Federal Register, Volume 85 Issue 12 (Friday, January 17, 2020)

[Federal Register Volume 85, Number 12 (Friday, January 17, 2020)]
[Proposed Rules]
[Pages 2889-2897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28142]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 85, No. 12 / Friday, January 17, 2020 /
Proposed Rules

[[Page 2889]]

DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 19

[Docket No. DHS-2019-0049]
RIN 1601-AA93

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

AGENCY: Office of the Secretary, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The rule proposes to amend Department of Homeland Security
(Department or DHS) 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, to clarify the Department's
guidance documents for financial assistance in regard to faith-based
organizations, and to 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 DHS on or before February 18, 2020.

ADDRESSES: You may submit comments identified by docket DHS-2019-0049.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for further instructions on
submitting comments.

FOR FURTHER INFORMATION CONTACT: Peter Mina, Deputy Officer for
Programs and Compliance, Office for Civil Rights and Civil Liberties,
Department of Homeland Security, Washington, DC 20528, 202-401-1474
(phone), 202-401-0470 (TTY).

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

DHS encourages you to submit comments through the Federal
eRulemaking Portal at https://www.regulations.gov. If you cannot submit
your material by using https://www.regulations.gov, contact the person
in the FOR FURTHER INFORMATION CONTACT section of this notice of
proposed rulemaking for alternate instructions. Also, if you visit the
online docket and sign up for email alerts, you will be notified when
comments are posted or if a final rule is published.
All comments received are considered part of the public record and
made available for public inspection online at http://www.regulations.gov. Information made available for public inspection
includes personal identifying information (such as your name, address,
etc.) voluntarily submitted by the commenter.

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 (Dec. 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.
Consistent with Executive Order 13279, the Department issued a
notice of proposed rulemaking, Nondiscrimination in Matters Pertaining
to Faith-Based Organizations, 73 FR 2187 (Jan. 14, 2008); however, the
Department did not issue a final rule related to the participation of
faith-based organizations in the Department's programs prior to 2016.
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 (Nov. 17,
2010). Executive Order 13559 made various changes to Executive Order
13279 including: Making minor and substantive textual

[[Page 2890]]

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 the
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,
defining ``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.
Unlike most of the other agencies affected by the Executive Orders,
the Department did not issue final regulations related to the
participation of faith-based organizations in the Department programs
prior to 2016. In 2015, the Department issued a supplemental notice of
proposed rulemaking (SNPRM), Nondiscrimination in Matters Pertaining to
Faith-Based Organizations, 80 FR 47284 (Aug. 6, 2015), in concert with
other agencies. The SNPRM addressed comments received in response to
the 2008 notice of proposed rulemaking and proposed additional changes
to address Executive Order 13559.
In 2016, the Department in concert with eight other Federal
agencies, published its final rule, Nondiscrimination in Matters
Pertaining to Faith-based Organizations, 81 FR 19353 (April 4, 2016),
codified at 6 CFR part 19, which established regulations to implement
Executive Order 13279, as amended by Executive Order 13559. The rules
required not only 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.
Following issuance of the final rule in 2016, the Department
provided guidance and resources to assist faith-based and other
neighborhood organizations receiving financial assistance to support
social service programs, as well as intermediaries (such as State
administering agencies), in understanding and complying with the
regulation, including but not limited to model notices of beneficiary
rights and beneficiary referral request forms.
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 (Oct.
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'' in those previous Orders to the ``White House Faith and
Opportunity Initiative;'' changed the way that 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
requirement and requirement of notice thereof in Executive Order 13559
described above.

Alternative Provider and Alternative Provider Notice Requirement

Executive Order 13831 deleted the requirement in Executive Order
13559 that faith-based social services providers refer beneficiaries
who object to receiving services from them to an alternative provider.
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; 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 on 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. The Department has
revised its regulations to conform to these provisions. 6 CFR 19.6,
19.7.
The alternative provider provisions of Executive Order 13559, which
Executive Order 13831 removed, were not required by the Constitution or
any applicable law. Indeed, they are in tension with more recent
Supreme Court precedent regarding nondiscrimination against religious
organizations and with the Attorney General's Memorandum on Religious
Liberty.

[[Page 2891]]

As the Supreme Court recently clarified in Trinity Lutheran Church
of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017) (quoting
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993)
(alteration is original)): ``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.' '' 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. at
2019 (quoting McDaniel v. Paty, 435 U.S. 618 (1978) (plurality opinion)
(internal citations omitted); 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 concerns under the Religious Freedom Restoration
Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. 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 the alternative
provider requirement 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). And it is far
from clear that this requirement would meet the strict scrutiny that
RFRA requires of laws that substantially burden religious practice. The
Department is not aware of any instance 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.
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 the alternative provider
requirement, Part 19 as most recently amended goes further than
Executive Order 13559 by requiring that faith-based social service
providers of services 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 any explicitly 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, the Orders
clearly set forth the underlying requirements of nondiscrimination,
voluntariness, the holding of religious activities separate in time or
place from any federally funded activity, and the right to file
complaints of violations. Faith-based providers of social services,
like other providers of social services, are required to sign
assurances that they will follow the law and the requirements of grants
and contracts they receive. See, e.g., 28 CFR 38.7. There is no basis
on which to presume that they are less likely than other social service
providers to follow the law. See Mitchell v. Helms, 530 U.S. 793, 856-
57 (2000) (O'Connor, J., concurring in judgment) (noting that in Tilton
v. Richardson, 403 U.S. 672 (1971), the Court's upholding of grants to
universities for construction of 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
and 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 (Nov. 22, 2010). Following issuance
of the Working Group's report, a final rule was issued to amend
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 (Apr. 4, 2016). In so doing, the
final rule attempted to accurately 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 (Apr. 4,
2016).
In Zelman, the Court concluded that a government funding program is
``one of true private choice''--i.e., 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.,

[[Page 2892]]

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 (Apr. 4, 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 Proposed Rule

The Department proposes to amend Part 19 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 19 to conform to Executive Order 13279, as amended, by deleting
the requirement that faith-based social services providers refer
beneficiaries objecting to receiving services from them to an
alternative provider.
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.
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 non-faith-based organizations, and that
any restrictions on the use of grant funds shall apply equally to
faith-based and non-faith-based organizations.
This proposed rule would additionally require that the Department's
notices or announcements of award opportunities and notices of awards
or 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
Constitution.
Finally, the proposed rule would directly refer to the definition
of ``religious exercise'' incorporated 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 Proposed Amendments to 6 CFR Part 19

Sec. 19.2 Definitions
Section 19.2 ``Direct Federal financial assistance or Federal
financial assistance provided directly'' is proposed to be changed in
order to provide clarity.
Section 19.2 ``Financial assistance'' is proposed to be changed in
accordance with Exec. Order No. 13279, 67 FR 77141 (Dec. 12, 2002).
Section 19.2 ``Indirect Federal financial assistance or Federal
financial assistance provided indirectly'' (2) is proposed to be
changed in order to clarify the text by eliminating extraneous language
and to align the text more closely with the First Amendment. See, e.g.,
Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Trinity Lutheran Church
of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).
A new definition of ``religious exercise'' is proposed to be added
to Section 19.2 to explain that such term has the meaning given to the
term in 42 U.S.C. 2000cc-5(7)(A),'' thereby aligning the text with the
definition used RFRA 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 (Oct. 26, 2017).
Sec. 19.3 Equal Ability for Faith-Based Organizations To Seek and
Receive Financial Assistance Through DHS Social Service Programs
Section 19.3(a) is proposed to be changed in order to align it more
closely with RFRA by recognizing that a reasonable accommodation may be
appropriate or required for faith-based organizations participating in
DHS social service programs. See, e.g., principles 6, 10-15, and 20 of
the Attorney General's Memorandum on Religious Liberty, 82 FR 49668
(Oct. 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) (World Vision
Opinion).
Section 19.3(b) is proposed to be changed to align the text more
closely with the First Amendment and with RFRA by recognizing that the
government may not discriminate for or against an organization because
of that organization's religious exercise any more than it can do so
based on the organization's religious character or affiliation. See,
e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002), Trinity Lutheran
Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)); principles
2, 3, 5-7, 9-17, 19, and 20 of the Attorney General's Memorandum on
Religious Liberty, 82 FR 49668 (Oct. 26, 2017); Exec. Order No. 13279,
67 FR 77141 (Dec. 12, 2002), as amended by Exec. Order No. 13559, 75 FR
71319 (Nov. 17, 2010), and Exec. Order No. 13831, 83 FR 20715 (May 8,
2018). It also will require certain notices or

[[Page 2893]]

announcements of award opportunities, awards, or contracts.
Section 19.3(e) 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 the possibility of a reasonable religious
accommodation. See, e.g., principles 6, 10-15, and 20 of the Attorney
General's Memorandum on Religious Liberty, 82 FR 49668 (Oct. 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) (World Vision Opinion). To be reasonable, of
course, any such accommodation must comply with the applicable
requirements of federal law, including the Establishment Clause.
Section 19.3(f) is proposed to be added in order to align the text
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.
See, e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.
Ct. 2012 (2017); principles 5, 6, 7, 8, 10-15, and 20 of the Attorney
General's Memorandum on Religious Liberty, 82 FR 49668 (Oct. 26, 2017).
Sec. 19.4 Explicitly Religious Activities
Section 19.4(b) is proposed to be changed in order to clarify the
text by eliminating extraneous language, and to align it more closely
with Exec. Order No. 13559, 75 FR 71319 (Nov. 22, 2010). It is not
clear what import the requirement that explicitly religious activities
be ``[c]learly distinct from programs specifically supported by direct
financial assistance'' would have given the requirement that they must
be offered separately, in time or location, from the programs,
activities, or services supported by direct DHS financial assistance.
DHS accordingly thinks it better to simply align the text with the
requirements in the Executive Order.
Section 19.4(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 once again recognizing the possibility of a reasonable accommodation
for faith-based organizations participating in DHS social service
programs. See, e.g., Trinity Lutheran Church of Columbia, Inc. v.
Comer, 137 S. Ct. 2012 (2017); principles 5, 6, 7, 8, 10-15, and 20 of
the Attorney General's Memorandum on Religious Liberty, 82 FR 49668
(Oct. 26, 2017).
Sec. 19.5 Nondiscrimination Requirements
Section 19.5 is proposed to be changed in order to align the text
more closely with the First Amendment and with RFRA by making clear
that an organization receiving indirect financial assistance is not
required to make the attendance requirements of its program optional
for a beneficiary who has chosen to expend indirect aid on that
program. 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 (Oct. 26, 2017).
Sec. 19.6 How To Prove Nonprofit Status
Section 19.6 is proposed to be changed in order to align the text
more closely with the First Amendment and with RFRA by deleting the
notice requirement. See, e.g., See, e.g., Zelman v. Simmons-Harris, 536
U.S. 639 (2002), Trinity Lutheran Church of Columbia, Inc. v. Comer,
137 S. Ct. 2012 (2017); principles 2, 3, 6-7, 9-17, 19, and 20 of the
Attorney General's Memorandum on Religious Liberty, 82 FR 49668 (Oct.
26, 2017); Exec. Order No. 13279, 67 FR 77141 (Dec. 12, 2002), as
amended by Exec. Order No. 13559, 75 FR 71319 (Nov. 17, 2010), and
Exec. Order No. 13831, 83 FR 20715 (May 8, 2018). In its place, DHS is
inserting a new provision that identifies how nonprofit status may be
determined when such status is required for participation in its
programs. This new provision includes an accommodates for organizations
that would qualify as 501(c)(3) nonprofit organizations but that have a
sincere religious objection to so registering, allowing such
organizations to provide evidence that they would so qualify. If an
entity has a sincerely-held religious belief that it cannot apply for
status as a 501(c)(3) tax-exempt entity, it may provide evidence
sufficient to establish that the entity would otherwise qualify as a
nonprofit organization under the Department's criteria.
Sec. 19.7 Beneficiary Protections: Referral Requirements
Section 19.7 is proposed to be changed in order to align the text
more closely with the First Amendment and with RFRA by eliminating the
referral requirement. See, e.g., See, e.g., Zelman v. Simmons-Harris,
536 U.S. 639 (2002), Trinity Lutheran Church of Columbia, Inc. v.
Comer, 137 S. Ct. 2012 (2017); principles 2, 3, 6-7, 9-17, 19, and 20
of the Attorney General's Memorandum on Religious Liberty, 82 FR 49668
(Oct. 26, 2017); Exec. Order No. 13279, 67 FR 77141 (Dec. 12, 2002), as
amended by Exec. Order No. 13559, 75 FR 71319 (Nov. 17, 2010), and
Exec. Order No. 13831, 83 FR 20715 (May 8, 2018).
Sec. 19.8 Independence of Faith-Based Organizations
Section 19.8 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 programming. See, e.g., Exec. Order No.
13279, 67 FR 77141 (Dec. 12, 2002), as amended by Exec. Order No.
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 (Oct.
26, 2017).
Sec. 19.11 Nondiscrimination Among Faith-Based Organizations
Section 19.11 is proposed to be added in order to align the text
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
(Oct. 26, 2017).
Appendix A and Appendix B
The Department proposes that Appendix A be changed and that
Appendix B be added 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 DHS funded programs. See, e.g., Zelman v.
Simmons-Harris, 536 U.S. 639 (2002), Trinity Lutheran Church of
Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)); 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); Exec. Order No. 13279, 67 FR
77141 (Dec. 12, 2002), as amended by Exec. Order No. 13559, 75 FR 71319
(Nov. 17, 2010), and Exec. Order No. 13831, 83 FR 20715 (May 8, 2018).

[[Page 2894]]

III. Regulatory Certifications

Executive Order 12866 and 13563--Regulatory Planning and Review

This NPRM has been drafted in accordance with Executive Order 13563
of January 18, 2011 (76 FR 3821, Jan. 21, 2011), Improving Regulation
and Regulatory Review, and Executive Order 12866 of September 30, 1993
(58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review. Executive
Order 13563 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.
This proposed regulatory action is a significant regulatory action
subject to review by OMB under section 3(f) of Executive Order 12866.
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 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
(Jan. 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.
OIRA 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,
OIRA, Re: Executive Order 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.
The Department is issuing this proposed regulation upon a reasoned
determination that its benefits justify its costs. In choosing among
alternative regulatory approaches, the Department selected the approach
that it believes maximizes net benefits. Based on the analysis that
follows, the Department believes that the proposed regulation is
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 has determined in
addition that this proposed action would result in benefits to
beneficiaries, described in more detail below.
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 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 and referral requirements, which the Department previously
estimated as imposing a cost of no more than $200 per organization per
year. 81 FR 19379 (Apr. 4, 2016). The Department invites comment on any
data by which it could assess the actual implementation costs of the
notice and referral requirement--including any estimates of staff time
spent on compliance with the requirement, in addition to the printing
costs for the notices referenced above--and thereby accurately quantify
the cost savings of removing these requirements.
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

[[Page 2895]]

increased clarity in the regulatory requirements that apply to faith-
based organizations operating social-service programs funded by the
Federal Government. Beneficiaries may 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 once relieved of the concern of
excessive governmental involvement.

Executive Order 13771, Reducing Regulation and Controlling Regulatory
Costs

Executive Order 13771, titled ``Reducing Regulation and Controlling
Regulatory Costs,'' was issued on January 30, 2017 (82 FR 9339, Feb. 3,
2017). Section 2(a) of Executive Order 13771 requires an agency, unless
prohibited by law, to identify at least two existing regulations to be
repealed when the agency publicly proposes for notice and comment, or
otherwise promulgates, a new regulation. In furtherance of this
requirement, section 2(c) of Executive Order 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 an E.O.
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,
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.
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, including revising the organizational scheme and adding
headings to make it more user-friendly. If any commenter has
suggestions for how the regulation could be written more clearly,
please provide comments with the suggestions.

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 6 CFR Part 19

Civil rights, Government contracts, Grant programs, Nonprofit
organizations, Reporting and recordkeeping requirements.

For the reasons stated in the preamble, DHS proposes to revise part
19 of chapter I of Title 6 of the Code of Federal Regulations to read
as follows:

PART 19--NONDISCRIMINATION IN MATTERS PERTAINING TO FAITH-BASED
ORGANIZATIONS

0
1. The authority citation for part 19 is revised to read as follows:

Authority: 5 U.S.C. 301; Pub. L. 107-296; E.O. 13279, 67 FR
77141; E.O. 13403, 71 FR 28543; E.O. 13498, 74 FR 6533; E.O. 13559,
75 FR 71319; and E.O. 13831, 83 FR 20715.

0
2. Amend Sec. 19.2 by:
0
a. Revising the definition of ``Direct Federal financial assistance or
Federal financial assistance provided directly''.
0
b. Amending the definition of ``Financial assistance'' by adding a
sentence to the end of the definition.
0
c. Revising the definition of ``Indirect Federal financial assistance
or Federal

[[Page 2896]]

financial assistance provided indirectly''.
0
d. Adding the definitions ``Intermediary'' and ``Religious exercise''
in alphabetical order.
The revisions and additions read as follows:

Sec. 19.2 Definitions.

* * * * *
Direct Federal financial assistance or Federal financial assistance
provided directly means financial assistance received by an entity
selected by the government or an intermediary (under this part) to
carry out a service (e.g., by contract, grant, or cooperative
agreement). References to ``Federal financial assistance'' will be
deemed to be references to direct Federal financial assistance, unless
the referenced assistance meets the definition of ``indirect Federal
financial assistance'' or ``Federal financial assistance provided
indirectly''.
* * * * *

Financial Assistance * * *

Financial assistance does not include a tax credit, deduction,
exemption, guaranty contract, or the use of any assistance by any
individual who is the ultimate beneficiary under any such program.
Indirect Federal financial assistance or Federal financial
assistance provided indirectly means financial assistance received by a
service provider when the service provider is paid for services
rendered by means of a voucher, certificate, or other means of
government-funded payment provided to a beneficiary who is able to make
a choice of a service provider. Federal financial assistance provided
to an organization is considered ``indirect'' when:
(1) The government program through which the beneficiary receives
the voucher, certificate, or other similar means of government-funded
payment is neutral toward religion; and
(2) The organization receives the assistance as a result of a
genuine, independent choice of the beneficiary.
* * * * *
Religious exercise has the meaning given to the term in 42 U.S.C.
2000cc-5(7)(A).
0
3. Amend Sec. 19.3 by:
0
a. In paragraph (a), remove ``other organization,'' and in its place
``other organization and considering any religious accommodations
appropriate under the Constitution or other provisions of federal law,
including but not limited to 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'' ''
0
b. In paragraph (b), remove ``character, or affiliation.'' and in its
place ``character, affiliation, or exercise. Notices or announcements
of award opportunities and notices of award or contracts shall include
language substantially similar to that in Appendices A and B,
respectively, to this part.''.
0
c. Revise paragraph (e).
0
d. Add paragraph (f).

Sec. 19.3 Equal ability for faith-based organizations to seek and
receive financial assistance through DHS social service programs.

* * * * *
(e) All organizations that participate in DHS social service
programs, including faith-based organizations, must carry out eligible
activities in accordance with all program requirements, subject to any
reasonable religious accommodation, and other applicable requirements
governing the conduct of DHS-funded activities, including those
prohibiting the use of direct financial assistance from DHS to engage
in explicitly religious activities. No grant document, agreement,
covenant, memorandum of understanding, policy, or regulation that is
used by DHS or an intermediary in administering financial assistance
from DHS shall disqualify a faith-based organization from participating
in DHS's social service programs because such organization is motivated
or influenced by religious faith to provide social services or because
of its religious exercise or affiliation.
* * * * *
(f) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation used by DHS or an intermediary in
administering financial assistance from DHS shall require faith-based
organizations to provide assurances or notices where they are not
required of non-faith-based organizations. Any restrictions on the use
of grant funds shall apply equally to faith-based and non-faith-based
organizations.
0
4. Amend Sec. 19.4 by revising paragraphs (b) and (c) to read as
follows:

Sec. 19.4 Explicitly religious activities.

* * * * *
(b) Organizations receiving direct financial assistance from DHS
for social service programs are free to engage in explicitly religious
activities, but such activities must be offered separately, in time or
location, from the programs or services funded with direct financial
assistance from DHS, and participation must be voluntary for
beneficiaries of the programs or services funded with such assistance.
(c) All organizations that participate in DHS social service
programs, including faith-based organizations, must carry out eligible
activities in accordance with all program requirements, subject to any
religious accommodations appropriate under the Constitution or other
provisions of federal law, including but not limited to 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 reasonable
religious accommodation, and in accordance with all other applicable
requirements governing the conduct of DHS-funded activities, including
those prohibiting the use of direct financial assistance from DHS to
engage in explicitly religious activities. No grant document,
agreement, covenant, memorandum of understanding, policy, or regulation
that is used by DHS or a State or local government in administering
financial assistance from DHS shall disqualify a faith-based
organization from participating in DHS's social service programs
because such organization is motivated or influenced by religious faith
to provide social services or because of its religious exercise or
affiliation.

Sec. 19.5 [Amended]

0
5. Amend Sec. 19.5 by removing ``organization's program.'' and adding
in its place ``organization's program and may require attendance at all
activities that are fundamental to the program.''.
0
6. Revise Sec. 19.6 to read as follows:

Sec. 19.6 How to prove nonprofit status.

In general, DHS does not require that a recipient, including a
faith-based organization, obtain tax-exempt status under section
501(c)(3) of the Internal Revenue Code to be eligible for funding under
DHS social service programs. Many grant programs, however, do require
an organization to be a nonprofit organization in order to be eligible
for funding. Funding announcements and other grant application
solicitations that require organizations to have nonprofit status will
specifically so indicate in the eligibility section of the
solicitation. In addition, any solicitation that requires an
organization to maintain tax-exempt status will expressly state the
statutory authority for requiring such status. Recipients should
consult with the appropriate DHS program office to determine the scope
of any applicable requirements. In DHS social service programs in which
an applicant for funding must show that it is a nonprofit

[[Page 2897]]

organization, the applicant may do so by any of the following means:
(a) Proof that the Internal Revenue Service currently recognizes
the applicant as an organization to which contributions are tax
deductible under section 501(c)(3) of the Internal Revenue Code;
(b) A statement from a State or other governmental taxing body or
the State secretary of State certifying that:
(1) The organization is a nonprofit organization operating within
the State; and
(2) No part of its net earnings may benefit any private shareholder
or individual;
(c) A certified copy of the applicant's certificate of
incorporation or similar document that clearly establishes the
nonprofit status of the applicant;
(d) Any item described in paragraphs (a) through (c) of this
section if that item applies to a State or national parent
organization, together with a statement by the State or parent
organization that the applicant is a local nonprofit affiliate; or
(e) 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 (a) through (d) of this
section.

Sec. 19.7 [Removed and Reserved]

0
7. Remove and reserve Sec. 19.7:
0
8. Revise Sec. 19.8 to read as follows:

Sec. 19.8 Independence of faith-based organizations.

(a) A faith-based organization that applies for, or participates
in, a social service program supported with Federal financial
assistance will retain its autonomy; right of expression; religious
character; authority over its governance; and independence from
Federal, State, and local governments; and may continue to carry out
its mission, including the definition, development, practice, and
expression of its religious beliefs, provided that it does not use
direct Federal financial assistance contrary to Sec. 19.4.
(b) Faith-based organizations may use space in their facilities to
provide social services using financial assistance from DHS without
removing, concealing, or altering religious articles, texts, art, or
symbols.
(c) A faith-based organization using financial assistance from DHS
for social service programs retains its authority over its internal
governance, and it may retain religious terms in its organization's
name, select its board members on the basis of their acceptance of or
adherence to the religious tenets of the organization, and include
religious references in its organization's mission statements and other
governing documents.
0
9. Add a new Sec. 19.11 to read as follows:

Sec. 19.11 Nondiscrimination Among Faith-Based Organizations

Neither DHS nor any State or local government or other intermediary
receiving funds under any DHS social service program shall construe
these provisions in such a way as to advantage or disadvantage faith-
based organizations affiliated with historic or well-established
religions or sects in comparison with other religions or sects.
0
10. Revise Appendix A to Part 19 to read as follows:

Appendix A to Part 19--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 19 of Title 6 of the CFR and 42
U.S.C. 2000bb et seq. DHS 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 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 DHS to support or engage in any explicitly religious
activities except where consistent with the Establishment Clause and
any other applicable requirements. Such an organization also may
not, in providing services funded by DHS, discriminate against a
program beneficiary or prospective program beneficiary on the basis
of religion, a religious belief, a refusal to hold a religious
belief, or a refusal to attend or participate in a religious
practice.

0
11. Add Appendix B to Part 19 to read as follows:

Appendix B to Part 19: Notice of Award or Contract

A faith-based organization that participates in this program
retains its independence from the government and may continue to
carry out its mission consistent with religious freedom protections
in federal law, including the Free Speech and Free Exercise Clauses
of the Constitution, 42 U.S.C. 2000bb et seq., 42 U.S.C. 238n, 42
U.S.C. 18113, 42 U.S.C. 2000e-1(a) and 2000e-2(e), 42 U.S.C.
12113(d), and the Weldon Amendment, among others. Religious
accommodations may also be sought under many of these religious
freedom protection laws.
A faith-based organization may not use direct financial
assistance from DHS to support or engage in any explicitly religious
activities except when consistent with the Establishment Clause and
any other applicable requirements. Such an organization also may
not, in providing services funded by DHS, 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.

Chad F. Wolf,
Acting Secretary of Homeland Security.
[FR Doc. 2019-28142 Filed 1-16-20; 8:45 am]
BILLING CODE 9112-FH-P