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[Federal Register Volume 76, Number 58 (Friday, March 25, 2011)]
[Proposed Rules]
[Pages 16712-16714]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6974]

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AGENCY FOR INTERNATIONAL DEVELOPMENT

22 CFR Part 205

RIN 0412 AA-69

Participation by Religious Organizations in USAID Programs

AGENCY: United States Agency for International Development (USAID).

ACTION: Proposed rule.

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

DATES: Comments must be submitted by May 9, 2011.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposed rule to: The Center for Faith-Based and Community 
Initiatives, U.S. Agency for International Development, Room 6.07-023, 
1300 Pennsylvania Avenue, NW., Washington, DC 20523. Communications 
should refer to the ``proposed rule.'' You may submit your comments by 
fax to 202-216-0077 or by e-mail to fbci@usaid.gov. A copy of each 
communication submitted will be available for inspection and copying

[[Page 16713]]

between 8:30 a.m. and 5:30 p.m. at the above address.

FOR FURTHER INFORMATION CONTACT: Ari Alexander, Director, Center for 
Faith-Based and Community Initiatives, USAID, Room 6.07-023, 1300 
Pennsylvania Avenue, NW., Washington, DC 20523; telephone: (202) 712-
4080 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 20, 2004, USAID published its final rule (the ``Final 
Rule'') on participation by religious organizations in USAID programs 
(69 FR 61716, codified at 22 CFR parts 202, 205, 211, and 226). The 
Final Rule implemented Executive Branch policy that, within the 
framework of constitutional guidelines, religious organizations should 
be able to compete on an equal footing with other organizations for 
USAID funding. The Final Rule revised USAID regulations pertaining to 
grants, cooperative agreements and contracts awarded for the purpose of 
administering grant programs to ensure their compliance with this 
policy and to clarify that religious organizations are eligible to 
participate in programs on the same basis as any other organization, 
with respect to programs for which such other organizations are 
eligible.
    Among other things, the Final Rule provided that USAID funds could 
be used for the acquisition, construction, or rehabilitation of 
structures only to the extent that those structures were used for 
conducting eligible activities under the specific USAID program. Where 
a structure is used for both eligible and inherently religious 
activities, the Final Rule clarified that USAID funds could not exceed 
the cost of those portions of the acquisition, construction, or 
rehabilitation that were attributable to eligible activities. The Final 
Rule went on to state that USAID funds could not be used for 
acquisition, construction, or rehabilitation of sanctuaries, chapels, 
or any other room that a religious congregation that is a recipient or 
sub-recipient of USAID assistance uses as its principal place of 
worship.

II. This Proposed Rule

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

III. Findings and Certifications or Impact Assessment

Regulatory Planning and Review

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

Regulatory Flexibility Act

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

List of Subjects of 22 CFR Part 205

    Foreign aid, Grant programs, Nonprofit organizations.

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

PART 205--PARTICIPATION BY RELIGIOUS ORGANIZATIONS IN USAID 
PROGRAMS

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

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

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

Sec.  205.1  Grants and cooperative agreements.

* * * * *
    (d) USAID funds may be used for the acquisition, construction, or 
rehabilitation of structures that are used, in whole or in part, for 
inherently religious activities so long as the program for which USAID 
assistance is provided is authorized by law and has a secular purpose, 
is made generally available to a wide range of organizations and 
beneficiaries which are defined without reference to religion, has the 
effect of furthering a development objective, the criteria upon which 
structures are selected for acquisition, construction, or 
rehabilitation are religiously neutral, and the selection criteria are 
amenable to neutral application. Examples of programs where USAID funds 
may be used for the acquisition, construction, or rehabilitation of 
structures that are used, in whole or in part, for inherently religious 
activities include, but are not limited to, rehabilitation or 
reconstruction programs in a defined geographic area following a 
natural or manmade disaster; rehabilitation or reconstruction programs 
for schools; rehabilitation or reconstruction of structures that are 
architectural, artistic, cultural, or historical landmarks for cultural 
or historical preservation; and rehabilitation or reconstruction 
programs to promote tourism or other related economic activities.
* * * * *
    (j) Recognizing that USAID pursues the national security and 
foreign policy interests of the United States overseas, nothing in this 
Part shall be construed to prohibit USAID funds from being used for 
activities that are permitted by Establishment Clause jurisprudence or 
otherwise by law.

[[Page 16714]]

    Dated: March 4, 2011.
Ari Alexander,
Director, Center for Faith-Based and Community Initiatives.
[FR Doc. 2011-6974 Filed 3-24-11; 8:45 am]
BILLING CODE 6116-01-P
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