[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]
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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.
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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 http://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 http://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 http://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.
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\1\ The Department invites comment on how this ``fundamental''
criterion could be further clarified or elaborated in any final
rule.
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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]
BILLING CODE P