[Federal Register Volume 82, Number 215 (Wednesday, November 8, 2017)]
[Rules and Regulations]
[Pages 51770-51773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-24320]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AP83


Ecclesiastical Endorsing Organizations

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its 
medical regulations by establishing in regulation the eligibility 
requirements that ecclesiastical endorsing organizations must meet in 
order to provide ecclesiastical endorsements of individuals seeking 
employment as VA chaplains, or of individuals who are seeking to be 
engaged by VA under contract or appointed as on-facility fee basis VA 
chaplains under the United States Code. VA considers veterans' 
spiritual care an integral part of their overall health care. As such, 
VA is committed to providing qualified VA chaplains to address the 
veterans' spiritual needs by engaging chaplains that are 
ecclesiastically endorsed. Ecclesiastical endorsement certifies that 
the individual is qualified to perform all the religious sacraments, 
rites, rituals, ceremonies and ordinances needed by members of a 
particular faith.

DATES: This final rule is effective December 8, 2017.

FOR FURTHER INFORMATION CONTACT: John Batten, Program Analyst, National 
Chaplain Center, Veterans Health Administration, Department of Veterans 
Affairs Medical Center, 100 Emancipation Dr., Hampton, VA 23667; (757) 
728-7062 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on January 5, 2017, VA proposed to establish in its medical 
regulations the eligibility requirements that ecclesiastical endorsing 
organizations must meet in order to provide ecclesiastical endorsements 
of individuals seeking employment as VA chaplains or of individuals who 
are seeking to be engaged by VA under contract or appointed as on-
facility fee basis VA chaplains under 38 U.S.C. 7405. See 82 FR 1288. 
VA provided a 60-day comment period, which ended on March 6, 2017. We 
received two comments on the proposed rule. Under 38 CFR 17.33, VA must 
make available to each patient the opportunity for religious worship. 
The VA National Chaplain Service was established on August 1, 1945, to 
provide veterans the opportunity for such worship and other forms of 
spiritual care. VA employs chaplains in accordance with 5 CFR 
213.3102(a) to provide for the spiritual component of health care in 
accordance to the spiritual needs of veterans. VA may employ chaplains 
in temporary appointments, on an on-facility fee basis appointment 
under 38 U.S.C. 7405, and may engage chaplains under contract. By 
requiring that chaplains be ecclesiastically endorsed, VA ensures that 
chaplains are qualified to perform the rites, rituals, or ceremonies 
that are unique to each faith. Before the year 2000, VA did not have a 
process in place to address endorsement of chaplains and relied on 
criteria established by the Department of Defense's (DoD) Armed Forces 
Chaplain Board (AFCB) at DoD Instruction 1304.28. Under this criteria, 
an individual cannot serve as chaplain unless he or she is endorsed by 
an ecclesiastical endorsing organization. The purpose is to ensure that 
the chaplain is recognized as an individual who is authorized by that 
organization to perform pastoral duties. The ecclesiastical endorsing 
organization must submit a request to VA to designate an ecclesiastical 
endorser. This request provides VA with the information on the 
ecclesiastical endorsing organization and identifies the individual 
whom the organization designates as the official authorized to sign 
ecclesiastical endorsements. VA reviews the information provided and 
approves the request.
    Before the year 2000, VA accepted endorsements from ecclesiastical 
endorsing organizations recognized by DoD to perform this function as a 
means of avoiding duplication of effort on VA's part and because such 
organizations would be better able to address veterans' needs, having 
provided for the veterans' spiritual care while on active duty. In 
1998, VA determined that it needed to establish its own policy on 
accepting ecclesiastical endorsements. The rationale was that there 
might be organizations that would endorse members seeking to work for 
VA, but would not permit their members to work as military chaplains, 
either for theological or other reasons. VA has been successfully 
implementing since the year 2000, via internal policy, the eligibility 
requirements that ecclesiastical endorsing organizations must meet to 
endorse individuals who are seeking employment as VA chaplains or of 
individuals who are seeking to be engaged by VA under contract or 
appointed as on-facility fee basis VA chaplains under 38 U.S.C. 
7405.\1\ However, VA subsequently determined a formal rulemaking is 
prudent in order to make the process transparent as well as safeguard 
VA from the appearance of favoritism of an ecclesiastical endorsing 
organization over another. We are establishing this process in 38 CFR 
17.655.
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    \1\ Ecclesiastical Endorsing Organizations, VHA Handbook 1111.01 
and VHA related policy VHA Directive 1111, Spiritual and Pastoral 
Care, which incorporates by specific reference the terms of VHA HB 
1111.01.
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    One commenter stated that the proposed rule appears to favor one 
faith

[[Page 51771]]

over another citing that the Oxford dictionary defines the term 
``ecclesiastical'' as ``relating to the Christian Church.'' However, 
the proposed rule's definition of ecclesiastical endorsement and 
ecclesiastical endorsing organization expanded the commonly defined 
term ``ecclesiastical'' to include all other faith groups. By defining 
these terms, VA is not favoring ecclesiastical endorsing organizations 
of the Christian faith; rather, it is including all faith groups. We 
are not making any edits to the rule based on this comment.
    The two commenters stated that VA should expend its resources on 
the health care of the veteran rather than their spiritual care. VA 
believes that a veteran's overall health care includes spiritual care. 
Chaplains are an integral part of the VA patient care team. Chaplains 
safeguard a veteran's right for religious worship, as well as safeguard 
the veterans who do not wish to have religion imposed on them. It is 
always a veteran's choice to receive or decline pastoral care. As 
stated in the proposed rule, patients' rights (for residents and 
inpatients) include the opportunity for religious worship under Sec.  
17.33(b)(7). Also, VA does not fund an ecclesiastical endorsing 
organization. This rule merely seeks to establish via regulation a 
point of contact within an ecclesiastical endorsing organization in 
order to verify if an individual who is seeking employment as VA 
chaplains or who is seeking to be engaged by VA under contract or 
appointed as on-facility fee basis VA chaplains under 38 U.S.C. 7405 is 
qualified to perform all of the religious rites, rituals, ceremonies, 
and ordinances needed by members of a particular faith. We are not 
making any edits to the rule based on this comment.
    Proposed paragraph (d)(2) stated that an ecclesiastical endorsing 
organization must submit ``A copy of an Internal Revenue Service 
document verifying that the organization currently holds a section 
501(c)(3) exempt status (Reference (i)).'' However, section 501(c)(3) 
of the Internal Revenue Code does not contain any ``references.'' See 
26 U.S.C. 501. We are amending proposed paragraph (d)(2) by eliminating 
the term ``(Reference (i)).'' This edit does not change the meaning of 
paragraph (d)(2) as proposed.
    Based on the rationale set forth in the Supplementary Information 
to the proposed rule and in this final rule, VA is adopting the 
proposed rule with the edit discussed.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
final rulemaking, represents VA's implementation of its legal authority 
on this subject. Other than future amendments to this regulation or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance must be read to conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507) requires that 
VA consider the impact of paperwork and other information collection 
burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may 
not collect or sponsor the collection of information, nor may it impose 
an information collection requirement unless it displays a currently 
valid Office of Management and Budget (OMB) control number. See also 5 
CFR 1320.8(b)(2)(vi).
    This final rule contains the following new information collection 
requirements. Section 17.655 contains a collection of information under 
the Paperwork Reduction Act of 1995. VA was previously collecting this 
information under OMB control number 2900-0610, which expired on 
September 2, 2008. Paragraph (d) in Sec.  17.655 states the 
documentation that an ecclesiastical endorsing organization needs to 
submit in order for VA to accept ecclesiastical endorsements of 
individuals of such organization. The information is needed to 
establish the eligibility requirements that an ecclesiastical endorsing 
organization must meet in order to provide ecclesiastical endorsements 
of an individual who is seeking employment as a VA chaplain or who is 
seeking to be engaged by VA under contract or appointed as on-facility 
fee basis VA chaplains under 38 U.S.C. 7405. VA has collected this 
information in the past through internal policy and guidance.\2\ As 
required by 44 U.S.C. 3507(d), VA submitted this information collection 
to OMB for its review. OMB approved these new information collection 
requirements associated with the final rule and assigned OMB control 
number 2900-0852.
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    \2\ Ecclesiastical Endorsing Organizations, VHA Handbook 1111.01 
and VHA related policy VHA Directive 1111, Spiritual and Pastoral 
Care, which incorporates by specific reference the terms of VHA HB 
1111.01.
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Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule will impose no burden on small entities. 
Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking would be exempt 
from the initial and final regulatory flexibility analysis requirements 
of 5 U.S.C. 603 and 604.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' requiring review by the Office of 
Management and Budget (OMB), unless OMB waives such review, as ``any 
regulatory action that is likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) Materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) Raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined, and it has 
been determined to be a significant regulatory action under Executive 
Order 12866 because it is likely to result in a rule that may raise 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in this Executive 
Order. VA's impact analysis can be found as a

[[Page 51772]]

supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of the rulemaking and its impact analysis are available on VA's Web 
site at http://www.va.gov/orpm/, by following the link for ``VA 
Regulations Published From FY 2004 Through Fiscal Year to Date.''

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    There are no Catalog of Federal Domestic Assistance numbers and 
titles for this rule.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Health professions, 
Veterans.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Gina S. 
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on August 31, 2017, for publication.

    Dated: November 3, 2017.
Janet Coleman,
Chief, Office of Regulation Policy & Management, Office of the 
Secretary, Department of Veterans Affairs.

    For the reasons set out in the preamble, VA is amending 38 CFR part 
17 as follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 is revised to read as follows:

    Authority: 38 U.S.C. 501, and as noted in specific sections.
    Section 17.38 also issued under 38 U.S.C. 101, 501, 1701, 1705, 
1710, 1710A, 1721, 1722, 1782, and 1786.
    Section 17.169 also issued under 38 U.S.C. 1712C.
    Sections 17.380 and 17.412 are also issued under sec. 260, 
Public Law 114-223, 130 Stat. 857.
    Section 17.410 is also issued under 38 U.S.C. 1787.
    Section 17.415 is also issued under 38 U.S.C. 7301, 7304, 7402, 
and 7403.
    Sections 17.640 and 17.647 are also issued under sec. 4, Public 
Law 114-2, 129 Stat. 30.
    Sections 17.641 through 17.646 are also issued under 38 U.S.C. 
501(a) and sec. 4, Public Law 114-2, 129 Stat. 30.
    Section 17.655 also issued under 38 U.S.C. 501(a), 7304, 7405.


0
2. Add an undesignated center heading and Sec.  17.655 to read as 
follows:

Chaplain Services


Sec.  17.655  Ecclesiastical endorsing organizations.

    (a) Purpose. This section establishes the eligibility requirements 
that an ecclesiastical endorsing organization must meet in order to 
provide ecclesiastical endorsements of individuals who are seeking 
employment as VA chaplains or seeking to be engaged by VA under 
contract or appointed as on-facility fee basis VA chaplains under 38 
U.S.C. 7405. Acceptance of an ecclesiastical endorsement by VA does not 
imply any approval by VA of the theology or practices of an 
ecclesiastical endorsing organization, nor does it obligate VA to 
employ the endorsed individual or any other member of the organization.
    (b) Definitions. The following definitions apply to this section:
    (1) Ecclesiastical endorsement means a written statement addressed 
to VA and signed by the designated endorsing official of an 
ecclesiastical endorsing organization certifying that an individual is 
in good standing with the faith group or denomination and, in the 
opinion of the endorsing official, is qualified to perform the full 
range of ministry, including all sacraments, rites, ordinances, 
rituals, and liturgies required by members of the faith group. 
Ecclesiastical endorsement is a condition of employment as a VA 
chaplain. An individual must obtain and maintain a full and active 
ecclesiastical endorsement to be employed as a VA chaplain.
    (2) Ecclesiastical endorsing official means an individual who is 
authorized to provide or withdraw ecclesiastical endorsements on behalf 
of an ecclesiastical endorsing organization.
    (3) Ecclesiastical endorsing organization means an organization 
that meets the eligibility requirements of paragraph (c) of this 
section and has been properly designated as an endorsing organization 
in accordance with paragraph (e) of this section.
    (c) Eligibility to serve as an ecclesiastical endorsing 
organization. An ecclesiastical endorsing organization must meet the 
following requirements before such organization can endorse an 
applicant for VA chaplaincy:
    (1) Be organized and function exclusively or substantially to 
provide religious ministries to a lay constituency and possess 
authority to both grant and withdraw initial and subsequent 
ecclesiastical endorsements;
    (2) Have tax-exempt status as a religious organization or church 
under the Internal Revenue Code, section 501(c)(3);
    (3) Agree to abide by all Federal and VA laws, regulations, 
policies, and issuances on the qualification and endorsement of persons 
for service as VA chaplains;
    (4) Agree to notify VA in writing of any withdrawal of an existing 
ecclesiastical endorsement within ten days after the date of such 
withdrawal;
    (5) Provide VA the documents stated in paragraph (d) of this 
section;
    (6) Notify VA in writing within 30 days of any change of the name, 
address or contact information of the individual that it designates as 
its ecclesiastical endorsing official; and
    (7) An ecclesiastical endorsing organization that is part of an 
endorsing organization by which its members can be endorsed cannot 
become a separate endorsing organization without the written permission 
of the larger endorsing organization.
    (d) Request to designate ecclesiastical endorser. In order for an 
ecclesiastical endorsing organization to be recognized by VA such 
organization must submit the following:
    (1) A complete VA form that requests the designation of an 
ecclesiastical endorsing official;
    (2) A copy of an Internal Revenue Service document verifying that 
the organization currently holds a section 501(c)(3) exempt status as a 
church for Federal tax purposes from the Internal Revenue Service (IRS) 
(note ``church'' is used by the IRS not to denote a belief system, but 
to distinguish ``churches'' from other types of religious 
organizations; see IRS Instructions for Form 1023 Schedule A). Such 
rules stipulate that the particular religious beliefs of the 
organization are truly and sincerely held and that the practices and 
rituals associated with the organization's religious belief or creed 
are not illegal or contrary to clearly defined public policy. In order 
to determine whether a particular religious organization has properly 
acquired, and currently maintains, an IRS tax exempt status and does 
not engage in practices that are illegal or contrary to defined public 
policy, VA shall take appropriate

[[Page 51773]]

steps to verify compliance with these requirements;
    (3) A document verifying that the organization shall provide 
chaplains who shall function in a pluralistic environment, and who 
shall support directly and indirectly the free exercise of religion by 
all veterans, their family members, and other persons authorized to be 
served by VA;
    (4) That it agrees to abide by all VA Directives, Instructions, and 
other guidance, regulations and policies on the qualification and 
endorsement of ministers for service as VA chaplains;
    (5) Documentation that states the structure of the organization, 
including copies of the articles of incorporation, by-laws and 
constitution, membership requirements of the organization, if any, the 
religious beliefs and practices of the organization, and the 
organization's requirements to become clergy; and
    (6) The name and address of the individual who is applying to 
become a VA chaplain.
    (e) Approval of request to designate an ecclesiastical endorsing 
official. If an ecclesiastical endorsing organization meets the 
requirements of paragraph (c) of this section and has submitted the 
documents stated in paragraph (d) of this section, VA will notify the 
organization in writing that such organization has been designated as 
an ecclesiastical endorsing organization. The designation will be for a 
period of 3 years from the date of notification. Once an organization 
is designated as an ecclesiastical endorsing organization, VA will 
accept ecclesiastical endorsements from that organization without 
requiring any further documentation from the organization during the 3 
year period, unless VA receives evidence that an organization no longer 
meets the requirements of this section. VA will only take action on an 
initial request to designate an ecclesiastical endorsing official when 
VA receives an application from an individual who is seeking employment 
as a VA chaplain or is seeking to be engaged under VA contract or 
appointed as on-facility fee basis VA chaplains under 38 U.S.C. 7405.
    (f) Reporting requirement. (1) To certify that VA chaplains 
continue to be endorsed by an ecclesiastical endorsing organization, 
such organization must provide VA an alphabetical listing of 
individuals who are endorsed by that endorsing organization and are 
employed as VA chaplains or are engaged by VA under contract or 
appointed as on-facility fee basis VA chaplains under 38 U.S.C. 7405 by 
January 1 of every calendar year.
    (2) In order for VA to continue to recognize an ecclesiastical 
endorsing organization, such organization must provide written 
documentation that it continues to meet the requirements of this 
section every 3 years.
    (g) Rescission of ecclesiastical endorsing organization. VA may 
rescind an organization's status as an ecclesiastical endorsing 
organization and refuse to accept ecclesiastical endorsements from such 
organization if it no longer meets the requirements of paragraph (c) of 
this section. VA will take the following steps before it rescinds the 
organization's status:
    (1) VA will give the ecclesiastical endorsing organization written 
notice stating the reasons for the rescission and give the organization 
60 days to provide a written reply addressing VA's concerns.
    (2) VA will notify the ecclesiastical endorsing organization and 
all VA chaplains endorsed by the organization in writing of its 
decision after VA reviews the evidence provided by the organization or 
after the 60 day time period has expired, whichever comes first.
    (3) Ecclesiastical endorsing organizations that are notified that 
they may no longer endorse individuals for VA chaplaincy because they 
do not meet the requirements of paragraph (c) of this section must 
resubmit all of the evidence stated in paragraph (d) of this section in 
order to be reconsidered as an endorsing organization.
    (4) If an ecclesiastical endorsing organization is no longer able 
to endorse individuals for VA chaplaincy in accordance with this 
section, all ecclesiastical endorsements issued by that organization 
are considered to be withdrawn.


(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
0852.)

[FR Doc. 2017-24320 Filed 11-7-17; 8:45 am]
 BILLING CODE 8320-01-P