Partnerships With Faith-Based and Neighborhood Organizations
| Published date | 04 March 2024 |
| Record Number | 2024-03869 |
| Citation | 89 FR 15671 |
| Court | Agency For International Development |
| Section | Rules and Regulations |
Federal Register, Volume 89 Issue 43 (Monday, March 4, 2024)
[Federal Register Volume 89, Number 43 (Monday, March 4, 2024)]
[Rules and Regulations]
[Pages 15671-15723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03869]
[[Page 15669]]
Vol. 89
Monday,
No. 43
March 4, 2024
Part IIIDepartment of Education-----------------------------------------------------------------------2 CFR Part 3474
34 CFR Parts 75 and 76Department of Homeland Security-----------------------------------------------------------------------
6 CFR Part 19Department of Agriculture-----------------------------------------------------------------------
7 CFR Part 16Agency for International Development-----------------------------------------------------------------------
22 CFR Part 205Department of Housing and Urban Development-----------------------------------------------------------------------
24 CFR Part 5Department of Justice-----------------------------------------------------------------------
28 CFR Part 38
[[Page 15670]]Department of Labor-----------------------------------------------------------------------
29 CFR Part 2Department of Veterans Affairs-----------------------------------------------------------------------
38 CFR Parts 50, 61, and 62Department of Health and Human Services-----------------------------------------------------------------------
45 CFR Part 87Partnerships With Faith-Based and Neighborhood Organizations; Final
Rule
Federal Register / Vol. 89 , No. 43 / Monday, March 4, 2024 / Rules
and Regulations
[[Page 15671]]
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DEPARTMENT OF EDUCATION
2 CFR Part 3474
34 CFR Parts 75 and 76
RIN 1840-AD467
DEPARTMENT OF HOMELAND SECURITY
6 CFR Part 19
RIN 1601-AB02
DEPARTMENT OF AGRICULTURE
7 CFR Part 16
RIN 0503-AA73
AGENCY FOR INTERNATIONAL DEVELOPMENT
22 CFR Part 205
RIN 0412-AB10
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 5
RIN 2501-AD91
DEPARTMENT OF JUSTICE
28 CFR Part 38
[A.G. Order No. 5874-2024]
RIN 1105-AB64
DEPARTMENT OF LABOR
29 CFR Part 2
RIN 1290-AA45
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 50, 61, and 62
RIN 2900-AR23
DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 87
RIN 0991-AC13
Partnerships With Faith-Based and Neighborhood Organizations
AGENCY: Department of Education, Department of Homeland Security,
Department of Agriculture, Agency for International Development,
Department of Housing and Urban Development, Department of Justice,
Department of Labor, Department of Veterans Affairs, Department of
Health and Human Services.
ACTION: Final rule.
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SUMMARY: This final rule amends the regulations of the agencies listed
above (the ``Agencies'') to clarify protections for beneficiaries and
prospective beneficiaries of federally funded social services and the
rights and obligations of organizations providing such services. In
accordance with the Executive order of February 14, 2021, Establishment
of the White House Office of Faith-Based and Neighborhood Partnerships,
this clarification should promote maximum participation by
beneficiaries and providers in the Agencies' covered programs and
activities and ensure consistency in the implementation of those
programs and activities.
DATES:
Effective date: This rule is effective on April 3, 2024.
Compliance date: Recipients of Federal financial assistance
required by these regulations to provide written notice to
beneficiaries must do so by July 2, 2024.
FOR FURTHER INFORMATION CONTACT: For information regarding each
Agency's implementation of this final rule, the contact information for
that Agency follows. If you use a telecommunications device for the
deaf (``TDD'') or a text telephone (``TTY''), call the
Telecommunications Relay Service at 7-1-1.
Department of Justice: Michael L. Alston, Director, Office for
Civil Rights, Office of Justice Programs, 202-307-0690,
[email protected].
Department of Agriculture: Samantha Joseph, Director, Center for
Faith-Based and Neighborhood Partnerships, [email protected].
Department of Labor: Elena S. Goldstein, Deputy Solicitor of Labor,
Office of the Solicitor of Labor, 202-878-9471,
[email protected].
Department of Health and Human Services: Que English, Director,
Center for Faith-Based and Neighborhood Partnerships, 202-260-6501,
[email protected].
Department of Housing and Urban Development: BJ Douglass, Director
of the Center for Faith-Based and Neighborhood Partnerships, Office of
the Secretary, 451 7th Street SW, Washington, DC 20410, 202-708-2404.
Department of Education: Maggie Siddiqi, Director, Center for
Faith-Based and Neighborhood Partnerships, 202-453-7443,
[email protected].
Department of Veterans Affairs: Conrad Washington, Director, Center
for Faith-Based and Neighborhood Partnerships, Office of Public and
Intergovernmental Affairs, 202-461-7865.
Department of Homeland Security: Peter Mina, Deputy Officer for
Civil Rights and Civil Liberties, Office for Civil Rights and Civil
Liberties, 202-401-1474 (phone), 202-401-0470 (TTY).
Agency for International Development: Amanda Vigneaud, Acting
Director, Center for Faith-Based and Neighborhood Partnerships, 202-
297-8165, [email protected].
SUPPLEMENTARY INFORMATION: This joint final rule amends regulations of
all the Agencies in a single document. The Agencies decided to publish
a joint final rule because most of the comments received by the
Agencies in response to their proposed regulations addressed issues
that were relevant to all of the Agencies' proposals. This final rule
addresses cross-cutting issues first, followed by separate Agency-
specific discussions of issues particular to each of those Agencies.
Following the preamble, each Agency makes final amendments to its
regulations, in order to implement the requirements in Executive Order
14015, Establishment of the White House Office of Faith-Based and
Neighborhood Partnerships. The SUPPLEMENTARY INFORMATION is broken up
into four major parts, organized as follows:
I. Background
A. Prior Rulemakings
B. The Agencies' Social Service Programs
C. The Present Joint Rulemaking
II. Cross-Cutting Public Comments
A. Beneficiary Protections
B. Prohibition on Using Direct Federal Financial Assistance for
Explicitly Religious Activities
C. Definition of ``Indirect Federal Financial Assistance''
D. Eligibility of Faith-Based Organizations and Availability of
Accommodations
E. Title VII
F. Definition of ``Federal Financial Assistance''
G. Other Issues
III. Agency-Specific Issues
IV. General Regulatory Certifications
I. Background
A. Prior Rulemakings
On December 12, 2002, President George W. Bush signed Executive
Order 13279, Equal Protection of the Laws for Faith-Based and Community
Organizations, 67 FR 77141. Executive Order 13279 set forth the
principles and policymaking criteria to guide Federal agencies in
formulating and implementing policies for the delivery of social
services with implications for faith-based and other community
organizations, to ensure equal protection of the laws for faith-based
[[Page 15672]]
and community organizations, and to expand opportunities for, and
strengthen the capacity of, faith-based and other community
organizations to meet social needs in communities across the United
States. In addition, Executive Order 13279 directed specified agency
heads to review and evaluate existing policies that had implications
for faith-based and community organizations relating to their
eligibility for Federal financial assistance for social service
programs and, where appropriate, to implement new policies that were
consistent with and necessary to further the fundamental principles and
policymaking criteria articulated in the Executive order.
Several of the Agencies proceeded to promulgate regulations to
implement Executive Order 13279. For example:
In 2004, the Department of Veterans Affairs (``VA'')
promulgated a final rule consistent with Executive Order 13279. See VA
Homeless Providers Grant and Per Diem Program; Religious Organizations,
69 FR 31883 (June 8, 2004).
Also in 2004, the Department of Education (``ED'')
promulgated regulations in conformance with Executive Order 13279. See
Participation in Education Department Programs by Religious
Organizations; Providing for Equal Treatment of All Education Program
Participants, 69 FR 31708 (June 4, 2004).
In 2003 and 2004, the Department of Housing and Urban
Development (``HUD'') promulgated three final rules consistent with
Executive Order 13279. See Participation in HUD's Native American
Programs by Religious Organizations; Providing for Equal Treatment of
All Program Participants, 69 FR 62164 (Oct. 22, 2004); Equal
Participation of Faith-Based Organizations, 69 FR 41712 (July 9, 2004);
and Participation in HUD Programs by Faith-Based Organizations;
Providing for Equal Treatment of all HUD Program Participants, 68 FR
56396 (Sept. 30, 2003).
In 2004, the Department of Justice (``DOJ''), Department
of Agriculture (``USDA''), Department of Labor (``DOL''), Department of
Health and Human Services (``HHS''), and Agency for International
Development (``USAID'') issued final rules implementing Executive Order
13279. See Participation in Justice Department Programs by Religious
Organizations; Providing for Equal Treatment of All Justice Department
Program Participants, 69 FR 2832 (Jan. 21, 2004); Equal Opportunity for
Religious Organizations, 69 FR 41375 (July 9, 2004); Equal Treatment in
Department of Labor Programs for Faith-Based and Community
Organizations; Protection of Religious Liberty of Department of Labor
Social Service Providers and Beneficiaries, 69 FR 41882 (July 12,
2004); Participation in Department of Health and Human Services
Programs by Religious Organizations; Providing for Equal Treatment of
All Department of Health and Human Services Program Participants, 69 FR
42586 (July 16, 2004); and Participation by Religious Organizations in
USAID Programs, 69 FR 61716 (Oct. 20, 2004).
The Department of Homeland Security (``DHS'') issued a
notice of proposed rulemaking (``NPRM'' or ``proposed rule'') related
to Executive Order 13279 in 2008, see Nondiscrimination in Matters
Pertaining to Faith-Based Organizations, 73 FR 2187 (Jan. 14, 2008);
DHS did not, however, issue a final rule related to the participation
of faith-based organizations in its programs prior to the 2016
rulemaking discussed in detail below.
Shortly after taking office, President Barack Obama signed
Executive Order 13498, Amendments to Executive Order 13199 and
Establishment of the President's Advisory Council for Faith-Based and
Neighborhood Partnerships, 74 FR 6533 (Feb. 5, 2009). Executive Order
13498 changed the name of the White House Office of Faith-Based and
Community Initiatives to the White House Office of Faith-Based and
Neighborhood Partnerships, and it created the President's Advisory
Council on Faith-Based and Neighborhood Partnerships, which
subsequently submitted recommendations regarding the work of that White
House office.
On November 17, 2010, President Obama signed Executive Order 13559,
Fundamental Principles and Policymaking Criteria for Partnerships With
Faith-Based and Other Neighborhood Organizations, 75 FR 71319. Based on
recommendations made by the Advisory Council, Executive Order 13559
made various changes to Executive Order 13279, including:
requiring agencies that administer or award Federal
financial assistance for social service programs to ensure the
implementation of additional protections for the beneficiaries and
prospective beneficiaries of those programs, including (i) referrals to
alternative providers when beneficiaries objected to the religious
character of the organizations providing services, and (ii) written
notice to beneficiaries of that referral requirement and other
protections before they enrolled in or received services from the
program;
stating that decisions about awards of Federal financial
assistance must be free from political interference or even the
appearance of such interference, and must be made on the basis of
merit, not on the basis of religious affiliation, or lack of
affiliation, of recipient organizations;
stating that the Federal Government has an obligation to
monitor and enforce all standards regarding the relationship between
religion and Government in ways that avoid excessive entanglement
between religious bodies and governmental entities;
providing further clarifications concerning certain
requirements, including under Executive Order 13279, that organizations
engaging in explicitly religious activities must (i) perform such
activities and offer such services outside of programs that are
supported with direct Federal financial assistance, (ii) separate those
activities in time or location from programs or services supported with
direct Federal financial assistance, and (iii) ensure that
participation in any such activities is voluntary for the beneficiaries
of social service programs supported with Federal financial assistance;
emphasizing again that religious providers should be
eligible to compete for social service funding from the Federal
Government and to participate fully in social service programs
supported with Federal financial assistance, and that such
organizations may do so while maintaining their religious identities;
requiring agencies that provide Federal financial
assistance for social service programs to post online regulations,
guidance documents, and policies that have implications for faith-based
and other neighborhood organizations, and to post online a list of
entities receiving such assistance; and
clarifying that the principles set forth apply to
subawards as well as prime awards.
An interagency working group was tasked with developing model
regulatory changes to implement Executive Order 13279, as amended by
Executive Order 13559, including provisions that clarified beneficiary
protections and the prohibited uses of direct Federal financial
assistance, allowed religious social service providers to maintain
their religious identities, and distinguished between direct and
indirect Federal financial assistance.
These efforts eventually resulted in DHS promulgating regulations
and the other Agencies promulgating
[[Page 15673]]
amendments to their regulations. In April 2016, following notice and
comment, the Agencies published a joint final rule to ensure
consistency between their regulations and Executive Order 13279, as
amended by Executive Order 13559. See Federal Agency Final Regulations
Implementing Executive Order 13559: Fundamental Principles and
Policymaking Criteria for Partnerships With Faith-Based and Other
Neighborhood Organizations, 81 FR 19355 (Apr. 4, 2016). These revised
regulations--referred to hereinafter as the ``2016 Rule''--incorporated
the principles from Executive Order 13559 detailed above.
On May 3, 2018, President Donald J. Trump signed Executive Order
13831, Establishment of a White House Faith and Opportunity Initiative,
83 FR 20715, amending Executive Order 13279, as amended by Executive
Order 13559, and other related Executive orders. Among other things,
Executive Order 13831 changed references to the White House Office of
Faith-Based and Neighborhood Partnerships, established in Executive
Order 13498, to the White House Faith and Opportunity Initiative;
specified ways that the initiative was to operate; directed departments
and agencies with Centers for Faith-Based and Community Initiatives to
change the names of those centers to Centers for Faith and Opportunity
Initiatives; and directed departments and agencies without a Center for
Faith and Opportunity Initiatives to designate a Liaison for Faith and
Opportunity Initiatives. Executive Order 13831 also eliminated the
requirements to refer beneficiaries to alternative providers upon
request and to notify beneficiaries of the protections in Executive
Order 13559 described above.
Consistent with Executive Order 13831, in December 2020, the
Agencies, following notice and comment, promulgated a final rule
amending the 2016 Rule. See Equal Participation of Faith-Based
Organizations in the Federal Agencies' Programs and Activities, 85 FR
82037 (Dec. 17, 2020). That joint final rule--referred to hereinafter
as the ``2020 Rule''--made various changes to the 2016 Rule, including:
eliminating a requirement that faith-based providers
receiving direct Federal financial assistance provide notice to
beneficiaries and prospective beneficiaries of certain protections,
including protection from discrimination on the basis of religion;
eliminating requirements that, if a beneficiary objected
to the religious character of a faith-based provider, the provider
would undertake reasonable efforts to identify and refer the
beneficiary to an alternative provider, and that providers inform
beneficiaries of this alternative provider requirement in the notice to
them;
eliminating a requirement that beneficiaries of indirect
Federal financial assistance (such as vouchers, certificates, or other
Government-funded means that the beneficiaries might use to obtain
services at providers of their choosing) must have at least one
adequate secular option for the use of the indirect Federal financial
assistance;
adding a provision allowing providers receiving indirect
Federal financial assistance to require beneficiaries to attend ``all
activities that are fundamental to the program'';
adding a definition of the term ``religious exercise'';
adding a requirement that notices or announcements of
award opportunities and notices of awards or contracts include language
regarding certain protections for faith-based organizations'
independence from Government and providers' obligations not to use
direct Federal financial assistance for any explicitly religious
activities and not to discriminate against current or prospective
program beneficiaries on the basis of religion;
adding a provision stating that, if an awarding agency
program required an applicant to show nonprofit status and the
applicant has a sincerely held religious belief that it cannot apply
for a determination as an entity that it is tax-exempt under section
501(c)(3) of the Internal Revenue Code, the applicant could submit
evidence sufficient to establish that it otherwise qualified as a
nonprofit organization;
adding a provision stating that neither the awarding
agency nor any State or local government or other pass-through entity
receiving funds under any Federal awarding agency program or service
shall construe the Agencies' regulations ``in such a way as to
advantage or disadvantage faith-based organizations affiliated with
historic or well-established religions or sects in comparison with
other religions or sects''; and
adding language to preexisting requirements regarding the
Government's obligation to accommodate religion and regarding the
religious-employer exemption from the Federal prohibition on employment
discrimination on the basis of religion.
B. The Agencies' Social Service Programs
The Agencies achieve their missions in part through the
administration of Federal financial assistance. Funds are distributed
via a wide range of social service programs, including the following:
Workforce Innovation and Opportunity Act (``WIOA'') Adult
and Dislocated Worker Programs: DOL's Employment and Training
Administration provides job search assistance and training to adult and
dislocated workers through State formula grants authorized under WIOA,
Public Law 113-128, 128 Stat. 1425. This funding area includes
individualized training accounts through which program participants can
choose from a statewide list of providers to access training.
Homeless Veterans Reintegration Program: This grant
program, administered by DOL's Veterans' Employment and Training
Service, provides services that assist in reintegrating homeless
veterans into meaningful employment within the labor force and supports
the development of delivery systems that address the complex problems
facing homeless veterans.
Healthy Marriage and Responsible Fatherhood Programs:
HHS's Office of Family Assistance competitively awards Healthy Marriage
and Responsible Fatherhood grants to States, local governments, Tribal
entities, and community-based organizations (both for profit and not-
for-profit, including faith-based) that help participants build and
sustain healthy relationships and marriages and strengthen positive
father-child interaction.
Nita M. Lowey 21st Century Community Learning Centers:
This program, administered by ED's Office of Elementary and Secondary
Education, supports the creation of community learning centers that
provide academic enrichment opportunities during non-school hours for
children, particularly students who attend high-poverty and low-
performing schools. The program helps children meet State and local
student standards in core academic subjects, such as reading and math;
offers students a broad array of enrichment activities that can
complement their regular academic programs; and provides literacy and
other educational services to the families of participating children.
Gaining Early Awareness and Readiness for Undergraduate
Programs (``GEAR UP''): Under the GEAR UP program, ED's Office of
Postsecondary Education awards discretionary grants to States and
partnerships of local educational agencies and institutions of higher
education, which may also include community organizations or entities
as additional partners, to
[[Page 15674]]
provide services at high-poverty middle and high schools to increase
the number of low-income students who are prepared to enter and succeed
in postsecondary education.
Citizenship and Integration Grant Program: Administered by
DHS's U.S. Citizenship and Immigration Services (``USCIS''), the
Citizenship and Integration Grant Program has helped more than 300,000
lawful permanent residents (``LPRs'') prepare for U.S. citizenship. See
USCIS, Fiscal Year 2023 Citizenship & Integration Grant Program (Sept.
28, 2023), https://www.uscis.gov/citizenship-resource-center/civic-integration/fiscal-year-2023-citizenship-and-integration-grant-program.
The program assists nonprofit organizations in providing citizenship
instruction and application assistance to LPRs.
VA Homeless Providers Grant and Per Diem Program: VA's
Homeless Programs Office administers this program, which awards grants
to community organizations providing services to veterans experiencing
homelessness to ensure the availability of supportive housing and
services, with the goal of helping homeless veterans achieve
residential stability.
Supportive Services for Veteran Families: This program,
also administered by VA's Homeless Programs Office, awards grants to
selected private nonprofit organizations and consumer cooperatives to
assist very low-income veteran families residing in or transitioning to
permanent housing. Grantees provide a range of supportive services to
eligible veteran families that are designed to promote housing
stability.
Under these and other federally funded social service programs,
Federal funds are not distributed directly to beneficiaries, but rather
are distributed to recipients--for example, State and local
governments, school districts, nonprofit organizations, institutions of
higher education, and other entities--that use the Federal funds to
provide services to the programs' intended beneficiaries. This final
rule generally refers to these recipients as ``providers'' or
``grantees,'' and to those whom they serve, either directly or through
subrecipients, as ``beneficiaries.'' In administering federally funded
social service programs, providers must comply both with applicable
Federal law and with the terms and conditions under which they receive
Federal funding from the Agencies. For example, applicants for Federal
funds through the Office of Justice Programs at DOJ must certify that
in administering any Federal award they will comply with all relevant
Federal civil rights and nondiscrimination laws.
C. The Present Joint Rulemaking
On February 14, 2021, President Joseph R. Biden, Jr., signed
Executive Order 14015, Establishment of the White House Office of
Faith-Based and Neighborhood Partnerships, 86 FR 10007. Executive Order
14015 sought to ``organiz[e] more effective efforts to serve people in
need across the country and around the world, in partnership with civil
society, including faith-based and secular organizations.'' Id. at
10007. The Executive order further emphasized the importance of
strengthening the ability of such organizations to deliver services in
partnership with Federal, State, and local governments and with other
private organizations, while adhering to all governing law. Id.
Executive Order 14015 also revoked Executive Order 13831, see id. at
10008, which had prompted the 2020 Rule.
On January 13, 2023--following the issuance of Executive Order
14015 and the revocation of Executive Order 13831--the Agencies issued
a joint NPRM proposing regulatory amendments to the 2020 Rule.
Partnerships With Faith-Based and Neighborhood Organizations; Notice of
Proposed Rulemaking, 88 FR 2395 (``Joint NPRM''). As the Joint NPRM
explained, ``it is central to the Agencies' missions that federally
funded services and programs . . . reach the widest possible eligible
population, including historically marginalized communities.'' Id. at
2398. Thus, with their proposed rulemaking, the Agencies sought to
``ensure full access to and comprehensive delivery of federally funded
social services, in keeping with governing law and with the policies
articulated in Executive Order 14015.'' Id. at 2397. The Agencies also
sought to advance the policies set out in Executive Order 13985,
Advancing Racial Equity and Support for Underserved Communities Through
the Federal Government, 86 FR 7009 (Jan. 20, 2021), and Executive Order
14058, Transforming Federal Customer Experience and Service Delivery To
Rebuild Trust in Government, 86 FR 71357 (Dec. 13, 2021). 88 FR 2397.
In addition, the Agencies sought to ``address and correct
inconsistencies and confusion raised by the 2020 Rule.'' Id. at 2398.
Accordingly, the Agencies proposed the following changes in the
Joint NPRM: \1\
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\1\ As the Agencies explained in the Joint NPRM, USAID's
proposed regulations differed somewhat from those of the other
Agencies because ``unique characteristics of USAID-funded programs
implemented abroad in foreign countries'' made certain policies
adopted by other Agencies ``unworkable and impractical'' for USAID.
See 88 FR 2398 n.3.
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All Agencies that previously required organizations
providing social services under Agencies' direct Federal financial
assistance programs to give written notice to beneficiaries and
prospective beneficiaries of certain nondiscrimination protections
proposed to reinstate that requirement, and to further apply this
notice requirement to all such recipients, whether they are faith-based
or secular. See id. at 2398-99.
All Agencies except USAID proposed a modified version of
the 2016 Rule's referral procedure to encourage Agencies, or State
agencies and other entities that might be administering a federally
funded social service program, to provide notice, when appropriate and
feasible, to beneficiaries and prospective beneficiaries regarding how
to obtain information about other available federally funded service
providers. See id. at 2399.
All Agencies except USAID proposed changes to their
definitions of ``indirect Federal financial assistance'' to clarify
that the potential availability to beneficiaries of a practical option
to use indirect aid for services that do not involve explicitly
religious activities is a significant factor in determining whether a
program affords beneficiaries of indirect aid a ``genuine and
independent private choice.'' See Zelman v. Simmons-Harris, 536 U.S.
639, 652 (2002); 88 FR 2401. These revised definitions more closely
track the distinction between direct and indirect aid that the Supreme
Court has drawn in a series of cases culminating in Zelman. See 536
U.S. at 655-56.
The Agencies proposed changes to their regulations to
state more directly that they will not, in their selection of service
providers, discriminate on the basis of an organization's religious
character, motives, or affiliation, or lack thereof, or on the basis of
conduct that would not be considered grounds to favor or disfavor a
similarly situated secular organization such as one that has the same
capacity to effectively provide services. See 88 FR 2402.
The Agencies proposed changes to their regulations to make
clear that they will continue to consider organizations' requests for
accommodations, on a case-by-case basis, in accordance with the U.S.
Constitution and Federal statutes, and will not disqualify any
organization from participating in a program simply because that
organization has indicated it may request an accommodation. Id.
[[Page 15675]]
With respect to religious organizations' limited 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 (``Title VII''), 42 U.S.C. 2000e-1(a), the Agencies proposed to
remove regulatory language added by the 2020 Rule that could mistakenly
suggest that Title VII permits religious organizations that qualify for
the Title VII religious-employer exemption to insist upon tenets-based
employment conditions that would otherwise violate Title VII or the
particular underlying funding statute in question. See 88 FR 2402-03.
The Agencies also sought public comment on whether their
regulations should adopt any definition of ``Federal financial
assistance'' other than that in Executive Order 13279.
The Agencies received numerous public comments in response to the
Joint NPRM. Following consideration of those comments, the Agencies
have reached the following decisions regarding the proposed changes
listed above:
All Agencies except USAID \2\ adopt the proposed
requirement that organizations, whether faith-based or secular,
providing social services under Agencies' direct Federal financial
assistance programs give written notice to beneficiaries and
prospective beneficiaries of their rights.
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\2\ As explained above, USAID's final regulations differ
somewhat from those of the other Agencies because ``unique
characteristics of USAID-funded programs implemented abroad in
foreign countries'' make certain policies adopted by the other
Agencies ``unworkable and impractical'' for USAID. See 88 FR 2398
n.3.
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[cir] Some Agencies' final rules also require that beneficiaries
and prospective beneficiaries of programs receiving indirect Federal
financial assistance be provided with a written notice of certain
nondiscrimination protections.
[cir] All Agencies administering domestic social service programs
now include a model beneficiary notice as an appendix to their
regulations.
[cir] All Agencies' beneficiary notices, or the follow-on guidance
they plan to issue to providers, will specify the office that
beneficiaries and prospective beneficiaries may contact if they
experience discrimination.
The Agencies that proposed language regarding the
provision of notice to beneficiaries and prospective beneficiaries
about how to obtain information on alternative providers adopt that
language.
The Agencies that proposed changes to their definitions of
``indirect Federal financial assistance'' generally adopt their
proposed language. Some Agencies make technical edits to the text of
their final regulations to better align with the policy intent
expressed in the Joint NPRM and to promote consistency among the
Agencies' definitions of the term.
The Agencies generally adopt their proposed language
stating that they will not, in their selection of service providers,
discriminate on the basis of an organization's religious character,
motives, or affiliation, or lack thereof, or on the basis of conduct
that would not be considered grounds to favor or disfavor a similarly
situated secular organization. Some Agencies make technical edits to
their proposed language to promote consistency among the Agencies'
regulatory text and model provider notices.
The Agencies adopt their proposed language regarding
organizations' requests for accommodations.
As proposed, the Agencies remove from their regulations
certain text on tenets-based employment conditions added in the 2020
Rule, thus restoring the longstanding text of those regulatory
provisions.
The Agencies adopt the definition of ``Federal financial
assistance'' set forth in Executive Order 13279.
The changes listed above, as well as the Agencies' responses to the
other substantive, cross-cutting issues raised in public comments, are
discussed in detail in Part II of this joint preamble. Unless otherwise
noted in response to a particular comment, the responses in the joint
preamble are adopted by all Agencies. Comments that raised issues
specific to an Agency or that required an explanation of how a cross-
cutting issue affects a particular Agency are addressed in the Agency-
specific preambles in Part III of this preamble.
The Agencies generally consider each of the provisions promulgated
here to be severable. Were any element of any of these final
regulations to be stayed or invalidated by a reviewing court, the
Agencies' intent is to otherwise preserve the rules promulgated herein
to the fullest possible extent. Further, the Agencies believe that the
elements that remained would generally be able to function sensibly and
should remain in effect.
II. Cross-Cutting Public Comments
A. Beneficiary Protections
1. Definition of ``Beneficiary''
Comments: Commenters requested that the Agencies clarify who is
covered by the regulations' beneficiary protections. One commenter
suggested that this could be done either by amending the definition of
``beneficiary'' to explain that it covers all actual and prospective
program participants, or by expressly stating that the protections
apply to ``program participants'' instead of beneficiaries.
Response: Although the precise terminology varies, each Agency's
proposed regulations make clear that the beneficiary protections apply
to both current and prospective beneficiaries. The Agencies believe
that the use of ``beneficiary'' is sufficiently clear to encompass
program participants and therefore decline to make any changes based on
these comments.
Changes: None.
2. Application of Beneficiary Protections to Direct and Indirect Aid
Programs
Comments: Commenters suggested that the Agencies explicitly state
that all beneficiaries, whether participating in programs funded by
direct or indirect Federal financial assistance, are protected from
discrimination, with USDA's provision serving as a model. Commenters
also requested that the Agencies eliminate any language regarding
indirect aid programs that appears to require participation in
religious activities as part of such programs.
Response: Both the 2016 Rule and the 2020 Rule contained provisions
prohibiting providers from discriminating against a program beneficiary
or prospective beneficiary ``on the basis of religion, a religious
belief, a refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice.'' See 81 FR 19361; 85 FR 82082. As
explained in the Joint NPRM, ``[t]hose prohibitions against religious
discrimination apply in direct and indirect aid programs alike, and
they reflect one of the fundamental principles set forth in section
2(d) of Executive Order 13279, as amended by section 1(b) of Executive
Order 13559.'' 88 FR 2398 (footnote omitted). The Agencies are thus
retaining those regulatory provisions. See 2 CFR 3474.15(f) (ED); 6 CFR
19.5 (DHS); 7 CFR 16.4(a) (USDA); 22 CFR 205.1(h) (USAID); 24 CFR
5.109(g) (HUD); 28 CFR 38.5(c) (DOJ); 29 CFR 2.33(a) (DOL); 34 CFR
75.52(e), 76.52(e) (ED); 38 CFR 50.2(d) (VA); 45 CFR 87.3(f) (HHS).
With the exception of USAID, the Agencies proposed to remove
language added by the 2020 Rule stating that indirect aid providers may
require attendance at all activities that are fundamental to the
program. 88 FR 2399. As the Joint NPRM explained,
[[Page 15676]]
``[t]his additional language, which was not added by USAID in the 2020
Rule, created a confusing tension with the first sentence of the same
provision and with the language of the Executive order on which it is
based.'' Id. The Executive order provides that social service providers
receiving Federal financial assistance ``should not be allowed to
discriminate against current or prospective program beneficiaries on
the basis of . . . a refusal to attend or participate in a religious
practice.'' E.O. 13279, sec. 2(d), 67 FR 77142, as amended by E.O.
13559, sec. 1(b), 75 FR 71320. The Agencies continue to believe that
the removal of this language allays unnecessary confusion and therefore
are not changing course in the final rule.
Changes: None.
Comments: One comment, submitted on behalf of three organizations,
endorsed the Agencies' proposed rule text continuing to protect
beneficiaries and prospective beneficiaries in federally funded
programs from discrimination on the basis of religion or lack of
religion. The comment, however, opposed additional text in that
nondiscrimination provision that the comment described as enabling
beneficiaries and prospective beneficiaries to select an indirectly
funded program with explicitly religious content and then refuse to
participate in those portions of the program. The comment maintained
that this change lacks a reasoned basis for two reasons. First, the
comment submitted, the Agencies' regulations anticipate that indirectly
funded programs may include religious content, which, the comment
surmised, could constitute a very large part of the social services
offered. Second, the comment indicated that a prospective beneficiary
should be required to exercise any option to enroll in an adequate
secular alternative program before enrolling in a religious one and
objecting to its content. For these same reasons, the comment also
recommended that the Agencies retain language added by the 2020 Rule
stating that providers at which beneficiaries choose to expend indirect
aid ``may require attendance at all activities that are fundamental to
the program.'' See 88 FR 2399.
Response: As explained in the Joint NPRM, the Agencies remain
committed to ensuring that all beneficiaries and prospective
beneficiaries have access to federally funded services and programs
without unnecessary barriers and free from discrimination, in both
directly and indirectly funded programs. See id. at 2398. The Agencies
continue to believe that protecting beneficiaries and prospective
beneficiaries from discrimination on the basis of religion, a religious
belief, a refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice is consistent with this goal.
The Agencies disagree with the comment's view that prohibiting
indirectly funded social service providers from discriminating on the
basis of a refusal to attend or participate in a religious practice is
inconsistent with allowing such providers to include explicitly
religious content in their programs. Indeed, with the exception of
USAID, which does not administer any indirect Federal financial
assistance programs, the Agencies have retained regulatory text
specifying that a provider receiving indirect Federal financial
assistance need not modify its program activities to accommodate a
beneficiary who chooses to expend the indirect aid on the
organization's program. See 2 CFR 3474.15(f) (ED); 6 CFR 19.5 (DHS); 7
CFR 16.4(a) (USDA); 24 CFR 5.109(g) (HUD); 28 CFR 38.5(c) (DOJ); 29 CFR
2.33(a) (DOL); 34 CFR 75.52(e), 76.52(e) (ED); 38 CFR 50.2(d) (VA); 45
CFR 87.3(d) (HHS).
The comment also suggested that it would be impracticable for a
beneficiary to object to participating in explicitly religious
activities that are a very large part of the social service that is
offered. As explained above, however, beneficiaries and prospective
beneficiaries may decide whether to attend religious components. And in
the Agencies' experience, indirectly funded social service providers
can vary considerably with respect to the proportion of their
programming that may be explicitly religious.
The Agencies decline to require that beneficiaries who object to
participating in a program's explicitly religious activities instead
enroll in an alternative program that does not include religious
content. As explained, beneficiaries who do not wish to engage in
explicitly religious activities have the option not to participate in
such activities. And as discussed in the Joint NPRM, if an Agency
``determines that `genuine and independent private choice' is absent
for particular beneficiaries, including because providers that offer
secular programs are as a practical matter unavailable,'' the Agency
would ``need to take other appropriate steps to remedy the problem.''
88 FR 2400. Those steps may include ``expanding the universe of
reasonably available providers to include secular options'' or
``requiring existing providers to observe the same conditions that the
rule attaches to direct aid.'' Id. at 2400-01. ``These remedies would
ensure that beneficiaries are not effectively required to participate
in religious activities in order to receive the benefits of the
federally funded program and that the Government is not responsible for
the use of the aid to support explicitly religious activities.'' Id. at
2401. For these reasons, the Agencies decline to adopt the comment's
recommendations.
Changes: None.
3. Nondiscrimination in Outreach Activities
Comments: One commenter expressed concern that the proposed
nondiscrimination regulations of four of the Agencies (DOJ, HHS, HUD,
and USAID) applied only to program services and not also to outreach
related to those services. Those nondiscrimination rules, as proposed,
would prohibit federally funded social service programs from
discriminating against beneficiaries or prospective beneficiaries on
the basis of religion, a religious belief, a refusal to hold a
religious belief, or a refusal to attend or participate in a religious
practice when they provide federally funded services. The commenter
requested that the four Agencies revise their rules so that they also
prohibit providers from engaging in such discrimination when they
conduct outreach activities related to their federally funded programs.
Doing so, the commenter explained, would ensure consistency with the
other five Agencies' regulations, as well as with Executive Order
13279, as amended, which likewise prohibits discrimination in outreach
activities. See E.O. 13279, sec. 2(d), 67 FR 77142, as amended by E.O.
13559, sec. 1(b), 75 FR 71320.
Response: DOJ, HHS, HUD, and USAID agree with the commenter and
adopt the recommended change in this final rule. As explained in the
Joint NPRM, the Agencies' regulations prohibiting religious
discrimination are designed to implement Executive Order 13279, as
amended. 88 FR 2398. Section 2(d) of that Executive order provides that
organizations, both ``in providing services supported in whole or in
part with Federal financial assistance,'' and ``in their outreach
activities related to such services,'' should not be allowed to
discriminate against program beneficiaries on the basis of religion, a
religious belief, a refusal to hold a religious belief, or a refusal to
attend or participate in a religious practice. 75 FR 71320. Moreover,
five of the Agencies already include similar language in their
nondiscrimination provisions. Therefore, to promote consistency with
Executive Order 13279 and with the other Agencies' rules, DOJ, HHS,
HUD, and USAID agree that their nondiscrimination regulations should
[[Page 15677]]
likewise apply not only to federally funded social services, but also
to outreach activities related to those services.
The Agencies have long expressed an intention to promote
consistency with Executive Order 13279 and among their regulations. In
2016, for example, five of the Agencies (DOL, HHS, ED, VA, and DHS)
amended their nondiscrimination provisions so that they applied to
outreach activities. While the remaining four Agencies (DOJ, USDA, HUD,
and USAID) did not include that phrase in their regulations, the joint
preamble to the 2016 Rule stated that all of the Agencies'
nondiscrimination provisions were intended to ``closely track''
Executive Order 13279, as amended. 81 FR 19361.
The Agencies likewise acknowledged in the 2020 Rule that Executive
Order 13279 prohibits discrimination in outreach related to federally
funded services, and concluded that the ``final rule maintains the
regulatory prohibition on such religious discrimination.'' 85 FR 82044.
In the 2020 Rule, USDA also amended its nondiscrimination provision to
apply to outreach activities. Id. at 82134. In contrast, HHS removed
the word ``outreach'' from its nondiscrimination regulation, see id. at
82146, explaining that this change was offered because, in HHS's view,
the text might otherwise be read to prohibit an organization from
circulating information about its programs in contexts that have
primarily religious audiences, such as a church newsletter. Ensuring
Equal Treatment of Faith-Based Organizations, 85 FR 2974, 2980-81 (Jan.
17, 2020). These distinctions are resolved in this final rule, which
ensures greater consistency with Executive Order 13279 and among the
Agencies' regulations by revising the beneficiary nondiscrimination
provisions in DOJ, HHS, HUD, and USAID's rules to apply to outreach
activities. See 22 CFR 205.1(h) (USAID); 24 CFR 5.109(g) (HUD); 28 CFR
38.5(c) (DOJ); 45 CFR 87.3(f) (HHS).
The Agencies do not believe that this change will cause federally
funded social service providers to mistakenly read the
nondiscrimination clauses as prohibiting them from providing
information about their social service programs in contexts that have
primarily religious audiences, such as a church newsletter. The
Agencies are unaware of any instance in which a service provider or
interested party has expressed that concern, and do not believe it
follows from a plain reading of the provisions. Rather, the Agencies
think it is clear that the nondiscrimination protection prohibits
outreach activities that favor or disfavor prospective beneficiaries on
the basis of religion, such as when a federally funded social service
provider limits its outreach or advertising of the program services to
target or avoid populations based on religion.
Additionally, USDA and VA have revised their nondiscrimination
provisions to apply to outreach activities related to services
supported in whole or in part with Federal financial assistance,
irrespective of whether the outreach itself is paid for with Federal or
private funds. This change, too, is consistent with Executive Order
13279, which does not limit the scope of its nondiscrimination
protections to outreach that is federally funded, see E.O. 13279, sec.
2(d), 75 FR 71320, as well as with the regulations of the other
Agencies.
Changes: DOJ, HHS, HUD, and USAID amend 28 CFR 38.5(c), 45 CFR
87.3(f), 24 CFR 5.109(g), and 22 CFR 205.1(h), respectively, to add
``outreach activities'' to the beneficiary nondiscrimination provisions
of their final regulations, consistent with the regulations previously
adopted by USDA, DOL, ED, VA, and DHS. USDA and VA likewise remove
language from their regulations that would preclude their
nondiscrimination clauses from applying to outreach activities that are
paid for with non-Federal funds. See 7 CFR 16.4(a) (USDA); 38 CFR
50.2(d) (VA).
4. Beneficiary Notice Requirements
In this part of the joint preamble, the Agencies address comments
related to the requirement that, under particular circumstances,
recipients of Federal financial assistance must give written notice to
beneficiaries and prospective beneficiaries of certain
nondiscrimination protections. The Agencies recognize that recipients
of Federal financial assistance may need additional time to implement
any notice requirements to which they are subject under this rule.
Accordingly, as indicated in the DATES section above, the Agencies have
agreed to provide recipients with a period of 120 days in which to
comply with the written beneficiary notice requirements, if applicable.
The Agencies nonetheless encourage recipients to comply with those
requirements as soon as possible.
Comments: Several commenters urged the Agencies to require that
beneficiaries be provided notice of how they might obtain information
on alternative providers. The commenters expressed concern that the
Joint NPRM's approach--stating only that beneficiary notices ``may''
give beneficiaries the option to seek information on alternative
providers--placed an undue burden on beneficiaries, who, the commenters
said, are often not as well-positioned to find alternative providers as
are the awarding Agencies or social service providers themselves. By
contrast, other commenters worried that the Agencies' proposed approach
improperly imposed a burden on providers to locate alternatives. Some
commenters likewise contended that the Joint NPRM's proposed notice
procedure would place a unique and unfair burden on faith-based
organizations, in particular.
Response: The Agencies recognize that it will sometimes be
appropriate and beneficial to include information in a beneficiary
notice about beneficiaries' option to seek alternative providers. The
Agencies believe, however, that the suitability and utility of
including this information will vary across programs. For example, such
information may be less helpful to beneficiaries where there is only
one federally funded program in the region. In other cases, providing
such information might impose an unreasonable burden on Agencies or
their governmental partners. For instance, certain providers may offer
social services on an emergency or one-off basis outside of normal
business hours and without a fixed location, making it difficult if not
impossible for the Agencies to respond to a prospective beneficiary's
request for alternative provider information in a sufficiently timely
fashion. Accordingly, the Agencies that state that beneficiary notices
``may'' include information about how to identify alternative providers
will retain this language to allow these Agencies greater flexibility
in determining when it would be appropriate to include such information
in the notice. See 6 CFR 19.12(c) (DHS); 7 CFR 16.4(c)(2) (USDA); 24
CFR 5.109(g)(4) (HUD); 28 CFR 38.6(d) (DOJ); 38 CFR 50.3(c) (VA); 45
CFR 87.3(m) (HHS). ED will likewise retain its language from the Joint
NPRM, which, although phrased slightly differently, also enables ED to
make a case-by-case determination regarding the programs to which the
alternative provider information requirement should apply, taking into
account the specific facts and circumstances of a particular program.
See 34 CFR 75.712(c), 76.712(c).
The Agencies emphasize that in neither the Joint NPRM nor this
final rule do they require any provider, faith-based or secular, to
refer beneficiaries to or provide notice about any other organizations.
Instead, the regulatory
[[Page 15678]]
text authorizes the Agencies to require that the beneficiary notice
include contact information for a Federal office, or in some instances
a State agency or other governmental entity that might be administering
a federally funded social service program, should a beneficiary want
additional information about other federally funded programs in their
area. Thus, under this rule, only governmental entities, not non-
governmental providers, will be responsible for sharing information
about alternative providers. The Agencies believe it is also important
to highlight that whether a faith-based organization may participate in
a federally funded program is not dependent on the availability of a
secular entity providing the same or similar services nearby.
Changes: None.
Comments: Some commenters took issue with the regulations'
requirement that service providers receiving direct Federal financial
assistance must notify beneficiaries and prospective beneficiaries that
providers cannot discriminate against a beneficiary on the basis of
religion, a religious belief, a refusal to hold a religious belief, or
a refusal to attend or participate in a religious practice. The
commenters asserted that the requirement is unnecessary and singles out
and reflects animus towards faith-based providers in violation of the
First Amendment. One commenter further suggested that the President and
the Agencies lack legal authority to impose the underlying
nondiscrimination conditions themselves.
Response: The Agencies decline to eliminate their regulations'
longstanding nondiscrimination requirements or their reinstatement of
the beneficiary notice requirement. Contrary to the suggestions of some
commenters, the Agencies' regulations require that all direct aid
recipients, whether religious or secular, must give beneficiaries and
prospective beneficiaries information about their rights and
protections.
In accordance with section 2(d) of Executive Order 13279, 67 FR
77142, the Agencies' regulations have long provided that an
organization that participates in programs funded by Federal financial
assistance may not, in providing such services, discriminate against a
program beneficiary or prospective program beneficiary on the basis of
religion, a religious belief, a refusal to hold a religious belief, or
a refusal to attend or participate in a religious practice. President
Bush promulgated the Executive order's nondiscrimination requirement in
2002 pursuant to, among other things, the power vested in him by the
Constitution as the head of the executive branch, just as many other
Presidents have exercised supervisory authority over how Executive
officers carry out their responsibilities. See id. at 77141. The
nondiscrimination requirement, moreover, is appropriate to, among other
things, help guarantee the equal protection of the laws, protect
religious free exercise, and prevent an unconstitutional establishment
of religion. See 88 FR 2398. Exercising their existing statutory
authorities, it is entirely permissible for the Agencies to promulgate
regulations implementing the Executive order and the fundamental legal
principles on which it is based. See id. at 2395-98. That is why, as
the Joint NPRM explained, both the 2016 and 2020 Rules included such
nondiscrimination provisions, as had prior iterations of the Agencies'
regulations. Id. at 2398. The Agencies believe the provisions likewise
can and should be retained in their regulations here, reflecting, as
they do, fundamental principles embodied in a Presidential directive.
See id.
The Agencies also respectfully disagree that this rule's notice
procedure--requiring an organization providing social services under a
program supported by direct Federal financial assistance to give
written notice of these and other protections to beneficiaries and
prospective beneficiaries, including in some cases the right to receive
information about alternative providers--should or must be eliminated.
As explained in the Joint NPRM, all beneficiaries and prospective
beneficiaries should have access to federally funded social services
without unnecessary barriers and in a manner that is free from
discrimination. Id. The Agencies continue to believe that the rule's
notice procedure is critical to that goal because it helps ensure that
beneficiaries are aware of their rights and protections, thereby
removing certain barriers to their participation and facilitating
access to federally funded services and programs. Id. at 2398-99.
Indeed, in part for that reason, and as noted above, the rule applies
the notice procedure to all direct aid recipients, whether secular or
religious. See id. at 2399 (emphasizing that the requirement will be
applied ``to all . . . providers'' receiving direct Federal financial
assistance, ``whether they are faith-based or secular''). Nor have
commenters pointed to anything else establishing that the Agencies'
effort to protect beneficiaries' rights, or any other aspect of this
rule, reflects an intent to discriminate against or hostility towards
religious providers. To the contrary, as the Agencies emphasized in the
Joint NPRM, ``it has long been Federal policy that faith-based
organizations are eligible to participate in Agencies' grant-making
programs on the same basis as any other organizations,'' and the
Agencies remain committed to preventing discrimination against faith-
based organizations in the selection and regulation of service
providers. Id. at 2401. Just as providers should be notified about
their rights and protections, so should beneficiaries.
Changes: None.
Comments: Some commenters recommended that the Agencies require
providers to give written notice to beneficiaries of programs receiving
indirect Federal financial assistance. The commenters recognized that
such indirect aid beneficiaries are not entitled to all of the
protections identified in the direct-aid-beneficiary notice. For
instance, the regulations' requirement that providers separate
explicitly religious activities from Government-funded programming
applies only to programs supported with direct Federal financial
assistance. But the commenters argued that there was no good reason why
indirect aid beneficiaries should not receive notice of their
particular set of protections.
Response: The Agencies agree that the rationale for adopting the
beneficiary notice requirement--improving beneficiaries' access to
federally funded services by informing them of their rights and
protections, and thereby removing certain barriers arising from
discrimination--applies equally to all beneficiaries, regardless of
whether they are participating in programs receiving direct or indirect
Federal financial assistance. The Agencies also note that, for most
Agencies, their cost analysis in the proposed rule already calculated
the annual cost of the notice requirement as if it applied to both
direct and indirect aid programs, because data limitations made it
impossible to differentiate direct recipients from indirect recipients
in that context. Extending the beneficiary notice requirement to most
indirect aid programs would, therefore, increase the expected benefits
of the rule without increasing its expected costs, which the Agencies
have already determined to be justified by the benefit of the notice
requirement as proposed.
As the Joint NPRM indicated, however, certain Agencies' estimates
did not reflect the cost of the notice requirement for subrecipients of
Federal financial assistance. The Agencies also note that there may be
significant administrative difficulties in providing written notice to
all beneficiaries in
[[Page 15679]]
certain indirect aid programs. For example, as the Agencies explained
in the 2016 Rule, ``there are more than a quarter million stores,
farmers' markets, direct marketing farmers, homeless meal providers,
treatment centers, group homes, and other participants across the
nation that are authorized Supplemental Nutrition Assistance Program
(`SNAP') retailers.'' 81 FR 19363. If all providers receiving indirect
aid were required to give written notice to beneficiaries, these
retailers would always need to have notices ready to provide to any
person using SNAP benefits. Id. The Agencies have therefore tailored
the beneficiary notice requirement to the realities of certain indirect
aid programs--for example, by requiring that the notice be provided by
entities that administer the indirect Federal financial assistance, or
by electing not to impose the beneficiary notice requirement in certain
indirect aid programs where the administrative difficulties present
insurmountable obstacles. These Agency-specific decisions are explained
in the Agencies' individual preambles below.
The Agencies recognize that programs receiving indirect Federal
financial assistance are not subject to the requirement to separate
explicitly religious activities from Government-funded ones and that
this difference must be reflected in the beneficiary notices given to
indirect aid beneficiaries. As elaborated in the Agency-specific
preambles below, the Agencies that have indirect aid programs address
this difference by specifying in their respective model beneficiary
notices which protections apply only to programs supported by direct
Federal financial assistance. It is important to note, moreover, that
the proposed regulations of the Agencies that reinstate the beneficiary
notice requirement already specify that the directive to separate
explicitly religious activities applies only to programs supported by
direct Federal financial assistance. See 6 CFR 19.4(b) (DHS) (requiring
that explicitly religious activities be ``separate in time or
location'' from ``activities supported by direct Federal financial
assistance''); 7 CFR 16.4(c)(1)(iii) (USDA) (same); 24 CFR
5.109(g)(2)(ii) (HUD) (same); 28 CFR 38.6(b)(3) (DOJ) (same); 29 CFR
2.34(a)(3) (DOL) (same); 34 CFR 75.712(a)(3), 76.712(a)(3) (ED) (same);
38 CFR 50.3(a)(3) (VA) (same); 45 CFR 87.3(k)(1)(iii) (HHS) (same).
Changes: The Agencies that administer domestic social service
programs now generally require that beneficiaries and prospective
beneficiaries of such programs receiving indirect Federal financial
assistance be provided with a written beneficiary notice, subject to
certain variations elaborated in the Agency-specific preambles below.
The regulations affected are 6 CFR 19.12(a) (DHS), 7 CFR 16.4(c)
(USDA), 24 CFR 5.109(g) (HUD), 28 CFR 38.6(b) (DOJ), 29 CFR 2.34(c)
(DOL), 38 CFR 50.3(a) (VA), and 45 CFR 87.3(k) (HHS).
Comments: One commenter expressed concern about the Joint NPRM's
statement that the Agencies might, ``as appropriate, require providers
to include [the beneficiary] notice as part of a broader and more
general notice of nondiscrimination on additional grounds.'' 88 FR
2399. The commenter was particularly troubled by the phrase ``on
additional grounds,'' which the commenter said was vague and
potentially burdensome to providers. The commenter seemed to believe
that the Joint NPRM's preamble text would enable the Agencies to
require more than one notice be provided to beneficiaries--one specific
notice regarding the protections under this rule, and another combined
with notification of other protections.
Response: In making these statements in the Joint NPRM preamble,
the Agencies' intent was to relieve potential burdens on providers, not
to create them. The Agencies will allow providers to notify
beneficiaries of the protections in this rule as part of a broader
nondiscrimination notice, but the Agencies will not require providers
to do so. This is clear on the face of many of the Agencies'
regulations. For clarity and consistency with the other Agencies,
however, VA has amended its relevant regulation (38 CFR 50.3) to make
it clear that providers may, but need not, combine materials for
beneficiary notices.
Changes: VA revises 38 CFR 50.3(a) to replace the phrase
``including by incorporating the notice into materials that are
otherwise provided to beneficiaries'' with the phrase ``in a manner and
form prescribed by the VA program.''
Comments: Several commenters suggested that the Agencies should, as
they had previously, provide model notices to help providers comply
with their obligation to notify beneficiaries and prospective
beneficiaries of their rights. According to the commenters, model
notices will help the Agencies ensure that beneficiaries do not
encounter discrimination when accessing critical services.
Response: The Agencies administering domestic social service
programs agree that providing model beneficiary notices will further
the Agencies' goal of ensuring that beneficiaries are aware of their
rights and protections, and thereby removing certain barriers to their
participation and facilitating access to federally funded services and
programs. Those Agencies have accordingly all added model beneficiary
notices to their regulations in this final rule.
Changes: DOJ, USDA, DOL, HHS, HUD, ED, VA, and DHS have all added
an appendix C containing model language for written notice to
beneficiaries and prospective beneficiaries. Those model notices are
located at 6 CFR part 19, appendix C (DHS); 7 CFR part 16, appendix C
(USDA); 24 CFR part 5, subpart A, appendix C (HUD); 28 CFR part 38,
appendix C (DOJ); 29 CFR part 2, subpart D, appendix C (DOL); 34 CFR
part 75, appendix C (ED); 38 CFR part 50, appendix C (VA); and 45 CFR
part 87, appendix C (HHS).
B. Prohibition on Using Direct Federal Financial Assistance for
Explicitly Religious Activities
Comments: Several commenters suggested that, with this rule, the
Agencies should repeal their longstanding regulations prohibiting
organizations that receive direct Federal financial assistance from
engaging in explicitly religious activities as part of the social
services funded with that financial assistance and requiring that
religious activities be separated in time or location from the
federally funded services. According to these commenters, recent
Supreme Court cases, including primarily Carson v. Makin, 596 U.S. 767
(2022), and Trinity Lutheran Church of Columbia, Inc. v. Comer, 582
U.S. 449 (2017), have established that such regulations are not only no
longer required by the Establishment Clause, but also now prohibited by
the Free Exercise Clause.
Response: The Agencies decline to repeal the regulatory provisions
in question, which appropriately implement an Executive order and are
consistent with the Supreme Court's First Amendment jurisprudence. See
2 CFR 3474.15(d)(1) (ED); 6 CFR 19.4(a) and (b) (DHS); 7 CFR 16.2,
16.4(b) (USDA); 22 CFR 205.1(e) (USAID); 24 CFR 5.109(e) (HUD); 28 CFR
38.5(a) and (b) (DOJ); 29 CFR 2.33(b)(1) (DOL); 34 CFR 75.52(c)(1),
76.52(c)(1) (ED); 38 CFR 50.2(b), 61.64(c), 62.62(c) (VA); 45 CFR
87.3(d) (HHS).
Executive Order 13279--which President Bush promulgated in 2002,
and which, in amended form, remains operative today--specifies that
Federal agencies must implement social service programs ``in accordance
with the
[[Page 15680]]
Establishment Clause and the Free Exercise Clause of the First
Amendment to the Constitution'' and that, ``[t]herefore, organizations
that engage in explicitly religious activities, such as worship,
religious instruction, and proselytization, must offer those services
separately in time or location from any programs or services supported
with direct Federal financial assistance.'' E.O. 13279, sec. 2(e), 67
FR 77142, as amended by E.O. 13559, sec. 1(b), 75 FR 71320; see also
E.O. 13279, sec. 3(b), 67 FR 77143 (requiring specified agency heads to
ensure that all agency policies with implications for faith-based and
community organizations are consistent with the aforementioned policy
and the other ``fundamental principles'' articulated in section 2 of
the order).
The Agencies' regulations have long implemented this directive.
Most of the Agencies have imposed such conditions since shortly after
President Bush promulgated Executive Order 13279 in 2002, see 88 FR
2399-2400, and all of the Agencies maintained the conditions in
connection with the 2020 Rule, 85 FR 82041-43, 82109.
The regulations, moreover, are consistent with the Supreme Court's
First Amendment caselaw. As explained in the Joint NPRM, 88 FR 2401
n.8, the Court has unanimously held--in the context of direct
governmental aid to private organizations to perform social service
programming or engage in social welfare activities--that although the
Establishment Clause does not preclude religious organizations from
receiving such funds, they may not use aid they receive directly from a
government to advance `` `specifically religious activit[ies] in an
otherwise substantially secular setting.' '' Bowen v. Kendrick, 487
U.S. 589, 621 (1988) (quoting Hunt v. McNair, 413 U.S. 734, 743
(1973)); see also Mitchell v. Helms, 530 U.S. 793, 840, 865 (2000)
(O'Connor, J., concurring in the judgment) (controlling opinion
explaining that the Court's decisions emphasizing religious neutrality
``provide no precedent for the use of public funds to finance religious
activities'' and reaffirming that the principle that ``any use of
public funds to promote religious doctrines violates the Establishment
Clause'' ``of course remains good law'' (quotation marks and emphasis
omitted)). That longstanding Supreme Court doctrine informed President
Bush's inclusion of section 2(e) in Executive Order 13279, 67 FR 77142,
which in turn compelled the promulgation and repromulgation of the
relevant provisions of the Agencies' regulations.
The Supreme Court's more recent decisions have not overruled Bowen
v. Kendrick, Mitchell v. Helms, or any of the other cases in which the
Court has affirmed the `no religious uses of direct aid' Establishment
Clause rule. It is true that the Court in Carson wrote that
discrimination on the basis of a school's religious activities was no
``less offensive to the Free Exercise Clause'' than discrimination on
the basis of a school's religious character. 596 U.S. at 787. The
Court, however, made that statement in the context of a ``neutral
benefit program in which public funds flow[ed] to religious
organizations through the independent choices of private benefit
recipients.'' Id. at 781 (emphasis added); see also Me. Rev. Stat. Ann.
tit. 20-a, sec. 5204(4) (2008) (providing that the State of Maine would
``pay the tuition . . . at the public school or the approved private
school of the parent's choice at which the student is accepted''). The
school aid program in Carson, in other words, was a voucher-like
program, i.e., what the Agencies' regulations here refer to as
providing indirect aid. The Court noted that there was no Establishment
Clause problem with respect to beneficiaries using government aid for
religious education in such a program. 596 U.S. at 781 (citing Zelman,
536 U.S. at 652-53).
This rule makes clear that the Agencies' regulatory restrictions
regarding explicitly religious activities do not apply in such indirect
aid cases, where governmental financial assistance flows to private
organizations wholly as a result of a genuinely independent and private
choice of the beneficiary. See, e.g., 88 FR 2423 (citing proposed rule
38 CFR 50.2(b), stating that ``[t]he use of indirect Federal financial
assistance is not subject to'' VA's explicitly-religious-activity
restrictions). Nothing in Carson, however, affects the Court's well-
established doctrine that the Establishment Clause generally prohibits
the use of financial aid received directly from a government for
``specifically'' or ``inherently'' religious activities, particularly
in the context of aid to private organizations to provide social
services to beneficiaries, as in Kendrick. Nor did the Court in Carson
hold that statutory and regulatory restrictions on such religious uses
of direct aid violate the Free Exercise Clause.
Contrary to commenters' suggestions, the Court's decision in
Trinity Lutheran does not require amendment of the Agencies'
regulations either. Trinity Lutheran involved a program in which a
Missouri agency provided grants directly to entities for playground
resurfacing. Although the Court in Trinity Lutheran held that Missouri
could not disqualify a church from eligibility for the grant on the
basis of its religious identity, the Court did not address a separate
condition under Missouri law mandating that the grants not be used for
sectarian purposes. See 582 U.S. at 465 n.3. Indeed, the Court
specifically noted that ``[t]his case involves express discrimination
based on religious identity with respect to playground resurfacing,''
and the Court ``d[id] not address religious uses of funding.'' Id. The
Court in Trinity Lutheran did not purport to overrule Establishment
Clause precedents such as Kendrick and Mitchell, and no President has
amended section 2(e) of Executive Order 13279 after Trinity Lutheran,
nor did the Agencies eliminate the restriction on religious uses of
direct aid from their regulations as part of the 2020 Rule.
The Supreme Court has counseled that ``it is th[e] Court's
prerogative alone to overrule one of its precedents,'' United States v.
Hatter, 532 U.S. 557, 567 (2001) (quotation marks omitted), and has
emphasized that its ``decisions remain binding precedent until [the
Court] see[s] fit to reconsider them, regardless of whether subsequent
cases have raised doubts about their continuing vitality,'' Hohn v.
United States, 524 U.S. 236, 252-53 (1998); see also Agostini v.
Felton, 521 U.S. 203, 237 (1997) (``We reaffirm that `[i]f a precedent
of this Court has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to this Court
the prerogative of overruling its own decisions.' '' (quoting Rodriguez
de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989))). The
Agencies must follow the Court's existing precedents rather than try to
predict whether the Court might overturn them in a future case.
In short, neither section 2(e) of Executive Order 13279 nor the
Agencies' regulations implementing that extant Presidential directive
are unconstitutional. The Agencies therefore maintain their regulations
prohibiting organizations that receive direct Federal financial
assistance from engaging in explicitly religious activities as part of
the social services funded with that financial assistance and requiring
that religious activities be separated in time or location from the
federally funded services.
Changes: None.
[[Page 15681]]
C. Definition of ``Indirect Federal Financial Assistance''
Comments: Various commenters weighed in on the rule's definition of
``indirect Federal financial assistance.'' Numerous commenters strongly
supported the Agencies' approach to the term. A few commenters,
however, contended that under current Supreme Court caselaw it is
inappropriate for the Agencies to distinguish between direct and
indirect Federal aid. Commenters also raised concerns about specific
language in the definition, including primarily the rule's statement
that the availability of adequate secular alternatives is a significant
factor in determining whether a program qualifies as indirect. For
example, one commenter asserted that Federal financial assistance may
qualify as indirect, even where particular beneficiaries lack any
practical secular alternatives, so long as the Government itself is not
responsible for the lack of such alternatives. Relatedly, some
commenters took issue with the possibility that the absence of a
``genuine and independent private choice'' to participate in religious
programs might require an Agency to impose some of the conditions on a
recipient of indirect aid that would normally be associated with direct
Federal financial assistance programs.
Response: The Agencies decline to eliminate the rule's distinction
between direct and indirect aid or to revise its general approach to
defining ``indirect Federal financial assistance.'' Nevertheless, as
elaborated below, a few of the Agencies have made some technical edits
to their regulations to promote consistency among the Agencies'
definitions of the term.
As explained above in Part II.A.4 of this joint preamble, the
Agencies' regulations have long provided that their restrictions on
explicitly religious activities in federally funded social service
programs apply only where the governmental aid is given to private
organizations ``directly.'' The Joint NPRM proposed to amend the
regulations' definition of indirect aid programs--i.e., those that are
not subject to such conditions--to clarify that they are limited to
cases in which a service provider receives assistance ``wholly as a
result of'' a ``genuine and independent private choice'' of the
beneficiary, ``not a choice of the Government.'' 88 FR 2401 (quotation
marks omitted). As noted in the Joint NPRM, such language or its
equivalent has appeared in at least some of the Agencies' regulations
as far back as 2004. Id. at 2399. The rule here further provides that
``the availability of adequate secular alternatives is a significant
factor in determining whether a program affords'' a genuinely
independent and private choice to beneficiaries and prospective
beneficiaries. Id. at 2401. These amendments are designed to more
closely track the distinction between direct and indirect aid that the
Supreme Court has drawn in a series of cases culminating in Zelman v.
Simmons-Harris, 536 U.S. 639 (2002). See 88 FR 2401.
Contrary to some commenters' suggestions, the Supreme Court has not
abandoned the distinction between direct and indirect aid that has been
central to many of its Establishment Clause decisions. Indeed, in
Carson, the Court specifically noted, citing Zelman, that because the
Maine program there was ``a neutral benefit program in which public
funds flow to religious organizations through the independent choices
of private benefit recipients,'' it ``d[id] not offend the
Establishment Clause.'' Carson, 142 S. Ct. at 1997. It thus remains the
case that, for Federal financial assistance to qualify as indirect
under the Court's jurisprudence, a service provider must receive the
assistance as a result of a genuine and independent private choice of
the beneficiary. See 88 FR 2401.
The Agencies also decline to amend the rule's statement that the
``availability of adequate secular alternatives'' is a ``significant
factor'' in determining whether a program affords beneficiaries
genuinely independent and private choices. The vast majority of
commenters who weighed in on the statement agreed that the availability
of such alternatives is relevant to the distinction between direct and
indirect aid. That is consistent with the Supreme Court's jurisprudence
on this subject. As the Court explained in Zelman, the Establishment
Clause determination of whether aid is direct or indirect ``must be
answered by evaluating all options,'' religious or secular, available
to beneficiaries in a Government-funded social service program. 536
U.S. at 655-56. The inquiry, in other words, is a holistic one, in
which courts comprehensively consider the nature of and factual
backdrop for the program in question. Moreover, contrary to the
suggestions of one commenter, it is both permissible and administrable
for an agency to conduct that inquiry, including by considering the
availability of adequate secular alternatives. In fact, that is
precisely what the Supreme Court itself did in Zelman and what lower
courts have done in applying Zelman's distinction between direct and
indirect aid to various factual scenarios. Therefore, it is appropriate
for the Agencies to do likewise when taking actions that might
implicate constitutional concerns.
Nor do the Agencies agree that a lack of secular alternatives is
relevant only where the Government is responsible for their absence. As
just noted, Zelman makes clear that the ultimate question requires an
assessment of ``all options'' available to beneficiaries. See id. at
656. And the Agencies do not believe it is necessary for the
regulations to address any hypothetical cases.
As noted, some commenters also took issue with certain statements
in the Joint NPRM preamble regarding what a governmental entity
offering aid can or must do where beneficiaries are, as a practical
matter, unable to make an independent choice to use the aid in a
program that does not include specifically religious elements. See 88
FR 2400-01. The Joint NPRM's preamble explained that if an Agency
responsible for selecting service providers determines that a limited
array of federally funded programs in a particular area precludes
beneficiaries' practical ability to make a ``genuine and independent
private choice,'' Zelman would not require the Agency to terminate the
indirect aid program or disallow beneficiaries from redeeming their
vouchers or certificates at religious providers; the Agency could
instead take other appropriate steps to remedy the problem, such as
expanding the universe of reasonably available providers to include
secular options or requiring existing providers to observe the same
conditions that the regulations attach to direct aid. Id. The Agencies
need not take any action with respect to these comments because the
regulatory text itself does not address what, if any, steps the
Government should or must take in such circumstances. Because such
cases may be very rare and will likely differ widely in terms of their
facts and contexts, the Agencies do not believe that their regulations
ought to specifically address any hypothetical remedial choices.
Nevertheless, the Agencies continue to believe that the possibilities
mentioned in the Joint NPRM preamble will be legally available in some
or all such cases. For example, it is unlikely that an Agency's efforts
to identify and recruit secular providers in order to guarantee genuine
beneficiary choice would be subject to heightened constitutional
scrutiny--and even if they were, that scrutiny would likely be
satisfied because such efforts would be undertaken in order to satisfy
the Establishment Clause's requirements and because such recruiting
would not
[[Page 15682]]
disqualify or disfavor the participation of any religious providers.
Further, the Agencies decline to amend the rule to treat the
availability of secular alternatives as a necessary condition (as
opposed to merely a significant factor) to a determination that the
program affords beneficiaries a genuinely independent and private
choice of providers. It may be the case that, under certain facts and
circumstances, Zelman would require a secular choice be available for
the governmental aid program to qualify as indirect. But indirect aid
programs can and do vary widely, and it is possible that in some
contexts a court could deem a beneficiary's decision to use financial
assistance in a program that includes religious elements to be
genuinely independent even where there are few or no secular options in
a given area. For example, a particular beneficiary might be
indifferent to whether a provider or a program is in some respects
religious, or might prefer a religious provider.
Finally, although the Agencies decline to change their overall
approach to defining ``indirect Federal financial assistance,'' certain
of the Agencies have made technical edits to their definitions of the
term, so as to more closely track the language of Zelman, as discussed
in the Joint NPRM, and to promote consistency among the nine Agencies'
regulations. Also, previously, some Agencies referred to the plural
``adequate secular alternatives,'' while others referred to the
singular ``adequate secular alternative.'' To advance consistency among
the Agencies' regulations, the Agencies have now uniformly adopted the
plural construction. In doing so, they do not express any view as to
whether one secular alternative could be adequate in some
circumstances, which would depend on the specific facts at issue.
Changes: The Agencies have made the aforementioned technical
changes in the relevant regulations in accordance with Zelman and the
Joint NPRM and to promote consistency among the Agencies' regulatory
text. The regulations modified are 6 CFR 19.2 (DHS); 7 CFR 16.2 (USDA);
24 CFR 5.109(b) (HUD); 28 CFR 38.3(c)(2) (DOJ); 29 CFR 2.31(a)(2)(ii)
(DOL); 34 CFR 75.52(c)(3)(ii)(B) and 76.52(c)(3)(ii)(B) (ED); 38 CFR
50.1(b)(2), 61.64(b)(2), and 62.62(b)(2) (VA); and 45 CFR 87.1(c)(2)
(HHS).
D. Eligibility of Faith-Based Organizations and Availability of
Accommodations
1. Religious Motives
Comments: In the Joint NPRM, the Agencies made clear that their
proposed regulations would preserve the Agencies' longstanding policy
of prohibiting discrimination against an organization on the basis of
religion. 88 FR 2402. But, rather than keeping the 2020 Rule's
formulation of that principle, the Agencies proposed rewording their
regulations for clarity and to state the prohibition more plainly. Id.
In particular, the Joint NPRM expressed that the Agencies' regulations
would provide that the Agencies would not, in their selection of
service providers, discriminate ``on the basis of an organization's
religious character, motives, or affiliation, or lack thereof.'' Id.
Commenters pointed out, however, that some of the Agencies (namely,
DOJ, DOL, HHS, HUD, VA, DHS, and USAID) had, in certain of their
proposed regulations, retained the ``motivated or influenced by
religious faith'' language of the 2020 Rule, rather than the
``motives'' language set out in the Joint NPRM's preamble. The
commenters urged those Agencies to change their regulatory text to
consistently adopt the ``motives'' formulation prescribed in the Joint
NPRM preamble and used elsewhere in the proposed regulations.
Response: The Agencies agree that their regulations should
consistently prohibit discrimination on the basis of an organization's
``religious character, motives, or affiliation, or lack thereof,''
instead of preserving the religious-motivation phrasing used in the
2020 Rule. As explained in the Joint NPRM, the ``motives'' language
maintains the Agencies' longstanding prohibition on such
discrimination, but ``states it more plainly'' and ``would further
guarantee that the Agencies will not discriminate against providers on
grounds that would violate the First Amendment.'' Id. The Agencies,
moreover, believe there is value in ensuring that their regulations are
consistent in describing the prohibition on discriminating against an
organization based on its religion. Accordingly, in this final rule,
the Agencies have uniformly adopted the ``motives'' language in all of
the relevant regulatory provisions.
This and the other wording changes regarding the protections the
law affords to faith-based organizations and others do not
substantively alter the Agencies' longstanding commitment to ensuring
that faith-based organizations are not discriminated against in the
selection of service providers. Instead, the changes simply address
confusion introduced by the 2020 Rule regarding protections the law
affords to faith-based organizations and others.
Changes: DOJ, DOL, HHS, HUD, VA, DHS, and USAID have revised their
regulations and associated appendices in order to align their
regulatory text with that appearing elsewhere in the relevant
regulations. The final regulations reflecting these revisions are 6 CFR
19.3(b), 19.4(c), and appendix A to part 19 (DHS); 22 CFR 205.1(b)
(USAID); 24 CFR 5.109(c) and appendix A to subpart A of part 5 (HUD);
28 CFR 38.4(a), 38.5(d), and appendix A to part 38 (DOJ); 29 CFR
2.32(a)(1) and appendix A to subpart D of part 2 (DOL); 38 CFR 50.2(a)
and appendix A to part 50 (VA); and 45 CFR 87.3(a) and appendix B to
part 87 (HHS).
2. Religious Accommodations
Comments: In the Joint NPRM, the Agencies stated that they would
continue to consider requests for accommodations on a case-by-case
basis in accordance with the U.S. Constitution and other Federal law.
88 FR 2402. Some commenters generally supported this approach, but
urged the Agencies to provide further information about how such
determinations would be made. For instance, one commenter requested
that the Agencies explain how they will decide requests for
accommodations and who will make those determinations. The commenter
also argued that the Agencies should institute an expedited procedure
for appealing accommodation denials, before the provider-selection
process is completed, so as to ensure that religious organizations are
provided appropriate accommodations and are not excluded from
participating in the Agencies' programs. And another commenter urged
the Agencies to make clear that their case-by-case determinations would
consider, among other factors, the potential impacts of proposed
accommodations on beneficiaries or other third parties.
Response: As explained in the Joint NPRM, the Agencies remain
committed to considering providers' requests for accommodations on a
case-by-case basis in accordance with all Federal law, and to ensuring
faith-based and other organizations are not dissuaded from
participating in the Agencies' programs. Consistent with the Agencies'
commitment to taking a case-by-case approach, the Agencies do not
establish in this final rule precisely how or by whom such case-by-case
determinations will be made because such details are beyond the scope
of this rulemaking and
[[Page 15683]]
could vary depending on the particular program implicated or the facts
and circumstances of a particular request for accommodation.
Changes: None.
Comments: Several commenters supported the Agencies' ongoing
commitment to considering requests for accommodations on a case-by-case
basis in accordance with the U.S. Constitution and Federal statutes, as
reflected in standalone provisions of the Agencies' regulations. At the
same time, however, the commenters suggested that the Agencies remove
similar language from the regulations' provisions describing program
requirements. According to the commenters, because the exemption
language in those provisions immediately follows the constitutionally
required prohibition on using direct governmental funding for
explicitly religious activities, that language could be misread to
suggest that a religious exemption could be given to that requirement.
In the commenters' view, including such language in the program
requirement provisions could thus engender confusion.
Responses: The Agencies have carefully reviewed the language
regarding accommodations included throughout this rule, and they do not
believe it suggests, regardless of its placement, that unconstitutional
accommodations can or should be made. The Agencies agree, however, that
the accommodation language is clearer and easier to find if it appears
as a standalone statement in each Agency's regulations, rather than if
it is subsumed in more general provisions.
Changes: The Agencies that did not already include a standalone
provision in their proposed regulations have accordingly revised their
regulations to do so. The provisions that have been revised or added
are 6 CFR 19.3(c) (DHS); 7 CFR 16.3(h) (USDA); 22 CFR 205.1(c) (USAID);
24 CFR 5.109(c) (HUD); 28 CFR 38.4(b) (DOJ); 29 CFR 2.32(e)(1) (DOL);
38 CFR 50.2(e) (VA); and 45 CFR 87.3(b) (HHS).
Comments: One commenter faulted the Joint NPRM for supposedly
adopting an ``accommodation-denying position'' that could result in
violations of the Religious Freedom Restoration Act (``RFRA''), in
particular. The commenter pointed out, for example, that the Joint
NPRM's discussion of Title VII did not address the impact of RFRA on
the application of that statute, and argued that there are instances
where RFRA compels accommodations to the requirements of
nondiscrimination laws.
Response: The Agencies disagree that, either in the Joint NPRM or
this final rule, they are taking an ``accommodation-denying position.''
To the contrary, in both documents, the Agencies have specifically
reaffirmed that they will continue to consider faith-based and other
organizations' requests for accommodations on a case-by-case basis in
accordance with the U.S. Constitution and Federal statutes. RFRA is one
Federal law that may require the Agencies to grant such an
accommodation in an appropriate case. Specifically, where a provider
shows that application of a regulatory requirement ``substantially
burden[s]'' its exercise of religion, RFRA states that the Agency may
impose the requirement only if it demonstrates that application of the
burden to the organization ``is in furtherance of a compelling
governmental interest'' and ``is the least restrictive means'' of
furthering that interest. 42 U.S.C. 2000bb-1(a) through (b).
Changes: None.
3. Provider Notices
Comments: The regulations of all the Agencies except USAID include
appendices containing language for provider notices--that is, notices
or announcements of award opportunities and notices of award or
contracts--stating that faith-based organizations are eligible for the
awards on the same basis as any other organization and are subject to
relevant protections and requirements of Federal law. (While USAID's
regulations do not include this appendix, they do require that notices
or announcements of funding opportunities include such language. See 22
CFR 205.1(b).) The Agencies proposed certain changes to these provider
notice appendices in order to conform the appendices to proposed
changes to other parts of their regulations. As some commenters pointed
out, however, several of the Agencies' proposed provider notice
appendices did not incorporate all of the changes described elsewhere
in the Joint NPRM. For example, the Joint NPRM asserted that this rule
was intended to state more clearly that Agencies would not, in
selecting service providers, discriminate on the basis of an
organization's religious character, motives, or affiliation, or lack
thereof, or on the basis of conduct that would not be considered
grounds to favor or disfavor a similarly situated secular organization.
88 FR 2402. But, in an oversight, several Agencies (USDA, DOL, HUD, VA,
and DHS) did not fully incorporate the intended new language in their
provider notice appendices, although they generally did so elsewhere in
their proposed regulations. Commenters recommended that the Agencies
revise their provider notice appendices to be consistent both with the
remainder of the proposed regulatory text and with one another.
One particular set of proposed changes to the provider notice
appendices drew both support and criticism, namely, the removal of a
list of examples of religious freedom and conscience protection laws,
along with a sentence stating that religious accommodations may be
sought under many of those laws. The proposal sought to clarify the
nature of the protections for faith-based organizations by decoupling
the rule's religious nondiscrimination protections from the question of
accommodations. See id. Although the NPRM preamble indicated that such
changes would be made throughout the rule, the proposed changes were
inadvertently omitted from USDA and DOL's proposals. A commenter that
supported the proposed changes urged USDA and DOL to join the other
Agencies in eliminating the illustrative list of Federal laws. Some
other commenters, by contrast, recommended that all of the Agencies
restore the language, because, in the commenters' view, it makes clear
which laws require an accommodation.
Response: The Agencies agree that all of their provider notice
appendices should be revised as necessary to reflect fully the changes
proposed elsewhere in the rule. Doing so will help ensure that faith-
based and other organizations are accurately informed of their
eligibility, protections, and requirements. The Agencies also agree
that the provider notice appendices should be consistent with one
another except where Agency-specific language is required. To
accomplish these goals, in this final rule, the Agencies have generally
adopted the language of the provider notice appendices in DOJ's
proposed regulation, which most thoroughly incorporated the intended
changes. As explained in the Joint NPRM, 88 FR 2402, these changes do
not substantively change providers' rights, but rather make clearer
that the Agencies will not discriminate against providers in violation
of the U.S. Constitution or Federal statutes, and that the Agencies
will continue to consider providers' requests for accommodations on a
case-by-case basis in accordance with all applicable Federal law. These
changes also avoid any unintended implications introduced by citing to
some, but not all, statutes containing religious freedom protections.
[[Page 15684]]
Changes:
DOJ--28 CFR part 38, appendix A: amend paragraph (c) for consistency
with proposed 28 CFR part 38; appendix B: amend paragraph (b) for
consistency with proposed 28 CFR part 38
Other Agencies--
DHS--6 CFR part 19, appendices A and B: revise language to match DOJ's
revised 28 CFR part 38, appendices A and B
USDA--7 CFR part 16, appendices A and B: revise language to match DOJ's
revised 28 CFR part 38, appendices A and B
HUD--24 CFR part 5, subpart A, appendix A: revise language to match
DOJ's revised 28 CFR part 38, appendix A (except retain heading
``Notice of Funding Opportunity''); add new appendix B modeled on
revised 28 CFR part 38, appendix B
DOL--29 CFR part 2, subpart D, appendices A and B: revise language to
match DOJ's revised 28 CFR part 38, appendices A and B
ED--34 CFR part 75, appendices A and B: revise language to match DOJ's
revised 28 CFR part 38, appendices A and B
VA--38 CFR part 50, appendices A and B: revise language to match DOJ's
revised 28 CFR part 38, appendices A and B
HHS--45 CFR part 87, appendices A and B: revise language to match DOJ's
revised 28 CFR part 38, appendices A and B
4. Merit-Based Considerations in Grant-Making
Comments: One commenter requested that the Agencies include
language in their regulations ensuring that Agency decisions about
awards of Federal financial assistance will be made on the basis of
merit, and stating that such merit-based decisionmaking will include
objective consideration of whether an organization will serve all
beneficiaries and perform all services that are necessary to fulfill
the program's objectives.
Response: The Agencies agree that decisions about awards of Federal
financial assistance must be free from political interference or the
appearance of such interference, and must be made on the basis of
merit, not on the basis of religion or lack thereof. The Agencies do
not, however, adopt the commenter's suggestion that they elaborate upon
the merit-based decisionmaking processes in their regulations. Such
additional details are beyond the scope of this rulemaking. The
Agencies therefore decline to make any changes to their regulations
based on these comments.
Changes: None.
5. Burdens on Faith-Based Grantees
Comments: According to some commenters, certain of the rule's
notice requirements are, but should not be, imposed exclusively on
faith-based providers. Other commenters similarly contended that the
regulations' requirement that a provider's explicitly religious
activities, if any, be separated from ones supported by direct Federal
financial assistance is unduly burdensome for religious service
providers. And another commenter contended that the rule discriminates
against faith-based organizations based on their religious status, due
to certain of the rule's beneficiary protections.
Response: Neither the Joint NPRM nor this final rule imposes any
requirements exclusively on faith-based providers. Rather, the
regulations apply equally to both faith-based and secular
organizations. As explained above in Part II.B of this joint preamble,
the Agencies likewise decline to repeal their regulatory provisions
requiring the separation of explicitly religious activities from those
supported by direct Federal financial assistance. That requirement
applies to all types of providers, not just religious organizations,
and it appropriately implements an Executive order and is consistent
with the Supreme Court's First Amendment jurisprudence. Nor does this
final rule discriminate against faith-based providers in any other way.
To the contrary, the rule is designed, in significant part, to protect
providers from discrimination based on religion.
Changes: None.
E. Title VII
Comments: Section 703(a) of Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e-2(a), generally prohibits employers from engaging
in employment discrimination on the basis of an individual's race,
color, religion, sex, or national origin. Another subsection of Title
VII, however, exempts certain religious organizations with respect to a
particular application of that prohibition. Specifically, section
702(a) of Title VII, 42 U.S.C. 2000e-1(a), provides that ``[t]his
subchapter shall not apply . . . to a religious corporation,
association, educational institution, or society with respect to the
employment of individuals of a particular religion to perform work
connected with the carrying on by such corporation, association,
educational institution, or society of its activities.'' Most of the
Agencies' regulations have long provided that a religious organization
that qualifies for that Title VII religious-employer exemption is not
precluded from invoking it even in programs funded by Federal financial
assistance. In the 2020 Rule, VA joined the other Agencies by adding
such language. 88 FR 2402. Also in 2020, five of the Agencies (DOL,
HHS, ED, VA, and USAID) added text to their regulations indicating that
the Title VII religious-employer exemption allows a qualifying
organization to hire persons on the basis of their ``acceptance of or
adherence to religious tenets of the organization.'' Id. (quotation
marks omitted). HUD did not add a similar employment-related tenets
sentence to its regulation, but another provision in HUD's rules (24
CFR 5.109(d)(2)) already stated that ``a faith-based organization
participating in a HUD program or activity . . . may . . . select its .
. . employees on the basis of their acceptance of or adherence to the
religious tenets of the organization consistent with'' the Title VII
religious-employer exemption.
The Joint NPRM proposed to remove the sentence about tenets-based
employment conditions added by the 2020 Rule from DOL, HHS, ED, VA, and
USAID's regulations on the ground that the sentence is unnecessary and
potentially misleading. 88 FR 2402. As the Joint NPRM explained, the
sentence could mistakenly be read to suggest that Title VII permits
religious organizations that qualify for the Title VII religious-
employer exemption to insist upon tenets-based employment conditions
that would otherwise violate Title VII or the particular underlying
funding statute in question. Id.
Several commenters argued that the Agencies should not remove the
tenets-based employment conditions sentence because, they said, the
scope of the Title VII religious-employer exemption permits a
qualifying organization to require employees to conform to religious
tenets even where application of such a requirement would consist of
another form of discrimination (e.g., sex discrimination) that Title
VII prohibits. Some of those commenters also contended that the
sentence reflects what the First Amendment requires.
Other commenters, by contrast, urged HUD to remove the sentence in
its regulation about tenets-based employment conditions in order to
conform to the regulatory text of the other eight Agencies. And other
commenters suggested that the Agencies should repeal the provisions in
their regulations stating that qualifying organizations retain their
Title VII religious-employer exemption with respect to federally funded
programs, because, the commenters argued,
[[Page 15685]]
application of the exemption in such cases would violate the
Establishment Clause.
Response: The Agencies decline to remove the longstanding
provisions in their regulations about the continued application of the
Title VII religious-employer exemption for religious organizations that
qualify for it. DOJ's Office of Legal Counsel has concluded that the
Title VII exemption is a permissible religious accommodation for
qualifying religious organizations even in the context of at least some
Government-funded social service programs. See Direct Aid to Faith-
Based Organizations Under the Charitable Choice Provisions of the
Community Solutions Act of 2001, 25 Op. O.L.C. 129, 131-33 (2001)
(``Direct Aid to Faith-Based Organizations''); see also Memorandum for
William P. Marshall, Deputy Counsel to the President, from Randolph D.
Moss, Assistant Attorney General, Office of Legal Counsel, Re:
Application of the Coreligionists Exemption in Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e-1(a), to Religious Organizations
That Would Directly Receive Substance Abuse and Mental Health Services
Administration Funds Pursuant to Section 704 of H.R. 4923, the
``Community Renewal and New Markets Act of 2000'', at 26-30 (Oct. 12,
2000) (``2000 OLC Opinion''); but cf. id. at 22-25 (explaining that
there might be as-applied situations in which a constitutional issue
could be raised if and when an agency knowingly chooses to provide aid
to fund employment positions for which the employer applies a religious
test).
While recognizing that the Title VII religious-employer exemption
may apply, DOL, HHS, ED, VA, and USAID disagree that the language added
to their regulations in 2020 about tenets-based employment conditions
is necessary or clarifying, given the limiting principles on the Title
VII exemption that courts have recognized.
Specifically, Federal courts of appeals have long held that the
Title VII religious-employer exemption allows a qualifying religious
organization generally to require employees to conform their conduct to
the organization's religious tenets. Nevertheless, as DOL recently
explained in another rulemaking, see Rescission of Implementing Legal
Requirements Regarding the Equal Opportunity Clause's Religious
Exemption Rule, 88 FR 12842, 12848-54 (Mar. 1, 2023), the weight of
Title VII case law has determined that qualifying religious employers
may only impose such a requirement where the employment condition does
not violate the other nondiscrimination provisions of Title VII, apart
from the prohibition on religious discrimination. See, e.g., Kennedy v.
St. Joseph's Ministries, Inc., 657 F.3d 189, 192 (4th Cir. 2011) (Title
VII religious-employer exemption ``does not exempt religious
organizations from Title VII's provisions barring discrimination on the
basis of race, gender, or national origin''); Boyd v. Harding Acad. of
Memphis, Inc., 88 F.3d 410, 413 (6th Cir. 1996) (the exemption ``does
not . . . exempt'' religious institutions ``with respect to all
discrimination'' and ``Title VII still applies'' to, for example, ``a
religious institution charged with sex discrimination''); see also 2000
OLC Opinion at 30-31 (explaining that Congress did not intend to afford
qualifying religious organizations an exemption from such other forms
of discrimination, even where the discrimination is a function of their
sincere religious tenets); Direct Aid to Faith-Based Organizations, 25
Op. O.L.C. at 131 n.4 (same). For example, even if a qualifying
religious organization had a religious tenet prohibiting interracial
marriage, it could not invoke the Title VII religious-employer
exemption to refuse to employ an applicant with a spouse of a different
race. Likewise, an organization that believes a husband is the head of
a household and should provide for his family but that a woman's place
is in the home could not refuse to hire women or offer higher benefits
to male employees. See, e.g., EEOC v. Fremont Christian Sch., 781 F.2d
1362 (9th Cir. 1986).
The Agencies recognize that a few judges have recently suggested
otherwise. See 88 FR 12852. As the Joint NPRM made clear, however, the
applicability of the Title VII exemption in any given case will be
``governed by the text of that statute, any other applicable laws . . .
, and the caselaw interpreting these authorities.'' 88 FR 2402. This
rule does not purport to alter or otherwise affect the scope of the
statutory exemption. The Agencies' goal with respect to the tenets-
based employment condition regulatory text is simply to avoid any
language that might be misconstrued as resolving that question against
the weight of judicial and executive branch authority. Accordingly, as
proposed, ED, DOL, HHS, VA, and USAID are, in this final rule, removing
the sentence about tenets-based employment conditions that they added
in 2020. And for the same reasons, HUD is removing language regarding
the Title VII religious-employer exemption from its regulations.
As noted in the Joint NPRM, the Agencies reemphasize that
constitutional doctrines might also be implicated in some cases. See
id. at 2402-03. For example, antidiscrimination laws, including Title
VII, are subject to constitutional limitations as applied to certain
decisions by some religious organizations concerning a subset of their
employees, under what is known as the ``ministerial exception.'' See,
e.g., Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049
(2020); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565
U.S. 171 (2012). And the Agencies must be careful not to unduly
interrogate the plausibility of a religious justification in assessing
whether a religious-tenets claim is a pretext for some other,
impermissible form of employment discrimination. In addition, as the
Supreme Court recently recognized, ``how these doctrines protecting
religious liberty interact with Title VII are questions for future
cases.'' Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754 (2020).
Changes: HUD has removed the phrase ``and employees'' from the
revised version of 24 CFR 5.109(d)(2).
F. Definition of ``Federal Financial Assistance''
Comments: In the Joint NPRM, the Agencies sought public comment on
whether and how they should define the term ``Federal financial
assistance'' in their regulations. 88 FR 2403-04. In particular, the
Agencies asked whether an Agency that adopts a definition of ``Federal
financial assistance'' in its regulations should use the definition set
out in Executive Order 13279. Id. at 2403. The Agencies also inquired
about the impact of provisions adopted by some Agencies in the 2020
Rule specifying that certain forms of assistance are not ``Federal
financial assistance,'' such that the Agencies' definitions of that
term ``might be read to be materially different from the definition in
Executive Order 13279.'' Id. One commenter urged the Agencies to
consistently adopt the definition of ``Federal financial assistance''
set forth in Executive Order 13279, explaining that doing so would
promote uniformity and avoid confusion. Another commenter contended
that the term should not include indirect aid, and that the Agencies
should specify that the term does not encompass mere nonprofit or tax-
exempt status. And another commenter argued that the request for
comments was insufficiently specific and so the Agencies must provide a
separate notice with
[[Page 15686]]
additional opportunity for public comment before adopting or
reformulating a definition of ``Federal financial assistance.''
Response: The Agencies conclude that their regulations should
expressly adopt the definition of ``Federal financial assistance''
articulated in Executive Order 13279. The regulations seek to implement
that Executive order and, as the Joint NPRM explained, the provisions
of the Order ``at issue in this rulemaking[ ] turn on the conveyance or
receipt of `Federal financial assistance.' '' 88 FR 2403. To ensure
consistency and prevent misunderstandings, the Agencies are thus
amending their regulations to uniformly adopt the definition of the
term set forth in Executive Order 13279, which encompasses both direct
and indirect aid. (The Agencies have explained elsewhere why they are
declining to depart from their proposed treatment of indirect aid in
this rulemaking. See Part II.C of the joint preamble.) Consistent with
section 1(a) of Executive Order 13279, the Agencies will therefore all
define ``Federal financial assistance'' to mean ``assistance that non-
Federal entities receive or administer in the form of grants,
contracts, loans, loan guarantees, property, cooperative agreements,
food commodities, direct appropriations, or other assistance, but does
not include a tax credit, deduction, or exemption.'' See 67 FR 77141.
Importantly, this definition encompasses the Agency-specific forms of
assistance that certain Agencies expressly referenced in their prior
definitions of the term. A tax exemption, whether or not on the basis
of nonprofit status, however, does not qualify as Federal financial
assistance under this definition.
The Agencies disagree that further notice and an additional
opportunity to comment are required. The Joint NPRM's presentation of
this issue provided more than ``fair notice'' of the changes adopted
here. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007).
The Joint NPRM stated expressly that the Agencies were considering
whether to adopt the definition of the term ``Federal financial
assistance'' established in Executive Order 13279. The Joint NPRM also
described the Agencies' prior and current approaches to defining the
term, and specifically requested input on whether the Agencies should
adopt a different definition than the Executive order did. 88 FR 2403-
04. It was thus entirely foreseeable that the Agencies would adopt that
definition in this final rule. As a result, the Agencies need not
institute a separate notice-and-comment process to adopt the definition
of ``Federal financial assistance'' found in Executive Order 13279.
Changes: All of the Agencies have included in their final
regulations the definition of ``Federal financial assistance'' set
forth in Executive Order 13279. The provisions to be modified or added
are 6 CFR 19.2 (DHS); 7 CFR 16.2 (USDA); 22 CFR 205.1(a) (USAID); 28
CFR 38.3(a) (DOJ); 29 CFR 2.31(a) (DOL); 34 CFR 75.52(c) and 76.52(c)
(ED); 38 CFR 50.1(c) (VA); and 45 CFR 87.1(d) (HHS).
G. Other Issues
1. Monitoring Requirements
Comments: Commenters suggested that, in the final rule, the
Agencies adopt or clarify their procedures for monitoring grantees'
compliance with these regulations. To further this goal, some
commenters requested that the rule provide that Federal staff will be
trained on how to oversee and enforce the regulations, and that
grantees will be trained on their rights and responsibilities under the
rule. Specifically, one commenter suggested that the Agencies should
clarify how they will meet their obligations to monitor constitutional,
statutory, and regulatory requirements. Another commenter similarly
requested that the Agencies take additional steps to monitor and
enforce their regulations.
Response: These concerns were also expressed with respect to the
2016 Rule, and the Agencies agreed with them at that time. See 81 FR
19370. As the Agencies then explained, the Agencies must guard against
inappropriate uses of Federal financial assistance by monitoring and
enforcing all constitutional, statutory, and regulatory standards
governing such assistance, particularly in light of the monitoring
obligations in Executive Order 13279, as amended by Executive Order
13559. Id.
The Agencies agree with the commenters that organizations that
receive Federal financial assistance need to be aware of these new
regulatory requirements, and that Agencies must train appropriate
individuals on applicable regulations and vigorously monitor and
enforce those regulatory requirements. The specific procedures to be
adopted, however, are beyond the scope of this rulemaking. In addition,
those procedures will vary among the Agencies and their programs
because each Agency has its own organizational structure, available
resources, legal authority, and statutory enforcement requirements.
Moreover, experience implementing these regulations and seeing them in
operation may provide insights that aid development of appropriate
training, monitoring, and oversight mechanisms. Consequently, the
Agencies have decided not to prescribe a single uniform approach to
these issues in the present rule. Instead, each Agency will adopt its
own measures to train staff and grantees, and will monitor projects in
a manner that is appropriate for each program and award that is subject
to this rule. Appropriate training and oversight measures may include,
for example, Federal staff or grantee conferences or workshops, site
visits, monitoring phone calls, and reviews of grant documents, audits,
and progress reports. Each Agency will devote appropriate resources to
ensure that its program staff understand their responsibilities to
ensure that grantees, subgrantees, and contractors that provide social
services to beneficiaries under programs of Federal financial
assistance comply with these final regulations.
Changes: None.
2. Data Collection
Comments: Several commenters suggested that the Agencies should
implement and improve their existing data collection processes to
understand whether the safeguards in the regulations are sufficient and
to inform how Agencies can improve award outcomes and delivery of
services. Commenters stated that doing this will ensure fidelity to
constitutional principles and programmatic goals, and ultimately, to
serving beneficiaries in the most equitable, effective, and efficient
way.
Response: The Agencies are committed to using data to monitor
compliance with all award conditions, and they will comply with all
applicable requirements regarding data collection, including
Government-wide standards such as Office of Management and Budget
(``OMB'') Memorandum M-14-06, Guidance for Providing and Using
Administrative Data for Statistical Purposes. Modifying the Agencies'
data collection processes or imposing additional requirements for such
collection, however, is beyond the scope of this rulemaking. Moreover,
because of the unique organizational structure and context of each
Federal financial assistance program, mandating a single data
collection approach would be infeasible. The Agencies thus decline to
make any changes to their regulations in response to the comments about
data collection.
Changes: None.
[[Page 15687]]
3. Point of Contact for Complaints
Comments: Commenters requested that the Agencies modify their
regulations to include a point of contact for beneficiaries of
federally funded social service programs should they need to report any
complaints of discrimination. Several of these commenters provided DOJ
and DOL's regulations as potential models because DOJ designates its
Office for Civil Rights as the office with which beneficiaries may file
complaints and DOL's regulations provide specific contact information
for reporting violations. Three commenters recommended that all the
Agencies designate their Offices for Civil Rights, or an equivalent
entity, to receive any complaints because, in the commenters' view,
those offices are best equipped to investigate and respond to reports
of discrimination.
Response: The Agencies understand the need for beneficiaries of
Federal financial assistance to have an avenue for enforcement of their
rights enumerated in the beneficiary notice. Because of differences in
Agency structures, however, it is best left to each Agency to determine
which of its offices will handle complaints. Some Agencies (HUD and VA)
do not have an Office for Civil Rights. And other Agencies may have
some other office better placed to receive reports of violations of
this rule. Additionally, for federally funded social service programs
operated by intermediaries, the intermediary may be the entity best
positioned to receive and act on complaints of discrimination from
beneficiaries.
Similarly, each Agency is best poised to determine whether putting
specific contact information for filing complaints in the Agency
regulation text would serve the interests of beneficiaries of federally
funded social service programs. For instance, DOL has a longstanding,
single point of contact whose information can be placed in its
regulation text without significant risk of becoming outdated. For
other Agencies without a static point of contact, placing a specific
person's contact information in regulation text is not feasible and
could result in beneficiaries attempting to use outdated contact
information to file complaints.
In acknowledgement that beneficiaries of federally funded social
service programs need clarity about what office to contact if they
experience discrimination in violation of these regulations, the
Agencies agree that, at minimum, either their regulatory texts or
follow-on guidance should specify whom a beneficiary may contact if
they experience discrimination.
Changes: USDA amends its regulation text to specify that its Office
of the Assistant Secretary for Civil Rights will receive reports of
violations of this rule. DHS amends its regulation text to state that
beneficiaries should report such violations to its Office for Civil
Rights and Civil Liberties. The other Agencies make no changes to their
regulatory text in the Joint NPRM. Those other Agencies, with the
exception of USAID, have, however, agreed to include a model
beneficiary notice as an appendix to their regulations, and the model
notices include a space for the awarding entity to include contact
information for the appropriate office to which beneficiaries may
direct complaints.
4. Need for Rulemaking
Comments: One commenter stated that the Agencies had insufficiently
established the need for this rulemaking. According to the commenter,
the Agencies failed to provide evidence of inconsistencies or confusion
raised by the 2020 Rule. The commenter also contended that the Agencies
did not explain how the 2020 Rule limited the reach of federally funded
services and programs, or how the proposed rule would better achieve
the Agencies' stated goal of reaching the widest possible eligible
population, including historically marginalized communities.
Response: The Agencies disagree that the Joint NPRM contained
inadequate justification for the proposed changes and, furthermore,
note that numerous commenters agreed that this rulemaking is necessary.
For example, two commenters stated that they found the 2020 Rule
confusing because it contained language suggesting that the Agencies
would grant religious exemptions to providers even when the exemptions
were not justified or required by Federal law. Another commenter agreed
with the Agencies that the 2020 Rule's language allowing indirect aid
providers to require beneficiaries to attend all activities that are
fundamental to the program created a confusing tension with the
prohibition on discriminating against beneficiaries because they refuse
to attend or participate in religious practices. The commenter
explained that eliminating this language is an important step to
protect the religious freedom of beneficiaries of Government-funded
social services. For the reasons stated in the Joint NPRM, and having
considered these and other comments, the Agencies have determined that
the 2020 Rule did, in fact, create confusion, thus necessitating the
current rulemaking.
Many commenters also agreed with the Agencies that this rulemaking
is necessary to ensure that federally funded services and programs
reach the widest possible eligible population, including historically
marginalized communities. For example, one commenter stated that the
2020 Rule removed protections for populations that are at particular
risk of being economically insecure and are discriminated against, such
as LGBTQI+ people, single mothers and their children, and immigrants.
The commenter stated that strong protections are needed to ensure that
members of these vulnerable populations are not purposefully or
inadvertently excluded from federally funded social services. Another
commenter provided evidence that women, people of color, LGBTQI+
people, people with disabilities, immigrants, people living with HIV,
religious minorities, and other marginalized populations are
particularly vulnerable to discrimination when seeking such services.
These and other comments support the Agencies' conclusion that changes
to their regulations are necessary for federally funded services and
programs to reach the widest possible eligible population.
For the reasons explained both in the Joint NPRM and in this final
rule, and in light of the public comments supporting the Agencies'
proposals, the Agencies believe that the need for this rulemaking is
well established.
Changes: None.
5. Executive Orders 13985 and 14058
Comments: One commenter expressed concern that this rule
deprioritizes the funding of faith-based groups. As the purported basis
for that worry, the commenter referred to the Agencies' reliance on
Executive Order 13985, Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government, 86 FR 7009
(Jan. 20, 2021), and Executive Order 14058, Transforming Federal
Customer Experience and Service Delivery To Rebuild Trust in
Government, 86 FR 71357 (Dec. 13, 2021).
Response: As indicated in the Joint NPRM, the primary goal of this
rulemaking is to ensure full access to and comprehensive delivery of
federally funded social services, in keeping with governing law and
with the policies articulated in Executive Order 14015. The Joint NPRM
also acknowledged that the rulemaking sought to advance the policies
set out in Executive Orders
[[Page 15688]]
13985 and 14058. In neither the Joint NPRM nor this final rule,
however, do any of the Agencies' regulations set forth any requirements
unique to those Executive orders, and the Agencies have not
deprioritized funding for faith-based organizations. To the contrary,
as the Agencies emphasized in the Joint NPRM preamble, it is important
to strengthen the ability of both faith-based and secular organizations
to deliver services in partnership with Federal, State, and local
governments and with other private organizations, while adhering to all
governing law. 88 FR 2397. Indeed, ``it has long been Federal policy
that faith-based organizations are eligible to participate in Agencies'
grant-making programs on the same basis as any other organizations,''
and the Agencies remain committed to preventing discrimination against
faith-based organizations in the selection and regulation of service
providers. Id. at 2401.
Changes: None.
6. Regulatory Impact Analysis
Comments: Several commenters suggested that the Agencies had not
adequately assessed the potential burdens of this rule on faith-based
providers and therefore on beneficiaries who rely on those providers'
services. In particular, one commenter urged the Agencies to analyze
the regulations' effect on faith-based providers leaving the Agencies'
programs or not joining them in the future; the availability of
alternative providers to fill any gaps in service; the harms to
beneficiaries who are unable to receive services from a provider; any
irreparable harm associated with the loss of First Amendment and
religious free exercise rights due to an incorrectly denied
accommodation or lack of appeal process; and any distributional effects
of Federal funds transferring from faith-based providers that leave the
program under the regulations to new providers. Another commenter
expressed concern that the regulations would likely disproportionately
burden service providers in regions where alternatives are scarcest,
and thus most needed, resulting in fewer service providers in those
underserved regions and greater barriers to access for beneficiaries.
Response: The Agencies believe that this final rule will not have
any impact on existing faith-based providers' decisions to participate
in federally funded social service programs or discourage new faith-
based providers from joining such programs in the future. As indicated
in the Joint NPRM, the rule's compliance cost per covered provider is
minimal, however figured: the ``upper bound'' estimate cited in the
Joint NPRM was $240 per year, and the ``central estimate'' was $211.25
per year plus a one-time cost of $17.72; the Agencies have updated the
``central estimate'' to $223.03 plus a one-time cost of $18. See id. at
2405-06 & tbls. 1 & 3; Part IV.A.1 of the joint preamble. All of these
estimates are modest. The Agencies do not expect this insignificant
cost burden to affect existing faith-based providers' participation or
to discourage new faith-based providers from joining in the future.
Accordingly, the Agencies do not anticipate that the rule's regulatory
requirements will reduce the participation of faith-based providers,
nor do they expect that the rule will have disproportionate effects in
underserved regions. Finally, as the final rule makes clear, the
Agencies remain committed to providing any religious accommodations
required by applicable Federal law, including the First Amendment.
Changes: None.
Comments: One commenter stated that the Joint NPRM's regulatory
impact analysis (``RIA'') failed to properly assess the benefits of
faith-based providers and the burdens on them and ignored the economic
as well as qualitative costs of the rule's proposed changes.
Response: The Agencies believe that the Joint NPRM's RIA was
appropriate and sufficient. The commenter, moreover, did not specify
which impacts supposedly were not properly assessed or provide any data
or analysis to allow for quantification of such impacts. The Agencies
have appropriately assessed the potential costs, cost savings, and
benefits, both quantitative and qualitative, of this regulatory action.
Changes: None.
Comments: One commenter stated that it supports the proposal to
withdraw and replace the 2020 Rule because the 2020 Rule's mandatory
cost-benefit analysis improperly assessed the costs and other harms to
beneficiaries to be negligible, despite what the commenter viewed as
ample evidence of religion-based denials of service, discrimination,
and other harmful treatment of LGBTQI+ people, people of color, people
of other faiths, and others by service providers.
Response: The Agencies agree that the 2020 Rule's analysis did not
adequately consider the costs it imposed on beneficiaries. In the
present rulemaking, the Agencies believe that they have properly
assessed both the costs and benefits of the regulations, and they have
qualitatively shown the benefits to beneficiaries in several important
ways. Specifically, the final notice requirement will improve
beneficiaries' access to federally funded services by informing them of
their rights and thus removing certain barriers arising from
discrimination. Additionally, the final referral option will make it
more likely that beneficiaries who object to receiving services from
one provider will be able to learn about alternative providers.
Changes: None.
III. Agency-Specific Issues 3
---------------------------------------------------------------------------
\3\ All of the comments that were directed to DOJ or that affect
DOJ's regulations were adequately addressed in the joint preamble
above. DOJ accordingly does not include an Agency-specific preamble
in this final rule.
---------------------------------------------------------------------------
A. Department of Agriculture
In sections (1) through (4) below, USDA addresses the few USDA-
specific comments not addressed in Part II of the joint preamble. In
section (5) below, USDA provides its specific response to comments
discussed in Part II.A.4 of the joint preamble recommending that the
Agencies generally require that a written notice of rights be provided
to beneficiaries of programs receiving indirect Federal financial
assistance. All other comments received by USDA or otherwise affecting
USDA's regulations are addressed fully in Part II of the joint
preamble, and USDA adopts those responses.
1. Unnecessary Definition
Comments: Two commenters recommended that USDA delete the
definition of the phrase ``[d]iscriminate against an organization on
the basis of the organization's religious exercise'' found in its
proposed rule. According to the commenters, the definition is not
necessary, since the phrase does not appear anywhere else in USDA's
regulations and changes elsewhere in the rule spell out the prohibition
contained in the definition.
Response: USDA agrees that the definition is not necessary because
this phrase does not appear elsewhere in USDA's regulations. Moreover,
USDA's obligation not to discriminate for or against organizations on
the basis of enumerated religious considerations is explicitly set
forth in 7 CFR 16.3(a) and in appendix A to 7 CFR part 16. In this
final rule, USDA has accordingly deleted the definition in question
from 7 CFR 16.2.
Changes: The regulation at 7 CFR 16.2 is amended by deleting the
definition of the phrase ``[d]iscriminate against an organization on
the basis of the organization's religious exercise.''
[[Page 15689]]
2. Unnecessary Citations
Comments: One commenter recommended that USDA, in its appendices A
and B, follow the lead of other Agencies and eliminate the list of
citations to Federal laws that provide for religious exemptions.
Response: USDA agrees that the list of citations in its Appendices
A and B in the proposed rule is unnecessary. USDA remains committed to
ensuring that faith-based organizations retain their independence from
the Government and enjoy all the religious freedom and conscience
protections to which they are entitled under the U.S. Constitution and
Federal statutes. The removal of the list of citations, providing
examples of such Federal laws, will have no substantive effect.
Moreover, this approach aligns with that of the other Agencies, so
USDA's making this change will promote consistency among the Agencies'
regulations.
Changes: In this final rule, USDA amends appendices A and B to 7
CFR part 16 by removing the illustrative citations to Federal laws.
3. Handling of Complaints
Comments: As discussed in Part II of the joint preamble, various
commenters urged the Agencies to designate a point of contact for
receiving civil rights complaints. In a similar vein, one commenter
also specifically recommended that USDA's provision on written notice
to beneficiaries include information on where complaints of religious
discrimination, in particular, can be filed.
Response: USDA agrees with this recommendation, and the final rule
provides for the filing of written complaints by beneficiaries in
programs supported by direct Federal financial assistance from USDA,
and also for written notice to be given to such beneficiaries on how
and where to file complaints. Given the structure and particular
context of the Federal financial assistance programs it administers,
USDA agrees with commenters that beneficiaries' religious freedom
protections would be strengthened by more clearly notifying
beneficiaries of their right to file complaints and of how to exercise
that right. To achieve that purpose, USDA has made revisions both in
its regulatory text and in its model beneficiary notice. In addition,
in the final rule, USDA has added language to the regulatory text in 7
CFR 16.4(d) to make clear that beneficiaries and prospective
beneficiaries in programs supported by indirect Federal financial
assistance from USDA may file written complaints with USDA alleging
violations of the rule's religious freedom protections. USDA's
inclusion of the language about the right to file complaints is also
consistent with other Agencies' regulations, as explained above in Part
II.G.3 of the joint preamble. Further, USDA's added language on how and
where to file complaints mirrors USDA's existing processes for filing
program discrimination complaints.
Changes: In this final rule, USDA amends 7 CFR 16.4(c) and appendix
C to 7 CFR part 16 by adding language to reflect the right of
beneficiaries in programs supported by direct Federal financial
assistance to file complaints; adds a new 7 CFR 16.4(d) to reflect the
right of beneficiaries in programs supported by indirect Federal
financial assistance to file complaints; and redesignates the current 7
CFR 16.4(d) as 7 CFR 16.4(e).
4. Consistency Between Regulatory Text and Appendices
Comments: One commenter observed that USDA's model provider notice
in appendix A did not match USDA's regulatory text, because the notice
did not reflect the regulation's statement that USDA may not favor or
disfavor religious organizations for receipt of Federal financial
assistance.
Response: USDA agrees that it is important to include regulatory
language making plain that an Agency may not favor or disfavor
religious organizations for the receipt of Federal financial
assistance. In the final rule, USDA likewise adds language to its
provider notice found at 7 CFR part 16, appendix A, consistent with
USDA's regulatory text, making express that USDA may not favor or
disfavor religious organizations for receipt of Federal financial
assistance.
Changes: Appendix A to 7 CFR part 16 is amended by adding explicit
language about the prohibition on favoring or disfavoring organizations
on the basis of religious affiliation in disbursing Federal financial
assistance.
5. Notice to Beneficiaries of Indirect Federal Financial Assistance
Comments: As explained in Part II.A.4 of the joint preamble, some
comments urged the Agencies to adopt notice requirements for
beneficiaries of indirect Federal financial assistance.
Response: USDA funds several programs through indirect Federal
financial assistance, including SNAP, the Special Supplemental
Nutrition Program for Women, Infants, and Children, the Farmers Market
Nutrition Program, the Seniors Farmers Market Nutrition Program, and
the Rural Development Voucher Program. USDA, like the other Agencies,
recognizes the importance of indirect aid beneficiaries being protected
against religious and other forms of discrimination. For example, USDA
requires that State agencies that distribute program benefits or
services in the SNAP program provide notice of the right to be free
from discrimination, including religious discrimination, by displaying
And Justice for All posters in their facilities where the poster can be
viewed by program applicants and participants. The poster includes the
prohibition against discrimination based on ``religious creed,''
information on how to file a discrimination complaint, and is available
in English, Spanish, and a number of other languages. Moreover, USDA
has added into this final rule, at 7 CFR 16.4(d), language affirming
that beneficiaries in USDA programs supported by indirect Federal
financial assistance have the right to file a complaint of religious
discrimination.
Nevertheless, USDA has determined that its regulations should not
require that beneficiaries of all indirect aid programs be provided a
notice about religious nondiscrimination rights, because requiring such
a notice would not be administratively feasible. Due to the vast number
of participants and provider locations in USDA's indirect aid programs,
there would be significant administrative burdens in requiring written
notice to all beneficiaries. As explained in the 2016 Rule, ``there are
more than a quarter million stores, farmers' markets, direct marketing
farmers, homeless meal providers, treatment centers, group homes, and
other participants across the nation that are authorized [SNAP]
retailers.'' 81 FR 19363. If providers receiving indirect aid were
required to give written notice to beneficiaries, all of these
retailers, for example, would have to have the notices ready at all
times to provide to any person using SNAP benefits.
Instead of requiring that notice be provided to beneficiaries in
all indirect aid programs, USDA intends to utilize a more flexible and
program-specific approach to providing such notice. Based on program-
specific assessments, USDA will, when warranted, require notice in
programs consistent with risk and programmatic experience. For example,
USDA may require notice in programs or specific program activities if
there is a history of findings of religious discrimination, of
government unduly limiting provider choices, or of beneficiaries'
choices for using indirect aid being limited for some other reason.
For the reasons previously explained in Part II.A.4 of the joint
preamble,
[[Page 15690]]
USDA will not revise its regulatory language to require that notice of
rights be provided to beneficiaries in all programs supported by
indirect USDA financial assistance. As described above, however, in
certain circumstances, USDA may determine that providing such notice is
appropriate and administratively feasible and require that notice of
protections to indirect aid beneficiaries be provided.
Changes: None.
B. Department of Labor
In Part III.B.1 below, DOL explains additional changes it is making
to one provision of its regulations in response to comments discussed
above in Part II.D.1 of the joint preamble. In Part III.B.2 below, DOL
provides its specific response to comments addressed in Part II.A.4 of
the joint preamble recommending that the Agencies require that a
written notice of rights be provided to beneficiaries of programs
receiving indirect Federal financial assistance. All other comments
received by DOL or otherwise affecting DOL's regulations are addressed
fully in Part II of the joint preamble above, and DOL adopts those
responses.
1. Revision and Reorganization of 29 CFR 2.32
Comments: As discussed above, the Agencies received comments
suggesting that they revise or reorganize the religious accommodations
language in their program requirements provisions, as well as in the
provisions that bar disqualification of providers based on religious
character, motives, or affiliation, or lack thereof. These provisions
appear in DOL's regulations at 29 CFR 2.32.
Response: In addition to prompting the changes to 29 CFR 2.32
described above in Part II.D.1 of the joint preamble, the suggestions
from these commenters indicated to DOL that the organization of 29 CFR
2.32 made the provision as a whole difficult to follow. For instance,
some elements (such as the accommodations language noted by the
commenters) were unintentionally repeated, and other elements that were
similar to one another were separated into different paragraphs.
Changes: In the final rule, DOL revises and reorganizes 29 CFR 2.32
to make it easier to understand. The contents of the section are now
ordered so that each paragraph addresses only one subject, as follows:
paragraph (a) contains the prohibition on discriminating for or against
organizations based on religious character, motives, or affiliation, or
lack thereof; paragraph (b) sets forth requirements regarding grant
documents, agreements, covenants, memoranda of understanding, policies,
and regulations; paragraph (c) describes rights retained by faith-based
organizations that are DOL social service providers; paragraph (d)
lists restrictions on the use of Federal financial assistance; and
paragraph (e) makes clear that accommodations for organizations will be
considered on a case-by-case basis and explains the effect of an
accommodation on an eligible organization's qualification to
participate in a DOL program. These revisions are made only for clarity
and do not alter the substance of DOL's regulations.
2. Notice to Beneficiaries of Indirect Aid
Comments: As described in Part II.A.4 of the joint preamble,
several commenters recommended that the Agencies require that a written
notice of rights be provided to beneficiaries of programs receiving
indirect Federal financial assistance.
Response: DOL incorporates all of the reasons previously explained
above in Part II.A.4 of the joint preamble for expanding its notice
requirement to cover beneficiaries and prospective beneficiaries of
indirect Federal financial assistance. DOL has determined that, in the
context of its programs, most of which are subject to similar written
beneficiary notice requirements regardless of whether they are funded
by what this rule defines as direct or indirect aid, providing written
notice to all beneficiaries and prospective beneficiaries of programs
receiving indirect Federal financial assistance is feasible and
appropriate.
Changes: DOL revises 29 CFR 2.34 to require that beneficiaries and
prospective beneficiaries of programs receiving indirect Federal
financial assistance from DOL be provided with the written beneficiary
notice that appears in appendix C to subpart D of 29 CFR part 2. As
revised, 29 CFR 2.34 states that notice to these beneficiaries will be
provided by the entity that disburses the Federal funds to the
beneficiary's chosen provider. For example, in the case of WIOA
programs, the Local Workforce Development Board will be responsible for
providing the notice to beneficiaries and prospective beneficiaries of
programs receiving indirect Federal financial assistance. DOL also adds
subheadings to 29 CFR 2.34 to make the components of the revised
paragraph easier to understand. Finally, DOL revises the heading of the
written beneficiary notice to include a designation of the type of
Federal financial assistance (direct or indirect) the program receives.
C. Department of Health and Human Services
In Part III.C.1 below, HHS provides its Agency-specific response to
a cross-cutting public comment identified in Part II.A.4 of the joint
preamble, recommending that the Agencies require written notice be
provided not only to beneficiaries of programs receiving direct Federal
financial assistance but also to beneficiaries of indirect aid
programs. In Part III.C.2 below, HHS provides its Agency-specific
response to a comment recommending that DHS, HUD, and HHS remove
language from their proposed regulations stating that faith-based
organizations are eligible to participate in federally funded programs
``on the same basis as any other organization and considering a
religious accommodation.'' In Part III.C.3 below, HHS responds to a
comment that concerns language in HHS's proposed regulation referencing
the application of the Americans with Disabilities Act to religious
organizations receiving Federal financial assistance. In Part III.C.4
below, HHS responds to a comment about HHS's procedures for receiving
complaints of alleged violations of its regulations and for otherwise
enforcing this rule. All other comments received by HHS, or that affect
HHS's regulations, are addressed fully in Part II of the joint
preamble, and HHS adopts those responses.\4\
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\4\ HHS also corrects a technical error that appeared in the
Joint NPRM. In the listing of agency headings, HHS's regulations at
45 CFR part 87 are mistakenly identified with a Regulation
Identifier Number (``RIN'') of ``0991-AC13.'' See 88 FR 2395. The
correct RIN is ``0991-AA31.'' This correction is of no substantive
effect.
---------------------------------------------------------------------------
1. Notice to Beneficiaries of Indirect Aid
Comments: As described in Part II.A.4 of the joint preamble, a
cross-cutting public comment recommended that the Agencies require
written notice be provided not only to beneficiaries of programs
receiving direct Federal financial assistance but also to beneficiaries
of indirect aid programs.
Response: For the reasons explained in Part II.A.4 of the joint
preamble, and as elaborated here, HHS revises the beneficiary notice
requirement that was proposed in 45 CFR 87.3(k) by removing the term
``direct'' from the phrase ``direct Federal financial assistance.''
With this change, HHS's regulation will require that the notice to
beneficiaries and prospective beneficiaries be provided in covered
social services
[[Page 15691]]
programs whether they receive Federal funding directly or
indirectly.\5\
---------------------------------------------------------------------------
\5\ This final rule also includes technical corrections to the
Applicability section at Sec. 87.2(a) of the proposed rule and
Sec. 87.2(b) of the 2020 Rule that provide that the written notice
to beneficiaries in Sec. 87.3(k) through (m), and the requirement
that funding decisions be free from political interference in Sec.
87.3(o) as redesignated, apply to discretionary and block grants
governed by the Community Services Block Grant (``CSBG'') Charitable
Choice regulations at 45 CFR part 1050. The sections of the rule
that addressed those subjects applied to discretionary and block
grants governed by the CSBG Charitable Choice regulations prior to
the 2020 Rule, but the 2020 Rule did not revise the Applicability
section to accurately identify those paragraphs as removed or
redesignated. This final rule corrects those technical errors.
---------------------------------------------------------------------------
While the change to 45 CFR 87.3(k) could potentially affect any
future indirectly funded HHS program that Congress authorizes, HHS
notes the impact of this change on an existing HHS program that
explicitly authorizes indirect funding, known as the Chafee Educational
and Training Vouchers (``ETV'') program. In the ETV program, authorized
in section 677(i) of the Social Security Act, 42 U.S.C. 677(i), HHS
awards grants to States, the District of Columbia, Puerto Rico, the
U.S. Virgin Islands, and participating Tribes (known as ``pass-through
entities'') to help young adults who have experienced foster care after
age 14 meet their postsecondary education and training needs. By
requiring that a beneficiary notice be provided in indirect aid
programs, this final rule will ensure that ETV program voucher holders
applying for or attending any educational institution that receives ETV
vouchers are informed of prohibitions on their being discriminated
against on the basis of religion, a religious belief, a refusal to hold
a religious belief, or a refusal to attend or participate in a
religious practice, as provided in 45 CFR 87.3(f) of the final rule.
Because any indirectly funded programs that are subject to this
rule may vary in significant respects, HHS will consider how certain
protections identified in the beneficiary notice should apply in the
context of each specific indirect aid program. For example, HHS may
consider the proportion of explicitly religious programming involved in
each program's federally funded projects in deciding whether to allow
recipients of indirect Federal financial assistance to refrain from
modifying their program activities to accommodate a beneficiary who
chooses to expend the indirect aid on their organization's program.
Pass-through entities that administer indirectly funded HHS programs
will have the discretion to tailor the notice of beneficiary
protections to address such matters on a program-specific basis, as
provided in Sec. 87.3(k) as revised in this final rule, and HHS
intends to provide pass-through entities that administer ETV program
funds with guidance on developing that program's notice. When
administering indirectly funded programs, HHS will work to ensure that
beneficiaries have a genuine and independent choice of providers--for
example, where necessary and appropriate, by making an adequate secular
alternative reasonably available or by requiring each existing provider
to comply with the same conditions that apply to direct aid programs.
See 88 FR 2400-01; Part II.4.C of the joint preamble.
The final rule also identifies protections that must be included in
the notice when it is provided in an indirectly funded program context,
thereby ensuring that the notice addresses cross-cutting rights that
apply to both directly and indirectly funded services. Specifically,
the notice must address the protections that concern nondiscrimination
on the basis of religion in 45 CFR 87.3(f), attendance or participation
in any explicitly religious activities in 45 CFR 87.3(k)(1)(ii), and
complaints in 45 CFR 87.3(k)(1)(iv). The notice must also identify the
HHS awarding entity or the pass-through entity to which any complaints
may be directed.
In addition, in HHS mandatory formula, block, or entitlement grant
programs (such as the ETV program), 45 CFR 87.3(k) of the final rule
provides that the pass-through entity that receives HHS funds, rather
than the service provider, is obligated to ensure that beneficiaries
and prospective beneficiaries receive the written notice of beneficiary
protections. This clause enables the pass-through entity to identify
the public or private sector organization that will incur the
obligation to provide the notice. This discretion is consistent with
the role of pass-through entities as primary administrators of HHS
mandatory formula, block, or entitlement grant programs, and enables
those entities to identify the public or private sector organization
that can most efficiently and effectively provide the notice in view of
the way in which the program is administered.
HHS notes that while the text of 45 CFR 87.3(k)(1) requires that
the notice of beneficiary protections in directly funded programs
identify certain protections in a manner that is ``substantially
similar'' to the model in its appendix A to part 87, some HHS programs
will make changes to the model notice to ensure that social service
providers may continue to provide explicitly religious activities that
are lawfully part of the program services. These changes will be
consistent with the discretion retained by HHS under 45 CFR 87.3(d), as
redesignated by this rule. That subsection provides that ``[n]othing in
this part restricts HHS' authority under applicable Federal law to fund
activities, such as the provision of chaplaincy services, that can be
directly funded by the Government consistent with the Establishment
Clause.'' As the Agencies recognized in the 2016 Rule, there may be
limited instances in which religious activities in some federally
funded program contexts are not subject to certain restrictions in
these rules, such as the requirement that explicitly religious activity
be separate in time or location from activities supported with direct
Federal financial assistance. 81 FR 19359-60. HHS will determine on a
case-by-case basis whether religious activities in specific program
contexts should be subject to this restriction. See id. For example,
care provider facilities in the HHS-funded Unaccompanied Children
(``UC'') Program, see 6 U.S.C. 279, may lawfully provide religious
services to unaccompanied children to meet their obligations to the
children receiving services in that program. HHS anticipates that in
the UC Program and other similar program contexts, HHS will revise the
model notice to remove any inconsistency between the care providers'
obligation to provide an unaccompanied child with access to religious
services of the child's choice whenever possible, and the model
notice's provision that explicitly religious activities (including
activities that involve overt religious content such as worship,
religious instruction, or proselytization) be separate from activities
supported with direct Federal financial assistance.
Changes: HHS amends 45 CFR 87.3(k) to remove text limiting the
beneficiary notice to directly funded social service programs, and to
require that the pass-through entities administering mandatory formula,
block, or entitlement grant programs ensure that the notice is
provided. A new Sec. 87.3(k)(1) is also added to require that the
notice in directly funded programs be substantially similar to that set
forth in appendix A. And a new Sec. 87.3(k)(2) is added to require
that the notice in indirectly funded programs address beneficiary
protections identified in that section, while giving pass-through
entities discretion to tailor certain other aspects of the requisite
notice as appropriate.
[[Page 15692]]
2. Religious Accommodations
Comments: As alluded to above in Part II.D.1 of the joint preamble,
commenters requested that HHS remove language from its regulation
stating that faith-based organizations are eligible to participate in
Federally funded programs ``on the same basis as any other organization
and considering a religious accommodation.'' The commenter suggested
that HHS do so in order to promote consistency among the Agencies'
regulations.
Response: In this final rule, HHS deletes the clause ``and
considering any permissible accommodation'' from 45 CFR 87.3(a). HHS
believes that this change promotes clarity and avoids redundancy in the
regulatory text. In addition, HHS makes this change to ensure
consistency with other Agencies' rule texts, as recommended by the
commenter.
This clause was added in the 2020 Rule and retained in the Joint
NPRM. Upon reflection, however, HHS believes the clause is now
unnecessary because the obligation to consider religious accommodations
consistent with applicable Federal law is already separately addressed
in the final rule at 45 CFR 87.3(b), (c), and (g), as well as in its
appendices B and C.
HHS emphasizes that the removal of the clause in question is not a
substantive change. Nor does it represent any departure from HHS's
strong commitment to its obligations to comply with the Free Speech and
Free Exercise Clauses of the First Amendment to the U.S. Constitution
and with Federal laws that support and protect religious exercise and
freedom of conscience, including RFRA. HHS remains fully committed to
thoroughly considering any organization's assertion that an obligation
imposed upon it conflicts with its rights under those authorities, and
will provide any accommodations required by Federal law.
At the same time, HHS disagrees with the recommendation that it
rescind the clause ``on the same basis as any other organization'' from
45 CFR 87.3(a). That clause has long been a part of HHS's regulation
and reflects HHS's deep-seated dedication to ensuring that faith-based
organizations are not discriminated against in HHS's selection of
service providers. Moreover, that clause is not redundant in the full
context of the final rule and remains consistent with other Agencies'
final regulations.
Changes: HHS deletes the clause ``and considering any permissible
accommodation'' from the regulatory text that was proposed in 45 CFR
87.3(a).
3. The Americans With Disabilities Act
Comments: Three commenters requested that HHS strike a reference to
the Americans with Disabilities Act (``ADA'') from HHS's proposed rule
at 45 CFR 87.3(h) so that the clause is consistent with those of the
other Agencies. All of the Agencies' proposed rules, including HHS's,
include a parallel clause stating that faith-based organizations do not
forfeit their religious exemptions under Title VII of the Civil Rights
Act of 1964 when participating in Federal programs. HHS's clause is
unique in including an additional reference to an exemption in the ADA.
All three commenters recommended that HHS remove the reference to the
ADA to promote consistency with the other Agencies. Two of the
commenters also based their recommendation on a belief that religious
exemptions to nondiscrimination laws should not apply to faith-based
organizations that are federally funded social service providers.
Response: HHS agrees that it should remove the reference to the ADA
from HHS's employment discrimination provision, because that reference
is inaccurate and confusing in the way it describes the ADA. HHS added
the ADA reference in 45 CFR 87.3(h) (previously found at 45 CFR
87.3(f)) in the 2020 Rule. That provision refers to a faith-based
organization's right to retain its exemption from the Federal
prohibition on employment discrimination ``on the basis of religion.''
The ADA preserves religious organizations' right to engage in hiring on
the basis of religion by limiting its disability-discrimination
provisions. But the ADA does not authorize hiring on the basis of
religion; the Civil Rights Act of 1964 does that. Consequently, HHS
believes its regulation would be clearer if it removed the ADA
reference. By removing the ADA reference, HHS will also help ensure
that its rule is consistent with the other Agencies' regulations.
This change does not alter the substantive effect of the ADA or any
other nondiscrimination statute. As noted above, HHS remains committed
to ensuring that faith-based organizations are not discriminated
against in HHS's selection of service providers, and to affording
faith-based and other organizations accommodations from program
requirements in accordance with Federal law.
Changes: HHS removes the phrase ``and the Americans with
Disabilities Act, 42 U.S.C. 12113(d)(2)'' from 45 CFR 87.3(h).
4. Complaint and Enforcement Procedures
Comments: As discussed in Part II.G.3 of the joint preamble,
various commenters recommended that the proposed rule be revised to
identify a point of contact for complaints in the regulatory text. One
commenter additionally suggested that HHS, in particular, specify its
enforcement procedures in its regulation. The commenter also maintained
that the HHS Office for Civil Rights (``OCR'') may not know how to
investigate complaints and verify compliance with the regulation, and
accordingly recommended that, in the final rule, HHS clarify how
complaints for violations of its regulation may be filed and specify
the procedures for enforcement as well as consequences for violations.
Response: HHS declines to change 45 CFR 87.3(k)(4) to identify the
process for filing complaints concerning violations of the rule and to
make clear HHS's enforcement procedures. Supplementing the proposed
rule language with greater detail on those topics is beyond the scope
of this rulemaking. Doing so is also unnecessary because HHS
enforcement procedures for violations of applicable civil rights
statutes are already set forth elsewhere in 45 CFR part 80, and
enforcement procedures for any other violations of this rule are set
forth in 45 CFR part 75. Further, 45 CFR 87.3(k)(4) already makes clear
that any complaint concerning violations of this rule may be filed with
``either the HHS awarding entity or the pass-through entity that
awarded funds to the organization, which must promptly report the
complaint to the HHS awarding entity.'' The provision adds that the HHS
awarding entity will address the complaint in consultation with HHS's
OCR.
This process is consistent with HHS's organizational structure and
delegations of authority. On January 15, 2021, the Secretary delegated
to OCR the authority to investigate allegations of violations of the
nondiscrimination provisions in this rule. Also, the individual program
offices that administer each grant program (``awarding entities'') have
authority to review and enforce other kinds of potential violations of
this rule, among other regulations and award terms and conditions that
are applicable to the specific grant program at issue.
The enforcement remedies that OCR and the awarding entities may
adopt in
[[Page 15693]]
the event of any violation of these rules vary according to several
factors, such as the facts underlying the alleged violation, any prior
corrective action opportunities, and any other applicable program
authorities. For example, while awarding entities that administer a
given program may be bound by a program-specific authority that
addresses enforcement of program requirements, most HHS programs are
governed by HHS-wide regulations that address enforcement of program
requirements at 45 CFR 75.371 (``Remedies for noncompliance'') and
75.372 (``Termination''). HHS believes that integrating these
enforcement remedies into this rule text would be unnecessary and, in
any event, is beyond the scope of this rulemaking.
As indicated in Part II.G.3 of the joint preamble above, all of the
Agencies, including HHS, acknowledge that beneficiaries of federally
funded social service programs need clarity about what office to
contact if they experience discrimination in violation of these
regulations. At the same time, HHS has determined that it is not
feasible to identify a single address or phone number to which all
complaints concerning this rule may be directed because the awarding
entity will vary according to the program. Consequently, consistent
with the approach of other Agencies, as described in Part II.A.4 of the
joint preamble, HHS revises the model notice of beneficiary protections
proposed in the Joint NPRM to require the awarding entity to identify a
point of contact to which complaints can be directed. To help ensure
that this information is included in notices to beneficiaries, HHS
includes a requirement at 45 CFR 87.3(k)(1) of this final rule that the
notice of beneficiary protections in directly funded programs be
substantially similar to the model notice in its appendix A. As to
indirectly funded social service programs, a new 45 CFR 87.3(k)(2) of
this final rule requires that the notice of beneficiary protections in
indirectly funded programs include similar contact information. That
notice must also identify the protections regarding nondiscrimination
on the basis of religion in 45 CFR 87.3(f), and attendance or
participation in any explicitly religious activities in 45 CFR
87.3(k)(1)(ii). With these changes, the notice to beneficiaries will
serve as a resource, in both direct and indirect funding contexts, in
which a point of contact for any complaints can be found. Finally, HHS
notes that the name of the HHS program office that has awarded a
project, and contact information for that office, is also typically
made available on HHS's website.
Changes: The regulation at 45 CFR 87.3(k)(1) is revised to require
that the notice of beneficiary protections in directly funded programs
adopt language that is substantially similar to that in appendix A,
which includes a point of contact for any complaints. A new Sec.
87.3(k)(2) is added to require that beneficiaries and prospective
beneficiaries in indirectly funded programs receive a notice of
protections that also includes a point of contact for complaints.
Section 87.3(k)(4) is unchanged.
D. Department of Housing and Urban Development
Unless specified below, all comments received by HUD are addressed
fully in the discussion of cross-cutting issues in Part II of the joint
preamble, and those responses are adopted by HUD. HUD here provides
additional HUD-specific responses to comments. This Agency-specific
discussion is organized in the same manner as the joint preamble.
1. Handling Complaints
Comments: A commenter recommended that HUD charge its Office of
Fair Housing and Equal Opportunity (``FHEO'') with handling complaints
implicating this rule's beneficiary protections. The commenter
expressed that doing so would be consistent with HUD's current practice
for handling complaints under its HUD-wide Equal Access Rule, as well
as complaints under the Violence Against Women Act's (``VAWA's'')
housing protections.
Response: HUD recipients must comply with all applicable
programmatic requirements and Federal civil rights laws and their
implementing regulations. Program violations will likewise be handled
in accordance with applicable statutes and regulations. Individuals who
believe they have experienced--or are about to experience--a program
violation while accessing or attempting to access programs and
activities assisted by HUD may complain to the responsible program
office or to HUD's Center for Faith-Based and Neighborhood Partnerships
(``CFBNP''). CFBNP has the resources and technical assistance
experience to work with faith-based and community partners and HUD's
program offices in ensuring equal participation of faith-based
organizations in HUD programs and activities. Furthermore, because a
complaint may allege violations of multiple authorities, CFBNP will
work with FHEO when a complaint alleges discrimination that is
potentially cognizable under the Fair Housing Act, Title VI of the
Civil Rights Act of 1964, Section 504 of the Rehabilitation Act, VAWA,
the Age Discrimination Act of 1975, or any of the other civil rights
requirements enforced by FHEO. In addition, if a person believes that
they are the victim of discrimination prohibited under a different
Federal civil rights statute or requirement enforced by HUD other than
those discussed in this rule, they may also file a complaint with FHEO.
To the extent a recipient is found to have violated a program
requirement or an applicable civil rights statute, they may be subject
to sanctions and penalties for such violations as provided for under
the applicable statutes or regulations.
Changes: None.
2. Removal of the Reference to Tenets
Comments: One commenter objected to the extension of the Title VII
religious-employer exemption to Government-funded positions, and said
that the 2020 Rule exacerbated this problem by suggesting that Title
VII permits religious organizations that qualify for the Title VII
religious-employer exemption to insist upon tenets-based employment
conditions that would otherwise violate Title VII or the particular
underlying funding statute in question. The commenter noted that while
most of the Agencies proposed removing the ``tenets'' related language
in their proposed regulations, HUD did not. The commenter urged HUD to
likewise remove the reference to tenets-based employment conditions in
its regulations.
Response: For the reasons elaborated in Part II.E of the joint
preamble, and for consistency with the other Agencies, HUD will remove
the text on tenets-based employment conditions from its regulations as
it is unnecessary and potentially misleading.
Changes: HUD removes language stating that organizations may select
their employees on the basis of their acceptance of or adherence to
religious tenets in 24 CFR 5.109(d)(2).
3. Eligibility and Program Requirements
Comments: One commenter supported the Agencies' proposal to remove
the phrase ``on the same basis as any other organization and
considering a religious accommodation'' from their regulations'
provisions regarding organizations' eligibility for program
participation. The commenter contended, however, that HUD had failed to
remove that language from its
[[Page 15694]]
proposed regulation and so should do so in the final rule.
Response: In this final rule, HUD deletes the clause ``and
considering any permissible accommodation on a case-by-case basis in
accordance with the Constitution and laws of the United States'' from
24 CFR 5.109(c)(1). HUD believes that this change promotes clarity and
avoids redundancy in the regulatory text. In addition, HUD makes this
change to promote consistency with other Agencies' rule texts, as
recommended by the commenter.
HUD emphasizes that the removal of the clause in question is not a
substantive change, nor does it represent any departure from HUD's
strong commitment to its obligations to comply with the Free Speech and
Free Exercise Clauses of the First Amendment to the U.S. Constitution
and Federal laws that support and protect religious exercise and
freedom of conscience, including RFRA. HUD remains fully committed to
thoroughly considering any organization's assertion that an obligation
imposed upon it conflicts with its rights under those authorities, and
will provide such accommodations in accordance with Federal law.
At the same time, HUD disagrees with the recommendation that it
rescind the clause ``on the same basis as any other organization'' from
24 CFR 5.109(c)(1). That clause has long been a part of HUD's
regulation and reflects HUD's dedication to ensuring that faith-based
organizations are not discriminated against in HUD's selection of
service providers. Moreover, HUD has decided to keep that clause so
that it remains consistent with other Agencies' final regulations.
Changes: HUD deletes the clause ``and considering any permissible
accommodation on a case-by-case basis in accordance with the
Constitution and laws of the United States'' from 24 CFR 5.109(c)(1) as
proposed.
4. Beneficiary Notice for Indirect Aid Recipients
Comments: As described in Part II.A.4 of the joint preamble, some
commenters recommended that the Agencies require that written notice be
provided to beneficiaries of programs receiving indirect Federal
financial assistance. While recognizing that those beneficiaries are
not entitled to all of the protections identified in the notice--in
particular, the requirement to separate explicitly religious activities
applies only to activities supported with direct Federal financial
assistance--the commenters asserted that beneficiaries of indirectly
funded programs should be notified of the rights to which they are
entitled.
Response: HUD agrees with the other Agencies that the rationale for
adopting the beneficiary notice requirement--improving beneficiaries'
access to federally funded services by informing them of their rights,
and thereby removing certain barriers arising from discrimination--
applies equally to all beneficiaries, regardless of whether they are
participating in programs receiving direct or indirect Federal
financial assistance. HUD provides indirect Federal financial
assistance through various programs, including its Housing Choice
Voucher (``HCV'') program, Project-Based Voucher (``PBV'') program,
Section 8 Moderate Rehabilitation programs, Housing Opportunities for
Persons with AIDS (``HOPWA'') program, Continuum of Care (``CoC'')
program, and Emergency Solution Grants (``ESG'') program.
Due to the structure of HUD's programs, HUD has determined that the
indirect aid beneficiary notice will be provided by Public Housing
Agencies (``PHAs'') for the HCV, PBV, and Section 8 Moderate
Rehabilitation programs, by the grantees or project sponsors
responsible for making eligibility determinations for the HOPWA
program, and the recipients or subrecipients that are responsible for
determining the eligibility of each family or individual for the CoC
and ESG programs. The final rule further clarifies that the entities
that receive indirect Federal financial assistance are not responsible
for providing the beneficiary notice, to ensure that this requirement
does not impose a burden that negatively affects private provider
participation in HUD-funded programs.
Changes: HUD revises its regulations to add 24 CFR 5.109(g)(2)(ii).
5. Model Written Notice
Comments: A commenter suggested that HUD follow the example of DOL
and HHS by providing a model written beneficiary notice as an appendix
to ensure beneficiaries consistently receive adequate notice of their
rights. The commenter opined that a model notice will not only help
ensure beneficiary rights are respected, but also assist Federal
awardees and minimize administrative burdens. Further, the commenter
stated that by offering a model notice, the Agencies can help ensure
the nondiscrimination and noncoercion requirements of the rule are
effective in minimizing the risk that beneficiaries will encounter
discrimination when accessing critical services.
Response: HUD agrees with the commenter that providing a model
beneficiary notice will ensure that beneficiaries are aware of their
rights and that the notice will minimize the risk that beneficiaries
will encounter discrimination. Under the final rule, the model written
notice will ensure beneficiaries consistently receive adequate notice
and will provide clarity for beneficiaries regarding protections for
them. Accordingly, HUD incorporates a model beneficiary notice in this
final rule.
Changes: HUD adds a model beneficiary notice to accompany this
final rule in 24 CFR part 5, appendix C.
E. Department of Education
Unless otherwise specified, all comments received by ED are
addressed fully in the discussion of cross-cutting issues in Part II of
the joint preamble, and those responses are adopted by ED. ED addresses
in this part of the preamble the ED-specific comments not fully
addressed in Part II of this preamble. ED does not discuss in this part
of the preamble minor or technical changes that were made to provide
greater consistency or simplify the language in its regulations.
1. Beneficiary Protections
Comments: One commenter recommended that ED charge its Office for
Civil Rights (``OCR'') with responsibility for addressing complaints
regarding compliance with the beneficiary protections set forth in this
rule.
Response: ED does not address in this rule which of its components
will handle complaints regarding compliance with the rule's beneficiary
protections because the ED components involved in addressing any
alleged violation of the rule could vary according to multiple factors,
such as the facts underlying the alleged violation or the existence of
a dispute resolution system under the applicable program.
Changes: None.
Comments: As described in Part II.A.4 of the joint preamble, some
commenters recommended that, in addition to requiring that the written
notice of beneficiary rights be provided to beneficiaries of programs
receiving direct Federal financial assistance, the Agencies should
require that the notice be provided to beneficiaries of indirect
Federal financial assistance.
Response: ED declines to extend its beneficiary notice requirement
to programs involving indirect Federal financial assistance. Currently,
ED operates only one such program, the
[[Page 15695]]
District of Columbia Opportunity Scholarship Program authorized under
the Scholarships for Opportunity and Results (``SOAR'') Act, which
provides scholarships to enable students from low-income families in
the District of Columbia to attend a participating private elementary
or secondary school of their choice. Under this program, a student's
family must apply and gain admission to a participating private school
while separately applying for the scholarship. Participating private
schools from which a student's family may choose include both religious
and secular schools.
The SOAR Act includes independent requirements governing religious
discrimination and participation of religiously affiliated schools.
Specifically, Congress prohibited a participating private school from
discriminating against program participants or applicants on the basis
of religion, as well as race, color, national, origin, or sex. D.C.
Code 38-1853.08(a). ED's grantee administering the program provides a
notice of these nondiscrimination requirements as part of the
scholarship application that parents complete.
Given the structure of ED's sole indirect aid program and
considering that a notice of nondiscrimination, including religious
nondiscrimination, is already provided to applicants for that program,
ED believes it is unnecessary to adopt additional notice requirements
for programs providing indirect Federal financial assistance at this
time.
Changes: None.
2. Eligibility of Faith-Based Organizations
Comments: One commenter noted that, unlike most other Agencies, ED
does not include in its provider notice appendices (appendices A and B
to 34 CFR part 75) language indicating that an organization may not use
direct Federal financial assistance to ``support or engage in
explicitly religious activities.'' The commenter recommended that ED
add this language to its appendices.
Response: ED agrees with the commenter that inclusion of this
language would be helpful to maintain consistency with other Agencies'
corresponding appendices.
Changes: ED has revised appendices A and B to 34 CFR part 75 to
make clear that an organization may not use direct Federal financial
assistance to ``support or engage in explicitly religious activities
except when consistent with the Establishment Clause of the First
Amendment and any other applicable requirements.''
F. Department of Veterans Affairs
In this section, VA addresses the few VA-specific comments not
addressed in the joint preamble above. All other comments received by
VA or otherwise affecting VA's regulations are addressed fully in Part
II of the joint preamble, and VA adopts those responses.
1. Religion or Religious Belief
Comments: One commenter suggested that VA update two of its
nondiscrimination provisions, 38 CFR 61.64(e) and 62.62(e), to replace
``religion or religious belief'' with ``religion, a religious belief, a
refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice.'' The commenter explained that the
inclusion of this language would further strengthen VA's commitment to
ensuring that all beneficiaries and prospective beneficiaries have
access to federally funded services and programs without unnecessary
barriers and free from discrimination.
Response: VA agrees with the commenter's suggestion. VA's proposed
regulation text at 38 CFR 50.2(d) already stated that ``[a]ny
organization that participates in programs funded by Federal financial
assistance from the department shall not . . . discriminate against a
program beneficiary or prospective program beneficiary on the basis of
religion, a religious belief, a refusal to hold a religious belief, or
a refusal to attend or participate in a religious practice.'' In an
oversight, however, VA used different phrasing in the proposed versions
of 38 CFR 61.64(e) and 62.62(e). For consistency within its own
regulations and with those of the other Agencies, VA has revised the
text in 38 CFR 61.64(e) and 62.62(e) of this final rule to likewise use
the phrase ``religion, a religious belief, a refusal to hold a
religious belief, or a refusal to attend or participate in a religious
practice.''
Changes: VA revises 38 CFR 61.64(e) and 62.62(e) to incorporate the
phrase ``religion, a religious belief, a refusal to hold a religious
belief, or a refusal to attend or participate in a religious
practice.''
2. Participation in VA Programs or Services
Comments: The regulation at 38 CFR 50.2(e) prohibits several forms
of discrimination against providers participating in VA programs or
services. One commenter suggested deleting the first sentence of that
provision, which reads as follows: ``A faith-based organization is not
rendered ineligible by its religious exercise or affiliation to access
and participate in Department programs.'' The commenter suggested that
the sentence is repetitive of the substantive prohibitions stated
elsewhere in 38 CFR 50.2(e), and urged that deleting it would avoid
confusion and advance consistency.
Response: VA agrees that the first sentence of 38 CFR 50.2(e) is
repetitive of the other language in that provision guaranteeing equal
access to VA programming for faith-based organizations and so removes
that sentence in this final rule.
Changes: VA revises 38 CFR 50.2(e) to remove the first sentence.
G. Department of Homeland Security
DHS received several public comments that specifically addressed
DHS's proposed regulatory changes. The majority of the comments
requested that DHS revise its regulations for consistency in regulatory
language with the other Agencies, and several commenters also suggested
specific revisions to provide clarity and avoid confusion. DHS
addresses these comments below. All other comments received by DHS, or
that affect DHS's regulations, are addressed in Part II of the joint
preamble, and DHS adopts those responses.
Comments: One commenter recommended that DHS amend its definition
of ``indirect Federal financial assistance'' in 6 CFR 19.2 to be
consistent with the language used by the majority of the Agencies.
Specifically, the commenter recommended that DHS add ``not a choice of
the Government'' after ``genuinely independent and private choice of a
beneficiary.''
Response: DHS agrees that its omitting this additional phrase could
be confusing and would hinder the goal of maximizing consistency across
the Agencies' regulations. Accordingly, DHS amends the text of 6 CFR
19.2 to add that phrase, and thereby to maintain consistency of
language among the Agencies.
Changes: DHS amends 6 CFR 19.2 by adding the phrase ``and not a
choice of the Government'' to the definition of ``indirect Federal
financial assistance.''
Comments: Several commenters suggested that DHS amend 6 CFR 19.3
and 19.4 and its appendix A to clarify DHS's regulatory language
prohibiting discrimination against religious organizations. In
particular, commenters suggested that DHS change the phrase ``because
such organization is motivated or influenced by religious faith to
provide social services'' to ``because of such organization's religious
character, motives, or affiliation, or lack thereof,''
[[Page 15696]]
which the commenter asserts is much clearer. Finally, another commenter
recommended that DHS amend its appendix A to add ``or lack thereof''
after ``religious character, motives, or affiliation'' in Sec. 19.3.
Response: DHS agrees with the commenters that it should amend 6 CFR
19.3 and 19.4 and its appendix A in the manner suggested. As explained
in Part II.D.1 of the joint preamble, the suggested formulation makes
the scope of the prohibition on discrimination clearer. This change
will also promote consistency among the Agencies' regulations.
Changes: DHS amends the text of 6 CFR 19.3(g)(1) and 19.4(c) and
appendix A to 6 CFR part 19 as suggested by commenters.
Comments: Commenters observed that DHS and a couple of other
Agencies proposed rule text in the Joint NPRM that included a religious
accommodations clause not found in the remaining Agencies' rule text.
Specifically, the commenters noted that DHS proposed that 6 CFR 19.3
state: ``Faith-based organizations are eligible, on the same basis as
any other organization, and considering any permissible accommodation
appropriate under the Constitution and other provisions of Federal law,
to seek and receive direct financial assistance from DHS for social
service programs or to participate in social service programs
administered or financed by DHS.'' See 88 FR 2412. By contrast, other
Agencies omitted the reference to ``any permissible accommodation'' in
their nondiscrimination provisions. Apart from language consistency,
the commenters also asserted that the accommodations clause in DHS's
regulations is confusing.
Response: DHS agrees with the commenters' suggestion and removes
the ``any permissible accommodation'' language from its final
regulations. That language was not intended to have any substantive
effect, so its removal likewise effects no substantive change. DHS is
fully committed to granting constitutionally and statutorily required
accommodations, as it must, irrespective of whether that commitment is
restated in this context. DHS recognizes, however, that including such
accommodations language, in deviation from other Agencies' regulatory
text, could invite readers to infer a substantive difference in
meaning, contrary to DHS's regulatory intent. DHS therefore deletes the
``any permissible accommodation'' language in this final rule.
Changes: DHS removes the phrase ``any permissible accommodation''
from 6 CFR 19.3(a).
H. Agency for International Development
Unless otherwise specified, those comments received by USAID or
affecting USAID's regulations are addressed fully in Part II of the
joint preamble, and USAID adopts those responses except where noted. In
the Joint NPRM, USAID inadvertently removed its existing regulatory
language related to accommodations without replacing it with the
intended new language. USAID adopts the discussion of accommodations in
Part II of the joint preamble and has updated its amendatory text
accordingly. USAID addresses in this part of the preamble the USAID-
specific comments not addressed in the joint preamble and provides
USAID-specific findings and certifications. USAID does not discuss in
this part of the preamble minor or technical changes that were made to
provide greater consistency or simplify the language in the
regulations.
1. Beneficiary Notice Requirement
As explained in the Joint NPRM, and in footnotes 1 and 2 of the
joint preamble, as a result of several distinctive characteristics of
its programs, USAID does not adopt the discussion of the cross-cutting
comments related to the beneficiary notice requirements in Part II.A.4
of the joint preamble. Instead, USAID addresses the comments it
received on that topic in the following discussion.
Comments: USAID received three comments regarding its proposal to
refrain from adopting a written beneficiary notice requirement. One
commenter urged USAID to require written notice to beneficiaries of
their right to be free from religious discrimination in all relevant
local languages, arguing that, if USAID failed to do so, beneficiaries
of USAID-funded programs would have fewer protections than
beneficiaries of other federally funded programs. Another commenter
acknowledged that the unique international context in which USAID
operates may warrant some adjustment to the beneficiary notices
provided by other Agencies, but argued that some form of notice should
still be required. Another commenter, by contrast, contended that while
the beneficiary notice should be universally required by domestic
agencies, it should not apply to USAID's programs.
Response: At this time, USAID declines to adopt a requirement that
all beneficiaries of USAID-funded programs receive written notice of a
right to be free from religious discrimination. USAID is, however,
exploring ways to effectively address current challenges associated
with written notices in order to potentially disseminate information
about beneficiary protections more broadly in the future.
USAID acknowledges commenters' suggestions that the value of
religious nondiscrimination protections for beneficiaries is
strengthened when beneficiaries are aware that they have such
protections. As another commenter explained, however, USAID's global
programming means USAID operates under different circumstances than the
eight other domestically focused Agencies. USAID funds assistance in
more than 100 countries, many of which have multiple official or
national languages, often in addition to countless local languages that
are the actual primary language of USAID beneficiaries. See USAID,
Fiscal Year 2023 Agency Financial Report at iii (Nov. 14, 2023),
https://www.usaid.gov/sites/default/files/2023-11/USAID_2023AFR_508.pdf. USAID-funded assistance also often targets some
of the most vulnerable populations in the world, and many of these
communities have varying degrees of literacy, making other-than-written
forms of communication necessary. While language and literacy obstacles
can also affect U.S. domestic programs administered by the other
Agencies, these issues affect USAID programs on a much wider scale and
highlight some of the challenges that impede meaningful dissemination
of a written beneficiary notice throughout USAID-funded programs.
USAID does not concur with the comment that the Agency lacks
adequate religious nondiscrimination protections for beneficiaries.
USAID's existing regulations and award terms make explicit that an
organization that participates in programs funded by financial
assistance from USAID, including through an award or subaward, must
not, in providing services, discriminate against a program beneficiary
or prospective program beneficiary on the basis of religion, a
religious belief, a refusal to hold a religious belief, or a refusal to
attend or participate in a religious practice.
Changes: None.
2. Alternative Provider Requirements
USAID does not adopt the discussion of the cross-cutting comments
related to the alternative provider requirements in Part II.A.4 of the
joint preamble. Instead, USAID addresses the comments it
[[Page 15697]]
received on that topic in the following discussion.
Comments: USAID received two comments regarding its proposal to
refrain from adopting an alternative provider referral requirement. The
first commenter urged USAID to adopt an alternative provider referral
requirement akin to what the other Agencies adopted in the 2016 Rule.
In the alternative, the commenter encouraged USAID to consider adopting
the modified referral requirement that the rest of the domestically
focused Agencies proposed in the Joint NPRM, under which USAID would
attempt to identify an alternative provider if a beneficiary were to
object to the nature of a service provider, regardless of whether that
provider was religious or secular. The second commenter, in contrast,
argued that USAID should not adopt an alternative provider requirement
due to the different circumstances in which USAID operates.
Response: USAID declines to adopt an alternative provider referral
requirement at this time. USAID agrees with the second commenter that
it operates under different circumstances than the other eight
domestically focused agencies. As explained above, USAID funds
activities in more than 100 countries, often in some of the hardest-to-
reach places on earth, where social services are often not readily
available. Furthermore, it may be difficult to locate alternatives
depending on the cultural and religious context of the country in which
USAID is operating. USAID also notes that it communicates and promotes
important religious freedom messages through separate, targeted
programs, such as its democracy, rights, and government initiatives.
Changes: None.
3. Appendices A and B
Comments: USAID received one comment urging it to adopt an appendix
A (Notice or Announcement of Award Opportunities) and an appendix B
(Notice of Award or Contract).
Response: USAID declines to adopt model language similar to that
found in other Agencies' appendix A or B. USAID already includes this
information in its notices of funding opportunities and awards through
inclusion or incorporation by reference of USAID's standard award
provisions.
Changes: None.
IV. General Regulatory Certifications
A. Regulatory Planning and Review (Executive Order 12866); Improving
Regulation and Regulatory Review (Executive Order 13563); Modernizing
Regulatory Review (Executive Order 14094)
Under section 6(a) of Executive Order 12866, Regulatory Planning
and Review, 58 FR 51735 (Sept. 30, 1993), the Office of Management and
Budget (``OMB'') Office of Information and Regulatory Affairs
(``OIRA'') determines whether a regulatory action is significant and,
therefore, subject to the requirements of the Executive order and
review by OMB. Section 3(f) of Executive Order 12866, as amended by
section 1(b) of Executive Order 14094, Modernizing Regulatory Review,
88 FR 21879 (Apr. 6, 2023), defines a ``significant regulatory action''
as an action that is likely to result in a rule that may: (1) have an
annual effect on the economy of $200 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, territorial, 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 impacts of entitlement grants, user fees, or loan
programs, or the rights and obligations of recipients thereof; or (4)
raise legal or policy issues for which centralized review would
meaningfully further the President's priorities or the principles set
forth in the Executive order. OIRA has determined that this final rule
is a significant regulatory action under section 3(f) of Executive
Order 12866, as amended by Executive Order 14094.
Executive Order 13563, Improving Regulation and Regulatory Review,
76 FR 3821 (Jan. 18, 2011), directs agencies to propose or adopt a
regulation only upon a reasoned determination that its benefits justify
its costs; the regulation is tailored to impose the least burden on
society, consistent with achieving the regulatory objectives; and in
choosing among alternative regulatory approaches, the agency has
selected those approaches that maximize net benefits. Executive Order
13563 recognizes that some benefits are difficult to quantify and
provides that, where appropriate and permitted by law, agencies may
consider and discuss qualitatively values that are difficult or
impossible to quantify, including equity, human dignity, fairness, and
distributive impacts.
The Agencies are issuing this final rule upon a reasoned
determination that its benefits justify its costs. In choosing among
alternative regulatory approaches, the Agencies selected those
approaches that maximize net benefits. Based on the analysis that
follows, the Agencies believe that this final rule is consistent with
the principles in Executive Order 13563. The Agencies also have
determined that this regulatory action does not unduly interfere with
State, local, or Tribal governments in the exercise of their
governmental functions.
In accordance with Executive Orders 12866 and 13563, the Agencies
have assessed the potential costs, cost savings, and benefits, both
quantitative and qualitative, of this final rule.
1. Costs
The potential costs of this final rule are those resulting from
implementing the beneficiary notice requirements and regulatory
familiarization. DOL previously estimated the cost of imposing a
similar beneficiary notice requirement, reporting an upper-bound
estimate of $200 per organization per year (in 2013 dollars). 81 FR
19395. This cost estimate was based on the expectation that it would
take up to $100 in annual material costs and no more than two annual
burden hours for a Training and Development Specialist to print,
duplicate, and distribute notices to beneficiaries. Id.
For this final rule, the Agencies adjusted the estimate to $251.22
(in 2022) to produce an upper-bound estimate, and also replicated this
methodology to generate a central estimate of the cost per organization
per year. For the replication, the Agencies adjusted the annual
materials cost to $125.61 (in 2022 dollars) using the consumer price
index (``CPI'').\6\ The Agencies calculated the cost of labor by
multiplying the estimated time burden by the hourly compensation of a
Training and Development Specialist (SOC Code 13-1151). According to
the Bureau of Labor Statistics (``BLS''), the mean hourly wage rate for
a Training and Development Specialist in May 2022 was $33.59.\7\ For
this analysis, the Agencies used a fringe benefits rate of
[[Page 15698]]
45 percent,\8\ resulting in a fully loaded hourly compensation rate for
Training and Development Specialists of $48.71 [= $33.59 + ($33.59 x
0.45)]. The Agencies estimated that a Training and Development
Specialist will spend on average two hours ($97.42) printing,
duplicating, and distributing notices to beneficiaries. The Agencies
combined these estimates to generate a primary cost per organization of
the beneficiary notice requirement of $223.03 [= $125.61 + $97.42]. As
shown in Table 1, the Agencies estimated the total annual cost
resulting from the beneficiary notice requirement by multiplying the
number of covered providers of social service programs receiving
Federal financial assistance by the annual compliance cost of the
notice requirement, namely their potential central estimate of $223.03.
All providers receiving direct Federal financial assistance, as well as
some providers receiving indirect Federal financial assistance, are
subject to the beneficiary notice requirement in this final rule. The
Agencies could not, however, differentiate direct recipients from
indirect recipients in calculating the annual cost of the notice
requirement, and thus the cost is overstated to the extent that it
includes indirect recipients who may not be subject to the notice
requirement, depending on each Agency's determination under its revised
regulations. On the other hand, for some Agencies, the number of
providers of social service programs does not include subrecipients due
to data limitations. This results in an underestimation of the annual
cost of the beneficiary notice requirement. Overall, the annual cost of
the final notice requirement is likely to be underestimated in this
analysis, but not enough to change the determination of the Agencies
that the benefits justify the costs.
---------------------------------------------------------------------------
\6\ To calculate this figure, as well as the adjusted upper-
bound estimate, the Agencies used the data on annual averages of the
CPI available at BLS, CPI Inflation Calculator, https://www.bls.gov/data/inflation_calculator.htm. The average CPI for 2013 was
$232.957; the average CPI for 2022 was $292.613. Using this ratio,
the materials cost of $100 in 2013 dollars became $125.61 in 2022
dollars [= $100 x (292.613/232.957)].
\7\ BLS, Occupational Employment and Wage Statistics, May 2022,
https://www.bls.gov/oes/current/oes131151.htm.
\8\ BLS, Employer Costs for Employee Compensation, https://www.bls.gov/ncs/data.htm. Wages and salaries averaged $28.31 per
hour worked in June 2022, while benefit costs averaged $12.72, which
is a benefits rate of 45 percent. BLS, Employer Costs for Employee
Compensation Archived News Releases, https://www.bls.gov/bls/news-release/ecec.htm#2022.
\9\ Most Agencies provided their numbers of recipients of
financial assistance, and the averages over three years (fiscal year
(``FY'') 2019 to FY2021), where available, are presented in Table 1.
\10\ See the discussion preceding Table 1 for the derivation of
a $223.03 estimate.
\11\ Average number of recipients of DOJ financial assistance
from the Office on Violence Against Women and Office of Justice
Programs in FY2019, FY2020, and FY2021.
\12\ Average number of recipients of USDA financial assistance
from the National Institute of Food and Agriculture Program,
Community Facilities Program, Single Family Housing Preservation
Grant Program, Multifamily Housing Programs, and nutrition
assistance programs in FY2019, FY2020, and FY2021. All other USDA
programs, including via State partners, States and territories of
the United States, and Tribal organizations, are estimates for the
current fiscal year.
\13\ Number of recipients of DOL financial assistance under
various programs authorized by title I of the Workforce Innovation
and Opportunity Act in FY2019, FY2020, or FY2021.
\14\ Average number of prime recipients of HHS financial
assistance in affected programs in FY2019, FY2020, and FY2021.
\15\ Average number of recipients of HUD financial assistance
from the Community Development Block Grant Program, HOME Investment
Partnerships, Public Housing Agency, Office of Native American
Programs, Office of Special Needs, Multifamily Assisted Property
Owners Program, Office of Rural Housing and Economic Development,
and Comprehensive Housing Counseling Grant Program in FY2019,
FY2020, and FY2021.
\16\ Average number of recipients of ED financial assistance
from discretionary grant programs and formula grant programs in
FY2019, FY2020, and FY2021.
Table 1--Annual Cost of Final Beneficiary Notice Requirement by Agency
----------------------------------------------------------------------------------------------------------------
Number of social service
Agencies providers receiving federal Cost per entity Annual cost
financial assistance
(A) \9\ (B) \10\ (C = A x B)
----------------------------------------------------------------------------------------------------------------
DOJ............................................. \11\ 18,152 $223.03 $4,048,441
USDA............................................ \12\ 240,810 223.03 53,707,854
DOL............................................. \13\ 39,981 223.03 8,916,962
HHS............................................. \14\ 10,287 223.03 2,294,310
HUD............................................. \15\ 45,321 223.03 10,107,943
ED.............................................. \16\ 10,941 223.03 2,440,171
VA.............................................. \17\ 1,027 223.03 229,052
DHS............................................. \18\ 10,648 223.03 2,374,823
USAID........................................... \19\ 1,251 0 \20\ 0
---------------------------------------------------------------
Total....................................... ........................... ................. 84,119,556
----------------------------------------------------------------------------------------------------------------
The process of regulatory familiarization, or reviewing the final
rule to determine how it applies, will impose a one-time direct cost on
all covered providers of social service programs in the first year. The
Agencies calculated this cost by multiplying the estimated time to
review the rule by the hourly compensation of a Community and Social
Service Specialist (SOC Code 21-1099). According to the BLS, the mean
hourly wage rate for a Community and Social Service Specialist in May
2022 was $24.82.\21\ For this analysis, the Agencies used a fringe
benefits rate of 45 percent,\22\ resulting in a fully loaded hourly
compensation rate for Community and Social Service
[[Page 15699]]
Specialists of $35.99 [= $24.82 + ($24.82 x 0.45)]. The Agencies
estimated that a Community and Social Service Specialist will spend on
average 30 minutes reviewing the rule ($18). Table 2 shows the one-time
regulatory familiarization cost by Agency in the first year.
---------------------------------------------------------------------------
\17\ Average number of recipients of VA financial assistance
from the Supportive Services for Veteran Families and Grant and Per
Diem Programs in FY2019, FY2020, and FY2021. In addition, at the
time of the proposed rule, VA estimated that the Staff Sergeant
Parker Gordon Fox Suicide Prevention Grant Program would fund 90
grantees in each of FY2022 and FY2023. The Staff Sergeant Parker
Gordon Fox Suicide Prevention Grant Program has awarded funding to
80 grantees in each of FY2022 and FY2023, resulting in a lower
annual cost than estimated.
\18\ Average number of recipients of DHS financial assistance
from USCIS's Citizenship and Integration Grant Program and the
Federal Emergency Management Agency's Disaster Case Management,
Crisis Counseling Assistance and Training Program and Emergency Food
and Shelter Program in FY2019, FY2020, and FY2021.
\19\ Average number of prime recipients of USAID financial
assistance in FY2019, FY2020, and FY2021.
\20\ USAID is not adopting the beneficiary notice requirement,
so this final rule will not result in any cost to recipients of
financial assistance from USAID.
\21\ BLS, Occupational Employment and Wage Statistics, May 2022,
https://www.bls.gov/oes/current/oes211099.htm.
\22\ BLS, Employer Costs for Employee Compensation, https://www.bls.gov/ncs/data.htm. Wages and salaries averaged $26.22 per
hour worked in 2020, while benefit costs averaged $11.99, which is a
benefits rate of 46 percent.
Table 2--One-Time Regulatory Familiarization Cost by Agency
----------------------------------------------------------------------------------------------------------------
Number of social service Cost in the
Agencies providers Cost per entity first year
(A) (B) (C = A x B)
----------------------------------------------------------------------------------------------------------------
DOJ............................................. 18,152 $18 $326,736
USDA............................................ 240,810 18 4,334,580
DOL............................................. 39,981 18 719,658
HHS............................................. 10,287 18 185,166
HUD............................................. 45,321 18 815,778
ED.............................................. 10,941 18 196,938
VA.............................................. 1,027 18 18,486
DHS............................................. 10,648 18 191,664
USAID........................................... 1,251 18 22,518
---------------------------------------------------------------
Total....................................... ........................... ................. 6,811,524
----------------------------------------------------------------------------------------------------------------
Table 3 shows the total annualized cost at a seven percent and a
three percent discounting for the final beneficiary notice requirement
and the one-time regulatory familiarization cost. For example, the
annualized cost for DOL-regulated entities is $9,018,626 at a seven
percent discounting. The total annualized cost for all nine Agencies is
$85,081,821 at a seven percent discounting. This total cost estimate is
likely to be understated because some subrecipients are not included in
the analysis, but not enough to change the determination of the
Agencies that the benefits of the beneficiary notice requirement
justify its costs.
Table 3--Total Cost of Final Beneficiary Notice Requirement and Regulatory Familiarization by Agency
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual cost of final Total annualized cost Total annualized cost
Agencies beneficiary notice The one-time regulatory at a 7 percent at a 3 percent
requirement familiarization cost discounting discounting
--------------------------------------------------------------------------------------------------------------------------------------------------------
DOJ.................................................. $4,048,078 $326,736 $4,094,597 $4,086,381
USDA................................................. 53,703,038 4,334,580 54,320,185 54,211,183
DOL.................................................. 8,916,163 719,658 9,018,626 9,000,529
HHS.................................................. 2,294,104 185,166 2,320,467 2,315,811
HUD.................................................. 10,107,036 815,778 10,223,185 10,202,670
ED................................................... 2,439,952 196,938 2,467,992 2,463,040
VA................................................... 229,031 18,486 231,663 231,198
DHS.................................................. 2,374,610 191,664 2,401,899 2,397,079
USAID................................................ 0 22,518 3,206 2,640
--------------------------------------------------------------------------------------------------
Total............................................ ....................... .......................... 85,081,821 84,910,532
--------------------------------------------------------------------------------------------------------------------------------------------------------
2. Cost Savings
The final beneficiary notice requirement could provide some cost
savings to beneficiaries who may be able to receive free information
about alternative providers in their area and therefore may no longer
need to investigate alternative providers on their own. While the
Agencies cannot quantify this cost savings with a reasonable degree of
confidence, the Agencies expect this cost savings to be insignificant
because the number of beneficiaries who incur costs to identify
alternative providers is likely very small.
3. Benefits
As noted above, section 1(c) of Executive Order 13563 recognizes
that some benefits and costs are difficult to quantify and provides
that, where appropriate and permitted by law, agencies may consider and
discuss qualitative values that are difficult or impossible to
quantify, including equity, human dignity, and distributive impacts. 76
FR 3821. The Agencies recognize a non-quantified benefit to social
service providers in the form of increased clarity, consistency, and
fairness that will result from imposing uniform notice requirements on
faith-based and secular organizations alike, in accordance with the
longstanding Federal policy that faith-based organizations are eligible
to participate in grant-making programs on the same basis as other
organizations. The final rule may also benefit providers in that it
would provide information, where the Agencies determine appropriate,
that could ultimately connect them with beneficiaries who are in need
of their services. Additionally, in situations in which beneficiaries
lack true private choice, the final rule will benefit faith-based
organizations by enabling them to continue operating indirect aid
programs, consistent with Executive Order 14015's recognition that
faith-based organizations are essential to the delivery of social
services.
The final rule will also benefit beneficiaries in several important
ways. Specifically, the final beneficiary notice requirement will
result both in tangible benefits for beneficiaries, as the reduction of
certain barriers due to discrimination improves access to federally
funded services, and in unquantifiable dignitary benefits associated
with avoiding discrimination. Additionally, the final referral option
will make it easier for
[[Page 15700]]
beneficiaries who object to receiving services from one provider to
learn about alternative providers. And, where such alternatives are
unavailable as a practical matter, the final rule will allow an Agency
to ensure that beneficiaries are not effectively required to
participate in religious activities in order to receive the benefits of
federally funded programs. Finally, the final rule will benefit all
beneficiaries, including those who would freely choose faith-based
providers, by expanding the universe of providers reasonably available
to them.
B. Regulatory Flexibility Analysis
The Regulatory Flexibility Act of 1980 (``RFA''), 5 U.S.C. 601 et
seq., as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, Public Law 104-121, tit. II, 110 Stat. 847, 857, requires
Federal agencies engaged in rulemaking to assess the impact of their
proposals on small entities, consider alternatives to minimize that
impact, and solicit public comment on their analyses. The RFA requires
the assessment of the impact of a regulation on a wide range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions. Agencies must perform a review to
determine whether a rule will have a significant economic impact on a
substantial number of small entities. 5 U.S.C. 603, 604.
The Agencies believe that the ``central estimate'' cost of $241.03
per provider in the first year is far less than one percent of the
annual revenue of even the smallest providers of social services.
Therefore, the Agencies certify that this final rule will not have a
significant economic impact on a substantial number of small entities.
C. Civil Justice Reform (Executive Order 12988)
Executive Order 12988, Civil Justice Reform, 61 FR 4729 (Feb. 5,
1996), provides that agencies shall draft regulations that meet
applicable standards to avoid drafting errors and ambiguity, minimize
litigation, provide clear legal standards for affecting conduct, and
promote simplification and burden reduction. This final rule meets the
applicable standards set forth in sections 3(a) and 3(b)(2) of
Executive Order 12988, 61 FR 4731-32.
D. Consultation and Coordination With Indian Tribal Governments
(Executive Order 13175)
The Agencies have reviewed this final rule in accordance with
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments, 65 FR 67249 (Nov. 6, 2000). Tribal sovereignty and self-
governance will not be affected by this final rule, consistent with
existing protections for Indian Tribes under Federal law, including the
Indian Civil Rights Act. As nothing in this rule affects the existing
prerogatives and authority of Indian Tribes, no interagency
consultation with Indian Tribes was conducted regarding the rule. The
Agencies may, however, conduct Agency-specific Tribal consultations
should the implementation of an Agency's particular program merit
further Tribal consultation or coordination.
E. Federalism
Section 6 of Executive Order 13132, Federalism, 64 FR 43255, 43257-
58 (Aug. 4, 1999), requires Federal agencies to consult with State
entities when a regulation or policy will have a substantial direct
effect on the States, the relationship between the National Government
and the States, or the distribution of power and responsibilities among
the various levels of government within the meaning of the Executive
order. Section 3(b) of the Executive order further provides that
Federal agencies may implement a regulation limiting the policymaking
discretion of the States only if constitutional or statutory authority
permits the regulation and the regulation is appropriate in light of
the presence of a problem of national significance. Id. at 43256. The
final rule does not have a substantial direct effect on the States, the
relationship between the National Government and the States, or the
distribution of power and responsibilities among the various levels of
government, within the meaning of Executive Order 13132. Furthermore,
relevant constitutional and statutory authority supports the final
rule, and it is appropriate in light of the presence of a problem of
national significance.
F. Paperwork Reduction Act
This final rule does not contain any new or revised ``collection[s]
of information'' as defined by the Paperwork Reduction Act of 1995
(``PRA''), 44 U.S.C. 3502(3). The Agencies have determined in
consultation with OIRA that the requirement to provide written notice
to beneficiaries of certain nondiscrimination protections is not a
collection of information subject to the PRA because the Federal
Government has provided or will provide the information that a provider
must use. See 5 CFR 1320.3(c)(2).
G. Unfunded Mandates Reform Act
Section 202(a) of the Unfunded Mandates Reform Act of 1995
(``UMRA''), 2 U.S.C. 1532(a), requires that a Federal agency determine
whether a regulation proposes a Federal mandate that may result in the
expenditure by State, local, or Tribal governments, in the aggregate,
or by the private sector, of $100 million or more in a single year
(adjusted annually for inflation). The inflation-adjusted value of $100
million in 1995 was approximately $178 million in 2021 based on the CPI
for All Urban Consumers.\23\ If a Federal mandate would result in
expenditures in excess of the threshold, UMRA requires the agency to
prepare a written statement containing, among other things, a
qualitative and quantitative assessment of the anticipated costs and
benefits of the Federal mandate. 2 U.S.C. 1532(a). The Agencies have
reviewed this final rule in accordance with UMRA and determined that
the total cost to implement the rule in any one year will not meet or
exceed the threshold. The final rule does not include any Federal
mandate that may result in increased expenditure by State, local, and
Tribal governments in the aggregate of more than the threshold, or
increased expenditures by the private sector of more than the
threshold.\24\ Accordingly, UMRA does not require any further action.
---------------------------------------------------------------------------
\23\ The Agencies again derived this figure from the data on
annual averages of the CPI available at BLS, CPI Inflation
Calculator, https://www.bls.gov/data/inflation_calculator.htm. The
average CPI for 1995 was $152.40; the average CPI for 2021 was
$270.97. Using this ratio, $100 million in 1995 dollars became $178
million in 2021 dollars [= $100,000,000 x (270.970/152.40)].
\24\ See also 2 U.S.C. 1503 (excluding from UMRA's ambit any
provision in a proposed or final regulation that, among other
things, enforces constitutional rights of individuals; establishes
or enforces any statutory rights that prohibit discrimination on the
basis of race, color, religion, sex, national origin, age, handicap,
or disability; or provides for emergency assistance or relief at the
request of any State, local, or Tribal government or any official of
a State, local, or Tribal government).
---------------------------------------------------------------------------
H. Assessment of Educational Impact
In the Joint NPRM, the Secretary of Education requested comments on
whether the proposed regulations would require transmission of
information that any other agency or authority of the United States
gathers or makes available. Based on the responses to the Joint NPRM
and the Agencies' review, the Agencies have determined that these final
regulations do not require transmission of information that any other
agency or authority of the United States gathers or makes available.
[[Page 15701]]
List of Subjects
2 CFR Part 3474
Accounting, Administrative practice and procedure, Adult education,
Aged, Agriculture, American Samoa, Bilingual education, Blind, Business
and industry, Civil rights, Colleges and universities, Communications,
Community development, Community facilities, Copyright, Credit,
Cultural exchange programs, Educational facilities, Educational
research, Education, Education of disadvantaged, Education of
individuals with disabilities, Educational study programs, Electric
power, Electric power rates, Electric utilities, Elementary and
secondary education, Energy conservation, Equal educational
opportunity, Federally affected areas, Government contracts, Grant
programs, Grants administration, Guam, Home improvement, Homeless,
Hospitals, Housing, Human research subjects, Indians, Indians--
education, Infants and children, Insurance, Intergovernmental
relations, International organizations, Inventions and patents, Loan
programs, Manpower training programs, Migrant labor, Mortgage
insurance, Nonprofit organizations, Northern Mariana Islands, Pacific
Islands Trust Territories, Privacy, Renewable energy, Reporting and
recordkeeping requirements, Rural areas, Scholarships and fellowships,
School construction, Schools, Science and technology, Securities, Small
businesses, State and local governments, Student aid, Teachers,
Telecommunications, Telephone, Urban areas, Veterans, Virgin Islands,
Vocational education, Vocational rehabilitation, Waste treatment and
disposal, Water pollution control, Water resources, Water supply,
Watersheds, Women.
6 CFR Part 19
Civil rights, Government contracts, Grant programs, Nonprofit
organizations, Reporting and recordkeeping requirements.
7 CFR Part 16
Administrative practice and procedure, Grant programs.
22 CFR Part 205
Foreign aid, Grant programs, Nonprofit organizations.
24 CFR Part 5
Administrative practice and procedure, Aged, Claims, Crime,
Government contracts, Grant programs--housing and community
development, Individuals with disabilities, Intergovernmental
relations, Loan programs--housing and community development, Low and
moderate income housing, Mortgage insurance, Penalties, Pets, Public
housing, Rent subsidies, Reporting and recordkeeping requirements,
Social security, Unemployment compensation, Wages.
28 CFR Part 38
Administrative practice and procedure, Grant programs, Reporting
and recordkeeping requirements.
29 CFR Part 2
Administrative practice and procedure, Grant programs, Religious
discrimination, Reporting and recordkeeping requirements.
34 CFR Part 75
Accounting, Copyright, Education, Grant programs--education,
Indemnity payments, Inventions and patents, Private schools, Reporting
and recordkeeping requirements, Youth organizations.
34 CFR Part 76
Accounting, Administrative practice and procedure, American Samoa,
Education, Grant programs--education, Guam, Northern Mariana Islands,
Pacific Islands Trust Territory, Prisons, Private schools, Reporting
and recordkeeping requirements, Virgin Islands, Youth organizations.
38 CFR Part 50
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Day care, Dental health, Drug abuse, Government contracts, Grant
programs--health, Grant programs--veterans, Health care, Health
facilities, Health professions, Health records, Homeless, Mental health
programs, Per diem program, Reporting and recordkeeping requirements,
Travel and transportation expenses, Veterans.
38 CFR Part 61
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Day care, Dental health, Drug abuse, Government contracts, Grant
programs--health, Grant programs--veterans, Health care, Health
facilities, Health professions, Health records, Homeless, Mental health
programs, Per diem program, Reporting and recordkeeping requirements,
Travel and transportation expenses, Veterans.
38 CFR Part 62
Administrative practice and procedure, Day care, Disability
benefits, Government contracts, Grant programs--health, Grant
programs--housing and community development, Grant programs--Veterans,
Health care, Homeless, Housing, Indians--lands, Individuals with
disabilities, Low and moderate income housing, Manpower training
programs, Medicaid, Medicare, Public assistance programs, Public
housing, Relocation assistance, Rent subsidies, Reporting and
recordkeeping requirements, Rural areas, Social security, Supplemental
Security Income (SSI), Travel and transportation expenses, Unemployment
compensation.
45 CFR Part 87
Administrative practice and procedure, Grant programs--social
programs, Nonprofit organizations, Public assistance programs.
DEPARTMENT OF EDUCATION
For the reasons set forth in the preamble, the Secretary of
Education amends part 3474 of title 2 of the CFR and parts 75 and 76 of
title 34 of the CFR, respectively, as follows:
Title 2--Grants and Agreements
PART 3474--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES,
AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS
0
1. Revise the authority citation for part 3474 to read as follows:
Authority: 20 U.S.C. 1221e-3, 3474; 42 U.S.C. 2000bb et seq.;
E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258; E.O. 13559, 75
FR 71319, 3 CFR, 2010 Comp., p. 273; E.O. 13831, 83 FR 20715, 3 CFR,
2018 Comp., p. 806; and 2 CFR part 200, unless otherwise noted.
0
2. Amend Sec. 3474.15 by:
0
a. Revising paragraph (b).
0
b. Removing note 1 to paragraph (e)(1).
0
c. Revising paragraph (f).
0
d. In paragraph (g), removing the second sentence.
The revisions read as follows:
Sec. 3474.15 Contracting with faith-based organizations and
nondiscrimination.
* * * * *
(b)(1) A faith-based organization is eligible to contract with
grantees and subgrantees, including States, on the same basis as any
other private organization.
(2)(i) In selecting providers of goods and services, grantees and
subgrantees, including States--
(A) May not discriminate for or against a private organization on
the basis of the organization's religious character, motives, or
affiliation, or lack
[[Page 15702]]
thereof, or on the basis of conduct that would not be considered
grounds to favor or disfavor a similarly situated secular organization;
and
(B) Must ensure that the award of contracts is free from political
interference, or even the appearance of such interference, and is done
on the basis of merit, not on the basis of religion or religious
belief, or lack thereof.
(ii) Notices or announcements of award opportunities and notices of
award or contracts must include language substantially similar to that
in appendices A and B, respectively, to 34 CFR part 75.
(3) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by a grantee or
subgrantee in administering Federal financial services from the
Department may require faith-based organizations to provide assurances
or notices if they are not required of non-faith-based organizations.
Any restrictions on the use of grant funds must apply equally to faith-
based and non-faith-based organizations. All organizations that
participate in Department programs or services, including organizations
with religious character, motives, or affiliation, must carry out
eligible activities in accordance with all program requirements,
including those prohibiting the use of direct Federal financial
assistance to engage in explicitly religious activities, subject to any
accommodations that are granted to organizations on a case-by-case
basis in accordance with the Constitution and laws of the United
States, including Federal civil rights laws.
(4) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by a grantee or
subgrantee may disqualify faith-based organizations from participating
in Department-funded programs or services on the basis of the
organization's religious character, motives, or affiliation, or lack
thereof, or on the basis of conduct that would not be considered
grounds to disqualify a similarly situated secular organization.
(5) Nothing in this section may be construed to preclude the
Department from making an accommodation with respect to one or more
program requirements on a case-by-case basis in accordance with the
Constitution and laws of the United States, including Federal civil
rights laws.
(6) Neither a State nor the Department may disqualify an
organization from participating in any Department program for which it
is otherwise eligible on the basis of the organization's indication
that it may request an accommodation with respect to one or more
program requirements, unless the organization has made clear that the
accommodation is necessary to its participation and the Department has
determined that it would deny the accommodation.
* * * * *
(f) A private organization that contracts with a grantee or
subgrantee, including a State, may not discriminate against a
beneficiary or prospective beneficiary in the provision of program
goods or services, or in outreach activities related to such goods or
services, on the basis of religion or religious belief, a refusal to
hold a religious belief, or a refusal to attend or participate in a
religious practice. However, an organization that participates in a
program funded by indirect Federal financial assistance need not modify
its program activities to accommodate a beneficiary who chooses to
expend the indirect aid on the organization's program.
* * * * *
Title 34--Education
PART 75--DIRECT GRANT PROGRAMS
0
3. Revise the authority citation for part 75 to read as follows:
Authority: 20 U.S.C. 1221e-3 and 3474; E.O. 13279, 67 FR 77141,
3 CFR, 2002 Comp., p. 258; E.O. 13559, 75 FR 71319, 3 CFR, 2010
Comp., p. 273; and E.O. 13831, 83 FR 20715, 3 CFR, 2018 Comp., p.
806, unless otherwise noted.
Sec. 75.51 [Amended]
0
4. Amend Sec. 75.51 by:
0
a. In paragraph (b)(3), adding ``or'' at the end of the paragraph.
0
b. In paragraph (b)(4), removing ``; or'' and adding, in its place, a
period.
0
c. Removing paragraph (b)(5).
0
5. Amend Sec. 75.52 by:
0
a. Revising paragraphs (a), (c)(3) introductory text, (c)(3)(ii)(B),
and (c)(3)(iii).
0
b. Removing paragraph (c)(3)(vi) and note 1 to paragraph (d)(1).
0
c. In paragraph (d)(2)(iv), removing the words ``and employees.''
0
d. Revising paragraph (e).
0
e. In paragraph (g), removing the second sentence.
The revisions read as follows:
Sec. 75.52 Eligibility of faith-based organizations for a grant and
nondiscrimination against those organizations.
(a)(1) A faith-based organization is eligible to apply for and to
receive a grant under a program of the Department on the same basis as
any other private organization.
(2)(i) In the selection of grantees, the Department--
(A) May not discriminate for or against a private organization on
the basis of the organization's religious character, motives, or
affiliation, or lack thereof, or on the basis of conduct that would not
be considered grounds to favor or disfavor a similarly situated secular
organization; and
(B) Must ensure that all decisions about grant awards are free from
political interference, or even the appearance of such interference,
and are made on the basis of merit, not on the basis of religion or
religious belief, or the lack thereof.
(ii) Notices or announcements of award opportunities and notices of
award or contracts must include language substantially similar to that
in appendices A and B, respectively, to this part.
(3) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by the Department may
require faith-based organizations to provide assurances or notices if
they are not required of non-faith-based organizations. Any
restrictions on the use of grant funds must apply equally to faith-
based and non-faith-based organizations. All organizations that receive
grants under a Department program, including organizations with
religious character, motives, or affiliation, must carry out eligible
activities in accordance with all program requirements, including those
prohibiting the use of direct Federal financial assistance to engage in
explicitly religious activities, subject to any accommodations that are
granted to organizations on a case-by-case basis in accordance with the
Constitution and laws of the United States, including Federal civil
rights laws.
(4) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by the Department may
disqualify faith-based organizations from applying for or receiving
grants under a Department program on the basis of the organization's
religious character, motives, or affiliation, or lack thereof, or on
the basis of conduct that would not be considered grounds to disqualify
a similarly situated secular organization.
(5) Nothing in this section may be construed to preclude the
Department from making an accommodation, including for religious
exercise, with respect to one or more program
[[Page 15703]]
requirements on a case-by-case basis in accordance with the
Constitution and laws of the United States, including Federal civil
rights laws.
(6) The Department may not disqualify an organization from
participating in any Department program for which it is eligible on the
basis of the organization's indication that it may request an
accommodation with respect to one or more program requirements, unless
the organization has made clear that the accommodation is necessary to
its participation and the Department has determined that it would deny
the accommodation.
* * * * *
(c) * * *
(3) For purposes of 2 CFR 3474.15, this section, Sec. Sec. 75.712
and 75.714, and appendices A and B to this part, the following
definitions apply:
(ii) * * *
(B) The organization receives the assistance wholly as the result
of the genuine and independent private choice of the beneficiary, not a
choice of the Government. The availability of adequate secular
alternatives is a significant factor in determining whether a program
affords a genuinely independent and private choice.
(iii) Federal financial assistance means assistance that non-
Federal entities receive or administer in the form of grants,
contracts, loans, loan guarantees, property, cooperative agreements,
food commodities, direct appropriations, or other assistance, but does
not include a tax credit, deduction, or exemption.
* * * * *
(e) An organization that receives any Federal financial assistance
under a program of the Department shall not discriminate against a
beneficiary or prospective beneficiary in the provision of program
services, or in outreach activities related to such services, on the
basis of religion or religious belief, a refusal to hold a religious
belief, or a refusal to attend or participate in a religious practice.
However, an organization that participates in a program funded by
indirect Federal financial assistance need not modify its program
activities to accommodate a beneficiary who chooses to expend the
indirect aid on the organization's program.
* * * * *
0
6. Add Sec. 75.712 to read as follows:
Sec. 75.712 Beneficiary protections: Written notice.
(a) An organization providing social services to beneficiaries
under a Department program supported by direct Federal financial
assistance must give written notice to a beneficiary or prospective
beneficiary of certain protections. Such notice must be given in the
manner and form prescribed by the Department. This notice must state
that--
(1) The organization may not discriminate against a beneficiary or
prospective beneficiary on the basis of religion, a religious belief, a
refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice;
(2) The organization may not require a beneficiary or prospective
beneficiary to attend or participate in any explicitly religious
activities that are offered by the organization, and any participation
by a beneficiary in such activities must be purely voluntary;
(3) The organization must separate in time or location any
privately funded explicitly religious activities from activities
supported by direct Federal financial assistance; and
(4) A beneficiary or prospective beneficiary may report an
organization's violation of these protections, including any denials of
services or benefits by an organization, by contacting or filing a
written complaint with the Department.
(b) The written notice described in paragraph (a) of this section
must be given to a prospective beneficiary prior to the time they
enroll in the program or receive services from the program. When the
nature of the service provided or exigent circumstances make it
impracticable to provide such written notice in advance of the actual
service, an organization must provide the notice at the earliest
available opportunity.
(c) The Department may determine that the notice described in
paragraph (a) of this section must inform each beneficiary or
prospective beneficiary of the option to seek information from the
Department as to whether there are any other federally funded
organizations in their area that provide the services available under
the applicable program.
(d) The notice that an organization uses to notify beneficiaries or
prospective beneficiaries of the rights under paragraphs (a) through
(c) of this section must include language substantially similar to that
in appendix C to this part.
0
7. Revise appendix A to part 75 to read as follows:
Appendix A to Part 75--Notice or Announcement of Award Opportunities
(a) Faith-based organizations may apply for this award on the
same basis as any other private organization, as set forth at, and
subject to the protections and requirements of, this part and any
applicable constitutional and statutory requirements, including 42
U.S.C. 2000bb et seq. The Department will not, in the selection of
grantees, discriminate for or against an organization on the basis
of the organization's religious character, motives, or affiliation,
or lack thereof, or on the basis of conduct that would not be
considered grounds to favor or disfavor a similarly situated secular
organization.
(b) A faith-based organization that participates in this program
will retain its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law.
(c) A faith-based organization may not use direct Federal
financial assistance from the Department to support or engage in any
explicitly religious activities except when consistent with the
Establishment Clause of the First Amendment and any other applicable
requirements. Such an organization also may not, in providing
services funded by the Department, or in outreach activities related
to such services, discriminate against a program beneficiary or
prospective program beneficiary on the basis of religion, a
religious belief, a refusal to hold a religious belief, or a refusal
to attend or participate in a religious practice.
0
8. Revise appendix B to part 75 to read as follows:
Appendix B to Part 75--Notice of Award or Contract
(a) A faith-based organization that participates in this program
retains its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law.
(b) A faith-based organization may not use direct Federal
financial assistance from the Department to support or engage in any
explicitly religious activities except when consistent with the
Establishment Clause of the First Amendment and any other applicable
requirements. Such an organization also may not, in providing
services funded by the Department, or in outreach activities related
to such services, discriminate against a program beneficiary or
prospective program beneficiary on the basis of religion, a
religious belief, a refusal to hold a religious belief, or a refusal
to attend or participate in a religious practice.
0
9. Add appendix C to part 75 to read as follows:
Appendix C to Part 75--Written Notice of Beneficiary Protections
Name of Organization:
Name of Program:
Contact Information for Program Staff: [provide name, phone
number, and email address, if appropriate]
Because this program is supported in whole or in part by
financial assistance from the U.S. Department of Education, we are
required to provide you the following information:
(1) We may not discriminate against you on the basis of
religion, a religious belief, a refusal to hold a religious belief,
or a refusal to attend or participate in a religious practice.
[[Page 15704]]
(2) We may not require you to attend or participate in any
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) that may be offered by our organization, and any
participation by you in such activities must be purely voluntary.
(3) We must separate in time or location any privately funded
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) from activities supported with direct Federal
financial assistance.
(4) You may report violations of these protections, including
any denials of services or benefits by an organization, by
contacting or filing a written complaint with the U.S. Department of
Education at [insert applicable contact information].
[When required by the Department, the notice must also state:]
(5) If you would like information about whether there are any other
federally funded organizations that provide the services available
under this program in your area, please contact the awarding agency.
This written notice must be given to you before you enroll in
the program or receive services from the program, unless the nature
of the service provided or exigent circumstances make it
impracticable to provide such notice before we provide the actual
service. In such an instance, this notice must be given to you at
the earliest available opportunity.
PART 76--STATE-ADMINISTERED PROGRAMS
0
10. Revise the authority citation for part 76 to read as follows:
Authority: 20 U.S.C. 1221e-3 and 3474; E.O. 13279, 67 FR 77141,
3 CFR, 2002 Comp., p. 258; E.O. 13559, 75 FR 71319, 3 CFR, 2010
Comp., p. 273; and E.O. 13831, 83 FR 20715, 3 CFR, 2018 Comp., p.
806, unless otherwise noted.
0
11. Amend Sec. 76.52 by:
0
a. Revising paragraphs (a), (c)(3) introductory text, (c)(3)(ii)(B),
and (c)(3)(iii).
0
b. Removing paragraph (c)(3)(vi) and note 1 to paragraph (d)(1).
0
c. In paragraph (d)(2)(iv), removing the words ``and employees.''
0
d. Revising paragraph (e).
0
e. In paragraph (g), removing the second sentence.
The revisions read as follows:
Sec. 76.52 Eligibility of faith-based organizations for a subgrant
and nondiscrimination against those organizations.
(a)(1) A faith-based organization is eligible to apply for and to
receive a subgrant under a program of the Department on the same basis
as any other private organization.
(2)(i) In the selection of subgrantees, States--
(A) May not discriminate for or against a private organization on
the basis of the organization's religious character, motives, or
affiliation, or lack thereof, or on the basis of conduct that would not
be considered grounds to favor or disfavor a similarly situated secular
organization; and
(B) Must ensure that all decisions about subgrants are free from
political interference, or even the appearance of such interference,
and are made on the basis of merit, not on the basis of religion or
religious belief, or a lack thereof.
(ii) Notices or announcements of award opportunities and notices of
award or contracts must include language substantially similar to that
in appendices A and B, respectively, to 34 CFR part 75.
(3) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by States in
administering a Department program may require faith-based
organizations to provide assurances or notices if they are not required
of non-faith-based organizations. Any restrictions on the use of
subgrant funds must apply equally to faith-based and non-faith-based
organizations. All organizations that receive a subgrant from a State
under a State-Administered Formula Grant program of the Department,
including organizations with religious character, motives, or
affiliation, must carry out eligible activities in accordance with all
program requirements, including those prohibiting the use of direct
Federal financial assistance to engage in explicitly religious
activities, subject to any accommodations that are granted to
organizations on a case-by-case basis in accordance with the
Constitution and laws of the United States, including Federal civil
rights laws.
(4) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by States may
disqualify faith-based organizations from applying for or receiving
subgrants under a State-Administered Formula Grant program of the
Department on the basis of the organization's religious character,
motives, or affiliation, or lack thereof, or on the basis of conduct
that would not be considered grounds to disqualify a similarly situated
secular organization.
(5) Nothing in this section may be construed to preclude the
Department from making an accommodation, including for religious
exercise, with respect to one or more program requirements on a case-
by-case basis in accordance with the Constitution and laws of the
United States, including Federal civil rights laws.
(6) Neither a State nor the Department may disqualify an
organization from participating in any Department program for which it
is eligible on the basis of the organization's indication that it may
request an accommodation with respect to one or more program
requirements, unless the organization has made clear that the
accommodation is necessary to its participation and the Department has
determined that it would deny the accommodation.
* * * * *
(c) * * *
(3) For purposes of 2 CFR 3474.15, this section, and Sec. Sec.
76.712 and 76.714, the following definitions apply:
(ii) * * *
(B) The organization receives the assistance wholly as the result
of the genuine and independent private choice of the beneficiary, not a
choice of the Government. The availability of adequate secular
alternatives is a significant factor in determining whether a program
affords a genuinely independent and private choice.
(iii) Federal financial assistance means assistance that non-
Federal entities receive or administer in the form of grants,
contracts, loans, loan guarantees, property, cooperative agreements,
food commodities, direct appropriations, or other assistance, but does
not include a tax credit, deduction, or exemption.
* * * * *
(e) An organization that receives any Federal financial assistance
under a program of the Department shall not discriminate against a
beneficiary or prospective beneficiary in the provision of program
services, or in outreach activities related to such services, on the
basis of religion or religious belief, a refusal to hold a religious
belief, or a refusal to attend or participate in a religious practice.
However, an organization that participates in a program funded by
indirect Federal financial assistance need not modify its program
activities to accommodate a beneficiary who chooses to expend the
indirect aid on the organization's program.
* * * * *
0
12. Add Sec. 76.712 to read as follows:
Sec. 76.712 Beneficiary protections: Written notice.
(a) An organization providing social services to beneficiaries
under a Department program supported by direct Federal financial
assistance must give written notice to a beneficiary or prospective
beneficiary of certain
[[Page 15705]]
protections. Such notice must be given in the manner and form
prescribed by the Department. This notice must state that--
(1) The organization may not discriminate against a beneficiary or
prospective beneficiary on the basis of religion, a religious belief, a
refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice;
(2) The organization may not require a beneficiary or prospective
beneficiary to attend or participate in any explicitly religious
activities that are offered by the organization, and any participation
by a beneficiary in such activities must be purely voluntary;
(3) The organization must separate in time or location any
privately funded explicitly religious activities from activities
supported by direct Federal financial assistance; and
(4) A beneficiary or prospective beneficiary may report an
organization's violation of these protections, including any denials of
services or benefits by an organization, by contacting or filing a
written complaint with the Department.
(b) The written notice described in paragraph (a) of this section
must be given to a prospective beneficiary prior to the time they
enroll in the program or receive services from the program. When the
nature of the service provided or exigent circumstances make it
impracticable to provide such written notice in advance of the actual
service, an organization must provide the notice at the earliest
available opportunity.
(c) The Department may determine that the notice described in
paragraph (a) of this section must inform each beneficiary or
prospective beneficiary of the option to seek information from the
Department, or a State agency or other entity administering the
applicable program, as to whether there are any other federally funded
organizations in their area that provide the services available under
the applicable program.
(d) The notice that an organization uses to notify beneficiaries or
prospective beneficiaries of the rights under paragraphs (a) through
(c) of this section must include language substantially similar to that
in appendix C to 34 CFR part 75.
DEPARTMENT OF HOMELAND SECURITY
For the reasons set forth in the preamble, DHS amends part 19 of
title 6 of the CFR as follows:
Title 6--Domestic Security
PART 19--NONDISCRIMINATION IN MATTERS PERTAINING TO FAITH-BASED
ORGANIZATIONS
0
13. Revise the authority citation for part 19 to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 101 et seq.; 8 U.S.C. 1101 et
seq.; 42 U.S.C. 5164, 5183, 5189d; 42 U.S.C. 2000bb et seq.; 42
U.S.C. 11331 et seq.; E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p.
258; E.O. 13403, 71 FR 28543, 3 CFR, 2006 Comp., p. 228; E.O. 13498,
74 FR 6533, 3 CFR, 2009 Comp., p. 219; and E.O. 13559, 75 FR 71319,
3 CFR, 2010 Comp., p. 273.
0
14. Revise Sec. 19.1 to read as follows:
Sec. 19.1 Purpose.
It is the policy of the Department of Homeland Security (DHS) to
ensure the equal treatment of faith-based and other organizations in
social service programs administered or supported by DHS or its
component agencies, enabling those organizations to participate in
providing important social services to beneficiaries. The equal
treatment policies and requirements contained in this part are
generally applicable to faith-based and other organizations
participating or seeking to participate in any such programs. More
specific policies and requirements regarding the participation of
faith-based and other organizations in individual programs may be
provided in the statutes, regulations, or guidance governing those
programs, such as regulations in title 44 of the Code of Federal
Regulations. DHS or its components may issue policy guidance and
reference materials at a future time with respect to the applicability
of this policy and this part to particular programs.
0
15. Amend Sec. 19.2 by:
0
a. Adding a definition of ``Federal financial assistance'' in
alphabetical order.
0
b. Removing the definition of ``Financial assistance''.
0
c. In the definition of ``Indirect Federal financial assistance or
Federal financial assistance provided indirectly'', revising paragraph
(2).
0
d. Revising the definition of ``Intermediary''.
The addition and revisions read as follows:
Sec. 19.2 Definitions.
* * * * *
Federal financial assistance means assistance that non-Federal
entities receive or administer in the form of grants, contracts, loans,
loan guarantees, property, cooperative agreements, food commodities,
direct appropriations, or other assistance, but does not include a tax
credit, deduction, or exemption.
* * * * *
Indirect Federal financial assistance or Federal financial
assistance provided indirectly * * *
(2) The organization receives the assistance wholly as a result of
a genuinely independent and private choice of the beneficiary, not a
choice of the Government. The availability of adequate secular
alternatives is a significant factor in determining whether a program
affords true private choice.
Intermediary means an entity, including a non-governmental
organization, acting under a contract, grant, or other agreement with
the Federal Government or with a State or local government, that
accepts Federal financial assistance and distributes that assistance to
other organizations that, in turn, provide government-funded social
services. If an intermediary, acting under a contract, grant, or other
agreement with the Federal Government or with a State or local
government that is administering a program supported by Federal
financial assistance, is given the authority under the contract, grant,
or agreement to select non-governmental organizations to provide
services supported by the Federal Government, the intermediary must
ensure compliance with the provisions of this part by the recipient of
a contract, grant, or agreement. If the intermediary is a non-
governmental organization, it retains all other rights of a non-
governmental organization under the program's statutory and regulatory
provisions.
* * * * *
0
16. Revise Sec. 19.3 to read as follows:
Sec. 19.3 Equal ability for faith-based organizations to seek and
receive financial assistance through DHS social service programs.
(a) Faith-based organizations are eligible on the same basis as any
other organization to seek and receive direct financial assistance from
DHS for social service programs or to participate in social service
programs administered or financed by DHS.
(b) Neither DHS, nor a State or local government, nor any other
entity that administers any social service program supported by direct
financial assistance from DHS, shall discriminate for or against an
organization on the basis of the organization's religious character,
motives, or affiliation, or lack thereof, or on the basis of conduct
that would not be considered grounds to favor or disfavor a similarly
situated secular organization.
[[Page 15706]]
(c) Nothing in this part shall be construed to preclude DHS from
making an accommodation, including for religious exercise, with respect
to one or more program requirements on a case-by-case basis in
accordance with the Constitution and laws of the United States.
(d) DHS shall not disqualify an organization from participating in
any DHS program for which it is otherwise eligible on the basis of the
organization's indication that it may request an accommodation with
respect to one or more program requirements, unless the organization
has made clear that the accommodation is necessary to its participation
and DHS has determined that it would deny the accommodation.
(e) Decisions about awards of Federal financial assistance must be
free from political interference, or even the appearance of such
interference, and must be made on the basis of merit, not on the basis
of religion or religious belief or lack thereof, or on the basis of
religious or political affiliation.
(f) All organizations that participate in DHS social service
programs, including faith-based organizations, must carry out eligible
activities in accordance with all program requirements, including those
prohibiting the use of direct financial assistance from DHS to engage
in explicitly religious activities, subject to any accommodations that
are granted to organizations on a case-by-case basis in accordance with
the Constitution and laws of the United States.
(g) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by DHS or an
intermediary in administering financial assistance from DHS shall
disqualify a faith-based organization from participating in DHS's
social service programs:
(1) On the basis of such organization's religious character,
motives, or affiliation, or lack thereof; or
(2) On the basis of conduct that would not be considered grounds to
disqualify a similarly situated secular organization.
(h) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation used by DHS or an intermediary in
administering financial assistance from DHS shall require faith-based
organizations to provide assurances or notices where they are not
required of non-faith-based organizations. Any restrictions on the use
of grant funds shall apply equally to faith-based and non-faith-based
organizations.
0
17. Amend Sec. 19.4 by revising paragraph (c) and adding paragraph (f)
to read as follows:
Sec. 19.4 Explicitly religious activities.
* * * * *
(c) All organizations that participate in DHS social service
programs, including faith-based organizations, must carry out eligible
activities in accordance with all program requirements, and in
accordance with all other applicable requirements governing the conduct
of DHS-funded activities, including those prohibiting the use of direct
financial assistance from DHS to engage in explicitly religious
activities, subject to any accommodations that are granted to
organizations on a case-by-case basis in accordance with the
Constitution and laws of the United States. No grant document,
agreement, covenant, memorandum of understanding, policy, or regulation
that is used by DHS or a State or local government in administering
financial assistance from DHS shall disqualify a faith-based
organization from participating in DHS's social service programs
because of such organization's religious character, motives, or
affiliation, or lack thereof, or on the basis of conduct that would not
be considered grounds to disqualify a similarly situated secular
organization.
* * * * *
(f) To the extent that any provision of this part is declared
invalid by a court of competent jurisdiction, the Department intends
for all other provisions that are capable of operating in the absence
of the specific provision that has been invalidated to remain in
effect.
0
18. Revise Sec. 19.5 to read as follows:
Sec. 19.5 Nondiscrimination requirements.
An organization that receives financial assistance from DHS for a
social service program shall not, in providing services or in outreach
activities related to such services, favor or discriminate against a
beneficiary of said program or activity on the basis of religion, a
religious belief, a refusal to hold a religious belief, or a refusal to
attend or participate in a religious practice. Organizations that favor
or discriminate against a beneficiary will be subject to applicable
sanctions and penalties, as established by the requirements of the
particular DHS social service program or activity. However, an
organization that participates in a program funded by indirect
financial assistance need not modify its program activities to
accommodate a beneficiary who chooses to expend the indirect aid on the
organization's program.
0
19. Amend Sec. 19.6 by revising paragraph (e) to read as follows:
Sec. 19.6 How to prove nonprofit status.
* * * * *
(e) Evidence that the DHS awarding agency determines to be
sufficient to establish that the entity would otherwise qualify as a
nonprofit organization.
0
20. Amend Sec. 19.9 by revising paragraph (b) to read as follows:
Sec. 19.9 Exemption from Title VII employment discrimination
requirements.
* * * * *
(b) Where a DHS program contains independent statutory or
regulatory provisions that impose nondiscrimination requirements on all
grantees, those provisions are not waived or mitigated by this part. In
this case, grantees should consult with the appropriate DHS program
office to determine the scope of any applicable requirements.
0
21. Add Sec. 19.12 to read as follows:
Sec. 19.12 Notifications to beneficiaries and applicants.
(a) Organizations providing social services to beneficiaries under
a program supported by direct Federal financial assistance from DHS
must give written notice to beneficiaries and prospective beneficiaries
of certain protections. Such notice must be given in a manner and form
prescribed by DHS's Office for Civil Rights and Civil Liberties,
including by incorporating the notice into materials that are otherwise
provided to beneficiaries. This written notice shall include language
substantially similar to that in appendix C to this part.
(b) The written notice described in paragraph (a) of this section
must be given to prospective beneficiaries prior to the time the
prospective beneficiary enrolls in the program or receives services
from the program. When the nature of the service provided or exigent
circumstances make it impracticable to provide such written notice in
advance of the actual service, organizations must advise beneficiaries
of their protections at the earliest available opportunity.
(c) DHS may determine that the notice described in paragraph (a) of
this section must inform each beneficiary or prospective beneficiary of
the option to seek information from DHS, or a State agency or other
entity administering the program, as to whether there are any other
federally funded organizations in the area that provide the services
available under the applicable program.
(d) Notices or announcements of award opportunities and notices of
award or contracts shall include language substantially similar to that
in
[[Page 15707]]
appendices A and B, respectively, to this part.
0
22. Revise appendix A to part 19 to read as follows:
Appendix A to Part 19--Notice or Announcement of Award Opportunity
(a) Faith-based organizations may apply for this award on the
same basis as any other organization, as set forth at, and subject
to the protections and requirements of, this part and any applicable
constitutional and statutory requirements, including 42 U.S.C.
2000bb et seq. DHS will not, in the selection of recipients,
discriminate for or against an organization on the basis of the
organization's religious character, motives, or affiliation, or lack
thereof, or on the basis of conduct that would not be considered
grounds to favor or disfavor a similarly situated secular
organization.
(b) A faith-based organization that participates in this program
will retain its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law.
(c) A faith-based organization may not use direct Federal
financial assistance from DHS to support or engage in any explicitly
religious activities except where consistent with the Establishment
Clause of the First Amendment and any other applicable requirements.
An organization receiving Federal financial assistance also may not,
in providing services funded by DHS, or in outreach activities
related to such services, discriminate against a program beneficiary
or prospective program beneficiary on the basis of religion, a
religious belief, a refusal to hold a religious belief, or a refusal
to attend or participate in a religious practice.
0
23. Revise appendix B to part 19 to read as follows:
Appendix B to Part 19--Notice of Award or Contract
(a) A faith-based organization that participates in this program
retains its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law.
(b) A faith-based organization may not use direct Federal
financial assistance from DHS to support or engage in any explicitly
religious activities except where consistent with the Establishment
Clause of the First Amendment and any other applicable requirements.
An organization receiving Federal financial assistance also may not,
in providing services funded by DHS, or in outreach activities
related to such services, discriminate against a program beneficiary
or prospective program beneficiary on the basis of religion, a
religious belief, a refusal to hold a religious belief, or a refusal
to attend or participate in a religious practice.
0
24. Add appendix C to part 19 to read as follows:
Appendix C to Part 19--Written Notice of Beneficiary Protections
Name of Organization:
Name of Program:
Contact Information for Program Staff: [provide name, phone
number, and email address, if appropriate]
Because this program is supported in whole or in part by
financial assistance from the Federal Government, we are required to
let you know that:
(1) We may not discriminate against you on the basis of
religion, a religious belief, a refusal to hold a religious belief,
or a refusal to attend or participate in a religious practice;
(2) We may not require you to attend or participate in any
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) that may be offered by our organization, and any
participation by you in such activities must be purely voluntary;
(3) We must separate in time or location any privately funded
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) from activities supported with direct Federal
financial assistance;
(4) You may report violations of these protections, including
any denials of services or benefits by an organization, by
contacting or filing a written complaint with the Department of
Homeland Security's Office for Civil Rights and Civil Liberties,
[address]; and
[When required by DHS, the notice must also state:] (5) If you
would like to seek information about whether there are any other
federally funded organizations that provide these kinds of services
in your area, please use the contact information set forth above.
This written notice must be given to you before you enroll in
the program or receive services from the program, unless the nature
of the service provided or exigent circumstances make it
impracticable to provide such notice before we provide the actual
service. In such an instance, this notice must be given to you at
the earliest available opportunity.
DEPARTMENT OF AGRICULTURE
For the reasons set forth in the preamble, USDA amends part 16 of
title 7 of the CFR as follows:
Title 7--Agriculture
PART 16--EQUAL OPPORTUNITY FOR FAITH-BASED ORGANIZATIONS
0
25. Revise the authority citation for part 16 to read as follows:
Authority: 5 U.S.C. 301; 42 U.S.C. 2000bb et seq.; E.O. 13279,
67 FR 77141, 3 CFR, 2002 Comp., p. 258; E.O. 13280, 67 FR 77145, 3
CFR, 2002 Comp., p. 262; E.O. 13559, 75 FR 71319, 3 CFR, 2010 Comp.,
p. 273; E.O. 13831, 83 FR 20715, 3 CFR, 2018 Comp., p. 806; E.O.
14015, 86 FR 10007, 3 CFR, 2021 Comp., p. 517.
0
26. Revise Sec. 16.1 to read as follows:
Sec. 16.1 Purpose and applicability.
(a) The purpose of this part is to set forth Department of
Agriculture (USDA) policy regarding equal opportunity for faith-based
organizations to participate in USDA assistance programs for which
other private organizations are eligible.
(b) Except as otherwise specifically provided in this part, the
policy outlined in this part applies to all recipients and
subrecipients of USDA assistance to which 2 CFR part 400 applies, and
to recipients and subrecipients of Commodity Credit Corporation
assistance that is administered by agencies of USDA.
0
27. Amend Sec. 16.2 by:
0
a. Removing the definition of ``Discriminate against an organization on
the basis of the organization's religious exercise.''
0
b. Revising the definitions of ``Federal financial assistance'' and
``Indirect Federal financial assistance or Federal financial assistance
provided indirectly.''
The revisions read as follows:
Sec. 16.2 Definitions.
* * * * *
Federal financial assistance means assistance that non-Federal
entities receive or administer in the form of grants, contracts, loans,
loan guarantees, property, cooperative agreements, food commodities,
direct appropriations, or other assistance, but does not include a tax
credit, deduction, or exemption. Federal financial assistance may be
direct or indirect.
Indirect Federal financial assistance or Federal financial
assistance provided indirectly refers to situations where the service
provider receives the assistance wholly as a result of a genuine and
independent private choice of the beneficiary, not a choice of the
Government, and the cost of that service is paid through a voucher,
certificate, or other similar means of Government-funded payment. The
availability of adequate secular alternatives is a significant factor
in determining whether a program affords a genuine and independent
private choice.
* * * * *
0
28. Amend Sec. 16.3 by:
0
a. Revising the section heading and paragraph (a).
0
b. In paragraph (b) introductory text, removing ``or religious''
wherever it appears.
0
c. Revising paragraphs (c), (d), and (f).
0
d. Adding paragraph (h).
The revisions and addition read as follows:
Sec. 16.3 Faith-based organizations and Federal financial assistance.
(a) A faith-based organization is eligible, on the same basis as
any other organization, to access and participate
[[Page 15708]]
in any USDA assistance programs for which it is otherwise eligible.
Neither the USDA awarding agency nor any State or local government or
other intermediary receiving funds under any USDA awarding agency
program or service shall, in the selection of service providers,
discriminate for or against an organization on the basis of the
organization's religious character, motives, or affiliation, or lack
thereof, or on the basis of conduct that would not be considered
grounds to favor or disfavor a similarly situated secular organization.
Decisions about awards of USDA direct assistance or USDA indirect
assistance must also be free from political interference, or even the
appearance of such interference, and must be made on the basis of
merit, not on the basis of religion or religious belief, or lack
thereof. Notices or announcements of award opportunities and notices of
award or contracts shall include language substantially similar to that
in appendices A and B to this part.
* * * * *
(c) A faith-based 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 an organization participates in a USDA
assistance program.
(d) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by a USDA awarding
agency or a State or local government in administering Federal
financial assistance from the USDA awarding agency shall require faith-
based organizations to provide assurances or notices where they are not
required of non-faith-based organizations.
(1) Any restrictions on the use of grant funds shall apply equally
to faith-based organizations and non-faith-based organizations.
(2) All organizations that participate in USDA awarding agency
programs or services, including organizations with religious character,
motives, or affiliation, must carry out eligible activities in
accordance with all program requirements and other applicable
requirements governing the conduct of USDA awarding agency-funded
activities, including those prohibiting the use of direct financial
assistance to engage in explicitly religious activities, subject to any
accommodations that are granted to organizations on a case-by-case
basis in accordance with the Constitution and laws of the United
States.
(3) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by the USDA awarding
agency or a State or local government in administering financial
assistance from the USDA awarding agency shall disqualify faith-based
organizations from participating in the USDA awarding agency's programs
or services on the basis of the organizations' religious character,
motives, or affiliation, or lack thereof, or on the basis of conduct
that would not be considered grounds to disqualify a similarly situated
secular organization.
* * * * *
(f) USDA direct financial assistance may be used for the
acquisition, construction, or rehabilitation of structures to the
extent authorized by the applicable program statutes and regulations.
USDA direct assistance may not be used for the acquisition,
construction, or rehabilitation of structures to the extent that those
structures are used by the USDA funding recipients for explicitly
religious activities. Where a structure is used for both eligible and
ineligible purposes, USDA direct financial assistance may not exceed
the cost of those portions of the acquisition, construction, or
rehabilitation that are attributable to eligible activities in
accordance with the cost accounting requirements applicable to USDA
funds. Sanctuaries, chapels, or other rooms that an organization
receiving direct assistance from USDA uses as its principal place of
worship, however, are ineligible for USDA-funded improvements.
Disposition of real property after the term of the grant or any change
in use of the property during the term of the grant is subject to
government-wide regulations governing real property disposition (see 2
CFR part 400).
(1) Any use of USDA direct financial assistance for equipment,
supplies, labor, indirect costs, and the like shall be prorated between
the USDA program or activity and any ineligible purposes by the faith-
based organization in accordance with applicable laws, regulations, and
guidance.
(2) Nothing in this section shall be construed to prevent the
residents of housing who are receiving USDA direct assistance funds
from engaging in religious exercise within such housing.
* * * * *
(h) Nothing in this part shall be construed to preclude a USDA
awarding agency or any State or local government or other intermediary
from accommodating religion or making an accommodation for religious
exercise with respect to one or more program requirements on a case-by-
case basis in accordance with the Constitution and laws of the United
States. A USDA awarding agency, State or local government, or other
intermediary shall not disqualify an organization from participating in
any USDA assistance program for which it is eligible on the basis of
the organization's indication that it may request an accommodation with
respect to one or more program requirements, unless the organization
has made clear that the accommodation is necessary to its participation
and the USDA awarding agency, State or local government, or other
intermediary has determined that it would deny the accommodation.
0
29. Amend Sec. 16.4 by:
0
a. Revising paragraph (a).
0
b. Redesignating paragraph (c) as paragraph (e).
0
c. Adding new paragraphs (c) and (d).
0
d. Revising newly redesignated paragraph (e).
The revisions and additions read as follows:
Sec. 16.4 Responsibilities of participating organizations.
(a) Any organization that receives direct or indirect Federal
financial assistance shall not, with respect to services supported in
whole or in part with Federal financial assistance, or in their
outreach activities related to such services, discriminate against a
current or prospective program beneficiary on the basis of religion,
religious belief, a refusal to hold a religious belief, or a refusal to
attend or participate in a religious practice. However, an organization
that participates in a program funded by indirect financial assistance
need not modify its program activities to accommodate a beneficiary who
chooses to expend the indirect aid on the organization's program.
* * * * *
(c)(1) All organizations that receive USDA direct assistance under
any domestic USDA program must give written notice to all beneficiaries
and prospective beneficiaries of certain protections in a manner and
form prescribed by USDA. The required language for this written notice
to beneficiaries is set forth in appendix C to this part. This notice
must include the following information:
(i) The organization may not discriminate against beneficiaries or
prospective beneficiaries on the basis of religion, a religious belief,
a refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice;
(ii) The organization may not require beneficiaries or prospective
[[Page 15709]]
beneficiaries to attend or participate in any explicitly religious
activities that are offered by the organization, and any participation
by beneficiaries or prospective beneficiaries in such activities must
be purely voluntary;
(iii) The organization must separate in time or location any
privately funded explicitly religious activities from activities
supported by direct Federal financial assistance; and
(iv) Beneficiaries or prospective beneficiaries may report
violations of these protections (including denials of services or
benefits) by an organization by contacting or filing a written
complaint with USDA's Office of the Assistant Secretary for Civil
Rights.
(2) The USDA awarding agency may determine that this written notice
must also inform beneficiaries and prospective beneficiaries about how
to obtain information from the awarding agency about other federally
funded service providers in their area that provide the services
available under the applicable program.
(3) This written notice must be given to beneficiaries prior to the
time they enroll in the program or receive services from the program.
When the nature of the service provided or exigent circumstances make
it impracticable to provide such written notice in advance of the
actual service, service providers must advise beneficiaries of their
protections at the earliest available opportunity.
(d) A beneficiary or prospective beneficiary in a program supported
by indirect Federal financial assistance may report an organization's
violation of the religious protections in this part, including any
denials of services or benefits by an organization, by contacting or
filing a written complaint with USDA's Office of the Assistant
Secretary for Civil Rights.
(e) Nothing in paragraphs (a) through (c) of this section shall be
construed to prevent faith-based organizations that receive USDA
assistance under the Richard B. Russell National School Lunch Act, 42
U.S.C. 1751 et seq., the Child Nutrition Act of 1966, 42 U.S.C. 1771 et
seq., or USDA international school feeding programs from considering
religion in their admissions practices or from imposing religious
attendance or curricular requirements at their schools.
0
30. Add Sec. 16.6 to read as follows:
Sec. 16.6 Compliance.
USDA agencies will monitor compliance with this part in the course
of regular oversight of USDA programs.
0
31. Revise appendix A to part 16 to read as follows:
Appendix A to Part 16--Notice or Announcement of Award Opportunities
(a) Faith-based organizations may apply for this award on the
same basis as any other organization, as set forth at, and subject
to the protections and requirements of, this part and any applicable
constitutional and statutory requirements, including 42 U.S.C.
2000bb et seq. USDA will not, in the selection of recipients,
discriminate for or against an organization on the basis of the
organization's religious character, motives, or affiliation, or lack
thereof, or on the basis of conduct that would not be considered
grounds to favor or disfavor a similarly situated secular
organization.
(b) A faith-based organization that participates in this program
will retain its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law. Religious accommodations may
also be sought under many of these religious freedom and conscience
protection laws.
(c) A faith-based organization may not use direct Federal
financial assistance from USDA to support or engage in any
explicitly religious activities except when consistent with the
Establishment Clause of the First Amendment and any other applicable
requirements. An organization receiving Federal financial assistance
also may not, in providing services funded by USDA, or in their
outreach activities related to such services, discriminate against a
program beneficiary or prospective program beneficiary on the basis
of religion, a religious belief, a refusal to hold a religious
belief, or a refusal to attend or participate in a religious
practice.
0
32. Revise appendix B to part 16 to read as follows:
Appendix B to Part 16--Notice of Award or Contract
(a) A faith-based organization that participates in this program
retains its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law. Religious accommodations may
also be sought under many of these religious freedom and conscience
protection laws.
(b) A faith-based organization may not use direct Federal
financial assistance from USDA to support or engage in any
explicitly religious activities except when consistent with the
Establishment Clause of the First Amendment and any other applicable
requirements. An organization receiving Federal financial assistance
also may not, in providing services funded by USDA, or in their
outreach activities related to such services, discriminate against a
program beneficiary or prospective program beneficiary on the basis
of religion, a religious belief, a refusal to hold a religious
belief, or a refusal to attend or participate in a religious
practice.
0
33. Add appendix C to part 16 to read as follows:
Appendix C to Part 16--Written Notice of Beneficiary Protections
Name of Organization:
Name of Program:
Contact Information for Program Staff: [provide name, phone
number, and email address, if appropriate]
Because this program is supported in whole or in part by
financial assistance from the Federal Government, we are required to
let you know that:
(1) We may not discriminate against you on the basis of
religion, a religious belief, a refusal to hold a religious belief,
or a refusal to attend or participate in a religious practice;
(2) We may not require you to attend or participate in any
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) that are offered by our organization, and any
participation by you in such activities must be purely voluntary;
(3) We must separate in time or location any privately funded
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) from activities supported with direct Federal
financial assistance; and
(4) You may report violations of these protections, including
any denials of services or benefits by an organization, by
contacting or filing a written complaint with the U.S. Department of
Agriculture, Office of the Assistant Secretary for Civil Rights,
Executive Director, Center for Civil Rights Enforcement, 1400
Independence Avenue SW, Washington, DC 20250-9410, or by email to
[email protected].
[When required by the Department, the notice must also state:]
(5) If you would like to seek information about whether there are
any other federally funded organizations that provide these kinds of
services in your area, please contact [insert appropriate point of
contact].
This written notice must be given to you before you enroll in
the program or receive services from the program, unless the nature
of the service provided or exigent circumstances make it
impracticable to provide such notice before we provide the actual
service. In such an instance, this notice must be given to you at
the earliest available opportunity.
AGENCY FOR INTERNATIONAL DEVELOPMENT
For the reasons set forth in the preamble, USAID amends part 205 of
title 22 of the CFR as follows:
Title 22--Foreign Relations
PART 205--PARTICIPATION BY RELIGIOUS ORGANIZATIONS IN USAID
PROGRAMS
0
34. The authority citation for part 205 continues to read as follows:
Authority: 22 U.S.C. 2381(a).
0
35. Revise Sec. 205.1 to read as follows:
[[Page 15710]]
Sec. 205.1 Grants and cooperative agreements.
(a) As used in this section, the term ``award'' has the definition
in 2 CFR 700.1 and the term ``Federal financial assistance'' has the
definition in Executive Order 13279 (signed by President Bush on
December 12, 2002). As used in this section, the following terms have
the definitions in 2 CFR 200.1: ``pass-through entity,'' ``recipient,''
``subaward,'' and ``subrecipient'' as modified by 2 CFR 700.3 to apply
to both nonprofit and for-profit entities.
(b) Faith-based organizations are eligible on the same basis as any
other organization to receive any U.S. Agency for International
Development (USAID) award for which they are otherwise eligible. In the
selection of recipients by USAID and subrecipients by pass-through
entities, neither USAID nor pass-through entities shall discriminate
for, or against, an organization on the basis of the organization's
religious character, motives, or affiliation, or lack thereof, or on
the basis of conduct that would not be considered grounds to favor or
disfavor a similarly situated secular organization. Notices or
announcements of award opportunities shall include language to indicate
that faith-based organizations are eligible on the same basis as any
other organization and subject to the protections and requirements of
Federal law.
(c) Nothing in this part shall be construed to preclude USAID from
making an accommodation, including for religious exercise, with respect
to one or more award requirements on a case-by-case basis in accordance
with the Constitution and laws of the United States.
(d) USAID shall not disqualify an organization from participating
in any USAID award for which it is eligible on the basis of the
organization's indication that it may request an accommodation with
respect to one or more award requirements, unless the organization has
made clear that the accommodation is necessary to its participation and
USAID has determined that it would deny the accommodation.
(e) Organizations that receive direct Federal financial assistance
from USAID under any USAID award or subaward may not engage in
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) as part of the programs or services directly funded
with direct Federal financial assistance from USAID. If an organization
conducts such activities, the activities must be offered separately, in
time or location, from the programs or services funded with direct
Federal financial assistance from USAID, and participation must be
voluntary for beneficiaries of the programs or services funded with
such assistance. Nothing in this part restricts USAID's authority under
applicable Federal law to fund activities, such as the provision of
chaplaincy services, that can be directly funded by the Government
consistent with the Establishment Clause.
(f) A faith-based organization that applies for, or participates
in, USAID-funded awards or subawards will retain its autonomy,
religious character, and independence, and may continue to carry out
its mission consistent with religious freedom protections in Federal
law, including the definition, development, practice, and expression of
its religious beliefs, provided that it does not use direct Federal
financial assistance from USAID to support or engage in any explicitly
religious activities (including activities that involve overt religious
content such as worship, religious instruction, or proselytization), or
in any other manner prohibited by law. Among other things, a faith-
based organization that receives Federal financial assistance from
USAID may use space in its facilities, without concealing, altering, or
removing religious art, icons, scriptures, or other religious symbols.
In addition, a faith-based organization that receives Federal financial
assistance from USAID 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 statement and other
governing documents.
(g) USAID must implement its awards in accordance with the
Establishment Clause. Nothing in this part shall be construed as
authorizing the use of USAID funds for activities that are not
permitted by Establishment Clause jurisprudence or otherwise by law.
USAID will consult with the U.S. Department of Justice if, in
implementing a specific program involving overseas acquisition,
rehabilitation, or construction of structures used for explicitly
religious activities, there is any question about whether such funding
is consistent with the Establishment Clause. USAID will describe any
program implemented after such consultation on its website.
(h) An organization that receives a USAID-funded award or subaward
shall not, in providing services or outreach activities related to such
services, discriminate against a program beneficiary or potential
program beneficiary on the basis of religion, a religious belief, a
refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice.
(i) No grant document, contract, agreement, covenant, memorandum of
understanding, policy, or regulation used by USAID shall require faith-
based organizations to provide assurances or notices where the Agency
does not require them of secular organizations. Any restrictions on the
use of award or subaward funds shall apply equally to faith-based and
secular organizations. All organizations that receive USAID awards and
subawards, including faith-based organizations, must carry out eligible
activities in accordance with all award requirements and other
applicable requirements that govern the conduct of USAID-funded
activities, including those that prohibit the use of direct Federal
financial assistance from USAID to engage in explicitly religious
activities. No grant document, contract, agreement, covenant,
memorandum of understanding, policy, or regulation used by USAID shall
disqualify faith-based organizations from receiving USAID awards on the
basis of the organization's religious character, motives, or
affiliation, or lack thereof.
(j) A religious organization does not forfeit its 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, when the organization receives Federal financial
assistance from USAID.
(k) If a USAID award requires an organization to be a ``nonprofit
organization'' in order to be eligible for funding, the individual
solicitation will specifically indicate the requirement for nonprofit
status in the eligibility section of the solicitation. Potential
applicants should consult with the appropriate USAID program office to
determine the scope of any applicable requirements. In USAID awards in
which an applicant must show that it is a nonprofit organization, other
than programs which are limited to registered Private and Voluntary
Organizations, 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(c)(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
[[Page 15711]]
(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 (k)(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 national parent
organization that the applicant is a local nonprofit affiliate.
(l) Decisions about awards of USAID Federal financial assistance
must be free from political interference, or even the appearance of
such interference, and must be made on the basis of merit, not on the
basis of religion or religious belief, or lack thereof.
(m) Nothing in this part shall be construed as authorizing the use
of USAID funds for the acquisition, construction, or rehabilitation of
religious structures inside the United States.
(n) The Secretary of State may waive the requirements of this
section in whole or in part, on a case-by-case basis, where the
Secretary determines that such waiver is necessary to further the
national security or foreign policy interests of the United States.
(o) Nothing in this section shall be construed in such a way as to
advantage, or disadvantage, faith-based organizations affiliated with
historic or well-established religions or sects in comparison with
other religions or sects.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
For the reasons set forth in the preamble, HUD amends part 5 of
title 24 of the CFR as follows:
PART 5--GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS
0
36. Revise the authority citation for part 5 to read as follows:
Authority: 12 U.S.C. 1701x; 42 U.S.C. 1437a, 1437c, 1437f,
1437n, 3535(d); 42 U.S.C. 2000bb et seq.; 34 U.S.C. 12471 et seq.;
Sec. 327, Pub. L. 109-115, 119 Stat. 2396; E.O. 13279, 67 FR 77141,
3 CFR, 2002 Comp., p. 258; E.O. 13559, 75 FR 71319, 3 CFR, 2010
Comp., p. 273; E.O. 14015, 86 FR 10007, 3 CFR, 2021 Comp., p. 517.
0
37. Amend Sec. 5.109 by:
0
a. In paragraph (a), removing the words ``Executive Order 13831,
entitled ``Establishment of a White House Faith and Opportunity
Initiative,'' '' and adding, in their place, the words ``Executive
Order 14015, entitled ``Establishment of the White House Office of
Faith-Based and Neighborhood Partnerships,'' ''.
0
b. In paragraph (b), revising the definition of ``Indirect Federal
financial assistance''.
0
c. Removing the introductory text of paragraph (c).
0
d. Revising paragraphs (c)(1) through (3).
0
e. In paragraph (c)(4), removing the word ``availability'' and adding,
in its place, the word ``opportunity''.
0
f. Revising paragraphs (d)(1) and (2), (g), and (h).
0
g. In paragraph (l)(3), adding an ``or'' at the end of the paragraph.
0
h. In paragraph (l)(4), removing ``; or'' and adding, in its place, a
period.
0
i. Removing paragraph (l)(5).
The revisions read as follows:
Sec. 5.109 Equal participation of faith-based organizations in HUD
programs and activities.
* * * * *
(b) * * *
Indirect Federal financial assistance means Federal financial
assistance provided when the choice of the provider is placed in the
hands of the beneficiary, and the cost of that service is paid through
a voucher, certificate, or other similar means of Government-funded
payment. Federal financial assistance provided to an organization is
considered indirect when the Government program through which the
beneficiary receives the voucher, certificate, or other similar means
of Government-funded payment is neutral toward religion meaning that it
is available to providers without regard to the religious or non-
religious nature of the institution and there are no program incentives
that deliberately skew for or against religious or secular providers;
and the organization receives the assistance wholly as a result of a
genuine and independent private choice of the beneficiary, not a choice
of the Government. The availability of adequate secular alternatives is
a significant factor in determining whether a program affords true
private choice.
* * * * *
(c) Equal participation of faith-based organizations in HUD
programs and activities.(1) Faith-based organizations are eligible, on
the same basis as any other organization, to participate in any HUD
program or activity for which they are otherwise eligible. Neither the
Federal Government, nor a State, Tribal, or local government, nor any
other entity that administers any HUD program or activity, shall
discriminate for or against an organization on the basis of the
organization's religious character, motives, or affiliation, or lack
thereof, or on the basis of conduct that would not be considered
grounds to favor or disfavor a similarly situated secular organization.
(2) Nothing in this section shall be construed to preclude HUD from
making an accommodation, including for religious exercise, with respect
to one or more program requirements on a case-by-case basis in
accordance with the Constitution and laws of the United States.
(3) HUD shall not disqualify an organization from participating in
any HUD program for which it is eligible on the basis of the
organization's indication that it may request an accommodation with
respect to one or more program requirements, unless the organization
has made clear that the accommodation is necessary to its participation
and, in accordance with the Constitution and laws of the United States,
HUD has determined that it would deny the accommodation.
* * * * *
(d) * * *
(1) A faith-based organization that applies for, or participates
in, a HUD program or activity supported with Federal financial
assistance retains its autonomy, right of expression, religious
character, authority over its governance, and independence, and may
continue to carry out its mission, including the definition,
development, practice, and expression of its religious beliefs;
provided that, it does not use direct Federal financial assistance,
whether received through a prime award or sub-award, to support or
engage in any explicitly religious activities, including activities
that involve overt religious content such as worship, religious
instruction, or proselytization.
(2) A faith-based organization that receives direct Federal
financial assistance may use space (including a sanctuary, chapel,
prayer hall, or other space) in its facilities (including a temple,
synagogue, church, mosque, or other place of worship) to carry out
activities under a HUD program without concealing, altering, or
removing religious art, icons, scriptures, or other religious symbols.
In addition, a faith-based organization participating in a HUD program
or activity retains its authority over its internal governance, and may
retain religious terms in its organization's name, select its board
members on the basis of their acceptance of or adherence to the
religious tenets of the organization consistent with paragraph (i) of
this section, and include religious references
[[Page 15712]]
in its organization's mission statements and other governing documents.
* * * * *
(g) Nondiscrimination and beneficiary notice requirements--(1)
Nondiscrimination. Any organization that receives Federal financial
assistance under a HUD program or activity shall not, in providing
services supported in whole or in part with Federal financial
assistance, or in their outreach activities related to such services,
discriminate against a beneficiary or prospective beneficiary on the
basis of religion, a religious belief, a refusal to hold a religious
belief, or a refusal to attend or participate in a religious practice.
However, an organization that participates in a program funded by
indirect Federal financial assistance need not modify its program or
activities to accommodate a beneficiary who chooses to expend the
indirect aid on the organization's program.
(2) Beneficiary notice. (i) An organization providing services
under a program supported by direct Federal financial assistance from
HUD, or an entity that administers indirect Federal financial
assistance from HUD, must give written notice to beneficiaries and
prospective beneficiaries of certain protections in a manner and form
prescribed by HUD, including by incorporating the notice into materials
that are otherwise provided to beneficiaries. The required language for
this written notice to beneficiaries is set forth in appendix C to this
subpart.
(ii) For the Housing Choice Voucher (HCV), Project-Based Voucher
(PBV), and Section 8 Moderate Rehabilitation programs, the respective
recipient (i.e., Public Housing Agency) is required to provide the
written beneficiary notice. For the Housing Opportunities for Persons
with AIDS (HOPWA) program, the grantee or project sponsor that is
responsible for making eligibility determinations is required to
provide the written beneficiary notice. For the Continuum of Care (CoC)
and Emergency Solutions Grants (ESG) programs, the recipient or
subrecipient that is responsible for determining the eligibility of
each family or individual is required to provide the written
beneficiary notice. The participating or prospective providers
(landlords) are not responsible for providing the written beneficiary
notice for indirect aid recipients. The notice must include the
following information:
(A) Nondiscrimination requirements of paragraph (g)(1) of this
section;
(B) Notification that a beneficiary or prospective beneficiary may
report an organization's violation of these protections, including any
denials of services or benefits by an organization, by contacting or
filing a written complaint with the Center for Faith-Based and
Neighborhood Partnerships or the intermediary that awarded funds to the
organization; and
(C) For direct Federal financial assistance only, prohibitions with
respect to explicitly religious activities as set forth in paragraph
(e) of this section.
(3) Notice timing. The written notice described in paragraph (g)(2)
of this section must be given to a prospective beneficiary prior to the
time the prospective beneficiary enrolls in the program or receives
services from the program. When the nature of the service provided or
exigent circumstances make it impracticable to provide such written
notice in advance of the actual service, an organization must advise
beneficiaries of their protections at the earliest available
opportunity.
(4) Alternative option information. HUD may determine that the
notice described in paragraph (g)(2) of this section must inform each
beneficiary or prospective beneficiary about how to obtain information
from HUD, or a State agency or other entity administering the
applicable program, about other federally funded service providers in
their area that provide the services available under the applicable
program.
(h) No additional assurances from faith-based organizations. A
faith-based organization is not rendered ineligible by its religious
nature to access and participate in HUD programs. Absent regulatory or
statutory authority, no notice of funding opportunity, grant agreement,
cooperative agreement, covenant, memorandum of understanding, policy,
or regulation that is used by HUD or a recipient or intermediary in
administering Federal financial assistance from HUD shall require
otherwise eligible faith-based organizations to provide assurances or
notices where they are not required of similarly situated secular
organizations. All organizations that participate in HUD programs or
activities, including organizations with religious character, motives,
or affiliation, must carry out eligible activities in accordance with
all program requirements, including those prohibiting the use of direct
financial assistance to engage in explicitly religious activities,
subject to any accommodations that are granted to organizations on a
case-by-case basis in accordance with the Constitution and laws of the
United States. No notice of funding opportunity, grant agreement,
cooperative agreement, covenant, memorandum of understanding, policy,
or regulation that is used by HUD or a recipient or intermediary in
administering financial assistance from HUD shall disqualify otherwise
eligible faith-based organizations from participating in HUD's programs
or activities on the basis of the organization's religious character,
motives, or affiliation, or lack thereof, or on the basis of conduct
that would not be considered grounds to disqualify a similarly situated
secular organization.
* * * * *
0
38. Revise appendix A to subpart A of part 5 to read as follows:
Appendix A to Subpart A of Part 5--Notice of Funding Opportunity
(a) Faith-based organizations may apply for this award on the
same basis as any other organization, as set forth at Sec. 5.109,
and subject to the protections and requirements of any applicable
constitutional and statutory requirements, including 42 U.S.C.
2000bb et seq. HUD will not, in the selection of recipients,
discriminate for or against an organization on the basis of the
organization's religious character, motives, or affiliation, or lack
thereof, or on the basis of conduct that would not be considered
grounds to favor or disfavor a similarly situated secular
organization.
(b) A faith-based organization that participates in this program
will retain its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law.
(c) A faith-based organization may not use direct financial
assistance from HUD to support or engage in any explicitly religious
activities except where consistent with the Establishment Clause of
the First Amendment and any other applicable requirements. Such an
organization also may not, in providing services funded by HUD, or
in their outreach activities related to such services, discriminate
against a program beneficiary or prospective program beneficiary on
the basis of religion, a religious belief, a refusal to hold a
religious belief, or a refusal to attend or participate in a
religious practice.
0
39. Add appendix B to subpart A of part 5 to read as follows:
Appendix B to Subpart A of Part 5--Notice of Award or Contract
(a) A faith-based organization that participates in this program
retains its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law.
(b) A faith-based organization may not use direct Federal
financial assistance from HUD to support or engage in any explicitly
religious activities except when consistent with the Establishment
Clause of the First Amendment and any other applicable requirements.
An organization receiving
[[Page 15713]]
Federal financial assistance also may not, in providing services
funded by HUD, or in their outreach activities related to such
services, discriminate against a program beneficiary or prospective
program beneficiary on the basis of religion, a religious belief, a
refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice.
0
40. Add appendix C to subpart A of part 5 to read as follows:
Appendix C to Subpart A of Part 5--Department of Housing and Urban
Development Model Written Notice of Beneficiary Rights
Name of Organization:
Name of Program:
Contact Information for Program Staff: [provide name, phone
number, and email address, if appropriate]
Because this program is supported in whole or in part by
financial assistance from the Federal Government, we are required to
let you know that:
(1) We may not discriminate against you on the basis of
religion, a religious belief, a refusal to hold a religious belief,
or a refusal to attend or participate in a religious practice;
(2) We may not require you to attend or participate in any
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) that are offered by our organization, and any
participation by you in such activities must be purely voluntary;
(3) We must separate in time or location any privately funded
explicitly religious activities from activities (including
activities that involve overt religious content such as worship,
religious instruction, or proselytization) from activities supported
with direct Federal financial assistance;
(4) You may report an organization's violations of these
protections, including any denial of services or benefits by an
organization, by contacting or filing a written complaint with HUD's
Center for Faith-Based and Neighborhood Partnership, 451 7th Street
SW, Washington, DC 20410, or by email to [email protected]; and
(5) If you would like to seek information about whether there
are any other federally funded organizations that provide these
kinds of services in your area, please use the contact information
set forth above.
This written notice must be given to you before you enroll in
the program or receive services from the program, unless the nature
of the service provided or exigent circumstances make it
impracticable to provide such notice before we provide the actual
service. In such an instance, this notice must be given to you at
the earliest available opportunity.
DEPARTMENT OF JUSTICE
For the reasons set forth in the preamble, the Attorney General
amends part 38 of title 28 of the CFR as follows:
Title 28--Judicial Administration
PART 38--PARTNERSHIPS WITH FAITH-BASED AND OTHER NEIGHBORHOOD
ORGANIZATIONS
0
41. Revise the authority citation for part 38 to read as follows:
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; 21 U.S.C.
871; 25 U.S.C. 3681; Pub. L. 107-273, 116 Stat. 1758; Pub. L. 109-
162, 119 Stat. 2960; 34 U.S.C. 10152, 10154, 10172, 10221, 10382,
10388, 10444, 10446, 10448, 10473, 10614, 10631, 11111, 11182,
20110, 20125; E.O. 13559, 75 FR 71319, 3 CFR, 2010 Comp., p. 273;
E.O. 13831, 83 FR 20715, 3 CFR, 2018 Comp., p. 806; 42 U.S.C. 2000bb
et seq.; E.O. 14015, 86 FR 10007, 3 CFR, 2021 Comp., p. 517.
0
42. Revise Sec. 38.1 to read as follows:
Sec. 38.1 Purpose.
The purpose of this part is to implement Executive Order 13279,
Executive Order 13559, and Executive Order 14015.
0
43. Amend Sec. 38.3 by:
0
a. Redesignating paragraphs (a) through (g) as paragraphs (b) through
(h).
0
b. Adding a new paragraph (a).
0
c. Revising newly redesignated paragraphs (b), (c)(2), (e), and (g).
The addition and revisions read as follows:
Sec. 38.3 Definitions.
* * * * *
(a) ``Federal financial assistance'' means assistance that non-
Federal entities receive or administer in the form of grants,
contracts, loans, loan guarantees, property, cooperative agreements,
food commodities, direct appropriations, or other assistance, but does
not include a tax credit, deduction, or exemption.
(b) ``Direct Federal financial assistance'' or ``Federal financial
assistance provided directly'' refers to situations in which the
Government or an intermediary (under this part) selects the provider
and either purchases services from that provider (e.g., via a contract)
or awards funds to that provider to carry out a service (e.g., via a
grant or cooperative agreement). This includes recipients of subawards
that receive Federal financial assistance through State administering
agencies or State-administered programs. In general, Federal financial
assistance shall be treated as direct, unless it meets the definition
of ``indirect Federal financial assistance'' or ``Federal financial
assistance provided indirectly.''
(c) * * *
(2) The service provider receives the assistance wholly as a result
of a genuine and independent private choice of the beneficiary, not a
choice of the Government. The availability of adequate secular
alternatives is a significant factor in determining whether a program
affords a genuinely independent and private choice.
* * * * *
(e) ``Department program'' refers to a discretionary, formula, or
block grant program administered by or from the Department.
* * * * *
(g) The ``Office for Civil Rights'' refers to the Office for Civil
Rights of the Department's Office of Justice Programs.
* * * * *
0
44. Revise Sec. 38.4 to read as follows:
Sec. 38.4 Policy.
(a) Faith-based 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,
motives, or affiliation, or lack thereof, or on the basis of conduct
that would not be considered grounds to favor or disfavor a similarly
situated secular organization.
(b) Nothing in this part shall be construed to preclude the
Department from making an accommodation, including for religious
exercise, with respect to one or more program requirements on a case-
by-case basis in accordance with the Constitution and laws of the
United States.
(c) The Department shall not disqualify an organization from
participating in any Department program for which it is eligible on the
basis of the organization's indication that it may request an
accommodation with respect to one or more program requirements, unless
the organization has made clear that the accommodation is necessary to
its participation and the Department has determined that it would deny
the accommodation.
(d) Decisions about awards of Federal financial assistance must be
free from political interference or even the appearance of such
interference and must be made on the basis of merit, not on the basis
of religion or a religious belief, or lack thereof.
0
45. Amend Sec. 38.5 by:
0
a. Revising paragraphs (c) through (f).
0
b. In paragraph (g)(3), adding the word ``or'' at the end of the
paragraph.
[[Page 15714]]
0
c. In paragraph (g)(4), removing ``; or'' and adding, in its place, a
period.
0
d. Removing paragraph (g)(5).
The revisions read as follows:
Sec. 38.5 Responsibilities.
* * * * *
(c) Any organization that participates in programs funded by
Federal financial assistance from the Department shall not, in
providing services supported in whole or in part with Federal financial
assistance, or in their outreach activities related to such services,
discriminate against a program beneficiary or prospective program
beneficiary on the basis of religion, a religious belief, a refusal to
hold a religious belief, or a refusal to attend or participate in a
religious practice. However, an organization that receives indirect
Federal financial assistance need not modify its program activities to
accommodate a beneficiary who chooses to expend the indirect aid on the
organization's program.
(d) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that the Department or a State or
local government uses in administering Federal financial assistance
from the Department shall require faith-based or religious
organizations to provide assurances or notices where they are not
required of non-faith-based organizations. Any restrictions on the use
of grant funds shall apply equally to faith-based and non-faith-based
organizations. All organizations, including religious ones, that
participate in Department programs must carry out all eligible
activities in accordance with all program requirements, including those
prohibiting the use of direct Federal financial assistance from the
Department to engage in explicitly religious activities, subject to any
accommodations that are granted to organizations on a case-by-case
basis in accordance with the Constitution and laws of the United
States. 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 Federal financial
assistance from the Department shall disqualify faith-based or
religious organizations from participating in the Department's programs
on the basis of the organization's religious character, motives, or
affiliation, or lack thereof, or on the basis of conduct that would not
be considered grounds to disqualify a similarly situated secular
organization.
(e) A faith-based 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(a), is not forfeited when the organization receives direct or
indirect Federal 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. Grantees receiving Federal financial assistance
from such programs should consult with the appropriate Department
program office to determine the scope of any applicable requirements.
(f) If an intermediary, acting under a contract, grant, or other
agreement with the Federal Government or with a State or local
government that is administering a program supported by Federal
financial assistance, is given the authority under the contract, grant,
or agreement to select organizations to provide services funded by the
Federal Government, the intermediary must ensure the compliance of the
recipient of a contract, grant, or agreement with the provisions of
Executive Order 13279, as amended by Executive Order 13559, and any
implementing rules or guidance. If the intermediary is a
nongovernmental organization, it retains all other rights of a
nongovernmental organization under the program's statutory and
regulatory provisions.
* * * * *
0
46. Revise Sec. 38.6 to read as follows:
Sec. 38.6 Procedures.
(a) 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.
(b) An organization providing social services under a program of
the Department supported by Federal financial assistance must give
written notice to beneficiaries and prospective beneficiaries of
certain protections in a manner and form prescribed by the Office for
Civil Rights, including by incorporating the notice into materials that
are otherwise provided to beneficiaries. This written notice shall
include language substantially similar to that in appendix C to this
part. The notice must include the following information:
(1) The organization may not discriminate against a beneficiary or
prospective beneficiary on the basis of religion, a religious belief, a
refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice;
(2) The organization may not require a beneficiary or prospective
beneficiary to attend or participate in any explicitly religious
activities that are offered by the organization, and any participation
by a beneficiary in such activities must be purely voluntary;
(3) The organization must separate in time or location any
privately funded explicitly religious activities from activities
supported by direct Federal financial assistance; and
(4) A beneficiary or prospective beneficiary may report an
organization's violation of these protections, including any denials of
services or benefits by an organization, by contacting or filing a
written complaint with the Office for Civil Rights or the intermediary
that awarded funds to the organization.
(c) The written notice described in paragraph (b) of this section
must be given to a prospective beneficiary prior to the time the
prospective beneficiary enrolls in the program or receives services
from the program. When the nature of the service provided or exigent
circumstances make it impracticable to provide such written notice in
advance of the actual service, an organization must advise
beneficiaries of their protections at the earliest available
opportunity.
(d) The Department may determine that the notice described in
paragraph (b) of this section must inform each beneficiary or
prospective beneficiary of the option to seek information from the
Department, or a State agency or other entity administering the
applicable program, as to whether there are any other federally funded
organizations in their area that provide the kind of services available
under the applicable program.
(e) Notices or announcements of award opportunities and notices of
award or contracts shall include language substantially similar to that
in appendices A and B, respectively, to this part.
0
47. Revise appendix A to part 38 to read as follows:
Appendix A to Part 38--Notice or Announcement of Award Opportunities
(a) Faith-based organizations may apply for this award on the
same basis as any other organization, as set forth at, and subject
to the protections and requirements of, this part and any applicable
constitutional and statutory requirements, including 42 U.S.C.
[[Page 15715]]
2000bb et seq. The Department of Justice will not, in the selection
of recipients, discriminate for or against an organization on the
basis of the organization's religious character, motives, or
affiliation, or lack thereof, or on the basis of conduct that would
not be considered grounds to favor or disfavor a similarly situated
secular organization.
(b) A faith-based organization that participates in this program
will retain its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law.
(c) An organization may not use direct Federal financial
assistance from the Department of Justice to support or engage in
any explicitly religious activities except when consistent with the
Establishment Clause of the First Amendment and any other applicable
requirements. An organization receiving Federal financial assistance
also may not, in providing services funded by the Department of
Justice, or in their outreach activities related to such services,
discriminate against a program beneficiary or prospective program
beneficiary on the basis of religion, a religious belief, a refusal
to hold a religious belief, or a refusal to attend or participate in
a religious practice.
0
48. Revise appendix B to part 38 to read as follows:
Appendix B to Part 38--Notice of Award or Contract
(a) A faith-based organization that participates in this program
retains its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law.
(b) An organization may not use direct Federal financial
assistance from the Department of Justice to support or engage in
any explicitly religious activities except when consistent with the
Establishment Clause of the First Amendment and any other applicable
requirements. An organization receiving Federal financial assistance
also may not, in providing services funded by the Department of
Justice, or in their outreach activities related to such services,
discriminate against a program beneficiary or prospective program
beneficiary on the basis of religion, a religious belief, a refusal
to hold a religious belief, or a refusal to attend or participate in
a religious practice.
0
49. Add appendix C to part 38 to read as follows:
Appendix C to Part 38--Written Notice of Beneficiary Protections
Name of Organization:
Name of Program:
Contact Information for Program Staff: [provide name, phone
number, and email address, if appropriate]
Because this program is supported in whole or in part by
financial assistance from the Federal Government, we are required to
let you know that:
(1) We may not discriminate against you on the basis of
religion, a religious belief, a refusal to hold a religious belief,
or a refusal to attend or participate in a religious practice;
(2) We may not require you to attend or participate in any
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) that may be offered by our organization, and any
participation by you in such activities must be purely voluntary;
(3) We must separate in time or location any privately funded
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) from activities supported with direct Federal
financial assistance;
(4) You may report violations of these protections, including
any denials of services or benefits by an organization, by
contacting or filing a written complaint with the Department of
Justice's Office for Civil Rights, 810 7th Street NW, Washington, DC
20531, or by email to [email protected]; and
[When required by the Department, the notice must also state:]
(5) If you would like to seek information about whether there are
any other federally funded organizations that provide these kinds of
services in your area, please use the contact information for the
Department's Office for Civil Rights set forth above.
We are required to give this written notice to you before you
enroll in the program or receive services from the program, unless
the nature of the service provided or exigent circumstances make it
impracticable for us to provide such notice before we provide the
actual service. In such an instance, we must give this notice to you
at the earliest available opportunity.
DEPARTMENT OF LABOR
For the reasons set forth in the preamble, DOL amends part 2 of
title 29 of the CFR as follows:
Title 29--Labor
PART 2--GENERAL REGULATIONS
0
50. Revise the authority citation for part 2 to read as follows:
Authority: 5 U.S.C. 301; E.O. 13198, 66 FR 8497, 3 CFR, 2001
Comp., p. 750; E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258;
E.O. 13559, 75 FR 71319, 3 CFR, 2010 Comp., p. 273; E.O. 14015, 86
FR 10007, 3 CFR, 2021 Comp., p. 517.
0
51. Revise the heading for subpart D to read as follows:
Subpart D--Equal Treatment in Department of Labor Programs for
Faith-Based and Community Organizations; Protection of Religious
Liberty of Department of Labor Social Service Providers and
Beneficiaries
0
52. Amend Sec. 2.31 by revising paragraph (a) and the second sentence
of paragraph (d) to read as follows:
Sec. 2.31 Definitions.
* * * * *
(a) The term Federal financial assistance means assistance that
non-Federal entities receive or administer in the form of grants,
contracts, loans, loan guarantees, property, cooperative agreements,
food commodities, direct appropriations, or other assistance, but does
not include a tax credit, a deduction, or an exemption. Federal
financial assistance may be direct or indirect.
(1) The term direct Federal financial assistance or Federal
financial assistance provided directly means that the Government or a
DOL social service intermediary provider under this part selects the
provider and either purchases services from that provider (e.g., via a
contract) or awards funds to that provider to carry out a service
(e.g., via a grant or cooperative agreement). In general, Federal
financial assistance shall be treated as direct, unless it meets the
definition of indirect Federal financial assistance or Federal
financial assistance provided indirectly.
(2) The term indirect Federal financial assistance or Federal
financial assistance provided indirectly means that the choice of the
service provider is placed in the hands of the beneficiary, and the
cost of that service is paid through a voucher, certificate, or other
similar means of Government-funded payment. Federal financial
assistance provided to an organization is indirect when:
(i) The Government program through which the beneficiary receives
the voucher, certificate, or other similar means of Government-funded
payment is neutral toward religion; and
(ii) The organization receives the assistance wholly as a result of
a genuine and independent private choice of the beneficiary, not a
choice of the Government. The availability of adequate secular
alternatives is a significant factor in determining whether a program
affords a genuinely independent and private choice.
(3) The recipient of sub-awards received through programs
administered by States or other intermediaries that are themselves
recipients of Federal financial assistance (e.g., local areas that
receive within-state allocations to provide workforce services under
title I of the Workforce Innovation and Opportunity Act) are not
considered recipients of indirect Federal financial assistance or
recipients of Federal financial assistance provided indirectly as those
terms are used in Executive Order 13559. These recipients of sub-
[[Page 15716]]
awards are considered recipients of direct Federal financial
assistance.
* * * * *
(d) * * * Such programs include, but are not limited to, the one-
stop delivery system, Job Corps, and other programs supported through
the Workforce Innovation and Opportunity Act.
* * * * *
0
53. Revise Sec. 2.32 to read as follows:
Sec. 2.32 Equal participation of faith-based organizations.
(a)(1) Faith-based organizations are eligible, on the same basis as
any other organization, to seek DOL support or participate in DOL
programs for which they are otherwise eligible. DOL and DOL social
service intermediary providers, as well as State and local governments
administering DOL support, must not discriminate for or against an
organization on the basis of the organization's religious character,
motives, or affiliation, or lack thereof, or on the basis of conduct
that would not be considered grounds to favor or disfavor a similarly
situated secular organization.
(2) Notices and announcements of award opportunities, and notices
of awards and contracts, shall include language substantially similar
to that in appendices A and B to this subpart, respectively.
(b)(1) A grant document, contract or other agreement, covenant,
memorandum of understanding, policy, or regulation that is used by DOL,
a State or local government administering DOL support, or a DOL social
service intermediary provider must not require faith-based
organizations to provide assurances or notices where they are not
required of non-faith-based organizations.
(2) No grant document, contract or other agreement, covenant,
memorandum of understanding, policy, or regulation that is used by DOL,
a State or local government, or a DOL social service intermediary
provider in administering a DOL social service program shall disqualify
faith-based or religious organizations from receiving DOL support or
participating in DOL programs on the basis of the organization's
religious character, motives, or affiliation, or lack thereof, or on
the basis of conduct that would not be considered grounds to disqualify
a similarly situated secular organization.
(c)(1) A faith-based organization that is a DOL social service
provider retains its autonomy; right of expression; religious
character; and independence from Federal, State, and local governments
and must be permitted to continue to carry out its mission, including
the definition, development, practice, and expression of its religious
beliefs, provided that it does not use direct Federal financial
assistance, whether received through a prime award or sub-award, to
support or engage in any explicitly religious activities (including
activities that involve overt religious content such as worship,
religious instruction, or proselytization).
(2) Among other things, a faith-based organization must be
permitted to:
(i) Use its facilities to provide DOL-supported social services
without concealing, removing, or altering religious art, icons,
scriptures, or other religious symbols from those facilities; and
(ii) Retain its authority over its internal governance, including
retaining religious terms in its name, selecting its board members on
the basis of their acceptance of or adherence to the religious
requirements or standards of the organization, and including religious
references in its mission statements and other governing documents.
(d)(1) Any restrictions on the use of financial assistance under a
grant shall apply equally to faith-based and non-faith-based
organizations.
(2) All organizations, including religious ones, that are DOL
social service providers must carry out DOL-supported activities in
accordance with all program requirements, including those prohibiting
the use of direct Federal financial assistance for explicitly religious
activities (including worship, religious instruction, or
proselytization).
(e)(1) Nothing in this subpart shall be construed to preclude DOL
from making an accommodation, including for religious exercise, with
respect to one or more program requirements on a case-by-case basis in
accordance with the Constitution and laws of the United States,
including Federal civil rights laws.
(2) DOL shall not disqualify an organization from participating in
any DOL program for which it is eligible on the basis of the
organization's indication that it may request an accommodation with
respect to one or more program requirements, unless the organization
has made clear that the accommodation is necessary to its participation
and DOL has determined that it would deny the accommodation.
0
54. Amend Sec. 2.33 by revising the section heading, the first two
sentences of paragraph (a), and paragraphs (b)(1) and (c) to read as
follows:
Sec. 2.33 Responsibilities of DOL, DOL social service providers, and
State and local governments administering DOL support.
(a) Any organization that participates in a program funded by
Federal financial assistance shall not, in providing services supported
in whole or in part with Federal financial assistance, or in conducting
outreach activities related to such services, discriminate against a
current or prospective program beneficiary on the basis of religion, a
religious belief, a refusal to hold a religious belief, or a refusal to
attend or participate in a religious practice. However, an organization
that participates in a program funded by indirect Federal financial
assistance need not modify its program activities to accommodate a
beneficiary who chooses to expend the indirect aid on the
organization's program. * * *
(b)(1) Organizations that receive direct Federal financial
assistance may not engage in explicitly religious activities (including
activities that involve overt religious content such as worship,
religious instruction, or proselytization) as part of the programs or
services funded with direct Federal financial assistance. If an
organization conducts such explicitly religious activities, the
activities must be offered separately, in time or location, from the
programs or services funded with direct Federal financial assistance,
and participation must be voluntary for beneficiaries of the programs
and services funded with such assistance.
* * * * *
(c) If a DOL social service intermediary provider, acting under a
contract, grant, or other agreement with the Federal Government or with
a State or local government that is administering a program supported
by Federal financial assistance, is given the authority under the
contract, grant, or agreement to select non-governmental organizations
to provide services funded by the Federal Government, the DOL social
service intermediary provider must ensure the recipient's compliance
with the provisions of Executive Order 13279, as amended by Executive
Order 13559, and any implementing rules or guidance. If the DOL social
service intermediary provider is a non-governmental organization, it
retains all other rights of a non-governmental organization under the
program's statutory and regulatory provisions.
0
55. Add Sec. 2.34 to read as follows:
Sec. 2.34 Written notice to beneficiaries.
(a) Notice to beneficiaries of programs supported by direct Federal
financial assistance. Organizations providing
[[Page 15717]]
social services to beneficiaries under programs supported by direct
Federal financial assistance from DOL must give the written notice
described in paragraph (c) of this section to beneficiaries and
prospective beneficiaries.
(b) Notice to beneficiaries of programs supported by indirect
Federal financial assistance. The entity responsible for disbursing
Federal funds as part of a program of indirect Federal financial
assistance administered by DOL must give the written notice described
in paragraph (c) of this section to beneficiaries and prospective
beneficiaries.
(c) Contents of the notice. The required language for the written
notice to beneficiaries and prospective beneficiaries is set forth in
appendix C to this subpart. The notice includes the following:
(1) The organization may not discriminate against beneficiaries or
prospective beneficiaries on the basis of religion, a religious belief,
a refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice;
(2) The organization may not require beneficiaries or prospective
beneficiaries to attend or participate in any explicitly religious
activities that are offered by the organization, and any participation
by beneficiaries in such activities must be purely voluntary;
(3) The organization must separate in time or location any
privately funded explicitly religious activities from activities
supported by direct Federal financial assistance;
(4) Beneficiaries and prospective beneficiaries may report an
organization's violation of these protections, including any denials of
services or benefits by an organization, by contacting or filing a
written complaint with DOL's Civil Rights Center, 200 Constitution
Avenue NW, Room N-4123, Washington, DC 20210, or by email to
[email protected]; and
(5) Beneficiaries and potential beneficiaries may seek information
about whether there are any other federally funded organizations that
provide these kinds of services in their area by calling DOL's US2-JOBS
helpline toll-free at 1-877-US2-JOBS (1-877-872-5627) or TTY 1-877-889-
5627.
(d) Timing. The written notice set forth in appendix C to this
subpart must be given to prospective beneficiaries before they enroll
in the program or receive services from the program. The written notice
may be incorporated into materials that are otherwise provided to
prospective beneficiaries. When the nature of the service provided or
exigent circumstances make it impracticable to provide such written
notice in advance of the actual service, organizations must advise
beneficiaries of their protections at the earliest available
opportunity.
0
56. Revise Sec. 2.37 to read as follows:
Sec. 2.37 Effect of DOL support on Title VII employment
nondiscrimination requirements and on other existing statutes.
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 Federal
financial assistance from DOL. Some DOL programs, however, were
established through Federal statutes containing independent statutory
provisions requiring that recipients refrain from discriminating on the
basis of religion. In this case, to determine the scope of any
applicable requirements, recipients and potential recipients should
consult with the appropriate DOL program office or with the Civil
Rights Center, U.S. Department of Labor, 200 Constitution Avenue NW,
Room N-4123, Washington, DC 20210, (202) 693-6500. If you are deaf,
hard of hearing, or have a speech disability, please dial 7-1-1 to
reach the number in the preceding sentence through telecommunications
relay services.
0
57. Amend Sec. 2.38 by:
0
a. Revising paragraphs (b)(3) and (4).
0
b. Removing paragraph (b)(5).
The revisions read as follows:
Sec. 2.38 Status of nonprofit organizations.
* * * * *
(b) * * *
(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 national parent
organization that the applicant is a local nonprofit affiliate of the
organization.
0
58. Add appendix A to subpart D to read as follows:
Appendix A to Subpart D of Part 2--Notice or Announcement of Award
Opportunities
(a) Faith-based organizations may apply for this award on the
same basis as any other organization, subject to the protections and
requirements of this subpart and any applicable constitutional and
statutory requirements, including 42 U.S.C. 2000bb et seq. DOL will
not, in the selection of recipients, discriminate for or against an
organization on the basis of the organization's religious character,
motives, or affiliation, or lack thereof, or on the basis of conduct
that would not be considered grounds to favor or disfavor a
similarly situated secular organization.
(b) A faith-based organization that participates in this program
will retain its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law.
(c) A faith-based organization may not use direct Federal
financial assistance to support or engage in any explicitly
religious activities except where consistent with the Establishment
Clause of the First Amendment and any other applicable requirements.
An organization receiving Federal financial assistance also may not,
in providing services funded by DOL, or in conducting outreach
activities related to such services, discriminate against a program
beneficiary or prospective program beneficiary on the basis of
religion, a religious belief, a refusal to hold a religious belief,
or a refusal to attend or participate in a religious practice.
0
59. Add appendix B to subpart D to read as follows:
Appendix B to Subpart D of Part 2--Notice of Award or Contract
(a) A faith-based organization that participates in this program
retains its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law.
(b) A faith-based organization may not use direct Federal
financial assistance to support or engage in any explicitly
religious activities except where consistent with the Establishment
Clause of the First Amendment and any other applicable requirements.
An organization receiving Federal financial assistance also may not,
in providing services funded by DOL, or in conducting outreach
activities related to such services, discriminate against a program
beneficiary or prospective program beneficiary on the basis of
religion, a religious belief, a refusal to hold a religious belief,
or a refusal to attend or participate in a religious practice.
0
60. Add appendix C to subpart D to read as follows:
Appendix C to Subpart D of Part 2--Written Notice of Beneficiary
Protections
Name of Organization:
Name of Program:
Type of Federal Financial Assistance: [specify DIRECT Federal
financial assistance or INDIRECT Federal financial assistance]
Contact Information for Program Staff: [provide name, phone
number, and email address, if appropriate]
Because this program is supported in whole or in part by
financial assistance from
[[Page 15718]]
the Federal Government, we are required to let you know that:
(1) We may not discriminate against you on the basis of
religion, a religious belief, a refusal to hold a religious belief,
or a refusal to attend or participate in a religious practice;
(2) We may not require you to attend or participate in any
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) that are offered by our organization, and any
participation by you in such activities must be purely voluntary;
(3) We must separate in time or location any privately funded
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) from activities supported with direct Federal
financial assistance;
(4) You may report violations of these protections, including
any denials of services or benefits by an organization, by
contacting or filing a written complaint with the U.S. Department of
Labor's Civil Rights Center, 200 Constitution Avenue NW, Room N-
4123, Washington, DC 20210, or by email to
[email protected]; and
(5) If you would like to seek information about whether there
are any other federally funded organizations that provide these
kinds of services in your area, please call toll-free 1-877-US2-JOBS
(1-877-872-5627) or TTY 1-877-889-5627.
This written notice must be given to you before you enroll in
the program or receive services from the program, unless the nature
of the service provided or exigent circumstances make it
impracticable to provide such notice before we provide the actual
service. In such an instance, this notice must be given to you at
the earliest available opportunity.
Appendix A to Part 2 [Removed]
0
61. Remove appendix A to part 2.
Appendix B to Part 2 [Removed]
0
62. Remove appendix B to part 2.
DEPARTMENT OF VETERANS AFFAIRS
For the reasons set forth in the preamble, VA amends 38 CFR parts
50, 61, and 62 as follows:
Title 38--Pensions, Bonuses, and Veterans' Relief
PART 50--EQUAL TREATMENT OF FAITH-BASED ORGANIZATIONS
0
63. The authority citation for part 50 continues to read as follows:
Authority: 38 U.S.C. 501 and as noted in specific sections.
0
64. Amend Sec. 50.1 by revising paragraphs (b)(2) and (c) to read as
follows:
Sec. 50.1 Definitions.
* * * * *
(b) * * *
(2) The organization receives the assistance wholly as a result of
a genuine and independent private choice of the beneficiary, not a
choice of the Government. The availability of adequate secular
alternatives is a significant factor in determining whether a program
affords a genuine and independent private choice.
(c) Federal financial assistance means assistance that non-Federal
entities receive or administer in the form of grants, contracts, loans,
loan guarantees, property, cooperative agreements, food commodities,
direct appropriations, or other assistance, but does not include a tax
credit, deduction, or exemption.
* * * * *
0
65. Revise Sec. 50.2 to read as follows:
Sec. 50.2 Faith-based organizations and Federal financial assistance.
(a) Faith-based organizations are eligible, on the same basis as
any other organization, to participate in any VA program or service for
which they are otherwise eligible. Neither the VA program nor any State
or local government or other pass-through entity receiving funds under
any VA program shall, in the selection of service providers,
discriminate for or against an organization on the basis of the
organization's religious character, motives, or affiliation, or lack
thereof, or on the basis of conduct that would not be considered
grounds to favor or disfavor a similarly situated secular organization.
(b) Organizations that receive direct Federal financial assistance
from a VA program may not engage in any explicitly religious activities
(including activities that involve overt religious content such as
worship, religious instruction, or proselytization) as part of the
programs or services funded with direct Federal financial assistance
from the VA program, or in any other manner prohibited by law. If an
organization conducts such activities, the activities must be offered
separately, in time or location, from the programs or services funded
with direct Federal financial assistance from the VA program, and
participation must be voluntary for beneficiaries of the programs or
services funded with such assistance. The use of indirect Federal
financial assistance is not subject to this restriction. Nothing in
this part restricts VA's authority under applicable Federal law to fund
activities, such as the provision of chaplaincy services, that can be
directly funded by the Government consistent with the Establishment
Clause.
(c) A faith-based organization that participates in programs or
services funded by a VA program will retain its autonomy; right of
expression; religious character; and independence from Federal, State,
and local governments, and may continue to carry out its mission,
including the definition, development, practice, and expression of its
religious beliefs. A faith-based organization that receives direct
Federal financial assistance may use space in its facilities to provide
programs or services funded with financial assistance from the VA
program without concealing, removing, or altering religious art, icons,
scriptures, or other religious symbols. In addition, a faith-based
organization that receives Federal financial assistance from a VA
program does not lose the protections of law. Such a faith-based
organization retains its authority over its internal governance, and it
may retain religious terms in its name, select its board members on the
basis of their acceptance of or adherence to the religious tenets of
the organization, and include religious references in its mission
statements and other governing documents.
(d) Any organization that participates in programs funded by
Federal financial assistance from the VA shall not, in providing
services supported in whole or in part with Federal financial
assistance, or in their outreach activities related to such services,
discriminate against a program beneficiary or prospective program
beneficiary on the basis of religion, a religious belief, a refusal to
hold a religious belief, or a refusal to attend or participate in a
religious practice. However, an organization receiving indirect Federal
financial assistance need not modify its program activities to
accommodate a beneficiary who chooses to expend the indirect aid on the
organization's program.
(e) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by a VA program or a
State or local government in administering Federal financial assistance
from any VA program shall require faith-based organizations to provide
assurances or notices where they are not required of non-faith-based
organizations. Any restrictions on the use of grant funds shall apply
equally to faith-based and non-faith-based organizations. All
organizations that participate in VA programs or services, including
faith-based ones, must carry out eligible activities in accordance with
all program requirements, including those prohibiting the use of direct
financial assistance to engage in explicitly religious activities,
subject to any accommodations that are granted on a case-by-case basis
in accordance with
[[Page 15719]]
the Constitution and laws of the United States. No grant document,
agreement, covenant, memorandum of understanding, policy, or regulation
that is used by VA or a State or local government in administering
financial assistance from VA shall disqualify faith-based organizations
from participating in the VA programs or services on the basis of the
organization's religious character, motives, or affiliation, or lack
thereof, or on the basis of conduct that would not be considered
grounds to disqualify a similarly situated secular organization.
(f) Nothing in this part shall be construed to preclude VA from
making an accommodation, including for religious exercise, with respect
to one or more program requirements on a case-by-case basis in
accordance with the Constitution and laws of the United States.
(g) VA shall not disqualify an organization from participating in
any VA program for which it is eligible on the basis of the
organization's indication that it may request an accommodation with
respect to one or more program requirements, unless the organization
has made clear that the accommodation is necessary to its participation
and VA has determined that it would deny the accommodation.
(h) A faith-based 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 Federal financial assistance from a VA program. Some VA
programs, however, contain independent statutory provisions affecting a
recipient's ability to discriminate on the basis of religion in
employment. In this case, recipients should consult with the
appropriate VA program office if they have questions about the scope of
any applicable requirements.
(i) In general, VA programs do not require that a recipient,
including a faith-based organization, obtain tax-exempt status under
section 501(c)(3) of the Internal Revenue Code to be eligible for
funding under VA programs. Some grant programs, however, do require an
organization to be a nonprofit organization in order to be eligible for
funding. Funding announcements and other grant application
solicitations that require organizations to have nonprofit status will
specifically so indicate in the eligibility section of the
solicitation. In addition, any solicitation that requires an
organization to maintain tax-exempt status will expressly state the
statutory authority for requiring such status. Recipients should
consult with the appropriate VA program office to determine the scope
of any applicable requirements. In VA 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(c)(3) of the Internal Revenue Code;
(2) A statement from a State or other governmental 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 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 (i)(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.
(j) If a recipient contributes its own funds in excess of those
funds required by a matching or grant agreement to supplement VA
program-supported activities, the recipient has the option to segregate
those additional funds or commingle them with the Federal award funds.
If the funds are commingled, the provision of this part 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. With respect to the
matching funds, the provisions of this part apply irrespective of
whether such funds are commingled with Federal funds or segregated.
(k) Decisions about awards of Federal financial assistance must be
made on the basis of merit, not on the basis of the religious
affiliation, or lack thereof, of a recipient organization, and must be
free from political interference or even the appearance of such
interference.
(l) Neither VA nor any State or local government or other pass-
through entity receiving funds under any VA program or service shall
construe these provisions in such a way as to advantage or disadvantage
faith-based organizations affiliated with historic or well-established
religions or sects in comparison with other religions or sects.
(m) If a pass-through entity, acting under a contract, grant, or
other agreement with the Federal Government or with a State or local
government that is administering a program supported by Federal
financial assistance, is given the authority under the contract, grant,
or agreement to select non-governmental organizations to provide
services funded by the Federal Government, the pass-through entity must
ensure compliance by the subrecipient with the provisions of this part
and any implementing regulations or guidance. If the pass-through
entity is a non-governmental organization, it retains all other rights
of a non-governmental organization under the program's statutory and
regulatory provisions.
0
66. Add Sec. 50.3 to read as follows:
Sec. 50.3 Notice requirements.
(a) An organization providing social services under a program of VA
supported by Federal financial assistance must give written notice to
beneficiaries and prospective beneficiaries of certain protections in a
manner and form prescribed by the VA program. The language for this
written notice to beneficiaries must be substantially similar to the
text set forth in appendix C to this part. Specifically, the notice
must include the following:
(1) The organization may not discriminate against a beneficiary or
prospective beneficiary on the basis of religion, a religious belief, a
refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice;
(2) The organization may not require a beneficiary or prospective
beneficiary to attend or participate in any explicitly religious
activities that are offered by the organization, and any participation
by a beneficiary in such activities must be purely voluntary;
(3) The organization must separate in time or location any
privately funded explicitly religious activities from activities
supported by direct Federal financial assistance; and
(4) A beneficiary or prospective beneficiary may report an
organization's violation of these protections, including any denials of
services or benefits by an organization, by contacting or filing a
written complaint with the VA program or the intermediary that awarded
funds to the organization.
(b) The written notice described in paragraph (a) of this section
must be given to a prospective beneficiary prior to the time the
prospective beneficiary enrolls in the program or receives services
from the program. When the nature of the service provided or exigent
circumstances make it impracticable to provide such written notice in
advance of the actual service, an organization
[[Page 15720]]
must advise beneficiaries of their protections at the earliest
available opportunity.
(c) VA may determine that the notice described in paragraph (a) of
this section must inform each beneficiary or prospective beneficiary of
the option to seek information from VA, or another entity administering
the program, as to whether there are any other federally funded
organizations in their area that provide the services available under
the applicable program.
(d) Notices or announcements of award opportunities and notices of
award or contracts shall include language substantially similar to that
in appendices A and B, respectively, to this part.
0
67. Revise appendix A to part 50 to read as follows:
Appendix A to Part 50--Notice or Announcement of Award Opportunities
(a) Faith-based organizations may apply for this award on the
same basis as any other organization, as set forth at, and subject
to the protections and requirements of, this part and any applicable
constitutional and statutory requirements, including 42 U.S.C.
2000bb et seq. VA will not, in the selection of recipients,
discriminate for or against an organization on the basis of the
organization's religious character, motives, or affiliation, or lack
thereof, or on the basis of conduct that would not be considered
grounds to favor or disfavor a similarly situated secular
organization.
(b) A faith-based organization that participates in this program
will retain its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law.
(c) A faith-based organization may not use direct financial
assistance from VA to support or engage in any explicitly religious
activities except where consistent with the Establishment Clause of
the First Amendment and any other applicable requirements. An
organization receiving Federal financial assistance also may not, in
providing services funded by VA, or in their outreach activities
related to such services, discriminate against a program beneficiary
or prospective program beneficiary on the basis of religion, a
religious belief, a refusal to hold a religious belief, or a refusal
to attend or participate in a religious practice.
0
68. Revise appendix B to part 50 to read as follows:
Appendix B to Part 50--Notice of Award or Contract
(a) A faith-based organization that participates in this program
retains its independence from the Government and may continue to
carry out its mission consistent with religious freedom and
conscience protections in Federal law.
(b) A faith-based organization may not use direct Federal
financial assistance from VA to support or engage in any explicitly
religious activities except when consistent with the Establishment
Clause and any other applicable requirements. An organization
receiving Federal financial assistance also may not, in providing
services funded by VA, or in their outreach activities related to
such services, discriminate against a program beneficiary or
prospective program beneficiary on the basis of religion, a
religious belief, a refusal to hold a religious belief, or a refusal
to attend or participate in a religious practice.
0
69. Add appendix C to part 50 to read as follows:
Appendix C to Part 50--Written Notice of Beneficiary Protections
Name of Organization:
Name of Program:
Contact Information for VA Grant Program Office (name, phone
number, and email address, if appropriate):
Because this program is supported in whole or in part by
financial assistance from the Federal Government, we are required to
let you know that:
(1) We may not discriminate against you on the basis of
religion, a religious belief, a refusal to hold a religious belief,
or a refusal to attend or participate in a religious practice;
(2) We may not require you to attend or participate in any
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) that may be offered by our organization, and any
participation by you in such activities must be purely voluntary;
(3) We must separate in time or location any privately funded
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction, or
proselytization) from activities supported with direct Federal
financial assistance;
(4) You may report violations of these protections, including
any denials of services or benefits by an organization, by
contacting or filing a written complaint with the grant program
office using the contact information set forth above; and
[When required by VA, the notice must also state:] (5) If you
would like to seek information about whether there are any other
federally funded organizations that provide these kinds of services
in your area, please use the contact information set forth above.
This written notice must be given to you before you enroll in
the program or receive services from the program, unless the nature
of the service provided or exigent circumstances make it
impracticable to provide such notice before we provide the actual
service. In such an instance, this notice must be given to you at
the earliest available opportunity.
PART 61--VA HOMELESS PROVIDERS GRANT AND PER DIEM PROGRAM
0
70. The authority citation for part 61 continues to read as follows:
Authority: 38 U.S.C. 501, 2001, 2002, 2011, 2012, 2013, 2061,
2064.
0
71. Amend Sec. 61.64 by revising paragraphs (b)(2), (e), and (g) to
read as follows:
Sec. 61.64 Faith-based organizations.
* * * * *
(b) * * *
(2) For purposes of this section, ``indirect Federal financial
assistance'' means Federal financial assistance in which a service
provider receives program funds through a voucher, certificate,
agreement, or other form of disbursement, wholly as a result of the
genuinely independent and private choice of a beneficiary, not a choice
of the Government. The availability of adequate secular alternatives is
a significant factor in determining whether a program affords true
private choice. ``Direct Federal financial assistance'' means Federal
financial assistance received by an entity selected by the Government
or a pass-through entity as defined in 38 CFR 50.1(d) to provide or
carry out a service (e.g., by contract, grant, or cooperative
agreement). References to ``financial assistance'' will be deemed to be
references to direct Federal financial assistance, unless the
referenced assistance meets the definition of ``indirect Federal
financial assistance'' in this paragraph (b)(2).
* * * * *
(e) An organization that participates in a VA program under this
part shall not, in providing direct program assistance, discriminate
against a program beneficiary or prospective program beneficiary
regarding housing, supportive services, or technical assistance, on the
basis of religion, a religious belief, a refusal to hold a religious
belief, or a refusal to attend or participate in a religious practice.
* * * * *
(g) To the extent otherwise permitted by Federal law, the
restrictions on explicitly religious activities set forth in this
section do not apply where VA funds are provided to faith-based
organizations through indirect assistance wholly as a result of a
genuinely independent and private choice of a beneficiary, provided the
faith-based organizations otherwise satisfy the requirements of this
part. A faith-based 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
[[Page 15721]]
that beneficiary and designed to give that beneficiary a choice among
providers.
PART 62--SUPPORTIVE SERVICES FOR VETERAN FAMILIES PROGRAM
0
72. The authority citation for part 62 continues to read as follows:
Authority: 38 U.S.C. 501, 2044, and as noted in specific
sections.
0
73. Amend Sec. 62.62 by revising paragraphs (b)(2), (e), and (g) to
read as follows:
Sec. 62.62 Faith-based organizations.
* * * * *
(b) * * *
(2) For purposes of this section, ``indirect Federal financial
assistance'' means Federal financial assistance in which a service
provider receives program funds through a voucher, certificate,
agreement, or other form of disbursement, wholly as a result of the
genuinely independent and private choice of a beneficiary, not a choice
of the Government. The availability of adequate secular alternatives is
a significant factor in determining whether a program affords true
private choice. ``Direct Federal financial assistance'' means Federal
financial assistance received by an entity selected by the Government
or a pass-through entity as defined in 38 CFR 50.1(d) to provide or
carry out a service (e.g., by contract, grant, or cooperative
agreement). References to ``financial assistance'' will be deemed to be
references to direct Federal financial assistance, unless the
referenced assistance meets the definition of ``indirect Federal
financial assistance'' in this paragraph (b)(2).
* * * * *
(e) An organization that participates in a VA program under this
part shall not, in providing direct program assistance, discriminate
against a program beneficiary or prospective program beneficiary
regarding housing, supportive services, or technical assistance, on the
basis of religion, a religious belief, a refusal to hold a religious
belief, or a refusal to attend or participate in a religious practice.
* * * * *
(g) To the extent otherwise permitted by Federal law, the
restrictions on explicitly religious activities set forth in this
section do not apply where VA funds are provided to faith-based
organizations through indirect assistance wholly as a result of a
genuinely independent and private choice of a beneficiary, provided the
faith-based organizations otherwise satisfy the requirements of this
part. A faith-based 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.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
For the reasons set forth in the preamble, HHS amends part 87 of
title 45 of the CFR as follows:
Title 45--Public Welfare
PART 87--EQUAL TREATMENT FOR FAITH-BASED ORGANIZATIONS
0
74. The authority citation for part 87 continues to read as follows:
Authority: 5 U.S.C. 301; 42 U.S.C. 2000bb et seq.
0
75. Amend Sec. 87.1 by revising paragraphs (c) and (d) to read as
follows:
Sec. 87.1 Definitions.
* * * * *
(c) Indirect Federal financial assistance or Federal financial
assistance provided indirectly means Federal financial assistance
received by a service provider when the service provider is paid for
services rendered by means of a voucher, certificate, or other means of
Government-funded payment provided to a beneficiary who is able to make
a choice of a service provider, and:
(1) The Government program through which the beneficiary receives
the voucher, certificate, or other similar means of Government-funded
payment is neutral toward religion; and
(2) The service provider receives the assistance wholly as a result
of a genuine and independent private choice of the beneficiary, not a
choice of the Government. The availability of adequate secular
alternatives is a significant factor in determining whether a program
affords true private choice.
(d) Federal financial assistance means assistance that non-Federal
entities receive or administer in the form of grants, contracts, loans,
loan guarantees, property, cooperative agreements, food commodities,
direct appropriations, or other assistance, but does not include a tax
credit, deduction, or exemption. Federal financial assistance may be
direct or indirect.
* * * * *
0
76. Amend Sec. 87.2 by revising paragraphs (a) and (b) to read as
follows:
Sec. 87.2 Applicability.
* * * * *
(a) Discretionary grants. This part is not applicable to the
discretionary grant programs that are governed by the Substance Abuse
and Mental Health Services Administration (SAMHSA) Charitable Choice
regulations found at 42 CFR part 54a. This part is also not applicable
to discretionary grant programs that are governed by the Community
Services Block Grant (CSBG) Charitable Choice regulations at 45 CFR
part 1050, with the exception of Sec. Sec. 87.1 and 87.3(k) through
(m) and (o), which do apply to such CSBG discretionary grants.
Discretionary grants authorized by the Child Care and Development Block
Grant Act are also not governed by this part.
(b) Formula and block grants. This part does not apply to non-
discretionary and block grant programs governed by the SAMHSA
Charitable Choice regulations found at 42 CFR part 54, or the Temporary
Assistance for Needy Families (TANF) Charitable Choice regulations at
45 CFR part 260. Block grants governed by the CSBG Charitable Choice
regulations at 45 CFR part 1050 are not subject to this part, with the
exception of Sec. Sec. 87.1 and 87.3(k) through (m) and (o), which do
apply to such CSBG block grants. This part is not applicable to Child
Care and Development Block Grants governed by 45 CFR part 98.
0
77. Amend Sec. 87.3 by:
0
a. Revising paragraph (a).
0
b. Redesignating paragraphs (b) through (h) and (i) through (k) as
paragraphs (d) through (j) and (o) through (q), respectively.
0
c. Adding new paragraphs (b) and (c).
0
d. Removing note 1 following newly redesignated paragraph (e).
0
e. Revising newly redesignated paragraphs (f) through (h) and (i)(3)
and (4).
0
f. Removing newly redesignated paragraph (i)(5).
0
g. Adding a new paragraph (k) and paragraphs (l) through (n).
The revisions and additions read as follows:
Sec. 87.3 Faith-based organizations and Federal financial assistance.
(a) Faith-based organizations are eligible, on the same basis as
any other organization, to participate in any HHS awarding agency
program or service for which they are otherwise eligible. Neither the
HHS awarding agency nor any State or local government or other pass-
through entity receiving funds
[[Page 15722]]
under any HHS awarding agency program or service shall, in the
selection of service providers, discriminate for or against an
organization on the basis of the organization's religious character,
motives, or affiliation, or lack thereof, or on the basis of conduct
that would not be considered grounds to favor or disfavor a similarly
situated secular organization.
(b) Nothing in this part shall be construed to preclude HHS from
making an accommodation, including for religious exercise, with respect
to one or more program requirements on a case-by-case basis in
accordance with the Constitution and laws of the United States.
(c) HHS shall not disqualify an organization from participating in
any HHS program for which it is eligible on the basis of the
organization's indication that it may request an accommodation with
respect to one or more program requirements, unless the organization
has made clear that the accommodation is necessary to its participation
and HHS has determined that it would deny the accommodation.
* * * * *
(f) An organization, whether faith-based or not, that receives
Federal financial assistance from HHS shall not, in providing services
supported in whole or in part with Federal financial assistance, or in
their outreach activities related to such services, discriminate
against a program beneficiary or prospective program beneficiary on the
basis of religion, a religious belief, a refusal to hold a religious
belief, or a refusal to attend or participate in a religious practice.
However, a faith-based organization receiving indirect Federal
financial assistance need not modify any religious components or
integration with respect to its program activities to accommodate a
beneficiary who chooses to expend the indirect aid on the
organization's program.
(g) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation used by an HHS awarding agency or
a State or local government in administering Federal financial
assistance from the HHS awarding agency shall require faith-based
organizations to provide assurances or notices where they are not
required of non-faith-based organizations. Any restrictions on the use
of grant funds shall apply equally to faith-based and non-faith-based
organizations. All organizations, whether faith-based or not, that
participate in HHS awarding agency programs or services must carry out
eligible activities in accordance with all program requirements,
including those prohibiting the use of direct Federal financial
assistance to engage in explicitly religious activities, subject to any
accommodations that HHS grants to organizations on a case-by-case basis
in accordance with the Constitution and laws of the United States. No
grant document, agreement, covenant, memorandum of understanding,
policy, or regulation used by an HHS awarding agency or a State or
local government in administering Federal financial assistance from the
HHS awarding agency shall disqualify faith-based organizations from
participating in the HHS awarding agency's programs or services on the
basis of the organization's religious character, motives, or
affiliation, or lack thereof, or on the basis of conduct that would not
be considered grounds to disqualify a similarly situated secular
organization.
(h) A faith-based organization's exemption from the Federal
prohibition on employment discrimination on the basis of religion, set
forth in the Civil Rights Act of 1964, 42 U.S.C. 2000e-1, is not
forfeited when the faith-based organization receives direct or indirect
Federal financial assistance from an HHS awarding agency. Some HHS
awarding agency programs, however, contain independent statutory
provisions requiring that all grantees agree not to discriminate in
employment on the basis of religion. In this case, grantees should
consult with the appropriate HHS awarding agency program office to
determine the scope of any applicable requirements.
(i) * * *
(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 (i)(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.
* * * * *
(k) An organization providing social services under a discretionary
grant program of HHS that is supported by Federal financial assistance
must give written notice to beneficiaries and prospective beneficiaries
of certain protections. A pass-through entity administering social
service programs under a mandatory formula, block or entitlement grant
of HHS that is supported by Federal financial assistance shall ensure
that beneficiaries and prospective beneficiaries receive written notice
of certain protections.
(1) The written notice to beneficiaries and prospective
beneficiaries of directly funded social services shall include language
substantially similar to that found in appendix A to this part. The
notice must include the following information:
(i) The organization may not discriminate against a beneficiary or
prospective beneficiary on the basis of religion, a religious belief, a
refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice;
(ii) The organization may not require a beneficiary or prospective
beneficiary to attend or participate in any explicitly religious
activities that are offered by the organization, and any participation
by a beneficiary in such activities must be purely voluntary;
(iii) The organization must separate in time or location any
privately funded explicitly religious activities from activities
supported by direct Federal financial assistance; and
(iv) A beneficiary or prospective beneficiary may report an
organization's violation of these protections, including any denials of
services or benefits by an organization, by contacting or filing a
written complaint with either the HHS awarding entity or the pass-
through entity that awarded funds to the organization, which must
promptly report the complaint to the HHS awarding entity. The HHS
awarding entity will address the complaint in consultation with the HHS
Office for Civil Rights.
(2) The written notice to beneficiaries of indirectly funded social
services must identify the protections in paragraphs (f) and (k)(1)(ii)
and (iv) of this section; it must also provide the contact information
of the HHS awarding entity or the pass-through entity that administers
the program.
(l) The written notice described in paragraph (k) of this section
must be given to a prospective beneficiary prior to the time the
prospective beneficiary enrolls in the program or receives services
from the program. When the nature of the service provided or exigent
circumstances make it impracticable to provide such written notice in
advance of the actual service, an organization must advise
beneficiaries of their protections and provide the notice at the
earliest available opportunity.
(m) The written notice described in paragraph (k) of this section
must be given in a manner prescribed by the HHS awarding agency in
consultation with the HHS Office for Civil Rights, such as by
incorporating the notice into materials that are otherwise provided to
beneficiaries. The HHS awarding
[[Page 15723]]
agency, in consultation with the HHS Office for Civil Rights, may
determine that the notice must inform each beneficiary or prospective
beneficiary of the option to seek information from the HHS awarding
agency, or another entity administering the applicable program, about
other federally funded organizations in their area, if any, that
provide the services available under the applicable program.
(n) Notices or announcements of award opportunities and notices of
award or contracts shall include language substantially similar to that
in appendices B and C to this part.
* * * * *
0
78. Revise Sec. 87.4 to read as follows:
Sec. 87.4 Severability.
To the extent that any provision of this part is declared invalid
by a court of competent jurisdiction, the Department intends for all
other provisions that are capable of operating in the absence of the
specific provision that has been invalidated to remain in effect.
Appendices A and B to Part 87 [Redesignated as Appendices B and C to
Part 87]
0
79. Redesignate appendices A and B to part 87 as appendices B and C to
part 87, respectively.
0
80. Add a new appendix A to part 87 to read as follows:
Appendix A to Part 87--Direct Aid Programs: Written Notice of
Beneficiary Protections
Name of Organization:
Name of Program:
Contact Information for Program Staff: [provide name, phone
number, and email address, if appropriate]
Because this program is supported in whole or in part by
financial assistance from the Federal Government, we are required to
let you know that--
(1) We may not discriminate against you on the basis of
religion, a religious belief, a refusal to hold a religious belief,
or a refusal to attend or participate in a religious practice;
(2) We may not require you to attend or participate in any
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction or
proselytization) that may be offered by our organization, and any
participation by you in such activities must be purely voluntary;
(3) We must separate in time or location any privately funded
explicitly religious activities (including activities that involve
overt religious content such as worship, religious instruction or
proselytization) from activities supported with direct Federal
financial assistance;
(4) You may report violations of these protections, including
any denials of services or benefits by an organization, by
contacting or filing a written complaint with [identify the HHS
awarding entity, or the pass-through entity that awarded funds to
your organization, and the phone number and physical street and/or
email address of the identified office]. The HHS awarding entity
will address the complaint in consultation with the HHS Office for
Civil Rights;
[When required by the HHS awarding agency, the notice must also
state:] (5) If you would like to seek information about whether
there are any other federally funded organizations that provide
these kinds of services in your area, please use the contact
information set forth above.
We must give you this notice before you enroll in or receive
services from the program, unless the nature of the service provided
or exigent circumstances make advanced notice impracticable. In that
case, this notice must be given to you at the earliest available
opportunity.
0
81. Revise newly redesignated appendix B to part 87 to read as follows:
Appendix B to Part 87--Notice or Announcement of Award Opportunities
(a) Faith-based organizations may apply for this award on the
same basis as any other organization, as set forth at, and subject
to the protections and requirements of, this part and any applicable
constitutional and statutory requirements, including 42 U.S.C.
2000bb et seq. HHS will not, in the selection of recipients,
discriminate for or against an organization on the basis of the
organization's religious character, motives, or affiliation, or lack
thereof, or on the basis of conduct that would not be considered
grounds to favor or disfavor a similarly situated secular
organization.
(b) A faith-based organization that participates in this program
will retain its independence from the Government and may continue to
carry out its mission consistent with religious freedom,
nondiscrimination, and conscience protections in Federal law.
(c) A faith-based organization may not use direct Federal
financial assistance from HHS to support or engage in any explicitly
religious activities (including activities that involve overt
religious content such as worship, religious instruction, or
proselytization) except when consistent with the Establishment
Clause of the First Amendment and any other applicable requirements.
Such an organization also may not, in providing services funded by
HHS, or in their outreach activities related to such services,
discriminate against a program beneficiary or prospective program
beneficiary on the basis of religion, a religious belief, a refusal
to hold a religious belief, or a refusal to attend or participate in
a religious practice.
0
82. Revise newly redesignated appendix C to part 87 to read as follows:
Appendix C to Part 87--Notice of Award or Contract
(a) A faith-based organization that participates in this program
retains its independence from the Government and may continue to
carry out its mission consistent with religious freedom,
nondiscrimination, and conscience protections in Federal law.
(b) A faith-based organization may not use direct Federal
financial assistance from HHS to support or engage in any explicitly
religious activities (including activities that involve overt
religious content such as worship, religious instruction, or
proselytization) except when consistent with the Establishment
Clause of the First Amendment and any other applicable requirements.
Such an organization also may not, in providing services funded by
the Department, or in their outreach activities related to such
services, discriminate against a program beneficiary or prospective
program beneficiary on the basis of religion, a religious belief, a
refusal to hold a religious belief, or a refusal to attend or
participate in a religious practice.
Miguel A. Cardona,
Secretary, U.S. Department of Education.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
Dated: February 21, 2024.
Thomas J. Vilsack,
Secretary, U.S. Department of Agriculture.
Colleen R. Allen,
Assistant Administrator, Bureau for Management, U.S. Agency for
International Development.
Marcia L. Fudge,
Secretary, U.S. Department of Housing and Urban Development.
Dated: February 12, 2024.
Merrick B. Garland,
Attorney General, U.S. Department of Justice.
Julie A. Su,
Acting Secretary, U.S. Department of Labor.
Denis McDonough,
Secretary, U.S. Department of Veterans Affairs.
Xavier Becerra,
Secretary, U.S. Department of Health and Human Services.
[FR Doc. 2024-03869 Filed 3-1-24; 8:45 am]
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