Equal Participation of Faith-Based Organizations in USAID's Programs and Activities: Implementation of Executive Order 13831, 2916-2921 [2019-27164]

Agencies

• Agency for International Development

[Federal Register Volume 85, Number 12 (Friday, January 17, 2020)]
[Proposed Rules]
[Pages 2916-2921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27164]


=======================================================================
-----------------------------------------------------------------------

AGENCY FOR INTERNATIONAL DEVELOPMENT

22 CFR Part 205

RIN 0412-AA99


Equal Participation of Faith-Based Organizations in USAID's 
Programs and Activities: Implementation of Executive Order 13831

AGENCY: U.S. Agency for International Development (USAID).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would amend USAID's regulations to 
implement Executive Order 13831, ``Establishment of a White House Faith 
and Opportunity Initiative.'' Among

[[Page 2917]]

other changes, this rule proposes to provide clarity regarding the 
rights and obligations of faith-based organizations that are 
participating in USAID's programs, and is intended to ensure that the 
Agency's implements its programs and activities in a manner consistent 
with the requirements of Federal law, including the First Amendment to 
the Constitution and the Religious Freedom Restoration Act (RFRA).

DATES: Comments must be received no later than February 18, 2020.

ADDRESSES: Address all comments concerning this notice to Brian Klotz, 
Deputy Director, Center for Faith and Opportunity Initiatives, USAID, 
Room 6.07-017, 1300 Pennsylvania Avenue NW, Washington, DC 20523-6601. 
Submit comments, identified by title of the action and Regulatory 
Information Number (RIN), by any of the following methods:
    1. Through the Federal eRulemaking Portal at https://www.regulations.gov by following the instructions for submitting 
comments.
    2. By mail, addressed to USAID, Center for Faith and Opportunity 
Initiatives, Room 6.07-100, 1300 Pennsylvania Avenue NW, Washington, DC 
20523-6601.

FOR FURTHER INFORMATION CONTACT: Kirsten Evans, Telephone: 202-712-
5975, or Email: [email protected].

SUPPLEMENTARY INFORMATION: 

A. Instructions

    All comments must be in writing and submitted through one of the 
methods specified in the Addresses section above. All submissions must 
include the title of the action and the RIN for this rulemaking. Please 
include your name, title, organization, postal address, telephone 
number, and email address in the text of the message.
    Please note that USAID recommends sending all comments to the 
Federal eRulemaking Portal because security screening precautions have 
slowed the delivery and dependability of surface mail to USAID in 
Washington, DC.
    All comments will be available at https://www.regulations.gov for 
public review without change, including any personal information 
provided. We recommend that you do not submit information that you 
consider Confidential Business Information (CBI) or any information 
otherwise protected from disclosure by statute.
    USAID will only address substantive comments on the rule. USAID 
might not consider comments that are insubstantial or outside the scope 
of the proposed rule.

B. Request for Comments

    USAID requests comments on its proposed rule to amend USAID's 
regulations to implement Executive Order 13831, ``Establishment of a 
White House Faith and Opportunity Initiative.''

Background

    Shortly after taking office in 2001, President George W. Bush 
signed Executive Order (``E.O.'') 13199, Establishment of White House 
Office of Faith-based and Community Initiatives, 66 FR 8499 (January 
29, 2001). That E.O. 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 the White House Office of 
Faith-Based and Community Initiatives, which had 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 E.O. 13279, Equal 
Protection of the Laws for Faith-Based and Community Organizations, 67 
FR 77141 (December 12, 2002). E.O. 13279 set forth the principles and 
policy-making criteria to guide Federal Departments and Agencies in 
formulating and implementing policies with implications for faith-based 
and other community organizations, to ensure equal protection of the 
laws for them, to expand opportunities for them, and to strengthen 
their capacity to meet social needs in America's communities. In 
addition, E.O. 13279 directed specified heads of Departments and 
Agencies 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 consistent 
with, and necessary to further, the fundamental principles and policy-
making criteria articulated in the Order. Consistent with E.O. 13279, 
USAID promulgated regulations, and published its final rule on 
participation by religious organizations in the Agency's programs on 
October 20, 2004, codified at Parts 202, 205, and 211 of Title 22 of 
the Code of Federal Regulations (CFR).
    President Obama maintained President Bush's program, but modified 
it in certain respects. Shortly after taking office, President Obama 
signed E.O. 13498, Amendments to Executive Order 13199 and 
Establishment of the President's Advisory Council for Faith-Based and 
Neighborhood Partnerships, 74 FR 6533 (February 9, 2009). This E.O. 
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 E.O. 13559, 
Fundamental Principles and Policymaking Criteria for Partnerships with 
Faith-Based and Other Neighborhood Organizations, 75 FR 71319 (November 
17, 2010). E.O. 13559 made various changes to E.O. 13279, including 
making minor and substantive textual changes to the fundamental 
principles and adding a provision that awards must be free of political 
interference and not be based on religious affiliation or lack thereof. 
The President tasked an interagency working group with developing model 
regulatory changes to implement E.O. 13279 as amended by E.O. 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.
    Following the work of the interagency working group, USAID 
published a final rule in the Federal Register on April 4, 2016 (81 FR 
19355), that amended language in Part 205.1 of Title 22 of the CFR to 
reflect the following changes: (1) Clarifying restricted uses of 
funding; (2) detailing the application of restrictions to recipients of 
sub-awards; and, (3) emphasizing that awards must not be based on 
political interference or on religious affiliation or lack thereof. In 
a separate rulemaking published in the Federal Register on June 29, 
2016 (81 FR 42245), USAID further amended language in Part 205.1 of 
Title 22 of the CFR22 to allow for the possibility of USAID support, 
where otherwise consistent with law and jurisprudence on the 
Establishment Clause of the First Amendment of the Constitution, for 
activities that involved the overseas acquisition, rehabilitation, or 
construction of structures used for explicitly religious activities.
    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 E.O. 13798, Presidential Executive Order 
Promoting

[[Page 2918]]

Free Speech and Religious Liberty, 82 FR 21675 (May 4, 2017). E.O. 
13798 states that ``Federal 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 titled, ``Federal 
Law Protections for Religious Liberty,'' 82 FR 49668 (October 26, 2017) 
(``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.'' 
Id. at p. 2.
    On May 3, 2018, President Trump signed E.O. 13831, Executive Order 
on the Establishment of a White House Faith and Opportunity Initiative, 
83 FR 20715 (May 3, 2018), amending E.O. 13279 as amended by E.O. 
13559, and other related Executive Orders. Among other things, E.O. 
13831 changed the name of the ``White House Office of Faith-Based and 
Neighborhood Partnerships,'' as established in E.O. 13498, to the 
``White House Faith and Opportunity Initiative''; changed the way the 
Initiative is to operate; directed Federal 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.'' E.O. 13831 also eliminated the alternative-provider 
requirement and the requirement of notice thereof in E.O. 13559.

Overview of the Proposed Rule

    USAID proposes to amend Part 205 of Title 22 of the CFR to 
implement E.O. 13831, ``Partnerships With Faith-Based and Other 
Neighborhood Organizations,'' and amend the current regulations to 
conform more closely with jurisprudence on the First Amendment of the 
Constitution; relevant Federal statutes, such as the Religious Freedom 
Restoration Act (RFRA) of 1993; E.O. 13279, as amended by E.O.s 13559 
and 13831; and the Attorney General's Memorandum on Religious Liberty.
    The Agency proposes to amend its regulations to make clear that a 
faith-based organization that participates in Agency-funded programs or 
services shall retain its autonomy, religious character, and 
independence.
    The proposed rule would also clarify that a faith-based 
organization that receives financial assistance from USAID may use 
space in its facilities, without concealing, altering, or removing 
religious art, icons, scriptures, or other religious symbols.
    In addition, the proposed rule would clarify that none of the 
guidance documents USAID uses in administering its financial assistance 
shall require faith-based organizations to provide assurances or 
notices when the Agency does not impose similar requirements on secular 
organizations. The proposed rule would clarify that a faith-based 
organization that participates in a Federally funded program retains 
its independence from the U.S. 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.
    This rule proposes to require that the Agency's notices or 
announcements of award opportunities include language to clarify that 
faith-based organizations are eligible on the same basis as any other 
organization and subject to the protections and requirements of Federal 
law.

Explanations for the Proposed Amendments to Part 205 of Title 22 of the 
CFR

Section[thinsp]205.1

Grants and Cooperative Agreements
    USAID proposes to change Section 205.1(a) to clarify the text by 
eliminating extraneous language and to state explicitly the 
applicability of the First Amendment and the RFRA, under which 
accommodations for faith-based organizations could be available. See, 
e.g., Attorney General's Memorandum on Religious Liberty, 82 FR 49668 
(October 26, 2017). The provision also makes clear that neither USAID 
nor entities that make and administer sub-awards of USAID funds may 
discriminate for, or against, an organization on the basis of the 
organization's religious exercise or affiliation. The existing 
regulation included a similar statement, but referred to ``religious 
character,'' rather than ``religious exercise,'' and USAID believes the 
latter term offers additional clarity, as it has a more well-developed 
meaning in Federal law. In addition, in Sec.  205.1(a) and throughout, 
the Agency uses the term ``Faith-based organizations,'' rather than 
``religious organizations,'' to align its regulations with the terms 
used in E.O. 13831.
    USAID proposes to change Sec.  205.1(c) to align it more closely 
with the First Amendment and the RFRA by providing more detail about 
the autonomy that a faith-based organization retains while 
participating in U.S. Government programming. See, e.g., E.O. 13279, 67 
FR 77141 (December 12, 2002), as amended by E.O. 13831, 83 FR 20715 
(May 8, 2018); the Attorney General's Memorandum on Religious Liberty, 
82 FR 49668 (October 26, 2017).
    USAID proposes to change Sec.  205.1(f) to clarify the text and 
align it more closely with the First Amendment and the RFRA by 
emphasizing that the Agency shall not require notices and assurances of 
faith-based organizations if it does not also require them of secular 
organizations, and by clarifying that USAID may not disqualify faith-
based organizations from participating in its programs on the basis of, 
inter alia, their religious exercise. See, e.g., Trinity Lutheran 
Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017); Attorney 
General's Memorandum on Religious Liberty, 82 FR 49668 (October 26, 
2017).
    USAID proposes to change Section 205.1(g) to emphasize alignment 
with the First Amendment of the Constitution and the RFRA, and to 
provide greater clarity about the scope of protection in that 
provision. See, e.g., E.O. 13279, 67 FR 77141 (December 12, 2002), as 
amended by E.O. 13831, 83 FR 20715 (May 8, 2018); Attorney General's 
Memorandum on Religious Liberty, 82 FR 49668 (October 26, 2017).
    USAID proposes to add Sec.  205.1(l) to align the text more closely 
with the First Amendment by making clear that these provisions related 
to non-discrimination 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); Attorney General's Memorandum on 
Religious Liberty, 82 FR 49668 (October 26, 2017).

Regulatory Certifications

E.O. 12866 and 13563: Regulatory Planning and Review

    USAID has drafted this Notice of Proposed Rule-Making (NPRM) in

[[Page 2919]]

accordance with E.O. 13563 of January 18, 2011, 76 FR 3821, Improving 
Regulation and Regulatory Review, and E.O. 12866 of September 30, 1993, 
58 FR 51735, Regulatory Planning and Review. E.O. 13563 directs Federal 
Departments and 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. E.O. 13563 recognizes that some 
benefits and costs are difficult to quantify and provides that, where 
appropriate and permitted by law, Departments and Agencies may consider 
and discuss qualitatively values that are difficult or impossible to 
quantify, including equity, human dignity, fairness, and distributive 
impacts.
    Under E.O. 12866, the Office of Information and Regulatory Affairs 
(OIRA) at the Office of Management and Budget (OMB) must determine 
whether this regulatory action is ``significant'' and, therefore, 
subject to the requirements of the Executive Order and subject to 
review by OMB. Section 3(f) of E.O. 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 Department or 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 that arise out of legal 
mandates, the President's priorities, or the principles stated in E.O. 
12866.
    OMB/OIRA has determined that this proposed rule is a significant, 
but not an economically significant, regulatory action subject to 
review by OMB under Section 3(f) of E.O. 12866. Accordingly, OMB has 
reviewed this proposed rule.
    The Agency has also reviewed these regulations under E.O. 13563, 
which supplements and reaffirms the principles, structures, and 
definitions that govern regulatory review established in E.O. 12866. To 
the extent permitted by law, Section 1(b) of E.O. 13563 requires that a 
Department or Agency:
    (1) Propose or adopt regulations only upon a reasoned determination 
that 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 by 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.
    Section 1(c) of E.O. 13563 (76 FR 3821, January 18, 2011) also 
requires a Department or Agency ``to use the best available techniques 
to quantify anticipated present and future benefits and costs as 
accurately as possible.'' Id. OMB/OIRA 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, OMB/OIRA, Re: E.O. 13563, ``Improving 
Regulation and Regulatory Review'', at 1 [Feb. 2, 2011], available at: 
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2011/m11-10.pdf).
    USAID is issuing these proposed regulations upon a reasoned 
determination that their benefits justify their costs. In choosing 
among alternative regulatory approaches, the Agency selected the 
approach that maximizes net benefits. In accordance with E.O.s 12866 
and 13563, the Agency has assessed the potential costs and benefits, 
both quantitative and qualitative, of this regulatory action. As the 
proposed action does not create any additional requirements, the 
potential costs associated with this regulatory action are negligible. 
In terms of benefits, USAID recognizes a non-quantifiable benefit to 
religious liberty that comes from conforming its regulations more 
closely to First Amendment jurisprudence. The Agency also recognizes a 
non-quantifiable benefit that comes from increased clarity in the 
regulatory requirements that apply to organizations that are operating 
social-service programs funded by the Federal Government. The Agency 
invites comment on any additional costs and benefits associated with 
this rulemaking and any data by which it could quantify such costs or 
benefits.

E.O. 13771: Reducing Regulation and Controlling Regulatory Costs

    President Trump issued E.O. 13771, entitled, ``Reducing Regulation 
and Controlling Regulatory Costs,'' on January 30, 2017 (82 FR 9339, 
February 3, 2017). Section 2(a) of E.O. 13771 requires a Department or 
Agency, unless prohibited by law, to identify at least two existing 
regulations to repeal when it publicly proposes for notice and comment, 
or otherwise promulgates, a new regulation. In furtherance of this 
requirement, Section 2(c) of E.O. 13771 requires that the new 
incremental costs associated with new regulations shall, to the extent 
permitted by law, be offset by the elimination of existing costs 
associated with at least two prior regulations (OMB's interim guidance, 
issued on April 5, 2017, https://www.whitehouse.gov/the-press-office/2017/04/05/memorandum-implementing-executive-order-13771-titled-reducing-regulation explains that for Fiscal Year 2017 the above 
requirements only apply to each new ``significant regulatory action 
that imposes costs''). This proposed rule is expected to be a 
deregulatory action under E.O. 13771.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (Section 601-612 of Title 5 of the 
United States Code [U.S.C.]), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally 
requires a Department or Agency to prepare a regulatory-flexibility 
analysis of any rule subject to the requirements of notice-and-comment 
rulemaking under the Administrative Procedure Act (Section 553 of Title 
5 of the U.S.C.) or any other statute, unless the Department or Agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities.

[[Page 2920]]

    USAID has determined that this rule will not have a significant 
economic impact on a substantial number of small entities. 
Consequently, the Agency has not prepared a regulatory-flexibility 
analysis.

E.O. 12988: Civil Justice Reform

    USAID and OMB have reviewed this proposed rule in accordance with 
E.O. 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.

E.O. 13175: Consultation and Coordination With Indian Tribal 
Governments

    USAID and OMB have reviewed this rule in accordance with the 
requirements of E.O. 13175, ``Consultation and Coordination with Indian 
Tribal Governments.'' E.O. 13175 requires Federal Departments and 
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.
    The Agency has assessed the impact of this rule on Indian tribes 
and determined it does not, to our knowledge, have tribal implications 
that require tribal consultation under E.O. 13175.

Executive Order 13132: Federalism

    E.O. 13132 directs that, to the extent practicable and permitted by 
law, a Department or 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 Department or Agency meets the 
consultation and funding requirements of Section 6 of the E.O. Because 
each change proposed by this rule does not have federalism implications 
as defined in the E.O., 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 E.O., the Agency has 
concluded that compliance with the requirements of Section 6 of the 
E.O. is not necessary.

Plain-Language Instructions

    USAID 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 Agency is 
proposing a number of changes to this regulation to enhance its clarity 
and satisfy the Federal Government's plain-language requirements. If 
any commenter has suggestions for how the Agency could write the 
regulation more clearly, please provide comments by 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 Section 3501 of Title 44 of the U.S.C. et seq.).

Unfunded Mandates Reform Act

    Section 4(2) of the Unfunded Mandates Reform Act of 1995 (Section 
1503(2) of Title 2 of the U.S.C.), 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 22 CFR Part 205

    Foreign aid, Grant programs, Non-profit organizations.

    Accordingly, for the reasons set forth in the preamble, USAID 
proposes to amend Part 205 of Chapter II of Title 22 of the CFR as 
follows:

PART 205--PARTICIPATION BY RELIGIOUS ORGANIZATIONS IN USAID 
PROGRAMS

0
1. The authority citation for part 205 continues to read as follows:

    Authority:  22 U.S.C. 2381(a).

0
2. In Sec.  [thinsp]205.1, revise paragraphs (a), (c), (f), (g), and 
add paragraph (l) to read as follows:


Sec.  [thinsp]205.1  Grants and cooperative agreements.

    (a) Faith-based organizations are eligible, on the same basis as 
any other organization and considering any reasonable accommodation, as 
is consistent with federal law, the Attorney General's Memorandum of 
October 6, 2018 (Federal Law Protections for Religious Liberty), and 
the Religion Clauses of the First Amendment to the U.S. Constitution, 
to participate in any USAID program for which they are otherwise 
eligible. In the selection of service-providers, neither USAID nor 
entities that make and administer sub-awards of USAID funds shall 
discriminate for, or against, an organization on the basis of the 
organization's religious exercise or affiliation. Notices or 
announcements of award opportunities shall include language to indicate 
that faith-based organizations are eligible on the same basis as any 
other organization and subject to the protections and requirements of 
federal law. As used in this section, the term ``program'' refers to 
federally funded USAID grants and cooperative agreements, including 
sub-grants and sub-agreements. The term also includes grants awarded 
under contracts. As used in this section, the term ``grantee'' includes 
a recipient of a grant or a signatory to a cooperative agreement, as 
well as sub-recipients of USAID assistance under grants, cooperative 
agreements, and contracts.
* * * * *
    (c) A faith-based organization that applies for, or participates 
in, USAID-funded programs or services (including through a prime award 
or sub-award) will retain its autonomy, religious character, and 
independence, and may continue to carry out its mission consistent with 
religious freedom protections in federal law, including the definition, 
development, practice, and expression of its religious beliefs, 
provided that it does not use direct financial assistance from USAID 
(including through a prime award or sub-award) to support or engage in 
any explicitly religious activities (including activities that involve 
overt religious content such as worship, religious instruction, or 
proselytization), or in any other manner prohibited by law. Among other 
things, a faith-based organization that receives financial assistance 
from USAID may use space in its facilities, without concealing, 
altering, or removing religious art, icons, scriptures, or other 
religious symbols. In addition, a faith-based organization that 
receives financial assistance from USAID retains its authority over its

[[Page 2921]]

internal governance, and it may retain religious terms in its 
organization's name, select its board members on a religious basis, and 
include religious references in its organization's mission statements 
and other governing documents.
* * * * *
    (f) No grant document, contract, agreement, covenant, memorandum of 
understanding, policy, or regulation used by USAID shall require faith-
based organizations to provide assurances or notices where the Agency 
does not require them of non-faith-based organizations. Any 
restrictions on the use of grant funds shall apply equally to faith-
based and non-faith-based organizations. All organizations that 
participate in USAID's programs (including through a prime award or 
sub-award), including faith-based ones, must carry out eligible 
activities in accordance with all program requirements and other 
applicable requirements that govern the conduct of USAID-funded 
activities, including those that prohibit the use of direct financial 
assistance from USAID to engage in explicitly religious activities. No 
grant document, contract, agreement, covenant, memorandum of 
understanding, policy, or regulation used by USAID shall disqualify 
faith-based organizations from participating in USAID's programs 
because such organizations are motivated or influenced by religious 
faith to provide social services or other assistance, or because of 
their religious exercise or affiliation.
    (g) A religious organization does not forfeit its exemption from 
the Federal prohibition on employment discrimination on the basis of 
religion, set forth in section 702(a) of the Civil Rights Act of 1964, 
42 U.S.C. 2000e-1, when the organization receives financial assistance 
from USAID. An organization that qualifies for such exemption may 
select its employees on the basis of their acceptance of, and/or 
adherence to, the religious tenets of the organization.
* * * * *
    (l) Nothing in this section shall be construed in such a way as to 
advantage, or disadvantage, faith-based organizations affiliated with 
historic or well-established religions or sects in comparison with 
other religions or sects.

Brian Klotz,
Deputy Director, Center for Faith and Opportunity Initiatives.
[FR Doc. 2019-27164 Filed 1-16-20; 8:45 am]
 BILLING CODE 6116-01-P