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[Federal Register: January 21, 2004 (Volume 69, Number 13)]
[Rules and Regulations] [Page 2832-2841] From the Federal
Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr21ja04-4]
DEPARTMENT OF JUSTICE 28 CFR Parts 31, 33, 38, 90, 91, and
93 [Docket No. OAG 106; AG Order No. 2703-2004] 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: Final rule.
SUMMARY: This final rule implements executive branch policy
that, within the framework of constitutional church-state guidelines,
religiously affiliated (or "faith-based") organizations
should be able to compete on an equal footing with other organizations
for the Department's funding. It revises Department regulations
to remove barriers to the participation of faith-based organizations
in Department programs 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: Effective Date: February 20, 2004.
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 and Delinquency Prevention,
(202) 307-5924; National Institute of Justice, (202) 307-2942;
Office for Victims of Crime, (202) 514-4696; Office on 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-The September 30, 2003 Proposed Rule
On September 30, 2003, the Department published a proposed
rule (68 FR 56410) to amend Department regulations that imposed
unwarranted barriers to the participation of faith-based organizations
in Department programs. The proposed rule was part of the Department's
effort to fulfill its responsibilities under two Executive Orders
issued by President Bush. The first of these Orders, Executive
Order 13198 of January 29, 2001, published in the Federal Register
on January 31, 2001 (66 FR 8497), created Centers for Faith-Based
and Community Initiatives in five cabinet departments-Housing
and Urban Development, Health and Human Services, Education,
Labor, and Justice-and directed these 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. The
second of these Executive Orders, Executive Order 13279 of December
12, 2002, published in the Federal Register on December 16, 2002
(67 FR 77141), charged 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 thereby called for an end to discrimination against faith-based
organizations and ordered implementation of these policies throughout
the executive branch in a manner consistent with the First Amendment
to the United States Constitution. He further directed that faith-based
organizations be allowed 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. The
Administration believes that there should be an equal opportunity
for all organizations-both religious and nonreligious-to participate
as partners in Federal programs.
Consistent with the President's initiative, the Department's
proposed rule of September 30, 2003 proposed to remove unwarranted
barriers to the participation of faith-based organizations by
amending the regulations for the following Department 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 on Violence Against Women (OVW).
6. United States Marshals Service.
7. Asset Forfeiture and Money Laundering Section of the Criminal
Division.
8. Civil Rights Division.
The objective of the proposed rule was to ensure that these
offices-and in particular the discretionary grants, formula grants,
contracts, cooperative agreements, and other assistance administered
through them-were open to all qualified organizations, regardless
of their religious character, and to establish clearly the proper
uses to which funds could be put and the conditions for receipt
of funding. In addition, this proposed rule was designed to ensure
that the implementation of the Department's programs would be
conducted in a manner consistent with the requirements of the
Constitution, including the Religion Clauses of the First Amendment.
The proposed rule had the following specific objectives:
1. Participation by faith-based organizations in Justice Department
programs. The proposed rule provided that organizations would
be eligible to participate in Department programs without regard
to their religious character or affiliation, and that organizations
could not be excluded from the competition for Department funds
simply because they were religious. Specifically, religious organizations
would be eligible to compete for funding on the same basis, and
under the same eligibility requirements, as all other nonprofit
organizations. The Department, as well as State and local governments
administering funds under Department programs, would be prohibited
from discriminating against organizations on the basis of religion,
religious belief, or religious character in the administration
or distribution of Federal financial assistance, including grants,
contracts, and cooperative agreements.
2. Inherently religious activities. The proposed rule described
the requirements that would be applicable [[Page 2833]] to all
recipient organizations regarding the use of Department funds
for inherently religious activities. Specifically, a participating
organization could not use direct financial assistance \1\ from
the Department to support inherently religious activities, such
as worship, religious instruction, or proselytization. If the
organization engaged in such activities, it would be required
to offer them separately, in time or location, from the programs
or services funded with direct Department assistance, and participation
would have to be voluntary for the beneficiaries of the Department-funded
programs or services. This requirement would ensure that direct
financial assistance from the Department to religious organizations
would not be used to support inherently religious activities.
Such assistance could not be used, for example, to conduct worship
services, prayer meetings, or any other activity that is inherently
religious.
\1\ As in the proposed rule, 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 under a particular program, 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 regulations, the term "direct
financial assistance" has the former meaning.
The proposed rule clarified that this restriction would not
mean that an organization that received Department funds could
not engage in inherently religious activities, but only that
such an organization could not fund these activities with direct
financial assistance from the Department. It further provided
that these restrictions on inherently religious activities would
not apply where Department funds were provided to religious organizations
as a result of a genuine and independent private choice of a
beneficiary (e.g., under a program that gave a beneficiary a
Department-funded voucher, coupon, certificate, or another funding
mechanism designed to give that beneficiary a choice among providers)
or through other indirect means, provided the religious organizations
otherwise satisfied the secular requirements of the program.
In addition, the proposed rule clarified that the legal restrictions
applied to religious programs within correctional facilities
would sometimes be different from the legal restrictions that
are applied to other Department programs, on account of the fact
that the degree of government control over correctional environments
sometimes warrants affirmative steps by prison officials, in
the form of chaplaincies and similar programs, to ensure that
prisoners have access to opportunities to exercise their religion
in the prison.
3. Independence of faith-based organizations. The proposed
rule also clarified that a religious organization that participated
in Department programs would retain its independence and could
continue to carry out its mission, including the definition,
practice, and expression of its religious beliefs, provided that
it did 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 could 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 could 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 provided that an organization that received direct financial
assistance from the Department would not be allowed, in providing
program assistance supported by such funding, to discriminate
against a program beneficiary or prospective program beneficiary
on the basis of religion or religious belief.
5. Assurance requirements. The proposed rule also directed
the removal of 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 would not use monies or property for inherently religious
activities. All organizations that participated in Department
programs, including religious ones, would be required to 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 government-funded services, or
because of their religious character or affiliation, the proposed
rule would remove that restriction, which is inconsistent with
governing law.
II. Discussion of Comments Received on the Proposed Rule
The Department received comments on the proposed rule from
9 commenters, all of which were interest groups or civil or religious
liberties organizations. Some of the comments were generally
supportive of the proposed rule; others were critical. The following
is a summary of the comments, and the Department's responses.
Participation by Faith-Based Organizations in Justice Department
Programs
Several commenters expressed appreciation and support for
the Department's efforts to clarify the rules governing participation
of faith-based organizations in its programs. Another commenter
"applauded" the distinction made in the regulation
between the content of social services provided by the religious
organization and the motivation of that organization. The commenter
pointed out that a faith-based organization's religious motivation
should not constrain its ability to provide Department-funded
services.
Other commenters disagreed with the proposed rule on the basis
that it would allow Federal funds to be given to "pervasively
sectarian" organizations. They maintained that the rule
places no limitations on the kinds of religious organizations
that can receive funds, and they requested that "pervasively
sectarian" organizations be barred from receiving Department
funds. Similarly, other commenters suggested that the proposed
rule improperly allows direct grants of public funds to religious
organizations in which religious missions overpower secular functions.
We do not agree that the Constitution requires the Department
to distinguish between different religious organizations in providing
funding for Department programs. Religious organizations that
receive direct Department funds may not use such funds for inherently
religious activities. These organizations must ensure that such
religious activities are separate in time or location from services
directly funded by the Department and must [[Page 2834]] also
ensure that participation in such religious activities is voluntary.
Furthermore, they are prohibited from discriminating against
a program beneficiary on the basis of religion or a religious
belief, and program participants that violate these requirements
will be subject to applicable sanctions and penalties. The regulations
thus ensure that there is no direct government funding of inherently
religious activities, as required by current precedent. In addition,
the Supreme Court's "pervasively sectarian" doctrine-which
held that there are certain religious institutions in which religion
is so pervasive that no government aid may be provided to them,
because their performance of even "secular" tasks will
be infused with religious purpose-no longer enjoys the support
of a majority of the Court. Four Justices expressly abandoned
it in Mitchell v. Helms, 530 U.S. 793, 825-829 (2000) (plurality
opinion), and Justice O'Connor's opinion in that case, joined
by Justice Breyer, set forth reasoning that is inconsistent with
its underlying premises, see id. at 857-858 (O'Connor, J., concurring
in judgment) (requiring proof of "actual diversion of public
support to religious uses"). Thus, six members of the Court
have rejected the view that aid provided to religious institutions
will invariably advance the institutions' religious purposes,
and that view is the foundation of the "pervasively sectarian"
doctrine. The Department therefore believes that under current
precedent, the Department may fund all service providers, without
regard to religion and free of criteria that require the provider
to abandon its religious expression or character.
Another commenter stated that the rule bans discrimination
against faith-based providers who apply to participate in Department-funded
programs, but not discrimination "in favor of" such
providers. The commenter suggested that we prohibit discrimination
both "in favor of" and against faith-based providers.
We agree with the commenter and have therefore modified the
language of the final rule to address this concern and to clarify
that the requirement of nondiscrimination applies to both the
Department and State or local officials administering Department
funds. Section 38.2 of the final rule reads: "Neither the
Department nor any State or local government receiving funds
under any Department program shall, in the selection of service
providers, discriminate for or against an organization on the
basis of the organization's religious character or affiliation."
We do note, however, that while the final rule does not permit
discrimination either in favor of or against religious providers,
nothing in the rule precludes those administering Department-funded
programs from accommodating religious organizations in a manner
consistent with the Establishment Clause.
Inherently Religious Activities
Some commenters suggested that the proposed rule does not
sufficiently detail the scope of religious content that must
be omitted from government-funded programs. For example, some
suggested that the explanation given of "inherently religious
activities" as "worship, religious instruction, or
proselytization" is unclear or incomplete. Relatedly, it
was suggested that the proposed rule authorizes conduct that
will impermissibly convey the message that the government endorses
religious content. One commenter requested that the proposed
rule be changed to make clear that the government may not disburse
public funds to organizations that convey religious messages
or in any way advance religion.
The Department disagrees with these comments. Concerning the
rule's treatment of "inherently religious" activities,
as the commenters' own submissions suggest, it would be difficult
to establish an acceptable list of all inherently religious activities.
Inevitably, the regulatory definition would fail to include some
inherently religious activities or include certain activities
that are not inherently religious. Rather than attempt to establish
an exhaustive regulatory definition, the Department has decided
to retain the language of the proposed rule, which provides examples
of the general types of activities that are prohibited by the
regulations. This approach is consistent with Supreme Court precedent,
which likewise has not comprehensively defined inherently religious
activities. For example, prayer and worship are inherently religious,
but Department-funded services do not become inherently religious
merely because they are conducted by individuals who are religiously
motivated to undertake them or view the activities as a form
of "ministry." As to the suggestion that the rule indicates
that the Department endorses religious content, it again merits
emphasis that the rule forbids the use of direct government assistance
for inherently religious activities and states that any such
activities must be voluntary and separated, in time or location,
from activities directly funded by the Department. Finally, there
is no constitutional support for the view that the government
must exclude from its programs those organizations that convey
religious messages or advance religion with their own funds.
As noted above, the Supreme Court has held that the Constitution
forbids the use of direct government funds for inherently religious
activities, but the Court has rejected the presumption that religious
organizations will inevitably divert such funds and use them
for their own religious purposes. The Department rejects the
view that organizations with religious commitments cannot be
trusted to fulfill their written promises to adhere to grant
requirements.
Voucher-Style Programs Under the Rule
Some commenters claimed that the proposed rule authorizes
a voucher program for religious organizations without instituting
adequate constitutional safeguards and requested that the rule
be revised to comply with the framework instituted by Zelman
v. Simmons Harris, 536 U.S. 639 (2002). These commenters stated
that secular alternatives are not available in the social service
context, eliminating the possibility of real choice by program
beneficiaries. They requested that the proposed rule clearly
state that beneficiaries have the right to object to a religious
provider assigned to them, to receive a secular provider, and
that they be given notice of these rights.
The Department respectfully declines to adopt the recommendations
of the commenters. First of all, the Department does not currently
operate any voucher-style programs, so any regulations in this
regard would be purely hypothetical. In addition, as the rule
states, any voucher-style programs offered by the Department
will comply with Federal law (including current precedent). The
Department thus believes that the proposed rule adequately addresses
these commenters' constitutional concerns.
The "Separate, in Time or Location" Requirement
Some commenters maintained that the proposed rule should be
amended to clarify the "separate, in time or location"
requirement. Additionally, some have suggested that the requirement
be strengthened to require that inherently religious activities
be "separate by both time and location."
The Department declines to adopt these suggestions. As an
initial matter, the Department does not believe that the requirement
is ambiguous or necessitates additional regulation for proper
adherence.
Where a religious [[Page 2835]] organization receives direct
government assistance, any religious activities that the organization
offers must simply be offered separately-in time or place-from
the activities supported by direct government funds. As to the
suggestion that the rule must require separation in both time
and location, the Department believes that such a requirement
is not legally necessary and would impose an unnecessarily harsh
burden on small faith-based organizations, which may have access
to only one location that is suitable for the provision of Department-funded
services.
The Exemption of Chaplains From the Restriction on Direct
Funding of "Inherently Religious" Activities
Some commenters have objected that chaplains who work in prisons,
detention facilities, or community correction centers, and the
religious or other organizations that assist chaplains in these
places, should not be exempt from the "inherently religious
activities" restrictions. One commenter would modify the
proposed rule to allow only clergy, but not the organizations
that assist clergy, to be exempted from this restriction. Another
commenter agreed with the exemption for inherently religious
activities in the prison context, yet requested that the proposed
rule clarify that religious activities conducted by chaplains
in detention facilities be voluntary and not coercive.
As noted in the proposed rule, the legal restrictions that
apply to religious programs within correctional facilities will
sometimes be different from legal restrictions that are applied
to other Department programs. That is because correctional institutions
are heavily regulated, and this extensive government control
over the prison environment means that prison officials must
sometimes take affirmative steps, in the form of chaplaincies
and similar programs, to provide an opportunity for prisoners
to exercise their religion. Without such efforts, religious freedom
would not exist for Federal prisoners. See Cruz v. Beto, 405
U.S. 319, 322 n.2 (1972) (explaining that "reasonable opportunities
must be afforded to all prisoners to exercise the religious freedom
guaranteed by the First and Fourteenth Amendment without fear
of penalty"); Abington School District v. Schempp, 374 U.S.
203, 299 (1963) (Brennan, J., concurring) (observing that "hostility,
not neutrality, would characterize the refusal to provide chaplains
and places of worship for prisoners * * * cut off by the State
from all civilian opportunities for public communion").
Of course, religious activities must be voluntary for the inmates.
Sometimes the activities of chaplains and those assisting
them will be inherently religious. For example, a chaplain might
conduct a voluntary worship service or administer sacraments.
The rule does not effect any change in the professional or legal
responsibilities of chaplains or those persons or organizations
assisting them. Nor does it diminish the fact that chaplains'
duties often include the provision of secular counseling. Rather,
the rule is intended simply to make clear that the rule's otherwise-applicable
restrictions on the use of direct Department financial assistance
for inherently religious activities do not apply to chaplains
in correctional facilities or those functioning in similar roles,
and the Department sees no reason to make a distinction between
clergy and those assisting them. Accordingly, the rule as stated
reflects the law and requires no change.
Applicability of Rule to "Commingled" Funds
Another commenter noted that the term "voluntarily contributes"
as used in Sec. 38.1(h) may lead to confusion over the applicability
of the section to commingled State and local funds. Section 38.1(h)
states that "[i]f a State or local government voluntarily
contributes its own funds to supplement activities carried out
under the applicable programs, * * * the provisions of this section
shall apply" to all of the funds that it commingles with
Federal funds. The commenter suggested that the paragraph specifically
include reference to "matching funds" instead of using
the term "voluntarily contributed" to make it clear
that the section shall apply to all funds commingled with Federal
funds.
The Department believes that this section of the rule is sufficiently
clear. As the rule states, when States and local governments
have the option to commingle their funds with Federal funds or
to separate State and local funds from Federal funds, Federal
rules apply if they choose to commingle their own funds with
Federal funds. Some Department programs explicitly require that
Federal rules apply to State "matching" funds, "maintenance
of effort" funds, or other grantee contributions that are
commingled with Federal funds-i.e., are part of the grant budget.
In these circumstances, Federal rules of course remain applicable
to both the Federal and State or local funds that implement the
program.
Another commenter stated that under the proposed rule, a State
or local government has the option to segregate the Federal funds
or commingle them. The commenter requested that the Department
mandate that State and local funds should be kept separate from
any Federal funds. Other commenters claimed, however, that the
proposed rule is unclear whether it applies to State funds, or
whether States can segregate their funds from Federal funds.
The commenters requested that the Department revise the proposed
rule to clarify the application of Federal rules to State funds.
The Department disagrees with these comments. As an initial
matter, the Department believes it would be inappropriate to
require States and local governments to separate their own funds
from Federal funds circumstances where there is no matching requirement
or other required grantee contribution. Where no matching requirement
or other required grantee contribution is applicable, whether
to commingle State and Federal funds is a decision for the States
and local governments to make. In addition, for the same reasons
that language concerning voluntarily commingled funds does not
require clarification, the Department believes the rule requires
no clarification as to whether it applies to State funds. As
explained above, when States and local governments have the option
to commingle their funds with Federal funds or to separate State
and local funds from Federal funds, Federal rules apply only
if they choose to commingle their own funds with Federal funds.
Where a Department program explicitly requires that Federal rules
apply to State "matching" funds, "maintenance
of effort" funds, or other grantee contributions that are
commingled with Federal funds-i.e., are part of the grant budget-Federal
rules remain applicable to both the Federal and State or local
funds that implement the program.
Faith-Based Organizations and State Action
Two commenters claimed that there is a sufficient nexus between
the organizations covered by the proposed regulation and the
government, such that the organizations are State actors subject
to constitutional requirements.
The Department disagrees with these comments. The receipt
of government funds does not convert a non-governmental organization
into a State actor subject to constitutional norms. See Rendell-Baker
v. Kohn, 457 U.S. 830 (1982) (holding that the employment decisions
of a private school that receives more than 90 percent of its
funding from the State are not State action). [[Page 2836]]
Applicability and Notice of Nondiscrimination Requirements
Two commenters suggested that the Department cannot simply
refer grantees to appropriate Department program offices to determine
the scope of applicable independent statutory provisions requiring
all grantees to agree not to discriminate in employment on the
basis of religion.
The Department understands that grantees need to be aware
of such provisions and believes such information is most easily
obtained and best explained by the appropriate Department offices.
The purpose of this rulemaking is to eliminate undue administrative
barriers that the Department has imposed to the participation
of faith-based organizations in Department programs; it is not
to alter existing statutory requirements, which apply to Department
programs to the same extent that they applied under the prior
rule.
State and Local Diversity Requirements and Preemption
Additional comments expressed concern that the proposed rule
will exempt religious organizations from State and local diversity
requirements. Further, the commenters suggested that the proposed
rule be modified to state that State and local laws will not
be preempted by the rule.
The requirements that govern funding under the Department
programs at issue in these regulations do not address preemption
of State or local laws. Federal funds, however, carry Federal
requirements. No organization is required to apply for funding
under these programs, but organizations that apply and are selected
for funding must comply with the requirements applicable to the
program funds.
Religious Organizations' Display of Religious Art or Symbols
Several commenters have disagreed with the provisions allowing
religious organizations conducting Department-funded programs
in their facilities to retain the religious art, icons, scriptures,
or other religious symbols found in their facilities.
The Department disagrees with these comments. A number of
Federal statutes affirm the principle embodied in this rule.
See, e.g., 42 U.S.C. 290kk-1(d)(2)(B). Moreover, for no other
program participants do Department regulations prescribe the
types of artwork, statues, or icons that may be placed within
the structures or rooms in which Department-funded services are
provided. In addition, a prohibition on the use of religious
icons would make it more difficult for many faith-based organizations
to participate in Department programs than other organizations
by forcing them to procure additional space. It would thus be
an inappropriate and excessive restriction, typical of the types
of regulatory barriers that this final rule seeks to eliminate.
Consistent with constitutional church-state guidelines, a faith-based
organization that participates in Department programs will retain
its independence and may continue to carry out its mission, provided
that it does not use direct Department funds to support any inherently
religious activities. Accordingly, this final rule continues
to provide that faith-based organizations may use space in their
facilities to provide Department-funded services, without removing
religious art, icons, scriptures, or other religious symbols.
Religious Freedom Restoration Act
Another commenter requested that the Department include language
in the regulation by way of notice that the Religious Freedom
Restoration Act ("RFRA"), 42 U.S.C. 2000bb et seq.,
may also provide relief from otherwise applicable provisions
prohibiting employment discrimination on the basis of religion.
The commenter noted that, for example, the Department of Health
and Human Services has recognized RFRA's ability to provide relief
from certain employment nondiscrimination requirements in the
final regulations it promulgated governing its substance abuse
and mental health programs.
The Department notes that RFRA, which applies to all Federal
law and its implementation, 42 U.S.C. 4000bb-3, 4000bb-2(1),
is applicable regardless of whether it is specifically mentioned
in these regulations. Whether or not a party is entitled to an
exemption or other relief under RFRA simply depends upon whether
the party satisfies the requirements of that statute. The Department
therefore declines to adopt this recommendation at this time.
Recognition of Religious Organizations' Title VII Exemption
A number of commenters expressed views on the rule's provision
that religious organizations do not forfeit their Title VII exemption
by receiving Department funds, absent statutory authority to
the contrary. Some expressed appreciation that a religious organization
will retain its independence in this regard, while others disagreed
with the provision retaining the Title VII exemption. Some argued
that it is unconstitutional for the government to provide funding
for provision of social services to an organization that considers
religion in its employment decisions. Others argued that Congress
must expressly preserve religious organizations' Title VII exemptions-as
it has done in certain welfare reform and substance abuse programs-for
such organizations that receive Federal funds to retain those
exemptions, and in any event that it is unwise and unfair to
secular organizations to preserve such religious exemptions as
a matter of executive branch policy. These commenters requested
that the proposed rule be amended to provide that discrimination
on the basis of religion with respect to an employment position
is not allowed if an organization is federally funded.
The Department disagrees with these objections to the rule's
recognition that a religious organization does not forfeit its
Title VII exemption when administering Department-funded services.
As an initial matter, applicable statutory nondiscrimination
requirements are not altered by this rule. Congress establishes
the conditions under which religious organizations are exempt
from Title VII; this rule simply recognizes that these requirements,
including their limitations, are fully applicable to federally
funded organizations unless Congress says otherwise. As to the
suggestion that the Constitution restricts the government from
providing funding for social services to religious organizations
that consider faith in hiring, that view does not accurately
represent the law. As noted above, the employment decisions of
organizations that receive extensive public funding are not attributable
to the State, see Rendell-Baker v. Kohn, 457 U.S. 830 (1982),
and it has been settled for more than 100 years that the Establishment
Clause does not bar the provision of direct Federal grants to
organizations that are controlled and operated exclusively by
members of a single faith. See Bradfield v. Roberts, 175 U.S.
291 (1899); see also Bowen v. Kendrick, 487 U.S. 589, 609 (1988).
Finally, the Department notes that allowing religious groups
to consider faith in hiring when they receive government funds
is much like allowing a federally funded environmental organization
to hire those who share its views on protecting the environment-both
groups are allowed to consider ideology and mission, which improves
their effectiveness and preserves their integrity. Thus, the
Department declines to amend the final rule to require religious
organizations to forfeit their Title VII rights. [[Page 2837]]
Discrimination on the Basis of Sexual Orientation
One comment objected to the ability of religious organizations
to discriminate on the basis of sexual orientation.
Although Federal law prohibits persons from being excluded
from participation in Department services or subjected to discrimination
based on race, color, national origin, sex, age, or disability,
it does not prohibit discrimination on the basis of sexual orientation.
We decline to impose additional restrictions by regulation.
Nondiscrimination in Providing Assistance
Commenters have requested that the proposed rule include a
provision protecting beneficiaries who object to the religious
character of a grantee. The comment suggests language that not
only protects beneficiaries "on the basis of religion and
religious belief," but also "on the basis of religion,
religious belief, a refusal to hold a religious belief, or a
refusal to actively participate in a religious practice."
Comments have also requested that language be added to clarify
that if a person objects to being assigned to a religious organization,
then the government must provide a secular alternative. Other
comments request that remedies and a grievance process be included
in the proposed regulation for beneficiaries who do not voluntarily
attend religious organization programs or who are not provided
an adequate alternative.
The Department declines to adopt these recommendations and
believes that the existing language prohibiting faith-based organizations
from discriminating against program beneficiaries on the basis
of "religion or religious belief" is sufficiently explicit
to include beneficiaries who hold no religious belief. Such a
prohibition is straightforward and requires no further elaboration.
In addition, the rule provides that religious organizations may
not use direct Federal funding from the Department for inherently
religious activities and that any such activities must be offered
separately, in time or location, and must be voluntary for program
beneficiaries. These requirements further protect the rights
of program beneficiaries, for whom traditional channels of airing
grievances are generally available.
Assurance Requirements
Some commenters have stated that the proposed rule must include
additional assurances to ensure that religious organizations
understand that federally funded activities must be carried out
in a secular manner. Other commenters have suggested that the
rule require unique contracts between the Department and faith-based
organization grantees to specify that government funds may not
support programs or materials that convey religious messages
or otherwise promote religion.
The final rule remains unchanged from the proposed rule on
this matter. Each grantee must sign assurances certifying that
the grantee will comply with the various laws applicable to recipients
of Federal grants, including this final rule and its prohibition
on the use of direct financial assistance from the Department
for inherently religious activities. Additional assurances, such
as those that are being removed by this rule, only perpetuate
an unfair presumption that program requirements applicable to
all program participants are insufficient to bind faith-based
organizations, such that additional requirements and assurances
must be imposed on these organizations.
The Department believes that no additional requirements above
and beyond those imposed on all participating organizations are
needed. In issuing this rule, the Department's general approach
is that faith-based organizations are not a category of applicants
or program participants that require additional requirements
or oversight in order to ensure compliance with program regulations.
Rather, the Department believes that faith-based organizations,
like other recipients of Department funds, fully understand the
restrictions on the funding they receive, including the restriction
that inherently religious activities cannot be undertaken with
direct Federal funding and must remain separate from federally
funded activities. The requirements for use of funds under a
Department program apply to, and are binding on, all Department
program participants.
A few commenters have also requested that the proposed rule
require monthly reports and periodic site visits of faith-based
grantees. Commenters have suggested that the rule should require
religious organizations to maintain separate accounts for Federal
funds to allow for proper oversight.
The Department imposes no comparable requirements in any other
context. It would be unfair to require religious organizations
alone to comply with these additional burdens. Further, the Department
finds no basis for requiring greater oversight and monitoring
of faith-based organizations than of other program participants
simply because they are faith-based organizations. All program
participants must be monitored for compliance with program requirements,
and no program participant may use Department funds for any ineligible
activity, whether that activity is an inherently religious activity
or a nonreligious activity that is outside the scope of the program
at issue. Many secular organizations participating in Department
programs also receive funding from several sources (private,
State, or local) to carry out activities that are ineligible
for funding under Department programs. In many cases, the non-eligible
activities are secular activities but not activities eligible
for funding under Department programs. All program participants
receiving funding from various sources and carrying out a wide
range of activities must ensure through proper accounting principles
that each set of funds is applied only to the activities for
which the funding was provided. Applicable policies, guidelines,
and regulations prescribe the cost accounting procedures that
are to be followed in using Department funds. This system of
monitoring is more than sufficient to address the commenters'
concerns, and the amount of oversight of religious organizations
necessary to accomplish these purposes is no different than that
involved in other publicly funded programs that the Supreme Court
has upheld.
III. Findings and Certifications
Executive Order 12866--Regulatory Planning and Review
The Office of Management and Budget (OMB) reviewed this final
rule under Executive Order 12866, Regulatory Planning and Review.
OMB determined that the 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, 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 final rule
does not impose any Federal mandates on any State, local, or
tribal governments, or the [[Page 2838]] 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
solicited comments from State and local government officials
on this proposed rule, and no comments from these entities were
submitted that raised federalism concerns.
Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made for this rule in accordance with Department regulations
at 28 CFR part 61, which implement section 102(2)© 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 final rule
and in so doing certifies that the rule will not have a significant
economic impact on a substantial number of small entities. The
final rule will not impose any new costs, or modify existing
costs, applicable to Department grantees. Rather, the purpose
of the 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 invited
comments regarding any less burdensome alternatives to this rule
that would 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 amends
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:
Authority: 42 U.S.C. 3701 through 3797y-4; 5 U.S.C. 301.
5. In subpart 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. Neither the Department
nor any State or local government receiving funds under any Department
program shall, in the selection of service providers, discriminate
for or 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 [[Page 2839]] 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©(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©(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.
Sec. 38.2 Formula grants.
(a) Religious organizations are eligible, on the same basis
as any other [[Page 2840]] organization, to participate in any
Department program for which they are otherwise eligible. Neither
the Department nor any State or local government receiving funds
under any Department program shall, in the selection of service
providers, discriminate for or 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©(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©(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 [[Page 2841]]
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 © to read as follows:
Sec. 93.4 Grant authority.
* * * * *
© The funds provided under this part shall be administered
in compliance with the tandards set forth in part 38 (Equal Treatment
for Faith-based Organizations) of this chapter.
Dated: January 14, 2004.
John Ashcroft, Attorney General.
[FR Doc. 04-1165 Filed 1-20-04; 8:45 am]
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