2011-6974. Participation by Religious Organizations in USAID Programs

AGENCY:

United States Agency for International Development (USAID).

ACTION:

Proposed rule.

SUMMARY:

USAID is proposing to amend part 205 to more accurately reflect current Establishment Clause jurisprudence with respect to the use of Federal funds for inherently religious activities.

DATES:

Comments must be submitted by May 9, 2011.

ADDRESSES:

Interested persons are invited to submit comments regarding this proposed rule to: The Center for Faith-Based and Community Initiatives, U.S. Agency for International Development, Room 6.07-023, 1300 Pennsylvania Avenue, NW., Washington, DC 20523. Communications should refer to the “proposed rule.” You may submit your comments by fax to 202-216-0077 or by e-mail to [e-mail]. A copy of each communication submitted will be available for inspection and copying between 8:30 a.m. and 5:30 p.m. at the above address.

FOR FURTHER INFORMATION CONTACT:

Ari Alexander, Director, Center for Faith-Based and Community Initiatives, USAID, Room 6.07-023, 1300 Pennsylvania Avenue, NW., Washington, DC 20523; telephone: [phone] (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Background

On October 20, 2004, USAID published its final rule (the “Final Rule”) on participation by religious organizations in USAID programs (69 FR 61716, codified at 22 CFR parts 202, 205, 211, and 226). The Final Rule implemented Executive Branch policy that, within the framework of constitutional guidelines, religious organizations should be able to compete on an equal footing with other organizations for USAID funding. The Final Rule revised USAID regulations pertaining to grants, cooperative agreements and contracts awarded for the purpose of administering grant programs to ensure their compliance with this policy and to clarify that religious organizations are eligible to participate in programs on the same basis as any other organization, with respect to programs for which such other organizations are eligible.

Among other things, the Final Rule provided that USAID funds could be used for the acquisition, construction, or rehabilitation of structures only to the extent that those structures were used for conducting eligible activities under the specific USAID program. Where a structure is used for both eligible and inherently religious activities, the Final Rule clarified that USAID funds could not exceed the cost of those portions of the acquisition, construction, or rehabilitation that were attributable to eligible activities. The Final Rule went on to state that USAID funds could not be used for acquisition, construction, or rehabilitation of sanctuaries, chapels, or any other room that a religious congregation that is a recipient or sub-recipient of USAID assistance uses as its principal place of worship.

II. This Proposed Rule

Based on further legal review, USAID has concluded that some provisions in the Final Rule go beyond the requirements of the Establishment Clause and other Federal law, are not supported by Establishment Clause jurisprudence, and constrict USAID's ability to pursue the national security and foreign policy interests of the United States overseas. As such, these provisions unnecessarily and unduly restrict and interfere with the ability of USAID to effectively implement the bilateral foreign assistance programs of the United States. Accordingly, USAID proposes to amend the Final Rule to provide that, in general, nothing in USAID's regulations should be construed to prohibit USAID funds from being used for activities that are permitted under Establishment Clause jurisprudence or otherwise by law and that, in particular, USAID funds may be used for the acquisition, construction, or rehabilitation of structures that are used, in whole or in part, for inherently religious activities, so long as the program for which USAID assistance is provided (i) Is authorized by law and has a secular purpose, (ii) is made generally available to a wide range of organizations and beneficiaries which are defined without reference to religion, (iii) has the effect of furthering a development objective, (iv) the criteria upon which structures are selected for acquisition, construction, or rehabilitation are religiously neutral, and (v) the selection criteria are amenable to neutral application. Examples of programs where USAID funds may be used for the acquisition, construction, or rehabilitation of structures that are used, in whole or in part, for inherently religious activities include, but are not limited to, rehabilitation or reconstruction programs in a defined geographic area following a natural or manmade disaster; rehabilitation or reconstruction programs for schools; cultural or historical preservation of structures that are architectural, artistic, cultural, or historical landmarks; and rehabilitation or reconstruction programs to promote tourism or other related economic activities.

III. Findings and Certifications or Impact Assessment

Regulatory Planning and Review

This is not a significant regulatory action and, therefore, is not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

Regulatory Flexibility Act

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), USAID has considered the economic impact of the proposed rule and has determined that its provisions would not have a significant economic impact on a substantial number of small entities.

List of Subjects of 22 CFR Part 205

• Foreign aid
• Grant programs
• Nonprofit organizations

For the reasons stated in the preamble, USAID proposes to amend chapter II of title 22 of the Code of Federal Regulations as follows:

PART 205—PARTICIPATION BY RELIGIOUS ORGANIZATIONS IN USAID PROGRAMS

1. The authority citation for part 205 continues to read as follows:

Authority: 22 U.S.C. 2381(a).

2. Revise § 205.1(d), revise paragraph (d) and add paragraph (j) to read as follows:

§ 205.1

Grants and cooperative agreements.

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(d) USAID funds may be used for the acquisition, construction, or rehabilitation of structures that are used, in whole or in part, for inherently religious activities so long as the program for which USAID assistance is provided is authorized by law and has a secular purpose, is made generally available to a wide range of organizations and beneficiaries which are defined without reference to religion, has the effect of furthering a development objective, the criteria upon which structures are selected for acquisition, construction, or rehabilitation are religiously neutral, and the selection criteria are amenable to neutral application. Examples of programs where USAID funds may be used for the acquisition, construction, or rehabilitation of structures that are used, in whole or in part, for inherently religious activities include, but are not limited to, rehabilitation or reconstruction programs in a defined geographic area following a natural or manmade disaster; rehabilitation or reconstruction programs for schools; rehabilitation or reconstruction of structures that are architectural, artistic, cultural, or historical landmarks for cultural or historical preservation; and rehabilitation or reconstruction programs to promote tourism or other related economic activities.

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(j) Recognizing that USAID pursues the national security and foreign policy interests of the United States overseas, nothing in this Part shall be construed to prohibit USAID funds from being used for activities that are permitted by Establishment Clause jurisprudence or otherwise by law.

Dated: March 4, 2011.

Ari Alexander,

Director, Center for Faith-Based and Community Initiatives.