Use of Federal Financial Assistance for Religious Activities
Under the Nondiscrimination and Equal Opportunity Provisions of the
Workforce Investment Act of 1998
[07/12/2004]
Volume 69, Number 132, Page 41769-41770
[[Page 41769]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 667
Office of the Secretary
29 CFR Part 37
RIN 1291-AA29
Use of Federal Financial Assistance for Religious Activities
Under the Nondiscrimination and Equal Opportunity Provisions of the
Workforce Investment Act of 1998
AGENCY: Office of the Secretary and Employment and Training
Administration, Labor.
ACTION: Proposed rule; partial withdrawal and termination.
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SUMMARY: The Department of Labor is withdrawing portions of the
proposed rule, published in the Federal Register on September 30, 2003
(68 FR 58386), that proposed to amend several provisions in the interim
final regulations that implement the equal opportunity and
nondiscrimination provisions of the Workforce Investment Act of 1998
(WIA), and the regulations promulgated by the Employment and Training
Administration that implement the general provisions of WIA. This
withdrawal covers only the proposed amendments that would have
prohibited the use of all types of WIA Title I financial assistance for
the employment or training of participants in religious activities. For
the reason discussed below, the Department is also terminating the part
of the rulemaking proceeding that relates to the proposed amendments
here withdrawn.
DATES: This partial withdrawal and termination of the NPRM published on
September 30, 2003 (68 FR 68386) is issued as of July 12, 2004.
FOR FURTHER INFORMATION CONTACT: Regarding the withdrawal of part of
the proposed amendments to 29 CFR part 37: Annabelle T. Lockhart,
Director, Civil Rights Center (CRC), (202) 693-6500 (VOICE). Please
note that this is not a toll-free number. Individuals who do not use
voice telephones may contact Ms. Lockhart via TTY/TDD by calling the
toll-free Federal Information Relay Service at (800) 877-8339.
Regarding the withdrawal of the proposed amendments to 20 CFR part
667: Maria Flynn, Acting Administrator, Office of Policy Development,
Evaluation and Research, Employment and Training Administration, (202)
693-3700 (VOICE) or (202) 877-889-5627 (TTY/TDD). Please note that
these are not toll-free numbers.
SUPPLEMENTARY INFORMATION: The Department is withdrawing portions of a
Notice of Proposed Rulemaking (NPRM) published on September 30, 2003
(68 FR 58386) that proposed amendments to the interim final
regulations, codified at 29 CFR part 37, that implement section 188
(a)(3) of the Workforce Investment Act of 1998 (WIA), and the
regulations promulgated by the Employment and Training Administration
(ETA), codified in 20 CFR part 667, that implement the general
provisions of WIA. In the NPRM, the Department proposed to revise 29
CFR 37.6(f)(1), which barred recipients from employing or training
participants in religious activities; 29 CFR 37.6(f)(2), which limited
the circumstances under which participants in programs receiving WIA
Title I financial assistance could be employed to carry out the
construction, operation, or maintenance of any part of any facility
used or to be used for religious instruction or as a place of religious
worship; and 29 CFR 37.6(f)(3), which provided an exception to the
limitation in 29 CFR 37.6(f)(2). In addition, the September 30 NPRM
proposed to revise 20 CFR 667.266(b)(1), which at that time referenced
29 CFR 37.6(f)(1) in providing that WIA Title I financial assistance
could not be spent on the employment or training of participants in
religious activities, and 20 CFR 667.275(b), which at that time also
referenced the prohibition on employment and training in religious
activities found in the then-current version of 29 CFR 37.6(f).
As explained in the preamble to the September 30 NPRM, the
Department has determined that the broad prohibition in the then-
current version of 29 CFR 37.6(f)(1) on the use of all types of WIA
Title I financial assistance to employ or train participants in
religious activities is inconsistent with current law, which permits
the use of such financial assistance to provide religious training in
cases in which the assistance is provided indirectly within the meaning
of the Constitution. Such assistance is provided indirectly, for
example, when participants are given a genuine and independent private
choice among training providers, and freely elect to receive training
in religious activities. Thus, the September 30 NPRM proposed to revise
paragraph 37.6(f)(1) to clarify that only where financial assistance is
provided directly is the use of such assistance to support religious
employment or training prohibited. In addition, consistent with current
law, the September 30 NPRM proposed to add a new paragraph 37.6(f)(2)
that would have set forth specific criteria, applicable only to WIA
programs and activities, for determining whether financial assistance
was indirect and therefore could be used to support religious
employment or training.
As a result of the insertion of this new paragraph, the September
30 NPRM proposed to redesignate then-current paragraphs 37.6(f)(2) and
(f)(3) as paragraphs 37.6(f)(3) and (f)(4), respectively. The NPRM also
proposed to revise the latter two paragraphs to make them easier to
understand, and to adhere more closely to the language of WIA section
188(a)(3).
Finally, because ETA's then-current programmatic regulations at 20
CFR 667.266(b)(1) and 667.275(b) also prohibited the use of WIA
financial assistance for employment and training in religious
activities, and referenced the prohibition in 29 CFR 37.6(f)(1), the
September 30 NPRM proposed to revise those two ETA provisions to
conform to the proposed amendments to 29 CFR 37.6(f).
After the September 30 NPRM was published, the Department
determined that further rulemaking was needed in order to implement the
policies and principles of Executive Order 13279 (67 FR 77141, December
16, 2002), ``Equal Protection of the Laws for Faith-Based and Community
Organizations.'' Executive Order 13279 directs executive branch
agencies to take the action necessary to ensure equal treatment to
faith-based and community organizations that apply for or receive
Federal financial assistance to meet social needs in America's
communities. The Department concluded that its general regulations at
29 CFR part 2 should be revised to clarify that faith-based and
community organizations can participate in all DOL social service
programs without regard to the organizations' religious character or
affiliation, and can apply for and compete on an equal footing with
other organizations to receive DOL support. Accordingly, on March 9,
2004, the Department published an NPRM that proposed adding to DOL's
general regulations in 29 CFR part 2 a new subpart D, to be entitled
``Equal Treatment in Department of Labor Programs for Religious
Organizations; Protection of Religious Liberty of Department of Labor
Social Service Providers and Beneficiaries.'' 69 FR 11234, 11235.
During the development of the March 9 NPRM, the Department
determined
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that, in order to ensure uniformity and consistency in implementing the
principles of Executive Order 13279 throughout DOL, the regulations
dealing with faith-based and community organizations, and with
religious activities, should to the extent possible be consolidated in
one place. 69 FR 11234. The Department further determined that these
regulations should not be program-specific, but should apply to all
such organizations receiving DOL support, except where the implementing
statute imposed particular requirements. Accordingly, in the March 9
NPRM, the Department proposed new revisions to 29 CFR 37.6(f)(1), as
well as to 20 CFR 667.266(b)(1) and 667.275(b). Instead of the language
proposed in the September 30 NPRM, the March 9 NPRM proposed that each
of these regulatory provisions cross-reference 29 CFR part 2, subpart
D. See 69 FR at 11237, 11238, 11241. Thus, the amendments to 29 CFR
37.6(f)(1), 20 CFR 667.266(b)(1), and 20 CFR 667.275(b) proposed in the
September 30 NPRM were superseded by the amendments to those paragraphs
that were proposed in the March 9 NPRM and finalized in the final rule
published elsewhere in today's Federal Register. The March 9 NPRM also
superseded the proposal in the September 30 NPRM to add a new paragraph
(f)(2) to 29 CFR 37.6.
For these reasons, the Department is withdrawing, and is
terminating the rulemaking proceedings on, the portion of the September
30 NPRM that proposed to revise 29 CFR 37.6(f)(1), 20 CFR
667.266(b)(1), and 20 CFR 667.275(b), and to add a new 29 CFR
37.6(f)(2). The Department has proceeded with that part of the
September 30 NPRM that proposed other amendments to 29 CFR 37.6(f). A
final rule accomplishing these amendments is published elsewhere in
today's Federal Register.
Signed at Washington, DC this 7th day of July, 2004.
Emily S. DeRocco,
Assistant Secretary for Employment and Training.
Elaine L. Chao,
Secretary of Labor.
[FR Doc. 04-15709 Filed 7-8-04; 8:45 am]
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