based organizations 
participating or seeking to participate in any such programs. More 
specific policies and requirements regarding the participation of 
faith-based organizations in individual programs may be provided in the 
regulations governing those programs.


Sec.  19.2  Definitions.

    (a) Financial assistance means assistance that non-Federal entities 
receive or administer in the form of grants, contracts, loans, loan 
guarantees, property, cooperative agreements, food, direct 
appropriations, or other assistance, including materiel for emergency 
response and incident management.
    (b) Social service program means a program in the United States 
designed to provide relief or services to persons in need of such 
relief or services, or a program designed to assist communities in all-
hazards preparedness, response and recovery activities. Social service 
programs include, but are not limited to: Disaster relief programs; 
preparedness programs; the preparation and delivery of meals and 
services related to soup kitchens or food banks; emergency medical 
services; health support services; or services related to the 
integration, processing or resettlement of immigrants and refugees 
coming into the United States. However, it shall not include any 
program providing funds for the repair, restoration or replacement of, 
or hazard mitigation for, damaged private, nonprofit facilities, as 
provided for in sections 404 and 406 of the Robert T. Stafford Act, 
Public Law 93-288, as amended (42 U.S.C. 5172).
    (c) Inherently religious activities mean sectarian activities such 
as worship, proselytization and religious instruction. An activity is 
not inherently religious merely because it is motivated by religious 
faith.


Sec.  19.3  Equal participation faith-based organizations in DHS 
programs and activities.

    (a) Faith-based organizations are eligible, on the same basis as 
any other organization, to seek and receive financial assistance from 
the Department of Homeland Security for social service programs or to 
participate in social service programs administered or financed by DHS.
    (b) Neither DHS, nor a State or local government, nor any other 
entity that administers any program or activity funded by DHS, shall 
discriminate for or against an organization on the basis of the 
organization's religious character or affiliation.
    (c) Nothing in this part shall be construed to preclude DHS, or any 
of its components from accommodating religious organizations and 
persons to the fullest extent consistent with the Constitution and laws 
of the United States.


Sec.  19.4  Inherently religious activities.

    (a) Organizations that receive direct financial assistance from DHS 
to participate in or administer any social service program or activity 
may not engage in inherently religious activities as part of the 
programs or services funded or administered by DHS.
    (b) Organizations receiving financial assistance from DHS pursuant 
to DHS social service programs are free to engage in inherently 
religious activities, but such activities must be
    (1) Offered separately, in time or location, from the programs, 
activities, or services supported by direct DHS funds pursuant to DHS 
social service programs; and
    (2) Voluntary for the beneficiaries of the programs, activities or 
services provided.
    (c) It is not a violation of this section for a faith-based 
organization to inform persons of the organization's religious 
activities, provided that the organization makes it clear that receipt 
of any benefits or services supported by direct financial assistance 
from DHS pursuant

[[Page 2190]]

to DHS social service programs, or provided in conjunction with any 
benefits or services supported by direct financial assistance from DHS 
pursuant to DHS social service programs, is in no way contingent on 
participation or attendance at such activities.
    (d) The restrictions on inherently religious activities set forth 
in this section do not apply to programs where DHS funds are provided 
to chaplains to work with inmates in detention facilities or where DHS 
funds are provided to religious or other organizations for programs in 
detention facilities, in which such organizations assist chaplains in 
carrying out their duties.


Sec.  19.5  Nondiscrimination requirements.

    An organization that receives direct financial assistance from DHS 
pursuant to a social service program for any program or activity shall 
not favor or discriminate against a beneficiary or prospective 
beneficiary of said program or activity on the basis of religion, 
belief or religious practice.


Sec.  19.6  Independence of faith-based organizations.

    (a) A faith-based organization that participates in a social 
services program administered by DHS or receives direct financial 
assistance from DHS for its own program or activity will retain its 
independence from Federal, State, and local governments, and may 
continue to carry out its mission, including the definition, practice, 
and expression of its beliefs.
    (b) Faith-based organizations may use space in their facilities to 
provide social services utilizing financial assistance from DHS without 
removing or concealing religious articles, texts, art or symbols.
    (c) A faith-based organization utilizing financial assistance from 
DHS for social services programs retains its authority over internal 
governance, and may also retain religious terms in its organization's 
name, select its board members on a religious basis, and include 
religious references in its organization's mission statements and other 
governing documents.


Sec.  19.7  Exemption from Title VII employment discrimination 
requirements.

    (a) A faith-based organization's exemption from the Federal 
prohibition on employment discrimination on the basis of religion, set 
forth in section 702(a) of the Civil Rights Act of 1964 (42 U.S.C. 
2000e-1), is not forfeited when the organization seeks or receives 
funding from DHS for a social services program or otherwise 
participates in a DHS program.
    (b) Where a DHS program contains independent statutory or 
regulatory provisions that impose nondiscrimination requirements on all 
grantees, the provisions are not waived or mitigated by this 
regulation. Accordingly, grantees should consult with the appropriate 
DHS program office to determine the scope of any applicable 
requirements.


Sec.  19.8  Commingling of Federal and State or local funds.

    (a) If a State or local government voluntarily contributes its own 
funds to supplement federally funded activities, the State or local 
government has the option to segregate the Federal funds or commingle 
them.
    (b) If the funds are commingled, the requirements of this section 
apply to all of the commingled funds.
    (c) If a State or local government is required to contribute 
matching funds to supplement a federally funded activity, the matching 
funds are considered commingled with the Federal assistance and 
therefore subject to the requirements of this section.

44 CFR CHAPTER 1--FEDERAL EMERGENCY MANAGEMENT AGENCY, DEPARTMENT OF 
HOMELAND SECURITY

Subchapter A--General

PART 206--[AMENDED]

    2. The authority citation for 44 CFR part 206 is revised to read as 
follows:

    Authority: Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121-5206; Reorganization Plan No. 3 of 
1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 
19367, 3 CFR, 1979, Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR 
1979 Comp., p. 412; E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp., p. 
214; sections 206.226 and 206.434 are also issued under the 
authority of 5 U.S.C. 301; 6 U.S.C. 111, 112; E.O. 13279, 67 FR 
77141 and E.O. 13403, 71 FR 28543.

Subpart H--[Amended]

    3. A new paragraph (l) to Sec.  206.226 is added to read as 
follows:


Sec.  206.226  Restoration of damaged facilities.

* * * * *
    (l) Facilities owned, operated or controlled by faith-based 
organizations--If an organization is otherwise eligible to receive 
funding under this section, the organization's status as faith-based 
shall not be considered in determining whether to authorize a grant or 
the amount of any such grant.

Subpart N--[Amended]

    4. Section 206.434(a)(2) is revised to read as follows:


Sec.  206.434  Eligibility.

    (a) * * *
    (2) Private nonprofit organizations or institutions that own or 
operate a private nonprofit facility as defined in Sec.  206.221. If an 
organization is otherwise eligible to receive funding under this 
section, the organization's status as faith-based shall not be 
considered in determining whether to authorize a grant or the amount of 
any such grant.
* * * * *

    Dated: December 31, 2007.
Michael Chertoff,
Secretary.
 [FR Doc. E8-463 Filed 1-11-08; 8:45 am]
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