Partnerships With Faith-Based and Neighborhood Organizations

Federal RegisterMar 4, 2024

Ask Donna

What actually matters in this document.

Text

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.

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,

askOCR@ojp.usdoj.gov.

Department of Agriculture:

Samantha Joseph, Director, Center for Faith-Based and Neighborhood Partnerships,

center@usda.gov.

Department of Labor:

Elena S. Goldstein, Deputy Solicitor of Labor, Office of the Solicitor of Labor, 202-878-9471,

goldstein.elena@dol.gov.

Department of Health and Human Services:

Que English, Director, Center for Faith-Based and Neighborhood Partnerships, 202-260-6501,

partnerships@hhs.gov.

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,

EDpartners@ed.gov.

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,

avigneaud@usaid.gov.

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

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

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

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:

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.

• 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

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.

• 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

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.

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.

○ 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.

○ All Agencies administering domestic social service programs now include a model beneficiary notice as an appendix to their regulations.

○ 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,

“[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

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

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

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

Makin,

596 U.S. 767 (2022), and

Trinity Lutheran Church of Columbia, Inc.

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

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

Kendrick,

487 U.S. 589, 621 (1988) (quoting

Hunt

McNair,

413 U.S. 734, 743 (1973));

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

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

United States,

524 U.S. 236, 252-53 (1998);

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

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

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

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.

Morrissey-Berru,

140 S. Ct. 2049 (2020);

Hosanna-Tabor Evangelical Lutheran Church & Sch.

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

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

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.

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.

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

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

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.”

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,

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.

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

programs whether they receive Federal funding directly or indirectly.

This final rule also includes technical corrections to the Applicability section at § 87.2(a) of the proposed rule and § 87.2(b) of the 2020 Rule that provide that the written notice to beneficiaries in § 87.3(k) through (m), and the requirement that funding decisions be free from political interference in § 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 § 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 § 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 § 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.

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 Offic

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.