Equal Participation of Faith-Based Organizations in the Department of Labor's Programs and Activities: Implementation of Executive Order 13831, 2929-2938 [2019-26862]
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Federal Register / Vol. 85, No. 12 / Friday, January 17, 2020 / Proposed Rules
Department of Justice to support or engage in
any explicitly religious activities except
where consistent with the Establishment
Clause and any other applicable
requirements. Such an organization also may
not, in providing services funded by the
Department of Justice, 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.
Appendix B to Part 38—Notice of
Award or Contract
A faith-based organization that participates
in this program retains its independence
from the government and may continue to
carry out its mission consistent with religious
freedom protections in Federal law,
including the Free Speech and Free Exercise
Clauses of the Constitution, 42 U.S.C. 2000bb
et seq., 42 U.S.C. 238n, 42 U.S.C. 18113, 42
U.S.C. 2000e–1(a) and 2000e–2(e), 42 U.S.C.
12113(d), and the Weldon Amendment,
among others. Religious accommodations
may also be sought under many of these
religious freedom protection laws.
A faith-based organization may not use
direct financial assistance from the
Department of Justice to support or engage in
any explicitly religious activities except
when consistent with the Establishment
Clause of the First Amendment and any other
applicable requirements. Such an
organization also may not, in providing
services funded by the Department of Justice,
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.
Dated: December 18, 2019.
William P. Barr,
Attorney General.
[FR Doc. 2019–27777 Filed 1–16–20; 8:45 am]
BILLING CODE 4410–18–P
DEPARTMENT OF LABOR
Office of the Secretary
29 CFR Part 2
RIN 1291–AA41
Office of the Secretary,
Department of Labor.
ACTION: Notice of proposed rulemaking.
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AGENCY:
The rule proposes to amend
Department of Labor (Department, DOL)
regulations to implement Executive
Order 13831 (Establishment of a White
House Faith and Opportunity Initiative).
Among other changes, this rule
SUMMARY:
16:48 Jan 16, 2020
To ensure proper handling
of comments, please reference Docket
No. DOL–2019–0006 on all electronic
and written correspondence. The
Department encourages the electronic
submission of all comments through
https://www.regulations.gov using the
electronic comment form provided on
that site. For easy reference, an
electronic copy of this document is also
available at that website. It is not
necessary to submit paper comments
that duplicate the electronic
submission, as all comments submitted
to https://www.regulations.gov will be
posted for public review and are part of
the official docket record. However,
should you wish to submit written
comments through regular or express
mail, they should be sent to Centers for
Faith & Opportunity Initiatives, U.S.
Department of Labor, Room S–2228, 200
Constitution Avenue NW, Washington,
DC 20210.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
I. Posting of Public Comments
Equal Participation of Faith-Based
Organizations in the Department of
Labor’s Programs and Activities:
Implementation of Executive Order
13831
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proposes changes to provide clarity
about the rights and obligations of faithbased organizations participating in
Department programs, clarify the
Department’s guidance documents for
financial assistance in regard to faithbased organizations, and eliminate
certain requirements for faith-based
organizations that no longer reflect
executive branch guidance. This
proposed rulemaking is intended to
ensure that the Department’s social
service programs are implemented in a
manner consistent with the
requirements of federal law, including
the First Amendment to the
Constitution and the Religious Freedom
Restoration Act.
DATES: Comments must be received by
DOL on or before February 18, 2020.
FOR FURTHER INFORMATION CONTACT: Mr.
Mark Zelden, Director, Centers for Faith
& Opportunity Initiatives; telephone:
202–693–6017, email: Zelden.Mark.A@
dol.gov.
Jkt 250001
All comments, including any personal
information you provide, are placed in
the public docket without change and
may be made available online at https://
www.regulations.gov. Therefore, the
Department cautions commenters about
submitting statements they do not want
made available to the public, or
submitting comments that contain
personal information (either about
themselves or others), such as Social
Security Numbers, birthdates, and
medical data. If you wish to inspect the
agency’s public docket file in person by
appointment, please see the FOR
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FURTHER INFORMATION CONTACT
paragraph.
II. Background
Shortly after taking office in 2001,
President George W. Bush signed
Executive Order 13199, Establishment
of White House Office of Faith-based
and Community Initiatives, 66 FR 8499
(January 29, 2001). That Executive
Order sought to ensure that ‘‘private and
charitable groups, including religious
ones, . . . have the fullest opportunity
permitted by law to compete on a level
playing field’’ in the delivery of social
services. To do so, it created an office
within the White House, the White
House Office of Faith-Based and
Community Initiatives with primary
responsibility to ‘‘establish policies,
priorities, and objectives for the Federal
Government’s comprehensive effort to
enlist, equip, enable, empower, and
expand the work of faith-based and
other community organizations to the
extent permitted by law.’’
On December 12, 2002, President
Bush signed Executive Order 13279,
Equal Protection of the Laws for FaithBased and Community Organizations,
67 FR 77141 (December 12, 2002).
Executive Order 13279 set forth the
principles and policymaking criteria to
guide federal agencies in formulating
and implementing policies with
implications for faith-based
organizations 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 America’s
communities. In addition, Executive
Order 13279 directed specified agency
heads to review and evaluate existing
policies that had implications for faithbased 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
Order.
In 2004, the Department of Labor
issued regulations through notice-andcomment rulemaking implementing
Executive Order 13279 at 29 CFR part 2
subpart D (‘‘Part 2 Subpart D’’). 69 FR
41882 (July 12, 2004). The regulations
applied to all providers that
implemented social service programs
supported by the Department. The
Department subsequently issued
guidance detailing the process for
recipients of financial assistance to
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obtain exemptions from religious
nondiscrimination requirements under
the Religious Freedom Restoration Act
(RFRA), 42 U.S.C. 2000bb–2000bb–4.
See Office of the Assistant Secretary for
Administration & Management, The
Effect of the Religious Freedom
Restoration Act on Recipients of DOL
Financial Assistance, https://
www.dol.gov/oasam/grants/RFRAGuidance.htm.
President Obama maintained
President Bush’s program, but modified
it in certain respects. Shortly after
taking office, President 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. 9, 2009). This Executive Order
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 an Advisory
Council that subsequently submitted
recommendations regarding the work of
the 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 (November 17, 2010). Executive
Order 13559 made various changes to
Executive Order 13279 which included:
Making minor and substantive textual
changes to the fundamental principles;
adding a provision requiring that any
religious social service provider refer
potential beneficiaries to an alternative
provider if the beneficiaries object to the
first provider’s religious character;
adding a provision requiring that the
faith-based provider give notice of
potential referral to potential
beneficiaries; and adding a provision
that awards must be free of political
interference and not be based on
religious affiliation or lack thereof. 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 the prohibited uses of direct
financial assistance, allowed religious
social service providers to maintain
their religious identities, and
distinguished between direct and
indirect assistance.
These efforts eventually resulted in
amendments to agency regulations,
including the Department’s Part 2
Subpart D. In April 2016, the
Department amended its existing
regulations through notice-and-
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comment rulemaking to ensure
consistency with Executive Order 13279
as amended by Executive Order 13559.
81 FR 19355, 19391 (April 4, 2016). In
July 2016, the Department issued
guidance to grantees on the amended
rule. See Center for Faith-Based &
Neighborhood Partnerships, Guidance
on Protections for and Obligations of
Organizations that Administer Social
Service Programs Supported by DOL
Financial Assistance, https://
www.dol.gov/cfoi/Guidance
ProviderProtections.pdf; Center for
Faith-Based & Neighborhood
Partnerships, Frequently Asked
Questions on Federal Financial
Assistance and Protections for Religious
Identity, https://www.dol.gov/cfoi/
FAQsFederalFinancia
lAssistanceProtectionsF
orReligiousIdentity.pdf.
The revised regulations defined
‘‘indirect assistance’’ as government aid
to a beneficiary, such as a voucher, that
flows to a religious provider only
through the genuine and independent
choice of the beneficiary. 29 CFR
2.31(a). The rules not only required that
faith-based providers give the notice of
the right to an alternative provider
specified in Executive Order 13559, but
also required faith-based providers, but
not other providers, to give written
notice to beneficiaries and potential
beneficiaries of programs funded with
direct federal financial assistance of
various rights, including
nondiscrimination based on religion,
the requirement that participation in
any religious activities must be
voluntary and that they must be
provided separately from the federally
funded activity, and that beneficiaries
may report violations. 29 CFR 2.34.
President Trump has given new
direction to the program established by
President Bush and continued by
President Obama. On May 4, 2017,
President Trump issued Executive
Order 13798, Presidential Executive
Order Promoting Free Speech and
Religious Liberty, 82 FR 21675 (May 4,
2017). Executive Order 13798 states that
‘‘[f]ederal law protects the freedom of
Americans and their organizations to
exercise religion and participate fully in
civic life without undue interference by
the Federal Government. The executive
branch will honor and enforce those
protections.’’ It directed the Attorney
General to ‘‘issue guidance interpreting
religious liberty protections in Federal
law.’’ Pursuant to this instruction, the
Attorney General, on October 6, 2017,
issued the Memorandum for All
Executive Departments and Agencies,
‘‘Federal Law Protections for Religious
Liberty,’’ 82 FR 49668 (October 26,
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2017) (the ‘‘Attorney General’s
Memorandum on Religious Liberty’’).
The Attorney General’s Memorandum
on Religious Liberty emphasized that
individuals and organizations do not
give up religious liberty protections by
providing government-funded social
services, and that ‘‘government may not
exclude religious organizations as such
from secular aid programs . . . when
the aid is not being used for explicitly
religious activities such as worship or
proselytization.’’
On May 3, 2018, President Trump
signed Executive Order 13831,
Executive Order on the Establishment of
a White House Faith and Opportunity
Initiative, 83 FR 20715 (May 3, 2018),
amending Executive Order 13279 as
amended by Executive Order 13559, and
other related Executive Orders. Among
other things, Executive Order 13831
changed the name of the ‘‘White House
Office of Faith-Based and Neighborhood
Partnerships’’ as established in
Executive Order 13498, to the ‘‘White
House Faith and Opportunity
Initiative’’; changed the way that the
Initiative is to operate; directed
departments and agencies with ‘‘Centers
for Faith-Based and Community
Initiatives’’ to change those names to
‘‘Centers for Faith and Opportunity
Initiatives’’; and ordered that
departments and agencies without a
Center for Faith and Opportunity
Initiatives designate a ‘‘Liaison for Faith
and Opportunity Initiatives.’’ Executive
Order 13831 also eliminated the
alternative provider referral requirement
and requirement of notice thereof in
Executive Order 13559 described above.
Alternative Provider Referral and
Alternative Provider Notice
Requirement
Executive Order 13559 imposed
notice and referral burdens on faithbased organizations not imposed on
secular organizations. Section 1(b) of
Executive Order 13559 had amended
section 2 of Executive Order 13279,
entitled ‘‘Fundamental Principles,’’ by,
in pertinent part, adding a new
subsection (h) to section 2. As amended,
section 2(h)(i) provided: ‘‘If a
beneficiary or a prospective beneficiary
of a social service program supported by
Federal financial assistance objects to
the religious character of an
organization that provides services
under the program, that organization
shall, within a reasonable time after the
date of the objection, refer the
beneficiary to an alternative provider.’’
Section 2(h)(ii) directed agencies to
establish policies and procedures to
ensure that referrals are timely and
follow privacy laws and regulations;
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that providers notify agencies of and
track referrals; and that each beneficiary
‘‘receives written notice of the
protections set forth in this subsection
prior to enrolling in or receiving
services from such program’’ (emphasis
added). The reference to ‘‘this
subsection’’ rather than to ‘‘this
Section’’ indicated that the notice
requirement of section 2(h)(ii) was
referring only to the alternative provider
provisions in subsection (h), not all of
the protections in section 2. In 2016, the
Department revised its regulations to
conform to Executive Order 13559. 29
CFR 2.34(a)(4), 2.35.
In revising its regulations, the
Department explained in 2015 that the
revisions would implement the
alternative provider provisions in
Executive Order 13559. Executive Order
13831, however, has removed the
alternative provider requirements
articulated in Executive Order 13559.
The Department also explained that the
alternative provider provisions would
protect religious liberty rights of social
service beneficiaries. But the methods of
providing such protections were not
required by the Constitution or any
applicable law. Indeed, the selected
methods are in tension with more recent
Supreme Court precedent regarding
nondiscrimination against religious
organizations, with the Attorney
General’s Memorandum on Religious
Liberty, and with RFRA.
As the Supreme Court recently
clarified in Trinity Lutheran Church of
Columbia, Inc. v. Comer, 137 S. Ct.
2012, 2019 (2017), a case in which a
church operated preschool was denied
state grant funds for updating
playgrounds: ‘‘The Free Exercise Clause
‘protect[s] religious observers against
unequal treatment’ and subjects to the
strictest scrutiny laws that target the
religious for ‘special disabilities’ based
on their ‘religious status.’ ’’ (quoting
Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U.S. 520, 533 (1993)
(alteration in original)). The Court in
Trinity Lutheran added: ‘‘[T]his Court
has repeatedly confirmed that denying a
generally available benefit solely on
account of religious identity imposes a
penalty on the free exercise of religion
that can be justified only by a state
interest ‘of the highest order.’ ’’ Id.
(quoting McDaniel v. Paty, 435 U.S. 618,
628 (1978) (plurality opinion)); see also
Mitchell v. Helms, 530 U.S. 793, 827
(2000) (plurality opinion) (‘‘The
religious nature of a recipient should
not matter to the constitutional analysis,
so long as the recipient adequately
furthers the government’s secular
purpose.’’); Attorney General’s
Memorandum on Religious Liberty,
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principle 6 (‘‘Government may not
target religious individuals or entities
for special disabilities based on their
religion.’’).
Applying the alternative provider
requirement categorically to all faithbased providers and not to other
providers of federally funded social
services is thus in tension with the
nondiscrimination principle articulated
in Trinity Lutheran and the Attorney
General’s Memorandum on Religious
Liberty.
In addition, the alternative provider
requirement could in certain
circumstances raise implications under
RFRA. Under RFRA, where the
government substantially burdens an
entity’s exercise of religion, the
government must prove that the burden
is in furtherance of a compelling
government interest and is the least
restrictive means of furthering that
interest. 42 U.S.C. 2000bb–1(b). The
World Vision OLC opinion makes clear
that when a faith-based grant recipient
carries out its social service programs, it
may engage in an exercise of religion
protected by RFRA, and certain
conditions on receiving those grants
may substantially burden the religious
exercise of the recipient. See
Application of the Religious Freedom
Restoration Act to the Award of a Grant
Pursuant to a Juvenile Justice and
Delinquency Prevention Act, 31 O.L.C.
162, 169–71, 174–83 (June 29, 2007).
Requiring faith-based organizations to
comply with certain conditions in
receiving social service grants could
impose such a burden, such as in a case
in which a faith-based organization has
a religious objection to referring the
beneficiary to an alternative provider
that provided services in a manner that
violated the organization’s religious
tenets. See Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682, 720–26
(2014). When imposing the alternative
provider requirement in 2016, the
agencies asserted an interest in
informing beneficiaries of protections of
their religious liberty. 81 FR 19353,
19365. But it is far from clear that the
alternative provider requirement would
meet the strict scrutiny that RFRA
requires of laws that substantially
burden religious practice. The
Department has not received
information concerning instances in
which a beneficiary has actually sought
an alternative provider, undermining
the suggestion that the interests this
requirement serves are in fact important,
much less compelling enough to
outweigh a substantial burden on
religious exercise. Moreover, even if the
government’s interest is compelling, it is
doubtful that imposing notification and
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referral requirements on faith-based
organizations are the least restrictive
means of achieving that interest. The
Department often makes publicly
available information about grant
recipients that provide benefits under
its programs, so the Department could
supply information to beneficiaries
seeking an alternate provider.
Executive Order 13831 chose to
eliminate the alternative provider
requirement for good reason. This
decision avoids tension with the
nondiscrimination principle articulated
in Trinity Lutheran and the Attorney
General’s Memorandum on Religious
Liberty, avoids problems with RFRA
that may arise, and fits within the
Administration’s broader deregulatory
agenda.
Other Notice Requirements
As noted above, Executive Order
13559 amended Executive Order 13279
by adding a right to an alternative
provider and notice of this right.
While Executive Order 13559’s
requirement of notice to beneficiaries
was limited to notice of alternative
providers, Part 2 Subpart D as most
recently amended goes further than
Executive Order 13559 by requiring that
faith-based social service providers
funded with direct federal funds
provide a much broader notice to
beneficiaries and potential beneficiaries.
This requirement applies only to faithbased providers and not to other
providers. In addition to the notice of
the right to an alternative provider, the
rule requires notice of
nondiscrimination based on religion;
that participation in religious activities
must be voluntary and separate in time
or space from activities funded with
direct federal funds; and that
beneficiaries or potential beneficiaries
may report violations.
Separate and apart from these notice
requirements, Executive Order 13279, as
amended, clearly sets forth the
underlying requirements of
nondiscrimination, voluntariness, and
the holding of religious activities
separate in time or place from any
federally funded activity. Faith-based
providers of social services, like other
providers of social services, are required
to follow the law and the requirements
of grants and contracts they receive. See,
e.g., 29 CFR 38.25. There is no basis on
which to presume that they are less
likely than other social service
providers to follow the law. See
Mitchell, 530 U.S. at 856–57 (O’Connor,
J., concurring) (noting that in Tilton v.
Richardson, 403 U.S. 672 (1971), the
Court’s upholding of grants to
universities for construction of
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buildings with the limitation that they
only be used for secular educational
purposes ‘‘demonstrate[d] our
willingness to presume that the
university would abide by the secular
content restriction.’’). There is thus no
need for prophylactic protections that
create administrative burdens on faithbased providers that are not imposed on
other providers.
Definition of Indirect Federal Financial
Assistance
Executive Order 13559 directed its
Interagency Working Group on FaithBased and Other Neighborhood
Partnerships to propose model
regulations and guidance documents
regarding, among other things, ‘‘the
distinction between ‘direct’ and
‘indirect’ Federal financial assistance[.]’’
75 FR 71319, 71321 (2010). Following
issuance of the Working Group’s report,
the 2016 joint final rule amended
existing regulations to make that
distinction, and to clarify that
‘‘organizations that participate in
programs funded by indirect financial
assistance need not modify their
program activities to accommodate
beneficiaries who choose to expend the
indirect aid on those organizations’
programs,’’ need not provide notices or
referrals to beneficiaries, and need not
separate their religious activities from
supported programs. 81 FR 19355,
19358 (2016). In so doing, the final rule
attempted to capture the definition of
‘‘indirect’’ aid that the U.S. Supreme
Court employed in Zelman v. SimmonsHarris, 536 U.S. 639 (2002). See 81 FR
19355, 19361–62 (2016).
In Zelman, the Court concluded that
a government funding program is ‘‘one
of true private choice’’—that is, an
indirect-aid program—where there is
‘‘no evidence that the State deliberately
skewed incentives toward religious’’
providers. Id. at 650. The Court upheld
the challenged school-choice program
because it conferred assistance ‘‘directly
to a broad class of individuals defined
without reference to religion’’ (i.e.,
parents of schoolchildren); it permitted
participation by both religious and
nonreligious educational providers; it
allocated aid ‘‘on the basis of neutral,
secular criteria that neither favor nor
disfavor religion’’; and it made aid
available ‘‘to both religious and secular
beneficiaries on a nondiscriminatory
basis.’’ Id. at 653–54 (quotation marks
omitted). While the Court noted the
availability of secular providers, it
specifically declined to make its
definition of indirect aid hinge on the
‘‘preponderance of religiously affiliated
private’’ providers in the city, as that
preponderance arose apart from the
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program; doing otherwise, the Court
concluded, ‘‘would lead to the absurd
result that a neutral school-choice
program might be permissible in some
parts of Ohio, . . . but not in’’ others.
Id. at 656–58. In short, the Court
concluded that ‘‘[t]he constitutionality
of a neutral . . . aid program simply
does not turn on whether and why, in
a particular area, at a particular time,
most [providers] are run by religious
organizations, or most recipients choose
to use the aid at a religious [provider].’’
Id. at 658.
The final rule issued after the
Working Group’s report included among
its criteria for indirect federal financial
assistance a requirement that
beneficiaries have ‘‘at least one adequate
secular option’’ for use of the federal
financial assistance. See 81 FR 19355,
19407–19426 (2016). In other words, the
rule amended regulations to make the
definition of ‘‘indirect’’ aid hinge on the
availability of secular providers. A
regulation defining ‘‘indirect Federal
financial assistance’’ to require the
availability of secular providers is in
tension with the Supreme Court’s
choice not to make the definition of
indirect aid hinge on the geographically
varying availability of secular providers.
Thus, it is appropriate to amend existing
regulations to bring the definition of
‘‘indirect’’ aid more closely into line
with the Supreme Court’s definition in
Zelman.
Overview of the Proposed Rule
The Department proposes to amend
Part 2 Subpart D to implement
Executive Order 13831 and conform
more closely to the Supreme Court’s
current First Amendment jurisprudence;
relevant federal statutes such as RFRA;
Executive Order 13279, as amended by
Executive Orders 13559 and 13831; and
the Attorney General’s Memorandum on
Religious Liberty.
Consistent with these authorities, this
proposed rule would amend Part 2
Subpart D to conform to Executive
Order 13279, as amended, by deleting
the requirement that faith-based social
service providers refer beneficiaries
objecting to receiving services from
them to an alternative provider and the
requirement that faith-based
organizations provide notices that are
not required of secular organizations.
This proposed rule would also make
clear that a faith-based organization that
participates in Department-funded
programs or services shall retain its
autonomy; right of expression; religious
character; and independence from
federal, state, and local governments.
This autonomy extends to the particular
features and attendance requirements a
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faith-based organization includes as
‘‘fundamental’’ in programs funded
through indirect financial assistance.1 It
would further clarify that none of the
guidance documents that the
Department or any state or local
government uses in administering the
Department’s financial assistance shall
require faith-based organizations to
provide assurances or notices where
similar requirements are not imposed on
secular organizations, and that any
restrictions on the use of grant funds
shall apply equally to faith-based and
secular organizations.
This proposed rule would
additionally require that the
Department’s notices and
announcements of award opportunities
and notices of awards and contracts
include language clarifying the rights
and obligations of faith-based
organizations that apply for and receive
federal funding. The language would
clarify that, among other things, faithbased organizations may apply for
awards on the same basis as any other
organization; that the Department will
not, in the selection of recipients,
discriminate against an organization on
the basis of the organization’s religious
exercise or affiliation; and that a faithbased organization that participates in a
federally funded program retains its
independence from the government and
may continue to carry out its mission
consistent with religious freedom
protections in federal law, including the
Free Speech and Free Exercise Clauses
of the First Amendment to the
Constitution.
The Department further proposes to
include a requirement that notices or
announcements of award opportunities
and notices of awards or contracts shall
include language similar to those found
in appendices to the proposed rule,
which serve as notice to potential
recipients of federal financial assistance
See, e.g., principles 6, 10–15, and 20 of
the Attorney General’s Memorandum on
Religious Liberty, 82 FR 49668 (October
26, 2017); Application of the Religious
Freedom Restoration Act to the Award
of a Grant Pursuant to the Juvenile
Justice and Delinquency Prevention Act,
31 Op. O.L.C. 162 (2007). This change
is intended to ensure that faith-based
organizations are aware of their legal
protections so that they will not fail to
participate in government programs
because of confusion about what
options are available to them.
The Department also proposes to
revise the prohibition that organizations
1 The Department invites comment on how this
‘‘fundamental’’ criterion could be further clarified
or elaborated in any final rule.
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may not ‘‘support or engage in any
explicitly religious activity’’ as part of a
program or service funded with direct
federal financial assistance to state
instead that organizations may not
‘‘engage in’’ such activity. The inclusion
of the word ‘‘support’’ is vague and
overly broad and may encompass
protected activity. For example, if a
faith-based organization provides
addiction counseling that is funded
through direct federal financial
assistance and provides attendees a map
of the location that labels a room as a
‘‘chapel,’’ providing that map to
program participants could raise claims
that the organization is ‘‘supporting’’ its
explicitly religious activities because a
program participant may see that the
facility includes a chapel and thereby
engage in such religious activity.
Prohibiting organizations from
‘‘engaging in’’ explicitly religious
activity is sufficient to prevent any
impermissible uses of direct federal
financial assistance.
Finally, the proposed rule would
directly reference the definition of
‘‘religious exercise’’ in RFRA, and
would amend the definition of ‘‘indirect
Federal financial assistance’’ to align
more closely with the Supreme Court’s
definition in Zelman.
Explanations for the Proposed
Amendments in 29 CFR Part 2 Subpart
D
Title
The Title of Subpart D is proposed to
be changed in order to align the text
more closely with Executive Order
13831, which uses the term ‘‘faith-based
and community organizations,’’ and to
clarify that the rule encompasses
organizations that may be
nondenominational but clearly
motivated by faith.
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Section 2.31
Definitions
Section 2.31(a)(2)(ii) is proposed to be
changed in order clarify the text and
eliminate extraneous language.
Section 2.31(a)(2)(iii) is proposed to
be deleted to align the text more closely
with the First Amendment. See, e.g.,
Trinity Lutheran Church of Columbia,
Inc. v. Comer, 137 S. Ct. 2012 (2017);
Zelman v. Simmons-Harris, 536 U.S.
639 (2002).
Section 2.31(a) is proposed to be
modified in order to align the text more
closely with Executive Order 13279, 67
FR 77141 (December 12, 2002).
Section 2.31(h) is proposed to be
added to provide a definition of
religious exercise that is aligned with
the definition used in the Religious
Freedom Restoration Act of 1993
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(RFRA), 42 U.S.C. 2000bb et seq., and
with the Religious Land Use and
Individualized Persons Act of 2000
(RLUIPA), 42 U.S.C. 2000cc–5(7)(A).
See, e.g., principles 10–15 of the
Attorney General’s Memorandum on
Religious Liberty, 82 FR 49668 (October
26, 2017).
Section 2.32 Equal Participation of
Faith-Based Organizations
Section 2.32(a) is proposed to be
changed in order to clarify the text by
eliminating extraneous language and to
align it more closely with RFRA by
recognizing that DOL may accommodate
religion in a manner consistent with the
religion clauses of the First Amendment
and by making clear that government
may not discriminate for or against an
organization based on its religious
exercise. See, e.g., principles 6, 10–15,
and 20 of the Attorney General’s
Memorandum on Religious Liberty, 82
FR 49668 (October 26, 2017);
Application of the Religious Freedom
Restoration Act to the Award of a Grant
Pursuant to the Juvenile Justice and
Delinquency Prevention Act, 31 Op.
O.L.C. 162 (2007). Also, the term
‘‘religious’’ organizations is replaced
with ‘‘faith-based’’ organizations to
align with the terminology used in
Executive Order 13831.
Section 2.32(b) is proposed to be
changed in order to clarify the text by
eliminating extraneous language and to
align it more closely with the First
Amendment and with RFRA by
providing more detail about the
autonomy from government that a faithbased organization retains while
participating in government programs.
See, e.g., E.O. 13279, 67 FR 77141
(December 12, 2002), as amended by
E.O. 13831, 83 FR 20715 (May 8, 2018);
principles 9–15, 19, and 20 of the
Attorney General’s Memorandum on
Religious Liberty, 82 FR 49668 (October
26, 2017).
Section 2.32(c) is proposed to be
changed in order to clarify the text and
align it more closely with the First
Amendment and with RFRA by
recognizing that faith-based providers
shall not be required to provide notices
or assurances where they are not
required of non-faith-based providers
and by making clear that an
organization may not be disqualified
from participating in a DOL program
because of its religious exercise or lack
thereof. See, e.g., Trinity Lutheran
Church of Columbia, Inc. v. Comer, 137
S. Ct. 2012 (2017); principles 6, 7, and
10–15 of the Attorney General’s
Memorandum on Religious Liberty, 82
FR 49668 (October 26, 2017).
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Section 2.33 Responsibilities of DOL,
DOL social service providers and State
and local governments administering
DOL support.
Section 2.33(a) is proposed to be
changed to clarify that a faith-based
organization that participates in a
program funded by indirect financial
assistance may require that beneficiaries
attend all activities that the organization
includes as ‘‘fundamental’’ in its
programs. For example, a drug
rehabilitation and job training program
funded by indirect financial assistance
need not be modified to eliminate
attendance at all associated religious
programs fundamental to the program.
This change is intended to align the text
more closely with the First Amendment
and with RFRA. See, e.g., Zelman v.
Simmons-Harris, 536 U.S. 639 (2002);
principles 10–15 of the Attorney
General’s Memorandum on Religious
Liberty, 82 FR 49668 (October 26, 2017).
Section 2.33(c) is proposed to be
changed in accordance with Executive
Order 13831, 83 FR 20715 (May 3,
2018).
Section 2.34 Beneficiary Protections:
Written Notice
Section 2.34 is proposed to be
removed (and reserved) to align more
closely with the First Amendment and
with RFRA for the reasons discussed
above. See, e.g., Trinity Lutheran
Church of Columbia, Inc. v. Comer, 137
S. Ct. 2012 (2017); Zelman v. SimmonsHarris, 536 U.S. 639 (2002); principles
2, 3, 6–7, 9–17, 19, and 20 of the
Attorney General’s Memorandum on
Religious Liberty, 82 FR 49668 (October
26, 2017); E.O. 13279, 67 FR 77141
(December 12, 2002), as amended by
E.O. 13559, 75 FR 71319 (November 17,
2010), and E.O. 13831, 83 FR 20715
(May 8, 2018).
Section 2.35 Beneficiary Protections:
Referral Requirements
Section 2.35 is proposed to be
removed (and reserved) to align more
closely with the First Amendment and
with RFRA for the reasons discussed
above. See, e.g., Trinity Lutheran
Church of Columbia, Inc. v. Comer, 137
S. Ct. 2012 (2017); Zelman v. SimmonsHarris, 536 U.S. 639 (2002); principles
2, 3, 6–7, 9–17, 19, and 20 of the
Attorney General’s Memorandum on
Religious Liberty, 82 FR 49668 (October
26, 2017); E.O. 13279, 67 FR 77141
(December 12, 2002), as amended by
E.O. 13559, 75 FR 71319 (November 17,
2010), and E.O. 13831, 83 FR 20715
(May 8, 2018).
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Section 2.37 Effect of DOL Support on
Title VII Employment
Nondiscrimination Requirements and
on Other Existing Statutes
Section 2.37 is proposed to be
changed in order to clarify the text by
eliminating extraneous language and to
align it more closely with RFRA and
Title VII case law. See, e.g., Kennedy v.
St. Joseph’s Ministries, Inc., 657 F.3d
189, 194 (4th Cir. 2011); Hall v. Baptist
Mem’l Health Care Corp., 215 F.3d 618,
624 (6th Cir. 2000); Killinger v. Samford
Univ., 113 F.3d 196, 200 (11th Cir.
1997); Little v. Wuerl, 929 F.2d 944, 951
(3d Cir. 1991); principles 6, 10–17, 19
and 20 of the Attorney General’s
Memorandum on Religious Liberty, 82
FR 49668 (October 26, 2017);
Application of the Religious Freedom
Restoration Act to the Award of a Grant
Pursuant to the Juvenile Justice and
Delinquency Prevention Act, 31 Op.
O.L.C. 162 (2007).
Section 2.38 Status of Nonprofit
Organizations
Section 2.38(b)(5) is proposed to be
added in order to align more closely
with RFRA. See, e.g., principles 10–15
of the Attorney General’s Memorandum
on Religious Liberty, 82 FR 49668
(October 26, 2017). For any entity that
holds a sincerely-held religious belief
that it cannot apply for a determination
as an entity that is tax exempt under
section 501(c)(3) of the Internal Revenue
Code, the entity may provide
information otherwise provided on the
Form 1023 such as information about
the organization, its purposes, a
narrative description of its activities,
limitations on disposition of assets of
the organization, compensation and
other financial arrangements with its
officers, directors, trustees, employees,
and independent contractors, etc. Other
legally binding documents that establish
that no part of the net earnings of the
organization may lawfully benefit any
private shareholder or individual may
also be appropriate.
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Section 2.39
Affiliation
Political or Religious
Section 2.39 is proposed to be
changed to include revised language
that was inadvertently omitted in
publishing the 2016 final rule: ‘‘The last
clause of 29 CFR 2.39 in the final
regulation will be modified from ‘not on
the basis of religion or religious belief’
to ‘not on the basis of the religious
affiliation of a recipient organization or
lack thereof.’ ’’ 81 FR 19394.
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to the extent permitted by law, to
propose or adopt a regulation only upon
a reasoned determination that its
benefits justify its costs; tailor the
regulation to impose the least burden on
society, consistent with obtaining the
regulatory objectives; and, in choosing
among alternative regulatory
approaches, select those approaches that
maximize net benefits. Executive Order
13563 recognizes that some benefits and
costs are difficult to quantify and
provides that, where appropriate and
permitted by law, agencies may
consider and discuss qualitatively
values that are difficult or impossible to
Appendix A and Appendix B
quantify, including equity, human
dignity, fairness, and distributive
Appendix A and Appendix B are
proposed to be changed to align the text impacts.
Under Executive Order 12866, the
more closely with the First Amendment
Office of Information and Regulatory
and with RFRA by deleting the notice
Affairs (OIRA) must determine whether
and referral requirements that solely
this regulatory action is ‘‘significant’’
burdened faith-based organizations and
instead requiring notices of the terms on and, therefore, subject to the
requirements of the executive order and
which faith-based organizations may
subject to review by the Office of
generally participate in DOL-funded
Management and Budget (OMB).
programs. See, e.g., Trinity Lutheran
Section 3(f) of Executive Order 12866
Church of Columbia, Inc. v. Comer, 137
S. Ct. 2012 (2017); Zelman v. Simmons- defines a ‘‘significant regulatory action’’
as an action likely to result in a
Harris, 536 U.S. 639 (2002); principles
regulation that may:
2, 3, 6–7, 9–17, 19, and 20 of the
(1) Have an annual effect on the
Attorney General’s Memorandum on
Religious Liberty, 82 FR 49668 (October economy of $100 million or more or
adversely affect in a material way the
26, 2017); E.O. 13279, 67 FR 77141
economy, a sector of the economy,
(December 12, 2002), as amended by
E.O. 13559, 75 FR 71319 (November 17, productivity, competition, jobs, the
environment, public health or safety, or
2010), and E.O. 13831, 83 FR 20715
State, local, or tribal governments or
(May 8, 2018). The Department also
communities (also referred to as an
proposes to revise the prohibition that
‘‘economically significant’’ regulation);
organizations may not ‘‘support or
(2) Create a serious inconsistency or
engage in any explicitly religious
otherwise
interfere with an action taken
activity’’ as part of a program or service
or planned by another agency;
funded with direct federal financial
(3) Materially alter the budgetary
assistance to state, instead, that
impacts
of entitlements, grants, user
organizations may not ‘‘engage in’’ such
fees,
or
loan
programs or the rights and
activity. The inclusion of the word
obligations
of
recipients thereof; or
‘‘support’’ is vague and overly broad
(4) Raise novel legal or policy issues
and may encompass protected activity.
arising out of legal mandates, the
III. Regulatory Certifications
President’s priorities, or the principles
Analysis Conducted in Accordance With stated in Executive Order 12866.
OIRA has determined that this
Executive Order 12866, Regulatory
proposed rule is a significant, but not
Planning and Review, Executive Order
economically significant, regulatory
13563, Improved Regulation and
action subject to review by OMB under
Regulatory Review, and Executive Order
section 3(f) of Executive Order 12866.
13771, Reducing Regulation and
Accordingly, OMB has reviewed this
Controlling Regulatory Costs
proposed rule.
This NPRM has been drafted in
The Department has also reviewed
accordance with Executive Order 13563 these regulations under Executive Order
of January 18, 2011, 76 FR 3821,
13563, which supplements and
Improving Regulation and Regulatory
reaffirms the principles, structures, and
Review; Executive Order 12866 of
definitions governing regulatory review
September 30, 1993, 58 FR 51735,
established in Executive Order 12866.
Regulatory Planning and Review; and
To the extent permitted by law, section
Executive Order 13771 of January 30,
1(b) of Executive Order 13563 requires
2017, 82 FR 9339, Reducing Regulation
that an agency:
(1) Propose or adopt regulations only
and Controlling Regulatory Costs.
Executive Order 12866 directs agencies, upon a reasoned determination that
Section 2.40 Nondiscrimination
Among Faith-Based Organizations
Section 2.40 is proposed to be added
in order to align more closely with the
First Amendment by making clear that
these provisions relating to
nondiscrimination toward faith-based
organizations should not be construed
to advantage or disadvantage
historically recognized religions or sects
over other religions or sects. See, e.g.,
Larson v. Valente, 456 U.S. 228 (1982);
principle 8 of the Attorney General’s
Memorandum on Religious Liberty, 82
FR 49668 (October 26, 2017).
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their benefits justify their costs
(recognizing that some benefits and
costs are difficult to quantify);
(2) Tailor its regulations to impose the
least burden on society, consistent with
obtaining regulatory objectives, and
taking into account—among other things
and to the extent practicable—the costs
of cumulative regulations;
(3) In choosing among alternative
regulatory approaches, select those
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety,
and other advantages; distributive
impacts; and equity);
(4) To the extent feasible, specify
performance objectives, rather than the
behavior or manner of compliance that
regulated entities must adopt; and
(5) Identify and assess available
alternatives to direct regulation,
including providing economic
incentives—such as user fees or
marketable permits—to encourage the
desired behavior, or providing
information that enables the public to
make choices.
76 FR 3821, 3821 (January 21, 2011).
Section 1(c) of Executive Order 13563
also requires an agency ‘‘to use the best
available techniques to quantify
anticipated present and future benefits
and costs as accurately as possible.’’ Id.
The Office of Information and
Regulatory Affairs of OMB has
emphasized that these techniques may
include ‘‘identifying changing future
compliance costs that might result from
technological innovation or anticipated
behavioral changes.’’ Memorandum for
the Heads of Executive Departments and
Agencies, and of Independent
Regulatory Agencies, from Cass R.
Sunstein, Administrator, Office of
Information and Regulatory Affairs, Re:
Executive Order 13563, ‘‘Improving
Regulation and Regulatory Review,’’ at 1
(February 2, 2011), available at: https://
www.whitehouse.gov/sites/
whitehouse.gov/files/omb/memoranda/
2011/m11-10.pdf.
The Department is issuing these
proposed regulations upon a reasoned
determination that their benefits justify
their costs. In choosing among
alternative regulatory approaches, the
Department selected those approaches
that maximize net benefits. Based on the
analysis that follows, the Department
believes that these proposed regulations
are consistent with the principles in
Executive Order 13563. It is the
reasoned determination of the
Department that this proposed action
would, to a significant degree, eliminate
costs that have been incurred by faithbased organizations as they complied
with the requirements of section 2(b) of
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Executive Order 13559, while not
adding any other requirements on those
organizations.
The Department also has determined
that this regulatory action does not
unduly interfere with State, local, or
tribal governments in the exercise of
their governmental functions.
In accordance with Executive Orders
12866 and 13563, the Department has
assessed the potential costs and
benefits, both quantitative and
qualitative, of this regulatory action.
The potential costs and cost savings
associated with this regulatory action
are those resulting from the removal of
the notification and referral
requirements of Executive Order 13279,
as amended by Executive Order 13559
and further amended by Executive
Order 13831, and those determined to
be necessary for administering the
Department’s programs and activities.
For example, the Department recognizes
that the removal of the notice and
referral requirements could impose
some costs on beneficiaries who may
now need to investigate alternative
providers on their own if they object to
the religious character of a potential
social service provider. The Department
invites comment on any information
that it could use to quantify this
potential cost. The Department also
notes a quantifiable cost savings of the
removal of the notice requirements,
which the Department previously
estimated as imposing a cost of no more
than $200 per organization per year for
the notices. 81 FR 19395. The
Department was previously unable to
quantify the cost of the referral
requirement. Id. The Department invites
comment on any data by which it could
assess the actual implementation costs
of the notice and referral requirements—
including the number of affected
organizations, any estimates of staff time
spent on compliance with the
requirements, in addition to the printing
costs for the notices referenced above—
and thereby accurately quantify the cost
savings of removing these requirements
in the final rule.
In terms of benefits, the Department
recognizes a non-quantified benefit to
religious liberty that comes from
removing requirements imposed solely
on faith-based organizations, in tension
with the principles of free exercise
articulated in Trinity Lutheran. The
Department also recognizes a nonquantified benefit to grant recipients
and beneficiaries alike that comes from
increased clarity in the regulatory
requirements that apply to faith-based
organizations operating social service
programs funded by the federal
government. Beneficiaries will also
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2935
benefit from the increased capacity of
faith-based social service providers to
provide services, both because these
providers will be able to shift resources
otherwise spent fulfilling the notice and
referral requirements to provision of
services, and because more faith-based
social service providers may participate
in the marketplace under these
streamlined regulations.
This proposed rule is expected to be
an Executive Order 13771 deregulatory
action.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601–612), as amended by the
Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA),
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to the notice and comment
rulemaking requirements under the
Administrative Procedure Act (5 U.S.C.
553) or any other statute, unless the
agency certifies that the rule will not
have a significant economic impact on
a substantial number of small entities.
The Department has determined that
this rule will not have a significant
economic impact on a substantial
number of small entities. Consequently,
the Department has not prepared a
regulatory flexibility analysis.
Executive Order 12988: Civil Justice
Reform
This proposed rule has been reviewed
in accordance with Executive Order
12988, ‘‘Civil Justice Reform.’’ The
provisions of this proposed rule will not
have preemptive effect with respect to
any State or local laws, regulations, or
policies that conflict with such
provision or which otherwise impede
their full implementation. The rule will
not have retroactive effect.
Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This rule has been reviewed in
accordance with the requirements of
Executive Order 13175, ‘‘Consultation
and Coordination with Indian Tribal
Governments.’’ Executive Order 13175
requires federal agencies to consult and
coordinate with tribes on a governmentto-government basis on policies that
have tribal implications, including
regulations, legislative comments or
proposed legislation, and other policy
statements or actions that have
substantial direct effects on one or more
Indian tribes, on the relationship
between the federal government and
Indian tribes or on the distribution of
power and responsibilities between the
federal government and Indian tribes.
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The Department has assessed the
impact of this rule on Indian tribes and
determined that this rule does not, to
our knowledge, have tribal implications
that require tribal consultation under
Executive Order 13175.
Executive Order 13132: Federalism
Executive Order 13132 directs that, to
the extent practicable and permitted by
law, an agency shall not promulgate any
regulation that has federalism
implications, that imposes substantial
direct compliance costs on State and
local governments, that is not required
by statute, or that preempts State law,
unless the agency meets the
consultation and funding requirements
of section 6 of the Executive Order.
Because each change proposed by this
rule does not have federalism
implications as defined in the Executive
Order, does not impose direct
compliance costs on State and local
governments, is required by statute, or
does not preempt State law within the
meaning of the Executive Order, the
Department has concluded that
compliance with the requirements of
section 6 is not necessary.
The Department makes every effort to
promote clarity and transparency in its
rulemaking. In any regulation, there is a
tension between drafting language that
is simple and straightforward and
drafting language that gives full effect to
issues of legal interpretation. The
Department is proposing a number of
changes to this regulation to enhance its
clarity and satisfy the plain language
requirements. If any commenter has
suggestions for how the regulation could
be written more clearly, please provide
comments using the contact information
provided in the introductory section of
this proposed rule entitled, FOR FURTHER
INFORMATION CONTACT.
Paperwork Reduction Act
This proposed rule does not contain
any new or revised ‘‘collection[s] of
information’’ as defined by the
Paperwork Reduction Act of 1995, 44
U.S.C. 3501 et seq.
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Unfunded Mandates Reform Act
Section 4(2) of the Unfunded
Mandates Reform Act of 1995, 2 U.S.C.
1503(2), excludes from coverage under
that Act any proposed or final federal
regulation that ‘‘establishes or enforces
any statutory rights that prohibit
discrimination on the basis of race,
color, religion, sex, national origin, age,
handicap, or disability.’’ Accordingly,
this rulemaking is not subject to the
16:48 Jan 16, 2020
List of Subjects in 29 CFR Part 2
Administrative practice and
procedure, Claims, Courts, Government
employees, Religious discrimination.
Accordingly, for the reasons set forth
in the preamble, part 2 of Title 29 of the
Code of Federal Regulations is proposed
to be amended as follows:
PART 2—GENERAL REGULATIONS
1. The authority citation for part 2 is
revised to read as follows:
■
Authority: 5 U.S.C. 301; E.O. 13198, 66 FR
8497; E.O. 13279, 67 FR 77141; E.O. 13559,
75 FR 71319; E.O. 13831, 83 FR 20715.
Subpart D—Equal Treatment in
Department of Labor Programs for
Faith-Based and Community
Organizations; Protection of Religious
Liberty of Department of Labor Social
Service Providers and Beneficiaries
2. Amend § 2.31 by revising paragraph
(a) introductory text, (a)(2), and adding
paragraph (h) as follows:
■
§ 2.31
Plain Language Instructions
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Reform Act.
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Definitions.
(a) The term Federal financial
assistance means assistance that nonFederal entities (including State and
local governments) receive or
administer in the form of grants,
contracts, loans, loan guarantees,
property, cooperative agreements, direct
appropriations, or other direct or
indirect assistance, but does not include
a tax credit, deduction, or exemption,
nor the use by a private participant of
assistance obtained through direct
benefit programs (such as SNAP, social
security, pensions). Federal financial
assistance may be direct or indirect.
*
*
*
*
*
(2) The term indirect Federal financial
assistance or Federal financial
assistance provided indirectly means
that the choice of the service provider
is placed in the hands of the beneficiary,
and the cost of that service is paid
through a voucher, certificate, or other
similar means of government-funded
payment. Federal financial assistance
provided to an organization is
considered indirect when:
(i) The Government program through
which the beneficiary receives the
voucher, certificate, or other similar
means of Government-funded payment
is neutral toward religion; and
(ii) The organization receives the
assistance as a result of a genuine,
independent choice of the beneficiary.
*
*
*
*
*
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(h) The term religious exercise has the
meaning given to the term in 42 U.S.C.
2000cc-5(7)(A).
■ 3. Revise § 2.32 to read as follows:
§ 2.32 Equal participation of faith-based
organizations.
(a) Faith-based organizations must be
eligible, on the same basis as any other
organization and considering any
reasonable accommodation, to seek DOL
support or participate in DOL programs
for which they are otherwise eligible.
DOL and DOL social service
intermediary providers, as well as State
and local governments administering
DOL support, must not discriminate for
or against an organization on the basis
of the organization’s religious exercise
or affiliation, although this requirement
does not preclude DOL, DOL social
service providers, or State or local
governments administering DOL
support from accommodating religion in
a manner consistent with the Religion
Clauses of the First Amendment to the
Constitution. In addition, because this
rule does not affect existing
constitutional requirements, DOL, DOL
social service providers (insofar as they
may otherwise be subject to any
constitutional requirements), and State
and local governments administering
DOL support must continue to comply
with otherwise applicable constitutional
principles, including, among others,
those articulated in the Establishment,
Free Speech, and Free Exercise Clauses
of the First Amendment to the
Constitution. Notices and
announcements of award opportunities
and notices of award and contracts shall
include language substantially similar to
that in Appendices A and B,
respectively, to this part.
(b) A faith-based organization that is
a DOL social service provider retains its
autonomy; right of expression; religious
character; and independence from
Federal, State, and local governments
and must be permitted to continue to
carry out its mission, including the
definition, development, practice, and
expression of its religious beliefs.
Among other things, such a faith-based
organization must be permitted to:
(1) Use its facilities to provide DOLsupported social services without
concealing, removing, or altering
religious art, icons, scriptures, or other
religious symbols from those facilities;
and
(2) Retain its authority over its
internal governance, including retaining
religious terms in its name, selecting its
board members on the basis of their
acceptance of or adherence to the
religious requirements or standards of
the organization, and including
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religious references in its mission
statements and other governing
documents.
(c) A grant document, contract or
other agreement, covenant,
memorandum of understanding, policy,
or regulation that is used by DOL, a
State or local government administering
DOL support, or a DOL social service
intermediary provider must not require
faith-based organizations to provide
assurances or notices where they are not
required of non-faith-based
organizations. Any restrictions on the
use of grant funds shall apply equally to
faith-based and non-faith-based
organizations. All organizations,
including religious ones that are DOL
social service providers, must carry out
DOL-supported activities, subject to any
required or appropriate religious
accommodation, in accordance with all
program requirements, including those
prohibiting the use of direct DOL
support for explicitly religious activities
(including worship, religious
instruction, or proselytization). A grant
document, contract or other agreement,
covenant, memorandum of
understanding, policy, or regulation that
is used by DOL, a State or local
government, or a DOL social service
intermediary provider in administering
a DOL social service program must not
disqualify organizations from receiving
DOL support or participating in DOL
programs because such organizations
are motivated or influenced by religious
faith to provide social services, or
because of their religious exercise or
affiliation, or lack thereof.
§ 2.33
[Amended]
4. Amend § 2.33 as follows:
a. In paragraph (a), by adding ‘‘and
may require attendance at all activities
that are fundamental to the program’’
after ‘‘organization’s program’’.
■ b. In paragraph (c), by adding ‘‘and
further amended by Executive Order
13831’’ after ‘‘13559’’.
■
■
§§ 2.34 and 2.35
[Removed and Reserved]
5. Remove and reserve §§ 2.34 and
2.35.
■ 6. Revise § 2.37 to read as follows:
■
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Jkt 250001
Status of nonprofit organizations.
*
*
*
*
*
(b) * * *
(3) A certified copy of the applicant’s
certificate of incorporation or similar
document that clearly establishes the
nonprofit status of the applicant;
(4) Any item described in paragraphs
(b)(1) through (b)(3) of this section, if
that item applies to a State or national
parent organization, together with a
statement by the State or national parent
organization that the applicant is a local
nonprofit affiliate of the organization; or
(5) For an entity that holds a
sincerely-held religious belief that it
cannot apply for a determination as an
entity that is tax exempt under section
501(c)(3) of the Internal Revenue Code,
evidence sufficient to establish that the
entity would otherwise qualify as a
nonprofit organization under paragraphs
(b)(1) through (b)(4) of this section.
[Amended]
8. Amend § 2.39 by removing ‘‘not on
the basis of religion or religious belief or
lack thereof ’’ and add in its place ‘‘not
on the basis of the religious affiliation
of a recipient organization or lack
thereof.’’
■ 9. Add a new § 2.40 to read as follows:
■
A religious organization’s exemption
from the Federal prohibition on
employment discrimination on the basis
of religion, set forth in section 702(a) of
the Civil Rights Act of 1964, 42 U.S.C.
2000e–1, is not forfeited when the
organization receives direct or indirect
DOL support. An organization
qualifying for such exemption may
16:48 Jan 16, 2020
§ 2.38
§ 2.39
§ 2.37 Effect of DOL support on Title VII
employment nondiscrimination
requirements and on other existing
statutes.
VerDate Sep<11>2014
make its employment decisions on the
basis of their acceptance of or adherence
to the religious requirements or
standards of the organization, but not on
the basis of any other protected
characteristic. Some DOL programs,
however, were established through
Federal statutes containing independent
statutory provisions requiring that
recipients refrain from discriminating
on the basis of religion. Accordingly, to
determine the scope of any applicable
requirements, including in light of any
additional constitutional or statutory
protections for employment decisions
that may apply, recipients and potential
recipients should consult with the
appropriate DOL program official or
with the Civil Rights Center, U.S.
Department of Labor, 200 Constitution
Avenue NW, Room N4123, Washington,
DC 20210, (202) 693–6500. Individuals
with hearing or speech impairments
may access this telephone number via
TTY by calling the toll-free Federal
Information Relay Service at 1–800–
877–8339.
■ 7. In § 2.38, revise paragraphs (b)(3)
and (4) and add paragraph (b)(5) to read
as follows:
§ 2.40 Nondiscrimination among faithbased organizations.
Neither DOL nor any State or local
government or other entity receiving
funds under any DOL program or
PO 00000
Frm 00049
Fmt 4702
Sfmt 4702
2937
service shall construe the provisions of
this part 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.
■ 10. Revise Appendix A and Appendix
B to Part 2 to read as follows:
Appendix A to Part 2—Notice or
Announcement of Award Opportunities
Faith-based organizations may apply for
this award on the same basis as any other
organization, as set forth at, and subject to
the protections and requirements of, part 2
subpart D and 42 U.S.C. 2000bb et seq. DOL
will not, in the selection of recipients,
discriminate against an organization on the
basis of the organization’s religious exercise
or affiliation.
A faith-based organization that participates
in this program will retain its independence
from the government and may continue to
carry out its mission consistent with religious
freedom protections in federal law, including
the Free Speech and Free Exercise Clauses of
the First Amendment, 42 U.S.C. 2000bb et
seq., 42 U.S.C. 238n, 42 U.S.C. 18113, 42
U.S.C. 2000e–1(a) and 2000e–2(e), 42 U.S.C.
12113(d), and the Weldon Amendment,
among others. Religious accommodations
may also be sought under many of these
religious freedom protection laws.
A faith-based organization may not use
direct financial assistance from DOL to
engage in any explicitly religious activities
except where consistent with the
Establishment Clause of the First
Amendment to the Constitution and any
other applicable requirements. Such an
organization also may not, in providing
services funded by DOL, 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.
Appendix B to Part 2—Notice of Award
or Contract
A faith-based organization that participates
in this program retains its independence
from the government and may continue to
carry out its mission consistent with religious
freedom protections in federal law, including
the Free Speech and Free Exercise Clauses of
the First Amendment to the Constitution, 42
U.S.C. 2000bb et seq., 42 U.S.C. 238n, 42
U.S.C. 18113, 42 U.S.C. 2000e–1(a) and
2000e–2(e), 42 U.S.C. 12113(d), and the
Weldon Amendment, among others.
Religious accommodations may also be
sought under many of these religious
freedom protection laws.
A faith-based organization may not use
direct financial assistance from DOL to
engage in any explicitly religious activities
except when consistent with the
Establishment Clause of the First
Amendment and any other applicable
requirements. Such an organization also may
not, in providing services funded by DOL,
discriminate against a program beneficiary or
prospective program beneficiary on the basis
E:\FR\FM\17JAP1.SGM
17JAP1
2938
Federal Register / Vol. 85, No. 12 / Friday, January 17, 2020 / Proposed Rules
of religion, a religious belief, a refusal to hold
a religious belief, or a refusal to attend or
participate in a religious practice.
Dated: December 9, 2019.
Eugene Scalia,
Secretary, U.S. Department of Labor.
[FR Doc. 2019–26862 Filed 1–16–20; 8:45 am]
BILLING CODE P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Parts 50, 61 and 62
RIN 2900–AQ75
Equal Participation of Faith-Based
Organizations in Veterans Affairs
Programs: Implementation of
Executive Order 13831
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
The rule proposes to amend
United States Department of Veterans
Affairs (Department) general regulations
to implement Executive Order 13831
(Establishment of a White House Faith
and Opportunity Initiative). Among
other changes, this rule proposes
changes to provide clarity about the
rights and obligations of faith-based
organizations participating in
Department programs, clarify the
Department’s rules for financial
assistance in regard to faith-based
organizations, and eliminate certain
requirements for faith-based
organizations that no longer reflect
executive branch guidance. This
proposed rulemaking is intended to
ensure that the Department’s social
service programs are implemented in a
manner consistent with the
requirements of federal law, including
the First Amendment to the
Constitution and the Religious Freedom
Restoration Act.
DATES: Comments must be received by
VA on or before February 18, 2020.
ADDRESSES: To ensure proper handling
of comments, please reference RIN
2900–AQ75—EQUAL PARTICIPATION
OF FAITH-BASED ORGANIZATIONS
IN VETERANS AFFAIRS PROGRAMS:
IMPLEMENTATION OF EXECUTIVE
ORDER 13831 on all electronic and
written correspondence. The
Department encourages the electronic
submission of all comments through
https://www.regulations.gov using the
electronic comment form provided on
that site. For easy reference, an
electronic copy of this document is also
available at that website. It is not
necessary to submit paper comments
that duplicate the electronic
lotter on DSKBCFDHB2PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
16:48 Jan 16, 2020
Jkt 250001
submission, as all comments submitted
to https://www.regulations.gov will be
posted for public review and are part of
the official docket record. However,
should you wish to submit written
comments through regular or express
mail, they should be sent to Director,
Office of Regulation Policy and
Management (00REG), Department of
Veterans Affairs, 810 Vermont Avenue
NW, Room 1064, Washington, DC
20420; or by fax to (202) 273–9026.
FOR FURTHER INFORMATION CONTACT:
Conrad Washington, Deputy Director,
Center for Faith and Opportunities
Initiatives (00FB), Office of the
Secretary, Department of Veterans
Affairs, 810 Vermont Avenue NW; (VA
CFOI), Washington, DC 20420, (202)
461–7689. (This is not a toll-free
telephone number).
SUPPLEMENTARY INFORMATION:
I. Posting of Public Comments
Please note that all comments
received are considered part of the
public record and made available for
public inspection online at https://
www.regulations.gov. Information made
available for public inspection includes
personal identifying information (such
as your name, address, etc.) voluntarily
submitted by the commenter.
If you wish to submit personal
identifying information (such as your
name, address, etc.) as part of your
comment, but do not wish it to be
posted online, you must include the
phrase ‘‘PERSONAL IDENTIFYING
INFORMATION’’ in the first paragraph
of your comment. You must also locate
all the personal identifying information
that you do not want posted online in
the first paragraph of your comment and
identify what information you want the
agency to redact. Personal identifying
information identified and located as set
forth above will be placed in the
agency’s public docket file, but not
posted online.
If you wish to submit confidential
business information as part of your
comment but do not wish it to be posted
online, you must include the phrase
‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You must also
prominently identify confidential
business information to be redacted
within the comment. If a comment has
so much confidential business
information that it cannot be effectively
redacted, the agency may choose not to
post that comment (or to post that
comment only partially) on https://
www.regulations.gov. Confidential
business information identified and
located as set forth above will not be
PO 00000
Frm 00050
Fmt 4702
Sfmt 4702
placed in the public docket file, nor will
it be posted online.
If you wish to inspect the agency’s
public docket file in person by
appointment, please see the FOR
FURTHER INFORMATION CONTACT
paragraph.
II. Background
Shortly after taking office in 2001,
President George W. Bush signed
Executive Order 13199, Establishment
of White House Office of Faith-based
and Community Initiatives, 66 FR 8499
(January 29, 2001). That Executive
Order sought to ensure that ‘‘private and
charitable groups, including religious
ones, . . . have the fullest opportunity
permitted by law to compete on a level
playing field’’ in the delivery of social
services. To do so, it created an office
within the White House, the White
House Office of Faith-Based and
Community Initiatives with primary
responsibility to ‘‘establish policies,
priorities, and objectives for the Federal
Government’s comprehensive effort to
enlist, equip, enable, empower, and
expand the work of faith-based and
other community organizations to the
extent permitted by law.’’
On December 12, 2002, President
Bush signed Executive Order 13279,
Equal Protection of the Laws for FaithBased and Community Organizations,
67 FR 77141 (December 12, 2002).
Executive Order 13279 set forth the
principles and policymaking criteria to
guide Federal agencies in formulating
and implementing policies with
implications for faith-based
organizations 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 America’s
communities. In addition, Executive
Order 13279 directed specified agency
heads to review and evaluate existing
policies that had implications for faithbased 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
Order.
Consistent with Executive Order
13279, the Department promulgated
regulations at 38 CFR parts 50, 61, and
62 (‘‘Parts 50, 61, and 62’’). In
particular, on September 26, 2003, VA
codified Part 61, governing the
Homeless Provider Grant and Per Diem
E:\FR\FM\17JAP1.SGM
17JAP1
]]>Agencies
[Federal Register Volume 85, Number 12 (Friday, January 17, 2020)]
[Proposed Rules]
[Pages 2929-2938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26862]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Office of the Secretary
29 CFR Part 2
RIN 1291-AA41
Equal Participation of Faith-Based Organizations in the
Department of Labor's Programs and Activities: Implementation of
Executive Order 13831
AGENCY: Office of the Secretary, Department of Labor.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The rule proposes to amend Department of Labor (Department,
DOL) regulations to implement Executive Order 13831 (Establishment of a
White House Faith and Opportunity Initiative). Among other changes,
this rule proposes changes to provide clarity about the rights and
obligations of faith-based organizations participating in Department
programs, clarify the Department's guidance documents for financial
assistance in regard to faith-based organizations, and eliminate
certain requirements for faith-based organizations that no longer
reflect executive branch guidance. This proposed rulemaking is intended
to ensure that the Department's social service programs are implemented
in a manner consistent with the requirements of federal law, including
the First Amendment to the Constitution and the Religious Freedom
Restoration Act.
DATES: Comments must be received by DOL on or before February 18, 2020.
FOR FURTHER INFORMATION CONTACT: Mr. Mark Zelden, Director, Centers for
Faith & Opportunity Initiatives; telephone: 202-693-6017, email:
[email protected].
ADDRESSES: To ensure proper handling of comments, please reference
Docket No. DOL-2019-0006 on all electronic and written correspondence.
The Department encourages the electronic submission of all comments
through https://www.regulations.gov using the electronic comment form
provided on that site. For easy reference, an electronic copy of this
document is also available at that website. It is not necessary to
submit paper comments that duplicate the electronic submission, as all
comments submitted to https://www.regulations.gov will be posted for
public review and are part of the official docket record. However,
should you wish to submit written comments through regular or express
mail, they should be sent to Centers for Faith & Opportunity
Initiatives, U.S. Department of Labor, Room S-2228, 200 Constitution
Avenue NW, Washington, DC 20210.
SUPPLEMENTARY INFORMATION:
I. Posting of Public Comments
All comments, including any personal information you provide, are
placed in the public docket without change and may be made available
online at https://www.regulations.gov. Therefore, the Department
cautions commenters about submitting statements they do not want made
available to the public, or submitting comments that contain personal
information (either about themselves or others), such as Social
Security Numbers, birthdates, and medical data. If you wish to inspect
the agency's public docket file in person by appointment, please see
the FOR FURTHER INFORMATION CONTACT paragraph.
II. Background
Shortly after taking office in 2001, President George W. Bush
signed Executive Order 13199, Establishment of White House Office of
Faith-based and Community Initiatives, 66 FR 8499 (January 29, 2001).
That Executive Order sought to ensure that ``private and charitable
groups, including religious ones, . . . have the fullest opportunity
permitted by law to compete on a level playing field'' in the delivery
of social services. To do so, it created an office within the White
House, the White House Office of Faith-Based and Community Initiatives
with primary responsibility to ``establish policies, priorities, and
objectives for the Federal Government's comprehensive effort to enlist,
equip, enable, empower, and expand the work of faith-based and other
community organizations to the extent permitted by law.''
On December 12, 2002, President Bush signed Executive Order 13279,
Equal Protection of the Laws for Faith-Based and Community
Organizations, 67 FR 77141 (December 12, 2002). Executive Order 13279
set forth the principles and policymaking criteria to guide federal
agencies in formulating and implementing policies with implications for
faith-based organizations 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 America's communities. 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 Order.
In 2004, the Department of Labor issued regulations through notice-
and-comment rulemaking implementing Executive Order 13279 at 29 CFR
part 2 subpart D (``Part 2 Subpart D''). 69 FR 41882 (July 12, 2004).
The regulations applied to all providers that implemented social
service programs supported by the Department. The Department
subsequently issued guidance detailing the process for recipients of
financial assistance to
[[Page 2930]]
obtain exemptions from religious nondiscrimination requirements under
the Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb-2000bb-
4. See Office of the Assistant Secretary for Administration &
Management, The Effect of the Religious Freedom Restoration Act on
Recipients of DOL Financial Assistance, https://www.dol.gov/oasam/grants/RFRA-Guidance.htm.
President Obama maintained President Bush's program, but modified
it in certain respects. Shortly after taking office, President 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. 9, 2009). This Executive
Order 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 an Advisory Council that
subsequently submitted recommendations regarding the work of the
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 (November
17, 2010). Executive Order 13559 made various changes to Executive
Order 13279 which included: Making minor and substantive textual
changes to the fundamental principles; adding a provision requiring
that any religious social service provider refer potential
beneficiaries to an alternative provider if the beneficiaries object to
the first provider's religious character; adding a provision requiring
that the faith-based provider give notice of potential referral to
potential beneficiaries; and adding a provision that awards must be
free of political interference and not be based on religious
affiliation or lack thereof. 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 the prohibited uses of direct financial assistance, allowed
religious social service providers to maintain their religious
identities, and distinguished between direct and indirect assistance.
These efforts eventually resulted in amendments to agency
regulations, including the Department's Part 2 Subpart D. In April
2016, the Department amended its existing regulations through notice-
and-comment rulemaking to ensure consistency with Executive Order 13279
as amended by Executive Order 13559. 81 FR 19355, 19391 (April 4,
2016). In July 2016, the Department issued guidance to grantees on the
amended rule. See Center for Faith-Based & Neighborhood Partnerships,
Guidance on Protections for and Obligations of Organizations that
Administer Social Service Programs Supported by DOL Financial
Assistance, https://www.dol.gov/cfoi/GuidanceProviderProtections.pdf;
Center for Faith-Based & Neighborhood Partnerships, Frequently Asked
Questions on Federal Financial Assistance and Protections for Religious
Identity, https://www.dol.gov/cfoi/FAQsFederalFinancialAssistanceProtectionsForReligiousIdentity.pdf.
The revised regulations defined ``indirect assistance'' as
government aid to a beneficiary, such as a voucher, that flows to a
religious provider only through the genuine and independent choice of
the beneficiary. 29 CFR 2.31(a). The rules not only required that
faith-based providers give the notice of the right to an alternative
provider specified in Executive Order 13559, but also required faith-
based providers, but not other providers, to give written notice to
beneficiaries and potential beneficiaries of programs funded with
direct federal financial assistance of various rights, including
nondiscrimination based on religion, the requirement that participation
in any religious activities must be voluntary and that they must be
provided separately from the federally funded activity, and that
beneficiaries may report violations. 29 CFR 2.34.
President Trump has given new direction to the program established
by President Bush and continued by President Obama. On May 4, 2017,
President Trump issued Executive Order 13798, Presidential Executive
Order Promoting Free Speech and Religious Liberty, 82 FR 21675 (May 4,
2017). Executive Order 13798 states that ``[f]ederal law protects the
freedom of Americans and their organizations to exercise religion and
participate fully in civic life without undue interference by the
Federal Government. The executive branch will honor and enforce those
protections.'' It directed the Attorney General to ``issue guidance
interpreting religious liberty protections in Federal law.'' Pursuant
to this instruction, the Attorney General, on October 6, 2017, issued
the Memorandum for All Executive Departments and Agencies, ``Federal
Law Protections for Religious Liberty,'' 82 FR 49668 (October 26, 2017)
(the ``Attorney General's Memorandum on Religious Liberty'').
The Attorney General's Memorandum on Religious Liberty emphasized
that individuals and organizations do not give up religious liberty
protections by providing government-funded social services, and that
``government may not exclude religious organizations as such from
secular aid programs . . . when the aid is not being used for
explicitly religious activities such as worship or proselytization.''
On May 3, 2018, President Trump signed Executive Order 13831,
Executive Order on the Establishment of a White House Faith and
Opportunity Initiative, 83 FR 20715 (May 3, 2018), amending Executive
Order 13279 as amended by Executive Order 13559, and other related
Executive Orders. Among other things, Executive Order 13831 changed the
name of the ``White House Office of Faith-Based and Neighborhood
Partnerships'' as established in Executive Order 13498, to the ``White
House Faith and Opportunity Initiative''; changed the way that the
Initiative is to operate; directed departments and agencies with
``Centers for Faith-Based and Community Initiatives'' to change those
names to ``Centers for Faith and Opportunity Initiatives''; and ordered
that departments and agencies without a Center for Faith and
Opportunity Initiatives designate a ``Liaison for Faith and Opportunity
Initiatives.'' Executive Order 13831 also eliminated the alternative
provider referral requirement and requirement of notice thereof in
Executive Order 13559 described above.
Alternative Provider Referral and Alternative Provider Notice
Requirement
Executive Order 13559 imposed notice and referral burdens on faith-
based organizations not imposed on secular organizations. Section 1(b)
of Executive Order 13559 had amended section 2 of Executive Order
13279, entitled ``Fundamental Principles,'' by, in pertinent part,
adding a new subsection (h) to section 2. As amended, section 2(h)(i)
provided: ``If a beneficiary or a prospective beneficiary of a social
service program supported by Federal financial assistance objects to
the religious character of an organization that provides services under
the program, that organization shall, within a reasonable time after
the date of the objection, refer the beneficiary to an alternative
provider.'' Section 2(h)(ii) directed agencies to establish policies
and procedures to ensure that referrals are timely and follow privacy
laws and regulations;
[[Page 2931]]
that providers notify agencies of and track referrals; and that each
beneficiary ``receives written notice of the protections set forth in
this subsection prior to enrolling in or receiving services from such
program'' (emphasis added). The reference to ``this subsection'' rather
than to ``this Section'' indicated that the notice requirement of
section 2(h)(ii) was referring only to the alternative provider
provisions in subsection (h), not all of the protections in section 2.
In 2016, the Department revised its regulations to conform to Executive
Order 13559. 29 CFR 2.34(a)(4), 2.35.
In revising its regulations, the Department explained in 2015 that
the revisions would implement the alternative provider provisions in
Executive Order 13559. Executive Order 13831, however, has removed the
alternative provider requirements articulated in Executive Order 13559.
The Department also explained that the alternative provider provisions
would protect religious liberty rights of social service beneficiaries.
But the methods of providing such protections were not required by the
Constitution or any applicable law. Indeed, the selected methods are in
tension with more recent Supreme Court precedent regarding
nondiscrimination against religious organizations, with the Attorney
General's Memorandum on Religious Liberty, and with RFRA.
As the Supreme Court recently clarified in Trinity Lutheran Church
of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017), a case in
which a church operated preschool was denied state grant funds for
updating playgrounds: ``The Free Exercise Clause `protect[s] religious
observers against unequal treatment' and subjects to the strictest
scrutiny laws that target the religious for `special disabilities'
based on their `religious status.' '' (quoting Church of Lukumi Babalu
Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993) (alteration in
original)). The Court in Trinity Lutheran added: ``[T]his Court has
repeatedly confirmed that denying a generally available benefit solely
on account of religious identity imposes a penalty on the free exercise
of religion that can be justified only by a state interest `of the
highest order.' '' Id. (quoting McDaniel v. Paty, 435 U.S. 618, 628
(1978) (plurality opinion)); see also Mitchell v. Helms, 530 U.S. 793,
827 (2000) (plurality opinion) (``The religious nature of a recipient
should not matter to the constitutional analysis, so long as the
recipient adequately furthers the government's secular purpose.'');
Attorney General's Memorandum on Religious Liberty, principle 6
(``Government may not target religious individuals or entities for
special disabilities based on their religion.'').
Applying the alternative provider requirement categorically to all
faith-based providers and not to other providers of federally funded
social services is thus in tension with the nondiscrimination principle
articulated in Trinity Lutheran and the Attorney General's Memorandum
on Religious Liberty.
In addition, the alternative provider requirement could in certain
circumstances raise implications under RFRA. Under RFRA, where the
government substantially burdens an entity's exercise of religion, the
government must prove that the burden is in furtherance of a compelling
government interest and is the least restrictive means of furthering
that interest. 42 U.S.C. 2000bb-1(b). The World Vision OLC opinion
makes clear that when a faith-based grant recipient carries out its
social service programs, it may engage in an exercise of religion
protected by RFRA, and certain conditions on receiving those grants may
substantially burden the religious exercise of the recipient. See
Application of the Religious Freedom Restoration Act to the Award of a
Grant Pursuant to a Juvenile Justice and Delinquency Prevention Act, 31
O.L.C. 162, 169-71, 174-83 (June 29, 2007). Requiring faith-based
organizations to comply with certain conditions in receiving social
service grants could impose such a burden, such as in a case in which a
faith-based organization has a religious objection to referring the
beneficiary to an alternative provider that provided services in a
manner that violated the organization's religious tenets. See Burwell
v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720-26 (2014). When imposing
the alternative provider requirement in 2016, the agencies asserted an
interest in informing beneficiaries of protections of their religious
liberty. 81 FR 19353, 19365. But it is far from clear that the
alternative provider requirement would meet the strict scrutiny that
RFRA requires of laws that substantially burden religious practice. The
Department has not received information concerning instances in which a
beneficiary has actually sought an alternative provider, undermining
the suggestion that the interests this requirement serves are in fact
important, much less compelling enough to outweigh a substantial burden
on religious exercise. Moreover, even if the government's interest is
compelling, it is doubtful that imposing notification and referral
requirements on faith-based organizations are the least restrictive
means of achieving that interest. The Department often makes publicly
available information about grant recipients that provide benefits
under its programs, so the Department could supply information to
beneficiaries seeking an alternate provider.
Executive Order 13831 chose to eliminate the alternative provider
requirement for good reason. This decision avoids tension with the
nondiscrimination principle articulated in Trinity Lutheran and the
Attorney General's Memorandum on Religious Liberty, avoids problems
with RFRA that may arise, and fits within the Administration's broader
deregulatory agenda.
Other Notice Requirements
As noted above, Executive Order 13559 amended Executive Order 13279
by adding a right to an alternative provider and notice of this right.
While Executive Order 13559's requirement of notice to
beneficiaries was limited to notice of alternative providers, Part 2
Subpart D as most recently amended goes further than Executive Order
13559 by requiring that faith-based social service providers funded
with direct federal funds provide a much broader notice to
beneficiaries and potential beneficiaries. This requirement applies
only to faith-based providers and not to other providers. In addition
to the notice of the right to an alternative provider, the rule
requires notice of nondiscrimination based on religion; that
participation in religious activities must be voluntary and separate in
time or space from activities funded with direct federal funds; and
that beneficiaries or potential beneficiaries may report violations.
Separate and apart from these notice requirements, Executive Order
13279, as amended, clearly sets forth the underlying requirements of
nondiscrimination, voluntariness, and the holding of religious
activities separate in time or place from any federally funded
activity. Faith-based providers of social services, like other
providers of social services, are required to follow the law and the
requirements of grants and contracts they receive. See, e.g., 29 CFR
38.25. There is no basis on which to presume that they are less likely
than other social service providers to follow the law. See Mitchell,
530 U.S. at 856-57 (O'Connor, J., concurring) (noting that in Tilton v.
Richardson, 403 U.S. 672 (1971), the Court's upholding of grants to
universities for construction of
[[Page 2932]]
buildings with the limitation that they only be used for secular
educational purposes ``demonstrate[d] our willingness to presume that
the university would abide by the secular content restriction.'').
There is thus no need for prophylactic protections that create
administrative burdens on faith-based providers that are not imposed on
other providers.
Definition of Indirect Federal Financial Assistance
Executive Order 13559 directed its Interagency Working Group on
Faith-Based and Other Neighborhood Partnerships to propose model
regulations and guidance documents regarding, among other things, ``the
distinction between `direct' and `indirect' Federal financial
assistance[.]'' 75 FR 71319, 71321 (2010). Following issuance of the
Working Group's report, the 2016 joint final rule amended existing
regulations to make that distinction, and to clarify that
``organizations that participate in programs funded by indirect
financial assistance need not modify their program activities to
accommodate beneficiaries who choose to expend the indirect aid on
those organizations' programs,'' need not provide notices or referrals
to beneficiaries, and need not separate their religious activities from
supported programs. 81 FR 19355, 19358 (2016). In so doing, the final
rule attempted to capture the definition of ``indirect'' aid that the
U.S. Supreme Court employed in Zelman v. Simmons-Harris, 536 U.S. 639
(2002). See 81 FR 19355, 19361-62 (2016).
In Zelman, the Court concluded that a government funding program is
``one of true private choice''--that is, an indirect-aid program--where
there is ``no evidence that the State deliberately skewed incentives
toward religious'' providers. Id. at 650. The Court upheld the
challenged school-choice program because it conferred assistance
``directly to a broad class of individuals defined without reference to
religion'' (i.e., parents of schoolchildren); it permitted
participation by both religious and nonreligious educational providers;
it allocated aid ``on the basis of neutral, secular criteria that
neither favor nor disfavor religion''; and it made aid available ``to
both religious and secular beneficiaries on a nondiscriminatory
basis.'' Id. at 653-54 (quotation marks omitted). While the Court noted
the availability of secular providers, it specifically declined to make
its definition of indirect aid hinge on the ``preponderance of
religiously affiliated private'' providers in the city, as that
preponderance arose apart from the program; doing otherwise, the Court
concluded, ``would lead to the absurd result that a neutral school-
choice program might be permissible in some parts of Ohio, . . . but
not in'' others. Id. at 656-58. In short, the Court concluded that
``[t]he constitutionality of a neutral . . . aid program simply does
not turn on whether and why, in a particular area, at a particular
time, most [providers] are run by religious organizations, or most
recipients choose to use the aid at a religious [provider].'' Id. at
658.
The final rule issued after the Working Group's report included
among its criteria for indirect federal financial assistance a
requirement that beneficiaries have ``at least one adequate secular
option'' for use of the federal financial assistance. See 81 FR 19355,
19407-19426 (2016). In other words, the rule amended regulations to
make the definition of ``indirect'' aid hinge on the availability of
secular providers. A regulation defining ``indirect Federal financial
assistance'' to require the availability of secular providers is in
tension with the Supreme Court's choice not to make the definition of
indirect aid hinge on the geographically varying availability of
secular providers. Thus, it is appropriate to amend existing
regulations to bring the definition of ``indirect'' aid more closely
into line with the Supreme Court's definition in Zelman.
Overview of the Proposed Rule
The Department proposes to amend Part 2 Subpart D to implement
Executive Order 13831 and conform more closely to the Supreme Court's
current First Amendment jurisprudence; relevant federal statutes such
as RFRA; Executive Order 13279, as amended by Executive Orders 13559
and 13831; and the Attorney General's Memorandum on Religious Liberty.
Consistent with these authorities, this proposed rule would amend
Part 2 Subpart D to conform to Executive Order 13279, as amended, by
deleting the requirement that faith-based social service providers
refer beneficiaries objecting to receiving services from them to an
alternative provider and the requirement that faith-based organizations
provide notices that are not required of secular organizations.
This proposed rule would also make clear that a faith-based
organization that participates in Department-funded programs or
services shall retain its autonomy; right of expression; religious
character; and independence from federal, state, and local governments.
This autonomy extends to the particular features and attendance
requirements a faith-based organization includes as ``fundamental'' in
programs funded through indirect financial assistance.\1\ It would
further clarify that none of the guidance documents that the Department
or any state or local government uses in administering the Department's
financial assistance shall require faith-based organizations to provide
assurances or notices where similar requirements are not imposed on
secular organizations, and that any restrictions on the use of grant
funds shall apply equally to faith-based and secular organizations.
---------------------------------------------------------------------------
\1\ The Department invites comment on how this ``fundamental''
criterion could be further clarified or elaborated in any final
rule.
---------------------------------------------------------------------------
This proposed rule would additionally require that the Department's
notices and announcements of award opportunities and notices of awards
and contracts include language clarifying the rights and obligations of
faith-based organizations that apply for and receive federal funding.
The language would clarify that, among other things, faith-based
organizations may apply for awards on the same basis as any other
organization; that the Department will not, in the selection of
recipients, discriminate against an organization on the basis of the
organization's religious exercise or affiliation; and that a faith-
based organization that participates in a federally funded program
retains its independence from the government and may continue to carry
out its mission consistent with religious freedom protections in
federal law, including the Free Speech and Free Exercise Clauses of the
First Amendment to the Constitution.
The Department further proposes to include a requirement that
notices or announcements of award opportunities and notices of awards
or contracts shall include language similar to those found in
appendices to the proposed rule, which serve as notice to potential
recipients of federal financial assistance See, e.g., principles 6, 10-
15, and 20 of the Attorney General's Memorandum on Religious Liberty,
82 FR 49668 (October 26, 2017); Application of the Religious Freedom
Restoration Act to the Award of a Grant Pursuant to the Juvenile
Justice and Delinquency Prevention Act, 31 Op. O.L.C. 162 (2007). This
change is intended to ensure that faith-based organizations are aware
of their legal protections so that they will not fail to participate in
government programs because of confusion about what options are
available to them.
The Department also proposes to revise the prohibition that
organizations
[[Page 2933]]
may not ``support or engage in any explicitly religious activity'' as
part of a program or service funded with direct federal financial
assistance to state instead that organizations may not ``engage in''
such activity. The inclusion of the word ``support'' is vague and
overly broad and may encompass protected activity. For example, if a
faith-based organization provides addiction counseling that is funded
through direct federal financial assistance and provides attendees a
map of the location that labels a room as a ``chapel,'' providing that
map to program participants could raise claims that the organization is
``supporting'' its explicitly religious activities because a program
participant may see that the facility includes a chapel and thereby
engage in such religious activity. Prohibiting organizations from
``engaging in'' explicitly religious activity is sufficient to prevent
any impermissible uses of direct federal financial assistance.
Finally, the proposed rule would directly reference the definition
of ``religious exercise'' in RFRA, and would amend the definition of
``indirect Federal financial assistance'' to align more closely with
the Supreme Court's definition in Zelman.
Explanations for the Proposed Amendments in 29 CFR Part 2 Subpart D
Title
The Title of Subpart D is proposed to be changed in order to align
the text more closely with Executive Order 13831, which uses the term
``faith-based and community organizations,'' and to clarify that the
rule encompasses organizations that may be nondenominational but
clearly motivated by faith.
Section 2.31 Definitions
Section 2.31(a)(2)(ii) is proposed to be changed in order clarify
the text and eliminate extraneous language.
Section 2.31(a)(2)(iii) is proposed to be deleted to align the text
more closely with the First Amendment. See, e.g., Trinity Lutheran
Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017); Zelman v.
Simmons-Harris, 536 U.S. 639 (2002).
Section 2.31(a) is proposed to be modified in order to align the
text more closely with Executive Order 13279, 67 FR 77141 (December 12,
2002).
Section 2.31(h) is proposed to be added to provide a definition of
religious exercise that is aligned with the definition used in the
Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et
seq., and with the Religious Land Use and Individualized Persons Act of
2000 (RLUIPA), 42 U.S.C. 2000cc-5(7)(A). See, e.g., principles 10-15 of
the Attorney General's Memorandum on Religious Liberty, 82 FR 49668
(October 26, 2017).
Section 2.32 Equal Participation of Faith-Based Organizations
Section 2.32(a) is proposed to be changed in order to clarify the
text by eliminating extraneous language and to align it more closely
with RFRA by recognizing that DOL may accommodate religion in a manner
consistent with the religion clauses of the First Amendment and by
making clear that government may not discriminate for or against an
organization based on its religious exercise. See, e.g., principles 6,
10-15, and 20 of the Attorney General's Memorandum on Religious
Liberty, 82 FR 49668 (October 26, 2017); Application of the Religious
Freedom Restoration Act to the Award of a Grant Pursuant to the
Juvenile Justice and Delinquency Prevention Act, 31 Op. O.L.C. 162
(2007). Also, the term ``religious'' organizations is replaced with
``faith-based'' organizations to align with the terminology used in
Executive Order 13831.
Section 2.32(b) is proposed to be changed in order to clarify the
text by eliminating extraneous language and to align it more closely
with the First Amendment and with RFRA by providing more detail about
the autonomy from government that a faith-based organization retains
while participating in government programs. See, e.g., E.O. 13279, 67
FR 77141 (December 12, 2002), as amended by E.O. 13831, 83 FR 20715
(May 8, 2018); principles 9-15, 19, and 20 of the Attorney General's
Memorandum on Religious Liberty, 82 FR 49668 (October 26, 2017).
Section 2.32(c) is proposed to be changed in order to clarify the
text and align it more closely with the First Amendment and with RFRA
by recognizing that faith-based providers shall not be required to
provide notices or assurances where they are not required of non-faith-
based providers and by making clear that an organization may not be
disqualified from participating in a DOL program because of its
religious exercise or lack thereof. See, e.g., Trinity Lutheran Church
of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017); principles 6, 7,
and 10-15 of the Attorney General's Memorandum on Religious Liberty, 82
FR 49668 (October 26, 2017).
Section[thinsp]2.33 Responsibilities of DOL, DOL social service
providers and State and local governments administering DOL support.
Section 2.33(a) is proposed to be changed to clarify that a faith-
based organization that participates in a program funded by indirect
financial assistance may require that beneficiaries attend all
activities that the organization includes as ``fundamental'' in its
programs. For example, a drug rehabilitation and job training program
funded by indirect financial assistance need not be modified to
eliminate attendance at all associated religious programs fundamental
to the program. This change is intended to align the text more closely
with the First Amendment and with RFRA. See, e.g., Zelman v. Simmons-
Harris, 536 U.S. 639 (2002); principles 10-15 of the Attorney General's
Memorandum on Religious Liberty, 82 FR 49668 (October 26, 2017).
Section 2.33(c) is proposed to be changed in accordance with
Executive Order 13831, 83 FR 20715 (May 3, 2018).
Section[thinsp]2.34 Beneficiary Protections: Written Notice
Section 2.34 is proposed to be removed (and reserved) to align more
closely with the First Amendment and with RFRA for the reasons
discussed above. See, e.g., Trinity Lutheran Church of Columbia, Inc.
v. Comer, 137 S. Ct. 2012 (2017); Zelman v. Simmons-Harris, 536 U.S.
639 (2002); principles 2, 3, 6-7, 9-17, 19, and 20 of the Attorney
General's Memorandum on Religious Liberty, 82 FR 49668 (October 26,
2017); E.O. 13279, 67 FR 77141 (December 12, 2002), as amended by E.O.
13559, 75 FR 71319 (November 17, 2010), and E.O. 13831, 83 FR 20715
(May 8, 2018).
Section[thinsp]2.35 Beneficiary Protections: Referral Requirements
Section 2.35 is proposed to be removed (and reserved) to align more
closely with the First Amendment and with RFRA for the reasons
discussed above. See, e.g., Trinity Lutheran Church of Columbia, Inc.
v. Comer, 137 S. Ct. 2012 (2017); Zelman v. Simmons-Harris, 536 U.S.
639 (2002); principles 2, 3, 6-7, 9-17, 19, and 20 of the Attorney
General's Memorandum on Religious Liberty, 82 FR 49668 (October 26,
2017); E.O. 13279, 67 FR 77141 (December 12, 2002), as amended by E.O.
13559, 75 FR 71319 (November 17, 2010), and E.O. 13831, 83 FR 20715
(May 8, 2018).
[[Page 2934]]
Section[thinsp]2.37 Effect of DOL Support on Title VII Employment
Nondiscrimination Requirements and on Other Existing Statutes
Section 2.37 is proposed to be changed in order to clarify the text
by eliminating extraneous language and to align it more closely with
RFRA and Title VII case law. See, e.g., Kennedy v. St. Joseph's
Ministries, Inc., 657 F.3d 189, 194 (4th Cir. 2011); Hall v. Baptist
Mem'l Health Care Corp., 215 F.3d 618, 624 (6th Cir. 2000); Killinger
v. Samford Univ., 113 F.3d 196, 200 (11th Cir. 1997); Little v. Wuerl,
929 F.2d 944, 951 (3d Cir. 1991); principles 6, 10-17, 19 and 20 of the
Attorney General's Memorandum on Religious Liberty, 82 FR 49668
(October 26, 2017); Application of the Religious Freedom Restoration
Act to the Award of a Grant Pursuant to the Juvenile Justice and
Delinquency Prevention Act, 31 Op. O.L.C. 162 (2007).
Section[thinsp]2.38 Status of Nonprofit Organizations
Section 2.38(b)(5) is proposed to be added in order to align more
closely with RFRA. See, e.g., principles 10-15 of the Attorney
General's Memorandum on Religious Liberty, 82 FR 49668 (October 26,
2017). For any entity that holds a sincerely-held religious belief that
it cannot apply for a determination as an entity that is tax exempt
under section 501(c)(3) of the Internal Revenue Code, the entity may
provide information otherwise provided on the Form 1023 such as
information about the organization, its purposes, a narrative
description of its activities, limitations on disposition of assets of
the organization, compensation and other financial arrangements with
its officers, directors, trustees, employees, and independent
contractors, etc. Other legally binding documents that establish that
no part of the net earnings of the organization may lawfully benefit
any private shareholder or individual may also be appropriate.
Section[thinsp]2.39 Political or Religious Affiliation
Section 2.39 is proposed to be changed to include revised language
that was inadvertently omitted in publishing the 2016 final rule: ``The
last clause of 29 CFR 2.39 in the final regulation will be modified
from `not on the basis of religion or religious belief' to `not on the
basis of the religious affiliation of a recipient organization or lack
thereof.' '' 81 FR 19394.
Section 2.40 Nondiscrimination Among Faith-Based Organizations
Section 2.40 is proposed to be added in order to align more closely
with the First Amendment by making clear that these provisions relating
to nondiscrimination toward faith-based organizations should not be
construed to advantage or disadvantage historically recognized
religions or sects over other religions or sects. See, e.g., Larson v.
Valente, 456 U.S. 228 (1982); principle 8 of the Attorney General's
Memorandum on Religious Liberty, 82 FR 49668 (October 26, 2017).
Appendix A and Appendix B
Appendix A and Appendix B are proposed to be changed to align the
text more closely with the First Amendment and with RFRA by deleting
the notice and referral requirements that solely burdened faith-based
organizations and instead requiring notices of the terms on which
faith-based organizations may generally participate in DOL-funded
programs. See, e.g., Trinity Lutheran Church of Columbia, Inc. v.
Comer, 137 S. Ct. 2012 (2017); Zelman v. Simmons-Harris, 536 U.S. 639
(2002); principles 2, 3, 6-7, 9-17, 19, and 20 of the Attorney
General's Memorandum on Religious Liberty, 82 FR 49668 (October 26,
2017); E.O. 13279, 67 FR 77141 (December 12, 2002), as amended by E.O.
13559, 75 FR 71319 (November 17, 2010), and E.O. 13831, 83 FR 20715
(May 8, 2018). The Department also proposes to revise the prohibition
that organizations may not ``support or engage in any explicitly
religious activity'' as part of a program or service funded with direct
federal financial assistance to state, instead, that organizations may
not ``engage in'' such activity. The inclusion of the word ``support''
is vague and overly broad and may encompass protected activity.
III. Regulatory Certifications
Analysis Conducted in Accordance With Executive Order 12866, Regulatory
Planning and Review, Executive Order 13563, Improved Regulation and
Regulatory Review, and Executive Order 13771, Reducing Regulation and
Controlling Regulatory Costs
This NPRM has been drafted in accordance with Executive Order 13563
of January 18, 2011, 76 FR 3821, Improving Regulation and Regulatory
Review; Executive Order 12866 of September 30, 1993, 58 FR 51735,
Regulatory Planning and Review; and Executive Order 13771 of January
30, 2017, 82 FR 9339, Reducing Regulation and Controlling Regulatory
Costs. Executive Order 12866 directs agencies, to the extent permitted
by law, to propose or adopt a regulation only upon a reasoned
determination that its benefits justify its costs; tailor the
regulation to impose the least burden on society, consistent with
obtaining the regulatory objectives; and, in choosing among alternative
regulatory approaches, select those approaches that maximize net
benefits. Executive Order 13563 recognizes that some benefits and costs
are difficult to quantify and provides that, where appropriate and
permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
Under Executive Order 12866, the Office of Information and
Regulatory Affairs (OIRA) must determine whether this regulatory action
is ``significant'' and, therefore, subject to the requirements of the
executive order and subject to review by the Office of Management and
Budget (OMB). Section 3(f) of Executive Order 12866 defines a
``significant regulatory action'' as an action likely to result in a
regulation that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or communities
(also referred to as an ``economically significant'' regulation);
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in
Executive Order 12866.
OIRA has determined that this proposed rule is a significant, but
not economically significant, regulatory action subject to review by
OMB under section 3(f) of Executive Order 12866. Accordingly, OMB has
reviewed this proposed rule.
The Department has also reviewed these regulations under Executive
Order 13563, which supplements and reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, section 1(b) of
Executive Order 13563 requires that an agency:
(1) Propose or adopt regulations only upon a reasoned determination
that
[[Page 2935]]
their benefits justify their costs (recognizing that some benefits and
costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives, and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance that regulated entities must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including providing economic incentives--such as user fees
or marketable permits--to encourage the desired behavior, or providing
information that enables the public to make choices.
76 FR 3821, 3821 (January 21, 2011). Section 1(c) of Executive
Order 13563 also requires an agency ``to use the best available
techniques to quantify anticipated present and future benefits and
costs as accurately as possible.'' Id. The Office of Information and
Regulatory Affairs of OMB has emphasized that these techniques may
include ``identifying changing future compliance costs that might
result from technological innovation or anticipated behavioral
changes.'' Memorandum for the Heads of Executive Departments and
Agencies, and of Independent Regulatory Agencies, from Cass R.
Sunstein, Administrator, Office of Information and Regulatory Affairs,
Re: Executive Order 13563, ``Improving Regulation and Regulatory
Review,'' at 1 (February 2, 2011), available at: https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2011/m11-10.pdf.
The Department is issuing these proposed regulations upon a
reasoned determination that their benefits justify their costs. In
choosing among alternative regulatory approaches, the Department
selected those approaches that maximize net benefits. Based on the
analysis that follows, the Department believes that these proposed
regulations are consistent with the principles in Executive Order
13563. It is the reasoned determination of the Department that this
proposed action would, to a significant degree, eliminate costs that
have been incurred by faith-based organizations as they complied with
the requirements of section 2(b) of Executive Order 13559, while not
adding any other requirements on those organizations.
The Department also has determined that this regulatory action does
not unduly interfere with State, local, or tribal governments in the
exercise of their governmental functions.
In accordance with Executive Orders 12866 and 13563, the Department
has assessed the potential costs and benefits, both quantitative and
qualitative, of this regulatory action. The potential costs and cost
savings associated with this regulatory action are those resulting from
the removal of the notification and referral requirements of Executive
Order 13279, as amended by Executive Order 13559 and further amended by
Executive Order 13831, and those determined to be necessary for
administering the Department's programs and activities. For example,
the Department recognizes that the removal of the notice and referral
requirements could impose some costs on beneficiaries who may now need
to investigate alternative providers on their own if they object to the
religious character of a potential social service provider. The
Department invites comment on any information that it could use to
quantify this potential cost. The Department also notes a quantifiable
cost savings of the removal of the notice requirements, which the
Department previously estimated as imposing a cost of no more than $200
per organization per year for the notices. 81 FR 19395. The Department
was previously unable to quantify the cost of the referral requirement.
Id. The Department invites comment on any data by which it could assess
the actual implementation costs of the notice and referral
requirements--including the number of affected organizations, any
estimates of staff time spent on compliance with the requirements, in
addition to the printing costs for the notices referenced above--and
thereby accurately quantify the cost savings of removing these
requirements in the final rule.
In terms of benefits, the Department recognizes a non-quantified
benefit to religious liberty that comes from removing requirements
imposed solely on faith-based organizations, in tension with the
principles of free exercise articulated in Trinity Lutheran. The
Department also recognizes a non-quantified benefit to grant recipients
and beneficiaries alike that comes from increased clarity in the
regulatory requirements that apply to faith-based organizations
operating social service programs funded by the federal government.
Beneficiaries will also benefit from the increased capacity of faith-
based social service providers to provide services, both because these
providers will be able to shift resources otherwise spent fulfilling
the notice and referral requirements to provision of services, and
because more faith-based social service providers may participate in
the marketplace under these streamlined regulations.
This proposed rule is expected to be an Executive Order 13771
deregulatory action.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to the notice and comment
rulemaking requirements under the Administrative Procedure Act (5
U.S.C. 553) or any other statute, unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities.
The Department has determined that this rule will not have a
significant economic impact on a substantial number of small entities.
Consequently, the Department has not prepared a regulatory flexibility
analysis.
Executive Order 12988: Civil Justice Reform
This proposed rule has been reviewed in accordance with Executive
Order 12988, ``Civil Justice Reform.'' The provisions of this proposed
rule will not have preemptive effect with respect to any State or local
laws, regulations, or policies that conflict with such provision or
which otherwise impede their full implementation. The rule will not
have retroactive effect.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments.'' Executive Order 13175 requires federal agencies
to consult and coordinate with tribes on a government-to-government
basis on policies that have tribal implications, including regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on one or
more Indian tribes, on the relationship between the federal government
and Indian tribes or on the distribution of power and responsibilities
between the federal government and Indian tribes.
[[Page 2936]]
The Department has assessed the impact of this rule on Indian
tribes and determined that this rule does not, to our knowledge, have
tribal implications that require tribal consultation under Executive
Order 13175.
Executive Order 13132: Federalism
Executive Order 13132 directs that, to the extent practicable and
permitted by law, an agency shall not promulgate any regulation that
has federalism implications, that imposes substantial direct compliance
costs on State and local governments, that is not required by statute,
or that preempts State law, unless the agency meets the consultation
and funding requirements of section 6 of the Executive Order. Because
each change proposed by this rule does not have federalism implications
as defined in the Executive Order, does not impose direct compliance
costs on State and local governments, is required by statute, or does
not preempt State law within the meaning of the Executive Order, the
Department has concluded that compliance with the requirements of
section 6 is not necessary.
Plain Language Instructions
The Department makes every effort to promote clarity and
transparency in its rulemaking. In any regulation, there is a tension
between drafting language that is simple and straightforward and
drafting language that gives full effect to issues of legal
interpretation. The Department is proposing a number of changes to this
regulation to enhance its clarity and satisfy the plain language
requirements. If any commenter has suggestions for how the regulation
could be written more clearly, please provide comments using the
contact information provided in the introductory section of this
proposed rule entitled, FOR FURTHER INFORMATION CONTACT.
Paperwork Reduction Act
This proposed rule does not contain any new or revised
``collection[s] of information'' as defined by the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501 et seq.
Unfunded Mandates Reform Act
Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1503(2), excludes from coverage under that Act any proposed or final
federal regulation that ``establishes or enforces any statutory rights
that prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.
List of Subjects in 29 CFR Part 2
Administrative practice and procedure, Claims, Courts, Government
employees, Religious discrimination.
Accordingly, for the reasons set forth in the preamble, part 2 of
Title 29 of the Code of Federal Regulations is proposed to be amended
as follows:
PART 2--GENERAL REGULATIONS
0
1. The authority citation for part 2 is revised to read as follows:
Authority: 5 U.S.C. 301; E.O. 13198, 66 FR 8497; E.O. 13279, 67
FR 77141; E.O. 13559, 75 FR 71319; E.O. 13831, 83 FR 20715.
Subpart D--Equal Treatment in Department of Labor Programs for
Faith-Based and Community Organizations; Protection of Religious
Liberty of Department of Labor Social Service Providers and
Beneficiaries
0
2. Amend Sec. 2.31 by revising paragraph (a) introductory text,
(a)(2), and adding paragraph (h) as follows:
Sec. 2.31 Definitions.
(a) The term Federal financial assistance means assistance that
non-Federal entities (including State and local governments) receive or
administer in the form of grants, contracts, loans, loan guarantees,
property, cooperative agreements, direct appropriations, or other
direct or indirect assistance, but does not include a tax credit,
deduction, or exemption, nor the use by a private participant of
assistance obtained through direct benefit programs (such as SNAP,
social security, pensions). Federal financial assistance may be direct
or indirect.
* * * * *
(2) The term indirect Federal financial assistance or Federal
financial assistance provided indirectly means that the choice of the
service provider is placed in the hands of the beneficiary, and the
cost of that service is paid through a voucher, certificate, or other
similar means of government-funded payment. Federal financial
assistance provided to an organization is considered indirect when:
(i) The Government program through which the beneficiary receives
the voucher, certificate, or other similar means of Government-funded
payment is neutral toward religion; and
(ii) The organization receives the assistance as a result of a
genuine, independent choice of the beneficiary.
* * * * *
(h) The term religious exercise has the meaning given to the term
in 42 U.S.C. 2000cc-5(7)(A).
0
3. Revise Sec. 2.32 to read as follows:
Sec. 2.32 Equal participation of faith-based organizations.
(a) Faith-based organizations must be eligible, on the same basis
as any other organization and considering any reasonable accommodation,
to seek DOL support or participate in DOL programs for which they are
otherwise eligible. DOL and DOL social service intermediary providers,
as well as State and local governments administering DOL support, must
not discriminate for or against an organization on the basis of the
organization's religious exercise or affiliation, although this
requirement does not preclude DOL, DOL social service providers, or
State or local governments administering DOL support from accommodating
religion in a manner consistent with the Religion Clauses of the First
Amendment to the Constitution. In addition, because this rule does not
affect existing constitutional requirements, DOL, DOL social service
providers (insofar as they may otherwise be subject to any
constitutional requirements), and State and local governments
administering DOL support must continue to comply with otherwise
applicable constitutional principles, including, among others, those
articulated in the Establishment, Free Speech, and Free Exercise
Clauses of the First Amendment to the Constitution. Notices and
announcements of award opportunities and notices of award and contracts
shall include language substantially similar to that in Appendices A
and B, respectively, to this part.
(b) A faith-based organization that is a DOL social service
provider retains its autonomy; right of expression; religious
character; and independence from Federal, State, and local governments
and must be permitted to continue to carry out its mission, including
the definition, development, practice, and expression of its religious
beliefs. Among other things, such a faith-based organization must be
permitted to:
(1) Use its facilities to provide DOL-supported social services
without concealing, removing, or altering religious art, icons,
scriptures, or other religious symbols from those facilities; and
(2) Retain its authority over its internal governance, including
retaining religious terms in its name, selecting its board members on
the basis of their acceptance of or adherence to the religious
requirements or standards of the organization, and including
[[Page 2937]]
religious references in its mission statements and other governing
documents.
(c) A grant document, contract or other agreement, covenant,
memorandum of understanding, policy, or regulation that is used by DOL,
a State or local government administering DOL support, or a DOL social
service intermediary provider must not require faith-based
organizations to provide assurances or notices where they are not
required of non-faith-based organizations. Any restrictions on the use
of grant funds shall apply equally to faith-based and non-faith-based
organizations. All organizations, including religious ones that are DOL
social service providers, must carry out DOL-supported activities,
subject to any required or appropriate religious accommodation, in
accordance with all program requirements, including those prohibiting
the use of direct DOL support for explicitly religious activities
(including worship, religious instruction, or proselytization). A grant
document, contract or other agreement, covenant, memorandum of
understanding, policy, or regulation that is used by DOL, a State or
local government, or a DOL social service intermediary provider in
administering a DOL social service program must not disqualify
organizations from receiving DOL support or participating in DOL
programs because such organizations are motivated or influenced by
religious faith to provide social services, or because of their
religious exercise or affiliation, or lack thereof.
Sec. 2.33 [Amended]
0
4. Amend Sec. 2.33 as follows:
0
a. In paragraph (a), by adding ``and may require attendance at all
activities that are fundamental to the program'' after ``organization's
program''.
0
b. In paragraph (c), by adding ``and further amended by Executive Order
13831'' after ``13559''.
Sec. Sec. 2.34 and 2.35 [Removed and Reserved]
0
5. Remove and reserve Sec. Sec. 2.34 and 2.35.
0
6. Revise Sec. 2.37 to read as follows:
Sec. 2.37 Effect of DOL support on Title VII employment
nondiscrimination requirements and on other existing statutes.
A religious organization's exemption from the Federal prohibition
on employment discrimination on the basis of religion, set forth in
section[thinsp]702(a) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-
1, is not forfeited when the organization receives direct or indirect
DOL support. An organization qualifying for such exemption may make its
employment decisions on the basis of their acceptance of or adherence
to the religious requirements or standards of the organization, but not
on the basis of any other protected characteristic. Some DOL programs,
however, were established through Federal statutes containing
independent statutory provisions requiring that recipients refrain from
discriminating on the basis of religion. Accordingly, to determine the
scope of any applicable requirements, including in light of any
additional constitutional or statutory protections for employment
decisions that may apply, recipients and potential recipients should
consult with the appropriate DOL program official or with the Civil
Rights Center, U.S. Department of Labor, 200 Constitution Avenue NW,
Room N4123, Washington, DC 20210, (202) 693-6500. Individuals with
hearing or speech impairments may access this telephone number via TTY
by calling the toll-free Federal Information Relay Service at 1-800-
877-8339.
0
7. In Sec. 2.38, revise paragraphs (b)(3) and (4) and add paragraph
(b)(5) to read as follows:
Sec. 2.38 Status of nonprofit organizations.
* * * * *
(b) * * *
(3) A certified copy of the applicant's certificate of
incorporation or similar document that clearly establishes the
nonprofit status of the applicant;
(4) Any item described in paragraphs (b)(1) through (b)(3) of this
section, if that item applies to a State or national parent
organization, together with a statement by the State or national parent
organization that the applicant is a local nonprofit affiliate of the
organization; or
(5) For an entity that holds a sincerely-held religious belief that
it cannot apply for a determination as an entity that is tax exempt
under section 501(c)(3) of the Internal Revenue Code, evidence
sufficient to establish that the entity would otherwise qualify as a
nonprofit organization under paragraphs (b)(1) through (b)(4) of this
section.
Sec. 2.39 [Amended]
0
8. Amend Sec. 2.39 by removing ``not on the basis of religion or
religious belief or lack thereof '' and add in its place ``not on the
basis of the religious affiliation of a recipient organization or lack
thereof.''
0
9. Add a new Sec. 2.40 to read as follows:
Sec. 2.40 Nondiscrimination among faith-based organizations.
Neither DOL nor any State or local government or other entity
receiving funds under any DOL program or service shall construe the
provisions of this part 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.
0
10. Revise Appendix A and Appendix B to Part 2 to read as follows:
Appendix A to Part 2--Notice or Announcement of Award Opportunities
Faith-based organizations may apply for this award on the same
basis as any other organization, as set forth at, and subject to the
protections and requirements of, part 2 subpart D and 42 U.S.C.
2000bb et seq. DOL will not, in the selection of recipients,
discriminate against an organization on the basis of the
organization's religious exercise or affiliation.
A faith-based organization that participates in this program
will retain its independence from the government and may continue to
carry out its mission consistent with religious freedom protections
in federal law, including the Free Speech and Free Exercise Clauses
of the First Amendment, 42 U.S.C. 2000bb et seq., 42 U.S.C. 238n, 42
U.S.C. 18113, 42 U.S.C. 2000e-1(a) and 2000e-2(e), 42 U.S.C.
12113(d), and the Weldon Amendment, among others. Religious
accommodations may also be sought under many of these religious
freedom protection laws.
A faith-based organization may not use direct financial
assistance from DOL to engage in any explicitly religious activities
except where consistent with the Establishment Clause of the First
Amendment to the Constitution and any other applicable requirements.
Such an organization also may not, in providing services funded by
DOL, 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.
Appendix B to Part 2--Notice of Award or Contract
A faith-based organization that participates in this program
retains its independence from the government and may continue to
carry out its mission consistent with religious freedom protections
in federal law, including the Free Speech and Free Exercise Clauses
of the First Amendment to the Constitution, 42 U.S.C. 2000bb et
seq., 42 U.S.C. 238n, 42 U.S.C. 18113, 42 U.S.C. 2000e-1(a) and
2000e-2(e), 42 U.S.C. 12113(d), and the Weldon Amendment, among
others. Religious accommodations may also be sought under many of
these religious freedom protection laws.
A faith-based organization may not use direct financial
assistance from DOL to engage in any explicitly religious activities
except when consistent with the Establishment Clause of the First
Amendment and any other applicable requirements. Such an
organization also may not, in providing services funded by DOL,
discriminate against a program beneficiary or prospective program
beneficiary on the basis
[[Page 2938]]
of religion, a religious belief, a refusal to hold a religious
belief, or a refusal to attend or participate in a religious
practice.
Dated: December 9, 2019.
Eugene Scalia,
Secretary, U.S. Department of Labor.
[FR Doc. 2019-26862 Filed 1-16-20; 8:45 am]
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