Federal Register / Vol. 89, No. 43 / Monday, March 4, 2024 / Rules and Regulations 15671 

DEPARTMENT OF EDUCATION 

2 CFR Part 3474 

34 CFR Parts 75 and 76 

RIN 1840–AD467 

DEPARTMENT OF HOMELAND 

SECURITY 

6 CFR Part 19 

RIN 1601–AB02 

DEPARTMENT OF AGRICULTURE 

7 CFR Part 16 

RIN 0503–AA73 

AGENCY FOR INTERNATIONAL 

DEVELOPMENT 

22 CFR Part 205 

RIN 0412–AB10 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

24 CFR Part 5 

RIN 2501–AD91 

DEPARTMENT OF JUSTICE 

28 CFR Part 38 

[A.G. Order No. 5874–2024] 

RIN 1105–AB64 

DEPARTMENT OF LABOR 

29 CFR Part 2 

RIN 1290–AA45 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 50, 61, and 62 

RIN 2900–AR23 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Part 87 

RIN 0991–AC13 

Partnerships With Faith-Based and 

Neighborhood Organizations 

AGENCY: Department of Education, 

Department of Homeland Security, 

Department of Agriculture, Agency for 

International Development, Department 

of Housing and Urban Development, 

Department of Justice, Department of 

Labor, Department of Veterans Affairs, 

Department of Health and Human 

Services. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

regulations of the agencies listed above 

(the ‘‘Agencies’’) to clarify protections 

for beneficiaries and prospective 

beneficiaries of federally funded social 

services and the rights and obligations 

of organizations providing such 

services. In accordance with the 

Executive order of February 14, 2021, 

Establishment of the White House Office 

of Faith-Based and Neighborhood 

Partnerships, this clarification should 

promote maximum participation by 

beneficiaries and providers in the 

Agencies’ covered programs and 

activities and ensure consistency in the 

implementation of those programs and 

activities. 

DATES: 

Effective date: This rule is effective on 

April 3, 2024. 

Compliance date: Recipients of 

Federal financial assistance required by 

these regulations to provide written 

notice to beneficiaries must do so by 

July 2, 2024. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding each Agency’s 

implementation of this final rule, the 

contact information for that Agency 

follows. If you use a 

telecommunications device for the deaf 

(‘‘TDD’’) or a text telephone (‘‘TTY’’), 

call the Telecommunications Relay 

Service at 7–1–1. 

Department of Justice: Michael L. 

Alston, Director, Office for Civil Rights, 

Office of Justice Programs, 202–307– 

0690, askOCR@ojp.usdoj.gov. 

Department of Agriculture: Samantha 

Joseph, Director, Center for Faith-Based 

and Neighborhood Partnerships, 

center@usda.gov. 

Department of Labor: Elena S. 

Goldstein, Deputy Solicitor of Labor, 

Office of the Solicitor of Labor, 202– 

878–9471, goldstein.elena@dol.gov. 

Department of Health and Human 

Services: Que English, Director, Center 

for Faith-Based and Neighborhood 

Partnerships, 202–260–6501, 

partnerships@hhs.gov. 

Department of Housing and Urban 

Development: BJ Douglass, Director of 

the Center for Faith-Based and 

Neighborhood Partnerships, Office of 

the Secretary, 451 7th Street SW, 

Washington, DC 20410, 202–708–2404. 

Department of Education: Maggie 

Siddiqi, Director, Center for Faith-Based 

and Neighborhood Partnerships, 202– 

453–7443, EDpartners@ed.gov. 

Department of Veterans Affairs: 

Conrad Washington, Director, Center for 

Faith-Based and Neighborhood 

Partnerships, Office of Public and 

Intergovernmental Affairs, 202–461– 

7865. 

Department of Homeland Security: 

Peter Mina, Deputy Officer for Civil 

Rights and Civil Liberties, Office for 

Civil Rights and Civil Liberties, 202– 

401–1474 (phone), 202–401–0470 

(TTY). 

Agency for International 

Development: Amanda Vigneaud, 

Acting Director, Center for Faith-Based 

and Neighborhood Partnerships, 202– 

297–8165, avigneaud@usaid.gov. 

SUPPLEMENTARY INFORMATION: This joint 

final rule amends regulations of all the 

Agencies in a single document. The 

Agencies decided to publish a joint final 

rule because most of the comments 

received by the Agencies in response to 

their proposed regulations addressed 

issues that were relevant to all of the 

Agencies’ proposals. This final rule 

addresses cross-cutting issues first, 

followed by separate Agency-specific 

discussions of issues particular to each 

of those Agencies. Following the 

preamble, each Agency makes final 

amendments to its regulations, in order 

to implement the requirements in 

Executive Order 14015, Establishment 

of the White House Office of FaithBased and Neighborhood Partnerships. 

The SUPPLEMENTARY INFORMATION is 

broken up into four major parts, 

organized as follows: 

I. Background 

A. Prior Rulemakings 

B. The Agencies’ Social Service Programs 

C. The Present Joint Rulemaking 

II. Cross-Cutting Public Comments 

A. Beneficiary Protections 

B. Prohibition on Using Direct Federal 

Financial Assistance for Explicitly 

Religious Activities 

C. Definition of ‘‘Indirect Federal Financial 

Assistance’’ 

D. Eligibility of Faith-Based Organizations 

and Availability of Accommodations 

E. Title VII 

F. Definition of ‘‘Federal Financial 

Assistance’’ 

G. Other Issues 

III. Agency-Specific Issues 

IV. General Regulatory Certifications 

I. Background 

A. Prior Rulemakings 

On December 12, 2002, President 

George W. Bush signed Executive Order 

13279, Equal Protection of the Laws for 

Faith-Based and Community 

Organizations, 67 FR 77141. Executive 

Order 13279 set forth the principles and 

policymaking criteria to guide Federal 

agencies in formulating and 

implementing policies for the delivery 

of social services with implications for 

faith-based and other community 

organizations, to ensure equal 

protection of the laws for faith-based 


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and community organizations, and to 

expand opportunities for, and 

strengthen the capacity of, faith-based 

and other community organizations to 

meet social needs in communities 

across the United States. In addition, 

Executive Order 13279 directed 

specified agency heads to review and 

evaluate existing policies that had 

implications for faith-based and 

community organizations relating to 

their eligibility for Federal financial 

assistance for social service programs 

and, where appropriate, to implement 

new policies that were consistent with 

and necessary to further the 

fundamental principles and 

policymaking criteria articulated in the 

Executive order. 

Several of the Agencies proceeded to 

promulgate regulations to implement 

Executive Order 13279. For example: 

• In 2004, the Department of Veterans 

Affairs (‘‘VA’’) promulgated a final rule 

consistent with Executive Order 13279. 

See VA Homeless Providers Grant and 

Per Diem Program; Religious 

Organizations, 69 FR 31883 (June 8, 

2004). 

• Also in 2004, the Department of 

Education (‘‘ED’’) promulgated 

regulations in conformance with 

Executive Order 13279. See 

Participation in Education Department 

Programs by Religious Organizations; 

Providing for Equal Treatment of All 

Education Program Participants, 69 FR 

31708 (June 4, 2004). 

• In 2003 and 2004, the Department 

of Housing and Urban Development 

(‘‘HUD’’) promulgated three final rules 

consistent with Executive Order 13279. 

See Participation in HUD’s Native 

American Programs by Religious 

Organizations; Providing for Equal 

Treatment of All Program Participants, 

69 FR 62164 (Oct. 22, 2004); Equal 

Participation of Faith-Based 

Organizations, 69 FR 41712 (July 9, 

2004); and Participation in HUD 

Programs by Faith-Based Organizations; 

Providing for Equal Treatment of all 

HUD Program Participants, 68 FR 56396 

(Sept. 30, 2003). 

• In 2004, the Department of Justice 

(‘‘DOJ’’), Department of Agriculture 

(‘‘USDA’’), Department of Labor 

(‘‘DOL’’), Department of Health and 

Human Services (‘‘HHS’’), and Agency 

for International Development 

(‘‘USAID’’) issued final rules 

implementing Executive Order 13279. 

See Participation in Justice Department 

Programs by Religious Organizations; 

Providing for Equal Treatment of All 

Justice Department Program 

Participants, 69 FR 2832 (Jan. 21, 2004); 

Equal Opportunity for Religious 

Organizations, 69 FR 41375 (July 9, 

2004); Equal Treatment in Department 

of Labor Programs for Faith-Based and 

Community Organizations; Protection of 

Religious Liberty of Department of 

Labor Social Service Providers and 

Beneficiaries, 69 FR 41882 (July 12, 

2004); Participation in Department of 

Health and Human Services Programs 

by Religious Organizations; Providing 

for Equal Treatment of All Department 

of Health and Human Services Program 

Participants, 69 FR 42586 (July 16, 

2004); and Participation by Religious 

Organizations in USAID Programs, 69 

FR 61716 (Oct. 20, 2004). 

• The Department of Homeland 

Security (‘‘DHS’’) issued a notice of 

proposed rulemaking (‘‘NPRM’’ or 

‘‘proposed rule’’) related to Executive 

Order 13279 in 2008, see 

Nondiscrimination in Matters Pertaining 

to Faith-Based Organizations, 73 FR 

2187 (Jan. 14, 2008); DHS did not, 

however, issue a final rule related to the 

participation of faith-based 

organizations in its programs prior to 

the 2016 rulemaking discussed in detail 

below. 

Shortly after taking office, President 

Barack Obama signed Executive Order 

13498, Amendments to Executive Order 

13199 and Establishment of the 

President’s Advisory Council for FaithBased and Neighborhood Partnerships, 

74 FR 6533 (Feb. 5, 2009). Executive 

Order 13498 changed the name of the 

White House Office of Faith-Based and 

Community Initiatives to the White 

House Office of Faith-Based and 

Neighborhood Partnerships, and it 

created the President’s Advisory 

Council on Faith-Based and 

Neighborhood Partnerships, which 

subsequently submitted 

recommendations regarding the work of 

that White House office. 

On November 17, 2010, President 

Obama signed Executive Order 13559, 

Fundamental Principles and 

Policymaking Criteria for Partnerships 

With Faith-Based and Other 

Neighborhood Organizations, 75 FR 

71319. Based on recommendations 

made by the Advisory Council, 

Executive Order 13559 made various 

changes to Executive Order 13279, 

including: 

• requiring agencies that administer 

or award Federal financial assistance for 

social service programs to ensure the 

implementation of additional 

protections for the beneficiaries and 

prospective beneficiaries of those 

programs, including (i) referrals to 

alternative providers when beneficiaries 

objected to the religious character of the 

organizations providing services, and 

(ii) written notice to beneficiaries of that 

referral requirement and other 

protections before they enrolled in or 

received services from the program; 

• stating that decisions about awards 

of Federal financial assistance must be 

free from political interference or even 

the appearance of such interference, and 

must be made on the basis of merit, not 

on the basis of religious affiliation, or 

lack of affiliation, of recipient 

organizations; 

• stating that the Federal Government 

has an obligation to monitor and enforce 

all standards regarding the relationship 

between religion and Government in 

ways that avoid excessive entanglement 

between religious bodies and 

governmental entities; 

• providing further clarifications 

concerning certain requirements, 

including under Executive Order 13279, 

that organizations engaging in explicitly 

religious activities must (i) perform such 

activities and offer such services outside 

of programs that are supported with 

direct Federal financial assistance, (ii) 

separate those activities in time or 

location from programs or services 

supported with direct Federal financial 

assistance, and (iii) ensure that 

participation in any such activities is 

voluntary for the beneficiaries of social 

service programs supported with 

Federal financial assistance; 

• emphasizing again that religious 

providers should be eligible to compete 

for social service funding from the 

Federal Government and to participate 

fully in social service programs 

supported with Federal financial 

assistance, and that such organizations 

may do so while maintaining their 

religious identities; 

• requiring agencies that provide 

Federal financial assistance for social 

service programs to post online 

regulations, guidance documents, and 

policies that have implications for faithbased and other neighborhood 

organizations, and to post online a list 

of entities receiving such assistance; and 

• clarifying that the principles set 

forth apply to subawards as well as 

prime awards. 

An interagency working group was 

tasked with developing model 

regulatory changes to implement 

Executive Order 13279, as amended by 

Executive Order 13559, including 

provisions that clarified beneficiary 

protections and the prohibited uses of 

direct Federal financial assistance, 

allowed religious social service 

providers to maintain their religious 

identities, and distinguished between 

direct and indirect Federal financial 

assistance. 

These efforts eventually resulted in 

DHS promulgating regulations and the 

other Agencies promulgating 


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amendments to their regulations. In 

April 2016, following notice and 

comment, the Agencies published a 

joint final rule to ensure consistency 

between their regulations and Executive 

Order 13279, as amended by Executive 

Order 13559. See Federal Agency Final 

Regulations Implementing Executive 

Order 13559: Fundamental Principles 

and Policymaking Criteria for 

Partnerships With Faith-Based and 

Other Neighborhood Organizations, 81 

FR 19355 (Apr. 4, 2016). These revised 

regulations—referred to hereinafter as 

the ‘‘2016 Rule’’—incorporated the 

principles from Executive Order 13559 

detailed above. 

On May 3, 2018, President Donald J. 

Trump signed Executive Order 13831, 

Establishment of a White House Faith 

and Opportunity Initiative, 83 FR 

20715, amending Executive Order 

13279, as amended by Executive Order 

13559, and other related Executive 

orders. Among other things, Executive 

Order 13831 changed references to the 

White House Office of Faith-Based and 

Neighborhood Partnerships, established 

in Executive Order 13498, to the White 

House Faith and Opportunity Initiative; 

specified ways that the initiative was to 

operate; directed departments and 

agencies with Centers for Faith-Based 

and Community Initiatives to change 

the names of those centers to Centers for 

Faith and Opportunity Initiatives; and 

directed departments and agencies 

without a Center for Faith and 

Opportunity Initiatives to designate a 

Liaison for Faith and Opportunity 

Initiatives. Executive Order 13831 also 

eliminated the requirements to refer 

beneficiaries to alternative providers 

upon request and to notify beneficiaries 

of the protections in Executive Order 

13559 described above. 

Consistent with Executive Order 

13831, in December 2020, the Agencies, 

following notice and comment, 

promulgated a final rule amending the 

2016 Rule. See Equal Participation of 

Faith-Based Organizations in the 

Federal Agencies’ Programs and 

Activities, 85 FR 82037 (Dec. 17, 2020). 

That joint final rule—referred to 

hereinafter as the ‘‘2020 Rule’’—made 

various changes to the 2016 Rule, 

including: 

• eliminating a requirement that 

faith-based providers receiving direct 

Federal financial assistance provide 

notice to beneficiaries and prospective 

beneficiaries of certain protections, 

including protection from 

discrimination on the basis of religion; 

• eliminating requirements that, if a 

beneficiary objected to the religious 

character of a faith-based provider, the 

provider would undertake reasonable 

efforts to identify and refer the 

beneficiary to an alternative provider, 

and that providers inform beneficiaries 

of this alternative provider requirement 

in the notice to them; 

• eliminating a requirement that 

beneficiaries of indirect Federal 

financial assistance (such as vouchers, 

certificates, or other Governmentfunded means that the beneficiaries 

might use to obtain services at providers 

of their choosing) must have at least one 

adequate secular option for the use of 

the indirect Federal financial assistance; 

• adding a provision allowing 

providers receiving indirect Federal 

financial assistance to require 

beneficiaries to attend ‘‘all activities that 

are fundamental to the program’’; 

• adding a definition of the term 

‘‘religious exercise’’; 

• adding a requirement that notices or 

announcements of award opportunities 

and notices of awards or contracts 

include language regarding certain 

protections for faith-based 

organizations’ independence from 

Government and providers’ obligations 

not to use direct Federal financial 

assistance for any explicitly religious 

activities and not to discriminate against 

current or prospective program 

beneficiaries on the basis of religion; 

• adding a provision stating that, if an 

awarding agency program required an 

applicant to show nonprofit status and 

the applicant has a sincerely held 

religious belief that it cannot apply for 

a determination as an entity that it is 

tax-exempt under section 501(c)(3) of 

the Internal Revenue Code, the 

applicant could submit evidence 

sufficient to establish that it otherwise 

qualified as a nonprofit organization; 

• adding a provision stating that 

neither the awarding agency nor any 

State or local government or other passthrough entity receiving funds under 

any Federal awarding agency program 

or service shall construe the Agencies’ 

regulations ‘‘in such a way as to 

advantage or disadvantage faith-based 

organizations affiliated with historic or 

well-established religions or sects in 

comparison with other religions or 

sects’’; and 

• adding language to preexisting 

requirements regarding the 

Government’s obligation to 

accommodate religion and regarding the 

religious-employer exemption from the 

Federal prohibition on employment 

discrimination on the basis of religion. 

B. The Agencies’ Social Service 

Programs 

The Agencies achieve their missions 

in part through the administration of 

Federal financial assistance. Funds are 

distributed via a wide range of social 

service programs, including the 

following: 

• Workforce Innovation and 

Opportunity Act (‘‘WIOA’’) Adult and 

Dislocated Worker Programs: DOL’s 

Employment and Training 

Administration provides job search 

assistance and training to adult and 

dislocated workers through State 

formula grants authorized under WIOA, 

Public Law 113–128, 128 Stat. 1425. 

This funding area includes 

individualized training accounts 

through which program participants can 

choose from a statewide list of providers 

to access training. 

• Homeless Veterans Reintegration 

Program: This grant program, 

administered by DOL’s Veterans’ 

Employment and Training Service, 

provides services that assist in 

reintegrating homeless veterans into 

meaningful employment within the 

labor force and supports the 

development of delivery systems that 

address the complex problems facing 

homeless veterans. 

• Healthy Marriage and Responsible 

Fatherhood Programs: HHS’s Office of 

Family Assistance competitively awards 

Healthy Marriage and Responsible 

Fatherhood grants to States, local 

governments, Tribal entities, and 

community-based organizations (both 

for profit and not-for-profit, including 

faith-based) that help participants build 

and sustain healthy relationships and 

marriages and strengthen positive 

father-child interaction. 

• Nita M. Lowey 21st Century 

Community Learning Centers: This 

program, administered by ED’s Office of 

Elementary and Secondary Education, 

supports the creation of community 

learning centers that provide academic 

enrichment opportunities during nonschool hours for children, particularly 

students who attend high-poverty and 

low-performing schools. The program 

helps children meet State and local 

student standards in core academic 

subjects, such as reading and math; 

offers students a broad array of 

enrichment activities that can 

complement their regular academic 

programs; and provides literacy and 

other educational services to the 

families of participating children. 

• Gaining Early Awareness and 

Readiness for Undergraduate Programs 

(‘‘GEAR UP’’): Under the GEAR UP 

program, ED’s Office of Postsecondary 

Education awards discretionary grants 

to States and partnerships of local 

educational agencies and institutions of 

higher education, which may also 

include community organizations or 

entities as additional partners, to 


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1As the Agencies explained in the Joint NPRM, 

USAID’s proposed regulations differed somewhat 

from those of the other Agencies because ‘‘unique 

characteristics of USAID-funded programs 

implemented abroad in foreign countries’’ made 

certain policies adopted by other Agencies 

‘‘unworkable and impractical’’ for USAID. See 88 

FR 2398 n.3. 

provide services at high-poverty middle 

and high schools to increase the number 

of low-income students who are 

prepared to enter and succeed in 

postsecondary education. 

• Citizenship and Integration Grant 

Program: Administered by DHS’s U.S. 

Citizenship and Immigration Services 

(‘‘USCIS’’), the Citizenship and 

Integration Grant Program has helped 

more than 300,000 lawful permanent 

residents (‘‘LPRs’’) prepare for U.S. 

citizenship. See USCIS, Fiscal Year 

2023 Citizenship & Integration Grant 

Program (Sept. 28, 2023), https://

www.uscis.gov/citizenship-resourcecenter/civic-integration/fiscal-year2023-citizenship-and-integration-grantprogram. The program assists nonprofit 

organizations in providing citizenship 

instruction and application assistance to 

LPRs. 

• VA Homeless Providers Grant and 

Per Diem Program: VA’s Homeless 

Programs Office administers this 

program, which awards grants to 

community organizations providing 

services to veterans experiencing 

homelessness to ensure the availability 

of supportive housing and services, with 

the goal of helping homeless veterans 

achieve residential stability. 

• Supportive Services for Veteran 

Families: This program, also 

administered by VA’s Homeless 

Programs Office, awards grants to 

selected private nonprofit organizations 

and consumer cooperatives to assist 

very low-income veteran families 

residing in or transitioning to 

permanent housing. Grantees provide a 

range of supportive services to eligible 

veteran families that are designed to 

promote housing stability. 

Under these and other federally 

funded social service programs, Federal 

funds are not distributed directly to 

beneficiaries, but rather are distributed 

to recipients—for example, State and 

local governments, school districts, 

nonprofit organizations, institutions of 

higher education, and other entities— 

that use the Federal funds to provide 

services to the programs’ intended 

beneficiaries. This final rule generally 

refers to these recipients as ‘‘providers’’ 

or ‘‘grantees,’’ and to those whom they 

serve, either directly or through 

subrecipients, as ‘‘beneficiaries.’’ In 

administering federally funded social 

service programs, providers must 

comply both with applicable Federal 

law and with the terms and conditions 

under which they receive Federal 

funding from the Agencies. For 

example, applicants for Federal funds 

through the Office of Justice Programs at 

DOJ must certify that in administering 

any Federal award they will comply 

with all relevant Federal civil rights and 

nondiscrimination laws. 

C. The Present Joint Rulemaking 

On February 14, 2021, President 

Joseph R. Biden, Jr., signed Executive 

Order 14015, Establishment of the 

White House Office of Faith-Based and 

Neighborhood Partnerships, 86 FR 

10007. Executive Order 14015 sought to 

‘‘organiz[e] more effective efforts to 

serve people in need across the country 

and around the world, in partnership 

with civil society, including faith-based 

and secular organizations.’’ Id. at 10007. 

The Executive order further emphasized 

the importance of strengthening the 

ability of such organizations to deliver 

services in partnership with Federal, 

State, and local governments and with 

other private organizations, while 

adhering to all governing law. Id. 

Executive Order 14015 also revoked 

Executive Order 13831, see id. at 10008, 

which had prompted the 2020 Rule. 

On January 13, 2023—following the 

issuance of Executive Order 14015 and 

the revocation of Executive Order 

13831—the Agencies issued a joint 

NPRM proposing regulatory 

amendments to the 2020 Rule. 

Partnerships With Faith-Based and 

Neighborhood Organizations; Notice of 

Proposed Rulemaking, 88 FR 2395 

(‘‘Joint NPRM’’). As the Joint NPRM 

explained, ‘‘it is central to the Agencies’ 

missions that federally funded services 

and programs . . . reach the widest 

possible eligible population, including 

historically marginalized communities.’’ 

Id. at 2398. Thus, with their proposed 

rulemaking, the Agencies sought to 

‘‘ensure full access to and 

comprehensive delivery of federally 

funded social services, in keeping with 

governing law and with the policies 

articulated in Executive Order 14015.’’ 

Id. at 2397. The Agencies also sought to 

advance the policies set out in 

Executive Order 13985, Advancing 

Racial Equity and Support for 

Underserved Communities Through the 

Federal Government, 86 FR 7009 (Jan. 

20, 2021), and Executive Order 14058, 

Transforming Federal Customer 

Experience and Service Delivery To 

Rebuild Trust in Government, 86 FR 

71357 (Dec. 13, 2021). 88 FR 2397. In 

addition, the Agencies sought to 

‘‘address and correct inconsistencies 

and confusion raised by the 2020 Rule.’’ 

Id. at 2398. 

Accordingly, the Agencies proposed 

the following changes in the Joint 

NPRM: 1

• All Agencies that previously 

required organizations providing social 

services under Agencies’ direct Federal 

financial assistance programs to give 

written notice to beneficiaries and 

prospective beneficiaries of certain 

nondiscrimination protections proposed 

to reinstate that requirement, and to 

further apply this notice requirement to 

all such recipients, whether they are 

faith-based or secular. See id. at 2398– 

99. 

• All Agencies except USAID 

proposed a modified version of the 2016 

Rule’s referral procedure to encourage 

Agencies, or State agencies and other 

entities that might be administering a 

federally funded social service program, 

to provide notice, when appropriate and 

feasible, to beneficiaries and prospective 

beneficiaries regarding how to obtain 

information about other available 

federally funded service providers. See 

id. at 2399. 

• All Agencies except USAID 

proposed changes to their definitions of 

‘‘indirect Federal financial assistance’’ 

to clarify that the potential availability 

to beneficiaries of a practical option to 

use indirect aid for services that do not 

involve explicitly religious activities is 

a significant factor in determining 

whether a program affords beneficiaries 

of indirect aid a ‘‘genuine and 

independent private choice.’’ See 

Zelman v. Simmons-Harris, 536 U.S. 

639, 652 (2002); 88 FR 2401. These 

revised definitions more closely track 

the distinction between direct and 

indirect aid that the Supreme Court has 

drawn in a series of cases culminating 

in Zelman. See 536 U.S. at 655–56. 

• The Agencies proposed changes to 

their regulations to state more directly 

that they will not, in their selection of 

service providers, discriminate on the 

basis of an organization’s religious 

character, motives, or affiliation, or lack 

thereof, or on the basis of conduct that 

would not be considered grounds to 

favor or disfavor a similarly situated 

secular organization such as one that 

has the same capacity to effectively 

provide services. See 88 FR 2402. 

• The Agencies proposed changes to 

their regulations to make clear that they 

will continue to consider organizations’ 

requests for accommodations, on a caseby-case basis, in accordance with the 

U.S. Constitution and Federal statutes, 

and will not disqualify any organization 

from participating in a program simply 

because that organization has indicated 

it may request an accommodation. Id. 


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2As explained above, USAID’s final regulations 

differ somewhat from those of the other Agencies 

because ‘‘unique characteristics of USAID-funded 

programs implemented abroad in foreign countries’’ 

make certain policies adopted by the other Agencies 

‘‘unworkable and impractical’’ for USAID. See 88 

FR 2398 n.3. 

• With respect to religious 

organizations’ limited exemption from 

the Federal prohibition on employment 

discrimination on the basis of religion, 

set forth in section 702(a) of the Civil 

Rights Act of 1964 (‘‘Title VII’’), 42 

U.S.C. 2000e–1(a), the Agencies 

proposed to remove regulatory language 

added by the 2020 Rule that could 

mistakenly suggest that Title VII permits 

religious organizations that qualify for 

the Title VII religious-employer 

exemption to insist upon tenets-based 

employment conditions that would 

otherwise violate Title VII or the 

particular underlying funding statute in 

question. See 88 FR 2402–03. 

The Agencies also sought public 

comment on whether their regulations 

should adopt any definition of ‘‘Federal 

financial assistance’’ other than that in 

Executive Order 13279. 

The Agencies received numerous 

public comments in response to the 

Joint NPRM. Following consideration of 

those comments, the Agencies have 

reached the following decisions 

regarding the proposed changes listed 

above: 

• All Agencies except USAID 2 adopt 

the proposed requirement that 

organizations, whether faith-based or 

secular, providing social services under 

Agencies’ direct Federal financial 

assistance programs give written notice 

to beneficiaries and prospective 

beneficiaries of their rights. 

Æ Some Agencies’ final rules also 

require that beneficiaries and 

prospective beneficiaries of programs 

receiving indirect Federal financial 

assistance be provided with a written 

notice of certain nondiscrimination 

protections. 

Æ All Agencies administering 

domestic social service programs now 

include a model beneficiary notice as an 

appendix to their regulations. 

Æ All Agencies’ beneficiary notices, 

or the follow-on guidance they plan to 

issue to providers, will specify the office 

that beneficiaries and prospective 

beneficiaries may contact if they 

experience discrimination. 

• The Agencies that proposed 

language regarding the provision of 

notice to beneficiaries and prospective 

beneficiaries about how to obtain 

information on alternative providers 

adopt that language. 

• The Agencies that proposed 

changes to their definitions of ‘‘indirect 

Federal financial assistance’’ generally 

adopt their proposed language. Some 

Agencies make technical edits to the 

text of their final regulations to better 

align with the policy intent expressed in 

the Joint NPRM and to promote 

consistency among the Agencies’ 

definitions of the term. 

• The Agencies generally adopt their 

proposed language stating that they will 

not, in their selection of service 

providers, discriminate on the basis of 

an organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to favor or 

disfavor a similarly situated secular 

organization. Some Agencies make 

technical edits to their proposed 

language to promote consistency among 

the Agencies’ regulatory text and model 

provider notices. 

• The Agencies adopt their proposed 

language regarding organizations’ 

requests for accommodations. 

• As proposed, the Agencies remove 

from their regulations certain text on 

tenets-based employment conditions 

added in the 2020 Rule, thus restoring 

the longstanding text of those regulatory 

provisions. 

• The Agencies adopt the definition 

of ‘‘Federal financial assistance’’ set 

forth in Executive Order 13279. 

The changes listed above, as well as 

the Agencies’ responses to the other 

substantive, cross-cutting issues raised 

in public comments, are discussed in 

detail in Part II of this joint preamble. 

Unless otherwise noted in response to a 

particular comment, the responses in 

the joint preamble are adopted by all 

Agencies. Comments that raised issues 

specific to an Agency or that required an 

explanation of how a cross-cutting issue 

affects a particular Agency are 

addressed in the Agency-specific 

preambles in Part III of this preamble. 

The Agencies generally consider each 

of the provisions promulgated here to be 

severable. Were any element of any of 

these final regulations to be stayed or 

invalidated by a reviewing court, the 

Agencies’ intent is to otherwise preserve 

the rules promulgated herein to the 

fullest possible extent. Further, the 

Agencies believe that the elements that 

remained would generally be able to 

function sensibly and should remain in 

effect. 

II. Cross-Cutting Public Comments 

A. Beneficiary Protections 

1. Definition of ‘‘Beneficiary’’ 

Comments: Commenters requested 

that the Agencies clarify who is covered 

by the regulations’ beneficiary 

protections. One commenter suggested 

that this could be done either by 

amending the definition of 

‘‘beneficiary’’ to explain that it covers 

all actual and prospective program 

participants, or by expressly stating that 

the protections apply to ‘‘program 

participants’’ instead of beneficiaries. 

Response: Although the precise 

terminology varies, each Agency’s 

proposed regulations make clear that the 

beneficiary protections apply to both 

current and prospective beneficiaries. 

The Agencies believe that the use of 

‘‘beneficiary’’ is sufficiently clear to 

encompass program participants and 

therefore decline to make any changes 

based on these comments. 

Changes: None. 

2. Application of Beneficiary 

Protections to Direct and Indirect Aid 

Programs 

Comments: Commenters suggested 

that the Agencies explicitly state that all 

beneficiaries, whether participating in 

programs funded by direct or indirect 

Federal financial assistance, are 

protected from discrimination, with 

USDA’s provision serving as a model. 

Commenters also requested that the 

Agencies eliminate any language 

regarding indirect aid programs that 

appears to require participation in 

religious activities as part of such 

programs. 

Response: Both the 2016 Rule and the 

2020 Rule contained provisions 

prohibiting providers from 

discriminating against a program 

beneficiary or prospective beneficiary 

‘‘on the basis of religion, a religious 

belief, a refusal to hold a religious 

belief, or a refusal to attend or 

participate in a religious practice.’’ See 

81 FR 19361; 85 FR 82082. As explained 

in the Joint NPRM, ‘‘[t]hose prohibitions 

against religious discrimination apply in 

direct and indirect aid programs alike, 

and they reflect one of the fundamental 

principles set forth in section 2(d) of 

Executive Order 13279, as amended by 

section 1(b) of Executive Order 13559.’’ 

88 FR 2398 (footnote omitted). The 

Agencies are thus retaining those 

regulatory provisions. See 2 CFR 

3474.15(f) (ED); 6 CFR 19.5 (DHS); 7 

CFR 16.4(a) (USDA); 22 CFR 205.1(h) 

(USAID); 24 CFR 5.109(g) (HUD); 28 

CFR 38.5(c) (DOJ); 29 CFR 2.33(a) 

(DOL); 34 CFR 75.52(e), 76.52(e) (ED); 

38 CFR 50.2(d) (VA); 45 CFR 87.3(f) 

(HHS). 

With the exception of USAID, the 

Agencies proposed to remove language 

added by the 2020 Rule stating that 

indirect aid providers may require 

attendance at all activities that are 

fundamental to the program. 88 FR 

2399. As the Joint NPRM explained, 


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‘‘[t]his additional language, which was 

not added by USAID in the 2020 Rule, 

created a confusing tension with the 

first sentence of the same provision and 

with the language of the Executive order 

on which it is based.’’ Id. The Executive 

order provides that social service 

providers receiving Federal financial 

assistance ‘‘should not be allowed to 

discriminate against current or 

prospective program beneficiaries on 

the basis of . . . a refusal to attend or 

participate in a religious practice.’’ E.O. 

13279, sec. 2(d), 67 FR 77142, as 

amended by E.O. 13559, sec. 1(b), 75 FR 

71320. The Agencies continue to believe 

that the removal of this language allays 

unnecessary confusion and therefore are 

not changing course in the final rule. 

Changes: None. 

Comments: One comment, submitted 

on behalf of three organizations, 

endorsed the Agencies’ proposed rule 

text continuing to protect beneficiaries 

and prospective beneficiaries in 

federally funded programs from 

discrimination on the basis of religion 

or lack of religion. The comment, 

however, opposed additional text in that 

nondiscrimination provision that the 

comment described as enabling 

beneficiaries and prospective 

beneficiaries to select an indirectly 

funded program with explicitly 

religious content and then refuse to 

participate in those portions of the 

program. The comment maintained that 

this change lacks a reasoned basis for 

two reasons. First, the comment 

submitted, the Agencies’ regulations 

anticipate that indirectly funded 

programs may include religious content, 

which, the comment surmised, could 

constitute a very large part of the social 

services offered. Second, the comment 

indicated that a prospective beneficiary 

should be required to exercise any 

option to enroll in an adequate secular 

alternative program before enrolling in a 

religious one and objecting to its 

content. For these same reasons, the 

comment also recommended that the 

Agencies retain language added by the 

2020 Rule stating that providers at 

which beneficiaries choose to expend 

indirect aid ‘‘may require attendance at 

all activities that are fundamental to the 

program.’’ See 88 FR 2399. 

Response: As explained in the Joint 

NPRM, the Agencies remain committed 

to ensuring that all beneficiaries and 

prospective beneficiaries have access to 

federally funded services and programs 

without unnecessary barriers and free 

from discrimination, in both directly 

and indirectly funded programs. See id. 

at 2398. The Agencies continue to 

believe that protecting beneficiaries and 

prospective beneficiaries from 

discrimination on the basis of religion, 

a religious belief, a refusal to hold a 

religious belief, or a refusal to attend or 

participate in a religious practice is 

consistent with this goal. 

The Agencies disagree with the 

comment’s view that prohibiting 

indirectly funded social service 

providers from discriminating on the 

basis of a refusal to attend or participate 

in a religious practice is inconsistent 

with allowing such providers to include 

explicitly religious content in their 

programs. Indeed, with the exception of 

USAID, which does not administer any 

indirect Federal financial assistance 

programs, the Agencies have retained 

regulatory text specifying that a 

provider receiving indirect Federal 

financial assistance need not modify its 

program activities to accommodate a 

beneficiary who chooses to expend the 

indirect aid on the organization’s 

program. See 2 CFR 3474.15(f) (ED); 6 

CFR 19.5 (DHS); 7 CFR 16.4(a) (USDA); 

24 CFR 5.109(g) (HUD); 28 CFR 38.5(c) 

(DOJ); 29 CFR 2.33(a) (DOL); 34 CFR 

75.52(e), 76.52(e) (ED); 38 CFR 50.2(d) 

(VA); 45 CFR 87.3(d) (HHS). 

The comment also suggested that it 

would be impracticable for a beneficiary 

to object to participating in explicitly 

religious activities that are a very large 

part of the social service that is offered. 

As explained above, however, 

beneficiaries and prospective 

beneficiaries may decide whether to 

attend religious components. And in the 

Agencies’ experience, indirectly funded 

social service providers can vary 

considerably with respect to the 

proportion of their programming that 

may be explicitly religious. 

The Agencies decline to require that 

beneficiaries who object to participating 

in a program’s explicitly religious 

activities instead enroll in an alternative 

program that does not include religious 

content. As explained, beneficiaries 

who do not wish to engage in explicitly 

religious activities have the option not 

to participate in such activities. And as 

discussed in the Joint NPRM, if an 

Agency ‘‘determines that ‘genuine and 

independent private choice’ is absent 

for particular beneficiaries, including 

because providers that offer secular 

programs are as a practical matter 

unavailable,’’ the Agency would ‘‘need 

to take other appropriate steps to 

remedy the problem.’’ 88 FR 2400. 

Those steps may include ‘‘expanding 

the universe of reasonably available 

providers to include secular options’’ or 

‘‘requiring existing providers to observe 

the same conditions that the rule 

attaches to direct aid.’’ Id. at 2400–01. 

‘‘These remedies would ensure that 

beneficiaries are not effectively required 

to participate in religious activities in 

order to receive the benefits of the 

federally funded program and that the 

Government is not responsible for the 

use of the aid to support explicitly 

religious activities.’’ Id. at 2401. For 

these reasons, the Agencies decline to 

adopt the comment’s recommendations. 

Changes: None. 

3. Nondiscrimination in Outreach 

Activities 

Comments: One commenter expressed 

concern that the proposed 

nondiscrimination regulations of four of 

the Agencies (DOJ, HHS, HUD, and 

USAID) applied only to program 

services and not also to outreach related 

to those services. Those 

nondiscrimination rules, as proposed, 

would prohibit federally funded social 

service programs from discriminating 

against beneficiaries or prospective 

beneficiaries on the basis of religion, a 

religious belief, a refusal to hold a 

religious belief, or a refusal to attend or 

participate in a religious practice when 

they provide federally funded services. 

The commenter requested that the four 

Agencies revise their rules so that they 

also prohibit providers from engaging in 

such discrimination when they conduct 

outreach activities related to their 

federally funded programs. Doing so, 

the commenter explained, would ensure 

consistency with the other five 

Agencies’ regulations, as well as with 

Executive Order 13279, as amended, 

which likewise prohibits discrimination 

in outreach activities. See E.O. 13279, 

sec. 2(d), 67 FR 77142, as amended by 

E.O. 13559, sec. 1(b), 75 FR 71320. 

Response: DOJ, HHS, HUD, and 

USAID agree with the commenter and 

adopt the recommended change in this 

final rule. As explained in the Joint 

NPRM, the Agencies’ regulations 

prohibiting religious discrimination are 

designed to implement Executive Order 

13279, as amended. 88 FR 2398. Section 

2(d) of that Executive order provides 

that organizations, both ‘‘in providing 

services supported in whole or in part 

with Federal financial assistance,’’ and 

‘‘in their outreach activities related to 

such services,’’ should not be allowed to 

discriminate against program 

beneficiaries on the basis of religion, a 

religious belief, a refusal to hold a 

religious belief, or a refusal to attend or 

participate in a religious practice. 75 FR 

71320. Moreover, five of the Agencies 

already include similar language in their 

nondiscrimination provisions. 

Therefore, to promote consistency with 

Executive Order 13279 and with the 

other Agencies’ rules, DOJ, HHS, HUD, 

and USAID agree that their 

nondiscrimination regulations should 


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likewise apply not only to federally 

funded social services, but also to 

outreach activities related to those 

services. 

The Agencies have long expressed an 

intention to promote consistency with 

Executive Order 13279 and among their 

regulations. In 2016, for example, five of 

the Agencies (DOL, HHS, ED, VA, and 

DHS) amended their nondiscrimination 

provisions so that they applied to 

outreach activities. While the remaining 

four Agencies (DOJ, USDA, HUD, and 

USAID) did not include that phrase in 

their regulations, the joint preamble to 

the 2016 Rule stated that all of the 

Agencies’ nondiscrimination provisions 

were intended to ‘‘closely track’’ 

Executive Order 13279, as amended. 81 

FR 19361. 

The Agencies likewise acknowledged 

in the 2020 Rule that Executive Order 

13279 prohibits discrimination in 

outreach related to federally funded 

services, and concluded that the ‘‘final 

rule maintains the regulatory 

prohibition on such religious 

discrimination.’’ 85 FR 82044. In the 

2020 Rule, USDA also amended its 

nondiscrimination provision to apply to 

outreach activities. Id. at 82134. In 

contrast, HHS removed the word 

‘‘outreach’’ from its nondiscrimination 

regulation, see id. at 82146, explaining 

that this change was offered because, in 

HHS’s view, the text might otherwise be 

read to prohibit an organization from 

circulating information about its 

programs in contexts that have 

primarily religious audiences, such as a 

church newsletter. Ensuring Equal 

Treatment of Faith-Based Organizations, 

85 FR 2974, 2980–81 (Jan. 17, 2020). 

These distinctions are resolved in this 

final rule, which ensures greater 

consistency with Executive Order 13279 

and among the Agencies’ regulations by 

revising the beneficiary 

nondiscrimination provisions in DOJ, 

HHS, HUD, and USAID’s rules to apply 

to outreach activities. See 22 CFR 

205.1(h) (USAID); 24 CFR 5.109(g) 

(HUD); 28 CFR 38.5(c) (DOJ); 45 CFR 

87.3(f) (HHS). 

The Agencies do not believe that this 

change will cause federally funded 

social service providers to mistakenly 

read the nondiscrimination clauses as 

prohibiting them from providing 

information about their social service 

programs in contexts that have 

primarily religious audiences, such as a 

church newsletter. The Agencies are 

unaware of any instance in which a 

service provider or interested party has 

expressed that concern, and do not 

believe it follows from a plain reading 

of the provisions. Rather, the Agencies 

think it is clear that the 

nondiscrimination protection prohibits 

outreach activities that favor or disfavor 

prospective beneficiaries on the basis of 

religion, such as when a federally 

funded social service provider limits its 

outreach or advertising of the program 

services to target or avoid populations 

based on religion. 

Additionally, USDA and VA have 

revised their nondiscrimination 

provisions to apply to outreach 

activities related to services supported 

in whole or in part with Federal 

financial assistance, irrespective of 

whether the outreach itself is paid for 

with Federal or private funds. This 

change, too, is consistent with Executive 

Order 13279, which does not limit the 

scope of its nondiscrimination 

protections to outreach that is federally 

funded, see E.O. 13279, sec. 2(d), 75 FR 

71320, as well as with the regulations of 

the other Agencies. 

Changes: DOJ, HHS, HUD, and USAID 

amend 28 CFR 38.5(c), 45 CFR 87.3(f), 

24 CFR 5.109(g), and 22 CFR 205.1(h), 

respectively, to add ‘‘outreach 

activities’’ to the beneficiary 

nondiscrimination provisions of their 

final regulations, consistent with the 

regulations previously adopted by 

USDA, DOL, ED, VA, and DHS. USDA 

and VA likewise remove language from 

their regulations that would preclude 

their nondiscrimination clauses from 

applying to outreach activities that are 

paid for with non-Federal funds. See 7 

CFR 16.4(a) (USDA); 38 CFR 50.2(d) 

(VA). 

4. Beneficiary Notice Requirements 

In this part of the joint preamble, the 

Agencies address comments related to 

the requirement that, under particular 

circumstances, recipients of Federal 

financial assistance must give written 

notice to beneficiaries and prospective 

beneficiaries of certain 

nondiscrimination protections. The 

Agencies recognize that recipients of 

Federal financial assistance may need 

additional time to implement any notice 

requirements to which they are subject 

under this rule. Accordingly, as 

indicated in the DATES section above, 

the Agencies have agreed to provide 

recipients with a period of 120 days in 

which to comply with the written 

beneficiary notice requirements, if 

applicable. The Agencies nonetheless 

encourage recipients to comply with 

those requirements as soon as possible. 

Comments: Several commenters urged 

the Agencies to require that 

beneficiaries be provided notice of how 

they might obtain information on 

alternative providers. The commenters 

expressed concern that the Joint 

NPRM’s approach—stating only that 

beneficiary notices ‘‘may’’ give 

beneficiaries the option to seek 

information on alternative providers— 

placed an undue burden on 

beneficiaries, who, the commenters 

said, are often not as well-positioned to 

find alternative providers as are the 

awarding Agencies or social service 

providers themselves. By contrast, other 

commenters worried that the Agencies’ 

proposed approach improperly imposed 

a burden on providers to locate 

alternatives. Some commenters likewise 

contended that the Joint NPRM’s 

proposed notice procedure would place 

a unique and unfair burden on faithbased organizations, in particular. 

Response: The Agencies recognize 

that it will sometimes be appropriate 

and beneficial to include information in 

a beneficiary notice about beneficiaries’ 

option to seek alternative providers. The 

Agencies believe, however, that the 

suitability and utility of including this 

information will vary across programs. 

For example, such information may be 

less helpful to beneficiaries where there 

is only one federally funded program in 

the region. In other cases, providing 

such information might impose an 

unreasonable burden on Agencies or 

their governmental partners. For 

instance, certain providers may offer 

social services on an emergency or oneoff basis outside of normal business 

hours and without a fixed location, 

making it difficult if not impossible for 

the Agencies to respond to a prospective 

beneficiary’s request for alternative 

provider information in a sufficiently 

timely fashion. Accordingly, the 

Agencies that state that beneficiary 

notices ‘‘may’’ include information 

about how to identify alternative 

providers will retain this language to 

allow these Agencies greater flexibility 

in determining when it would be 

appropriate to include such information 

in the notice. See 6 CFR 19.12(c) (DHS); 

7 CFR 16.4(c)(2) (USDA); 24 CFR 

5.109(g)(4) (HUD); 28 CFR 38.6(d) (DOJ); 

38 CFR 50.3(c) (VA); 45 CFR 87.3(m) 

(HHS). ED will likewise retain its 

language from the Joint NPRM, which, 

although phrased slightly differently, 

also enables ED to make a case-by-case 

determination regarding the programs to 

which the alternative provider 

information requirement should apply, 

taking into account the specific facts 

and circumstances of a particular 

program. See 34 CFR 75.712(c), 

76.712(c). 

The Agencies emphasize that in 

neither the Joint NPRM nor this final 

rule do they require any provider, faithbased or secular, to refer beneficiaries to 

or provide notice about any other 

organizations. Instead, the regulatory 


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text authorizes the Agencies to require 

that the beneficiary notice include 

contact information for a Federal office, 

or in some instances a State agency or 

other governmental entity that might be 

administering a federally funded social 

service program, should a beneficiary 

want additional information about other 

federally funded programs in their area. 

Thus, under this rule, only 

governmental entities, not nongovernmental providers, will be 

responsible for sharing information 

about alternative providers. The 

Agencies believe it is also important to 

highlight that whether a faith-based 

organization may participate in a 

federally funded program is not 

dependent on the availability of a 

secular entity providing the same or 

similar services nearby. 

Changes: None. 

Comments: Some commenters took 

issue with the regulations’ requirement 

that service providers receiving direct 

Federal financial assistance must notify 

beneficiaries and prospective 

beneficiaries that providers cannot 

discriminate against a beneficiary on the 

basis of religion, a religious belief, a 

refusal to hold a religious belief, or a 

refusal to attend or participate in a 

religious practice. The commenters 

asserted that the requirement is 

unnecessary and singles out and reflects 

animus towards faith-based providers in 

violation of the First Amendment. One 

commenter further suggested that the 

President and the Agencies lack legal 

authority to impose the underlying 

nondiscrimination conditions 

themselves. 

Response: The Agencies decline to 

eliminate their regulations’ longstanding 

nondiscrimination requirements or their 

reinstatement of the beneficiary notice 

requirement. Contrary to the suggestions 

of some commenters, the Agencies’ 

regulations require that all direct aid 

recipients, whether religious or secular, 

must give beneficiaries and prospective 

beneficiaries information about their 

rights and protections. 

In accordance with section 2(d) of 

Executive Order 13279, 67 FR 77142, 

the Agencies’ regulations have long 

provided that an organization that 

participates in programs funded by 

Federal financial assistance may not, in 

providing such services, discriminate 

against a program beneficiary or 

prospective program beneficiary on the 

basis of religion, a religious belief, a 

refusal to hold a religious belief, or a 

refusal to attend or participate in a 

religious practice. President Bush 

promulgated the Executive order’s 

nondiscrimination requirement in 2002 

pursuant to, among other things, the 

power vested in him by the Constitution 

as the head of the executive branch, just 

as many other Presidents have exercised 

supervisory authority over how 

Executive officers carry out their 

responsibilities. See id. at 77141. The 

nondiscrimination requirement, 

moreover, is appropriate to, among 

other things, help guarantee the equal 

protection of the laws, protect religious 

free exercise, and prevent an 

unconstitutional establishment of 

religion. See 88 FR 2398. Exercising 

their existing statutory authorities, it is 

entirely permissible for the Agencies to 

promulgate regulations implementing 

the Executive order and the 

fundamental legal principles on which 

it is based. See id. at 2395–98. That is 

why, as the Joint NPRM explained, both 

the 2016 and 2020 Rules included such 

nondiscrimination provisions, as had 

prior iterations of the Agencies’ 

regulations. Id. at 2398. The Agencies 

believe the provisions likewise can and 

should be retained in their regulations 

here, reflecting, as they do, fundamental 

principles embodied in a Presidential 

directive. See id. 

The Agencies also respectfully 

disagree that this rule’s notice 

procedure—requiring an organization 

providing social services under a 

program supported by direct Federal 

financial assistance to give written 

notice of these and other protections to 

beneficiaries and prospective 

beneficiaries, including in some cases 

the right to receive information about 

alternative providers—should or must 

be eliminated. As explained in the Joint 

NPRM, all beneficiaries and prospective 

beneficiaries should have access to 

federally funded social services without 

unnecessary barriers and in a manner 

that is free from discrimination. Id. The 

Agencies continue to believe that the 

rule’s notice procedure is critical to that 

goal because it helps ensure that 

beneficiaries are aware of their rights 

and protections, thereby removing 

certain barriers to their participation 

and facilitating access to federally 

funded services and programs. Id. at 

2398–99. Indeed, in part for that reason, 

and as noted above, the rule applies the 

notice procedure to all direct aid 

recipients, whether secular or religious. 

See id. at 2399 (emphasizing that the 

requirement will be applied ‘‘to all . . . 

providers’’ receiving direct Federal 

financial assistance, ‘‘whether they are 

faith-based or secular’’). Nor have 

commenters pointed to anything else 

establishing that the Agencies’ effort to 

protect beneficiaries’ rights, or any other 

aspect of this rule, reflects an intent to 

discriminate against or hostility towards 

religious providers. To the contrary, as 

the Agencies emphasized in the Joint 

NPRM, ‘‘it has long been Federal policy 

that faith-based organizations are 

eligible to participate in Agencies’ grantmaking programs on the same basis as 

any other organizations,’’ and the 

Agencies remain committed to 

preventing discrimination against faithbased organizations in the selection and 

regulation of service providers. Id. at 

2401. Just as providers should be 

notified about their rights and 

protections, so should beneficiaries. 

Changes: None. 

Comments: Some commenters 

recommended that the Agencies require 

providers to give written notice to 

beneficiaries of programs receiving 

indirect Federal financial assistance. 

The commenters recognized that such 

indirect aid beneficiaries are not 

entitled to all of the protections 

identified in the direct-aid-beneficiary 

notice. For instance, the regulations’ 

requirement that providers separate 

explicitly religious activities from 

Government-funded programming 

applies only to programs supported 

with direct Federal financial assistance. 

But the commenters argued that there 

was no good reason why indirect aid 

beneficiaries should not receive notice 

of their particular set of protections. 

Response: The Agencies agree that the 

rationale for adopting the beneficiary 

notice requirement—improving 

beneficiaries’ access to federally funded 

services by informing them of their 

rights and protections, and thereby 

removing certain barriers arising from 

discrimination—applies equally to all 

beneficiaries, regardless of whether they 

are participating in programs receiving 

direct or indirect Federal financial 

assistance. The Agencies also note that, 

for most Agencies, their cost analysis in 

the proposed rule already calculated the 

annual cost of the notice requirement as 

if it applied to both direct and indirect 

aid programs, because data limitations 

made it impossible to differentiate 

direct recipients from indirect recipients 

in that context. Extending the 

beneficiary notice requirement to most 

indirect aid programs would, therefore, 

increase the expected benefits of the 

rule without increasing its expected 

costs, which the Agencies have already 

determined to be justified by the benefit 

of the notice requirement as proposed. 

As the Joint NPRM indicated, 

however, certain Agencies’ estimates 

did not reflect the cost of the notice 

requirement for subrecipients of Federal 

financial assistance. The Agencies also 

note that there may be significant 

administrative difficulties in providing 

written notice to all beneficiaries in 


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certain indirect aid programs. For 

example, as the Agencies explained in 

the 2016 Rule, ‘‘there are more than a 

quarter million stores, farmers’ markets, 

direct marketing farmers, homeless meal 

providers, treatment centers, group 

homes, and other participants across the 

nation that are authorized Supplemental 

Nutrition Assistance Program (‘SNAP’) 

retailers.’’ 81 FR 19363. If all providers 

receiving indirect aid were required to 

give written notice to beneficiaries, 

these retailers would always need to 

have notices ready to provide to any 

person using SNAP benefits. Id. The 

Agencies have therefore tailored the 

beneficiary notice requirement to the 

realities of certain indirect aid 

programs—for example, by requiring 

that the notice be provided by entities 

that administer the indirect Federal 

financial assistance, or by electing not to 

impose the beneficiary notice 

requirement in certain indirect aid 

programs where the administrative 

difficulties present insurmountable 

obstacles. These Agency-specific 

decisions are explained in the Agencies’ 

individual preambles below. 

The Agencies recognize that programs 

receiving indirect Federal financial 

assistance are not subject to the 

requirement to separate explicitly 

religious activities from Governmentfunded ones and that this difference 

must be reflected in the beneficiary 

notices given to indirect aid 

beneficiaries. As elaborated in the 

Agency-specific preambles below, the 

Agencies that have indirect aid 

programs address this difference by 

specifying in their respective model 

beneficiary notices which protections 

apply only to programs supported by 

direct Federal financial assistance. It is 

important to note, moreover, that the 

proposed regulations of the Agencies 

that reinstate the beneficiary notice 

requirement already specify that the 

directive to separate explicitly religious 

activities applies only to programs 

supported by direct Federal financial 

assistance. See 6 CFR 19.4(b) (DHS) 

(requiring that explicitly religious 

activities be ‘‘separate in time or 

location’’ from ‘‘activities supported by 

direct Federal financial assistance’’); 7 

CFR 16.4(c)(1)(iii) (USDA) (same); 24 

CFR 5.109(g)(2)(ii) (HUD) (same); 28 

CFR 38.6(b)(3) (DOJ) (same); 29 CFR 

2.34(a)(3) (DOL) (same); 34 CFR 

75.712(a)(3), 76.712(a)(3) (ED) (same); 38 

CFR 50.3(a)(3) (VA) (same); 45 CFR 

87.3(k)(1)(iii) (HHS) (same). 

Changes: The Agencies that 

administer domestic social service 

programs now generally require that 

beneficiaries and prospective 

beneficiaries of such programs receiving 

indirect Federal financial assistance be 

provided with a written beneficiary 

notice, subject to certain variations 

elaborated in the Agency-specific 

preambles below. The regulations 

affected are 6 CFR 19.12(a) (DHS), 7 CFR 

16.4(c) (USDA), 24 CFR 5.109(g) (HUD), 

28 CFR 38.6(b) (DOJ), 29 CFR 2.34(c) 

(DOL), 38 CFR 50.3(a) (VA), and 45 CFR 

87.3(k) (HHS). 

Comments: One commenter expressed 

concern about the Joint NPRM’s 

statement that the Agencies might, ‘‘as 

appropriate, require providers to 

include [the beneficiary] notice as part 

of a broader and more general notice of 

nondiscrimination on additional 

grounds.’’ 88 FR 2399. The commenter 

was particularly troubled by the phrase 

‘‘on additional grounds,’’ which the 

commenter said was vague and 

potentially burdensome to providers. 

The commenter seemed to believe that 

the Joint NPRM’s preamble text would 

enable the Agencies to require more 

than one notice be provided to 

beneficiaries—one specific notice 

regarding the protections under this 

rule, and another combined with 

notification of other protections. 

Response: In making these statements 

in the Joint NPRM preamble, the 

Agencies’ intent was to relieve potential 

burdens on providers, not to create 

them. The Agencies will allow 

providers to notify beneficiaries of the 

protections in this rule as part of a 

broader nondiscrimination notice, but 

the Agencies will not require providers 

to do so. This is clear on the face of 

many of the Agencies’ regulations. For 

clarity and consistency with the other 

Agencies, however, VA has amended its 

relevant regulation (38 CFR 50.3) to 

make it clear that providers may, but 

need not, combine materials for 

beneficiary notices. 

Changes: VA revises 38 CFR 50.3(a) to 

replace the phrase ‘‘including by 

incorporating the notice into materials 

that are otherwise provided to 

beneficiaries’’ with the phrase ‘‘in a 

manner and form prescribed by the VA 

program.’’ 

Comments: Several commenters 

suggested that the Agencies should, as 

they had previously, provide model 

notices to help providers comply with 

their obligation to notify beneficiaries 

and prospective beneficiaries of their 

rights. According to the commenters, 

model notices will help the Agencies 

ensure that beneficiaries do not 

encounter discrimination when 

accessing critical services. 

Response: The Agencies 

administering domestic social service 

programs agree that providing model 

beneficiary notices will further the 

Agencies’ goal of ensuring that 

beneficiaries are aware of their rights 

and protections, and thereby removing 

certain barriers to their participation 

and facilitating access to federally 

funded services and programs. Those 

Agencies have accordingly all added 

model beneficiary notices to their 

regulations in this final rule. 

Changes: DOJ, USDA, DOL, HHS, 

HUD, ED, VA, and DHS have all added 

an appendix C containing model 

language for written notice to 

beneficiaries and prospective 

beneficiaries. Those model notices are 

located at 6 CFR part 19, appendix C 

(DHS); 7 CFR part 16, appendix C 

(USDA); 24 CFR part 5, subpart A, 

appendix C (HUD); 28 CFR part 38, 

appendix C (DOJ); 29 CFR part 2, 

subpart D, appendix C (DOL); 34 CFR 

part 75, appendix C (ED); 38 CFR part 

50, appendix C (VA); and 45 CFR part 

87, appendix C (HHS). 

B. Prohibition on Using Direct Federal 

Financial Assistance for Explicitly 

Religious Activities 

Comments: Several commenters 

suggested that, with this rule, the 

Agencies should repeal their 

longstanding regulations prohibiting 

organizations that receive direct Federal 

financial assistance from engaging in 

explicitly religious activities as part of 

the social services funded with that 

financial assistance and requiring that 

religious activities be separated in time 

or location from the federally funded 

services. According to these 

commenters, recent Supreme Court 

cases, including primarily Carson v. 

Makin, 596 U.S. 767 (2022), and Trinity 

Lutheran Church of Columbia, Inc. v. 

Comer, 582 U.S. 449 (2017), have 

established that such regulations are not 

only no longer required by the 

Establishment Clause, but also now 

prohibited by the Free Exercise Clause. 

Response: The Agencies decline to 

repeal the regulatory provisions in 

question, which appropriately 

implement an Executive order and are 

consistent with the Supreme Court’s 

First Amendment jurisprudence. See 2 

CFR 3474.15(d)(1) (ED); 6 CFR 19.4(a) 

and (b) (DHS); 7 CFR 16.2, 16.4(b) 

(USDA); 22 CFR 205.1(e) (USAID); 24 

CFR 5.109(e) (HUD); 28 CFR 38.5(a) and 

(b) (DOJ); 29 CFR 2.33(b)(1) (DOL); 34 

CFR 75.52(c)(1), 76.52(c)(1) (ED); 38 

CFR 50.2(b), 61.64(c), 62.62(c) (VA); 45 

CFR 87.3(d) (HHS). 

Executive Order 13279—which 

President Bush promulgated in 2002, 

and which, in amended form, remains 

operative today—specifies that Federal 

agencies must implement social service 

programs ‘‘in accordance with the 


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Establishment Clause and the Free 

Exercise Clause of the First Amendment 

to the Constitution’’ and that, 

‘‘[t]herefore, organizations that engage 

in explicitly religious activities, such as 

worship, religious instruction, and 

proselytization, must offer those 

services separately in time or location 

from any programs or services 

supported with direct Federal financial 

assistance.’’ E.O. 13279, sec. 2(e), 67 FR 

77142, as amended by E.O. 13559, sec. 

1(b), 75 FR 71320; see also E.O. 13279, 

sec. 3(b), 67 FR 77143 (requiring 

specified agency heads to ensure that all 

agency policies with implications for 

faith-based and community 

organizations are consistent with the 

aforementioned policy and the other 

‘‘fundamental principles’’ articulated in 

section 2 of the order). 

The Agencies’ regulations have long 

implemented this directive. Most of the 

Agencies have imposed such conditions 

since shortly after President Bush 

promulgated Executive Order 13279 in 

2002, see 88 FR 2399–2400, and all of 

the Agencies maintained the conditions 

in connection with the 2020 Rule, 85 FR 

82041–43, 82109. 

The regulations, moreover, are 

consistent with the Supreme Court’s 

First Amendment caselaw. As explained 

in the Joint NPRM, 88 FR 2401 n.8, the 

Court has unanimously held—in the 

context of direct governmental aid to 

private organizations to perform social 

service programming or engage in social 

welfare activities—that although the 

Establishment Clause does not preclude 

religious organizations from receiving 

such funds, they may not use aid they 

receive directly from a government to 

advance ‘‘ ‘specifically religious 

activit[ies] in an otherwise substantially 

secular setting.’ ’’ Bowen v. Kendrick, 

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

v. McNair, 413 U.S. 734, 743 (1973)); see 

also Mitchell v. Helms, 530 U.S. 793, 

840, 865 (2000) (O’Connor, J., 

concurring in the judgment) (controlling 

opinion explaining that the Court’s 

decisions emphasizing religious 

neutrality ‘‘provide no precedent for the 

use of public funds to finance religious 

activities’’ and reaffirming that the 

principle that ‘‘any use of public funds 

to promote religious doctrines violates 

the Establishment Clause’’ ‘‘of course 

remains good law’’ (quotation marks 

and emphasis omitted)). That 

longstanding Supreme Court doctrine 

informed President Bush’s inclusion of 

section 2(e) in Executive Order 13279, 

67 FR 77142, which in turn compelled 

the promulgation and repromulgation of 

the relevant provisions of the Agencies’ 

regulations. 

The Supreme Court’s more recent 

decisions have not overruled Bowen v. 

Kendrick, Mitchell v. Helms, or any of 

the other cases in which the Court has 

affirmed the ‘no religious uses of direct 

aid’ Establishment Clause rule. It is true 

that the Court in Carson wrote that 

discrimination on the basis of a school’s 

religious activities was no ‘‘less 

offensive to the Free Exercise Clause’’ 

than discrimination on the basis of a 

school’s religious character. 596 U.S. at 

787. The Court, however, made that 

statement in the context of a ‘‘neutral 

benefit program in which public funds 

flow[ed] to religious organizations 

through the independent choices of 

private benefit recipients.’’ Id. at 781 

(emphasis added); see also Me. Rev. 

Stat. Ann. tit. 20–a, sec. 5204(4) (2008) 

(providing that the State of Maine 

would ‘‘pay the tuition . . . at the 

public school or the approved private 

school of the parent’s choice at which 

the student is accepted’’). The school 

aid program in Carson, in other words, 

was a voucher-like program, i.e., what 

the Agencies’ regulations here refer to as 

providing indirect aid. The Court noted 

that there was no Establishment Clause 

problem with respect to beneficiaries 

using government aid for religious 

education in such a program. 596 U.S. 

at 781 (citing Zelman, 536 U.S. at 652– 

53). 

This rule makes clear that the 

Agencies’ regulatory restrictions 

regarding explicitly religious activities 

do not apply in such indirect aid cases, 

where governmental financial assistance 

flows to private organizations wholly as 

a result of a genuinely independent and 

private choice of the beneficiary. See, 

e.g., 88 FR 2423 (citing proposed rule 38 

CFR 50.2(b), stating that ‘‘[t]he use of 

indirect Federal financial assistance is 

not subject to’’ VA’s explicitly-religiousactivity restrictions). Nothing in Carson, 

however, affects the Court’s wellestablished doctrine that the 

Establishment Clause generally 

prohibits the use of financial aid 

received directly from a government for 

‘‘specifically’’ or ‘‘inherently’’ religious 

activities, particularly in the context of 

aid to private organizations to provide 

social services to beneficiaries, as in 

Kendrick. Nor did the Court in Carson 

hold that statutory and regulatory 

restrictions on such religious uses of 

direct aid violate the Free Exercise 

Clause. 

Contrary to commenters’ suggestions, 

the Court’s decision in Trinity Lutheran 

does not require amendment of the 

Agencies’ regulations either. Trinity 

Lutheran involved a program in which 

a Missouri agency provided grants 

directly to entities for playground 

resurfacing. Although the Court in 

Trinity Lutheran held that Missouri 

could not disqualify a church from 

eligibility for the grant on the basis of 

its religious identity, the Court did not 

address a separate condition under 

Missouri law mandating that the grants 

not be used for sectarian purposes. See 

582 U.S. at 465 n.3. Indeed, the Court 

specifically noted that ‘‘[t]his case 

involves express discrimination based 

on religious identity with respect to 

playground resurfacing,’’ and the Court 

‘‘d[id] not address religious uses of 

funding.’’ Id. The Court in Trinity 

Lutheran did not purport to overrule 

Establishment Clause precedents such 

as Kendrick and Mitchell, and no 

President has amended section 2(e) of 

Executive Order 13279 after Trinity 

Lutheran, nor did the Agencies 

eliminate the restriction on religious 

uses of direct aid from their regulations 

as part of the 2020 Rule. 

The Supreme Court has counseled 

that ‘‘it is th[e] Court’s prerogative alone 

to overrule one of its precedents,’’ 

United States v. Hatter, 532 U.S. 557, 

567 (2001) (quotation marks omitted), 

and has emphasized that its ‘‘decisions 

remain binding precedent until [the 

Court] see[s] fit to reconsider them, 

regardless of whether subsequent cases 

have raised doubts about their 

continuing vitality,’’ Hohn v. United 

States, 524 U.S. 236, 252–53 (1998); see 

also Agostini v. Felton, 521 U.S. 203, 

237 (1997) (‘‘We reaffirm that ‘[i]f a 

precedent of this Court has direct 

application in a case, yet appears to rest 

on reasons rejected in some other line 

of decisions, the Court of Appeals 

should follow the case which directly 

controls, leaving to this Court the 

prerogative of overruling its own 

decisions.’ ’’ (quoting Rodriguez de 

Quijas v. Shearson/Am. Exp., Inc., 490 

U.S. 477, 484 (1989))). The Agencies 

must follow the Court’s existing 

precedents rather than try to predict 

whether the Court might overturn them 

in a future case. 

In short, neither section 2(e) of 

Executive Order 13279 nor the 

Agencies’ regulations implementing that 

extant Presidential directive are 

unconstitutional. The Agencies 

therefore maintain their regulations 

prohibiting organizations that receive 

direct Federal financial assistance from 

engaging in explicitly religious activities 

as part of the social services funded 

with that financial assistance and 

requiring that religious activities be 

separated in time or location from the 

federally funded services. 

Changes: None. 


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C. Definition of ‘‘Indirect Federal 

Financial Assistance’’ 

Comments: Various commenters 

weighed in on the rule’s definition of 

‘‘indirect Federal financial assistance.’’ 

Numerous commenters strongly 

supported the Agencies’ approach to the 

term. A few commenters, however, 

contended that under current Supreme 

Court caselaw it is inappropriate for the 

Agencies to distinguish between direct 

and indirect Federal aid. Commenters 

also raised concerns about specific 

language in the definition, including 

primarily the rule’s statement that the 

availability of adequate secular 

alternatives is a significant factor in 

determining whether a program 

qualifies as indirect. For example, one 

commenter asserted that Federal 

financial assistance may qualify as 

indirect, even where particular 

beneficiaries lack any practical secular 

alternatives, so long as the Government 

itself is not responsible for the lack of 

such alternatives. Relatedly, some 

commenters took issue with the 

possibility that the absence of a 

‘‘genuine and independent private 

choice’’ to participate in religious 

programs might require an Agency to 

impose some of the conditions on a 

recipient of indirect aid that would 

normally be associated with direct 

Federal financial assistance programs. 

Response: The Agencies decline to 

eliminate the rule’s distinction between 

direct and indirect aid or to revise its 

general approach to defining ‘‘indirect 

Federal financial assistance.’’ 

Nevertheless, as elaborated below, a few 

of the Agencies have made some 

technical edits to their regulations to 

promote consistency among the 

Agencies’ definitions of the term. 

As explained above in Part II.A.4 of 

this joint preamble, the Agencies’ 

regulations have long provided that 

their restrictions on explicitly religious 

activities in federally funded social 

service programs apply only where the 

governmental aid is given to private 

organizations ‘‘directly.’’ The Joint 

NPRM proposed to amend the 

regulations’ definition of indirect aid 

programs—i.e., those that are not subject 

to such conditions—to clarify that they 

are limited to cases in which a service 

provider receives assistance ‘‘wholly as 

a result of’’ a ‘‘genuine and independent 

private choice’’ of the beneficiary, ‘‘not 

a choice of the Government.’’ 88 FR 

2401 (quotation marks omitted). As 

noted in the Joint NPRM, such language 

or its equivalent has appeared in at least 

some of the Agencies’ regulations as far 

back as 2004. Id. at 2399. The rule here 

further provides that ‘‘the availability of 

adequate secular alternatives is a 

significant factor in determining 

whether a program affords’’ a genuinely 

independent and private choice to 

beneficiaries and prospective 

beneficiaries. Id. at 2401. These 

amendments are designed to more 

closely track the distinction between 

direct and indirect aid that the Supreme 

Court has drawn in a series of cases 

culminating in Zelman v. SimmonsHarris, 536 U.S. 639 (2002). See 88 FR 

2401. 

Contrary to some commenters’ 

suggestions, the Supreme Court has not 

abandoned the distinction between 

direct and indirect aid that has been 

central to many of its Establishment 

Clause decisions. Indeed, in Carson, the 

Court specifically noted, citing Zelman, 

that because the Maine program there 

was ‘‘a neutral benefit program in which 

public funds flow to religious 

organizations through the independent 

choices of private benefit recipients,’’ it 

‘‘d[id] not offend the Establishment 

Clause.’’ Carson, 142 S. Ct. at 1997. It 

thus remains the case that, for Federal 

financial assistance to qualify as 

indirect under the Court’s 

jurisprudence, a service provider must 

receive the assistance as a result of a 

genuine and independent private choice 

of the beneficiary. See 88 FR 2401. 

The Agencies also decline to amend 

the rule’s statement that the 

‘‘availability of adequate secular 

alternatives’’ is a ‘‘significant factor’’ in 

determining whether a program affords 

beneficiaries genuinely independent 

and private choices. The vast majority of 

commenters who weighed in on the 

statement agreed that the availability of 

such alternatives is relevant to the 

distinction between direct and indirect 

aid. That is consistent with the Supreme 

Court’s jurisprudence on this subject. As 

the Court explained in Zelman, the 

Establishment Clause determination of 

whether aid is direct or indirect ‘‘must 

be answered by evaluating all options,’’ 

religious or secular, available to 

beneficiaries in a Government-funded 

social service program. 536 U.S. at 655– 

56. The inquiry, in other words, is a 

holistic one, in which courts 

comprehensively consider the nature of 

and factual backdrop for the program in 

question. Moreover, contrary to the 

suggestions of one commenter, it is both 

permissible and administrable for an 

agency to conduct that inquiry, 

including by considering the availability 

of adequate secular alternatives. In fact, 

that is precisely what the Supreme 

Court itself did in Zelman and what 

lower courts have done in applying 

Zelman’s distinction between direct and 

indirect aid to various factual scenarios. 

Therefore, it is appropriate for the 

Agencies to do likewise when taking 

actions that might implicate 

constitutional concerns. 

Nor do the Agencies agree that a lack 

of secular alternatives is relevant only 

where the Government is responsible for 

their absence. As just noted, Zelman 

makes clear that the ultimate question 

requires an assessment of ‘‘all options’’ 

available to beneficiaries. See id. at 656. 

And the Agencies do not believe it is 

necessary for the regulations to address 

any hypothetical cases. 

As noted, some commenters also took 

issue with certain statements in the 

Joint NPRM preamble regarding what a 

governmental entity offering aid can or 

must do where beneficiaries are, as a 

practical matter, unable to make an 

independent choice to use the aid in a 

program that does not include 

specifically religious elements. See 88 

FR 2400–01. The Joint NPRM’s 

preamble explained that if an Agency 

responsible for selecting service 

providers determines that a limited 

array of federally funded programs in a 

particular area precludes beneficiaries’ 

practical ability to make a ‘‘genuine and 

independent private choice,’’ Zelman 

would not require the Agency to 

terminate the indirect aid program or 

disallow beneficiaries from redeeming 

their vouchers or certificates at religious 

providers; the Agency could instead 

take other appropriate steps to remedy 

the problem, such as expanding the 

universe of reasonably available 

providers to include secular options or 

requiring existing providers to observe 

the same conditions that the regulations 

attach to direct aid. Id. The Agencies 

need not take any action with respect to 

these comments because the regulatory 

text itself does not address what, if any, 

steps the Government should or must 

take in such circumstances. Because 

such cases may be very rare and will 

likely differ widely in terms of their 

facts and contexts, the Agencies do not 

believe that their regulations ought to 

specifically address any hypothetical 

remedial choices. Nevertheless, the 

Agencies continue to believe that the 

possibilities mentioned in the Joint 

NPRM preamble will be legally 

available in some or all such cases. For 

example, it is unlikely that an Agency’s 

efforts to identify and recruit secular 

providers in order to guarantee genuine 

beneficiary choice would be subject to 

heightened constitutional scrutiny—and 

even if they were, that scrutiny would 

likely be satisfied because such efforts 

would be undertaken in order to satisfy 

the Establishment Clause’s requirements 

and because such recruiting would not 


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disqualify or disfavor the participation 

of any religious providers. 

Further, the Agencies decline to 

amend the rule to treat the availability 

of secular alternatives as a necessary 

condition (as opposed to merely a 

significant factor) to a determination 

that the program affords beneficiaries a 

genuinely independent and private 

choice of providers. It may be the case 

that, under certain facts and 

circumstances, Zelman would require a 

secular choice be available for the 

governmental aid program to qualify as 

indirect. But indirect aid programs can 

and do vary widely, and it is possible 

that in some contexts a court could 

deem a beneficiary’s decision to use 

financial assistance in a program that 

includes religious elements to be 

genuinely independent even where 

there are few or no secular options in a 

given area. For example, a particular 

beneficiary might be indifferent to 

whether a provider or a program is in 

some respects religious, or might prefer 

a religious provider. 

Finally, although the Agencies 

decline to change their overall approach 

to defining ‘‘indirect Federal financial 

assistance,’’ certain of the Agencies have 

made technical edits to their definitions 

of the term, so as to more closely track 

the language of Zelman, as discussed in 

the Joint NPRM, and to promote 

consistency among the nine Agencies’ 

regulations. Also, previously, some 

Agencies referred to the plural 

‘‘adequate secular alternatives,’’ while 

others referred to the singular ‘‘adequate 

secular alternative.’’ To advance 

consistency among the Agencies’ 

regulations, the Agencies have now 

uniformly adopted the plural 

construction. In doing so, they do not 

express any view as to whether one 

secular alternative could be adequate in 

some circumstances, which would 

depend on the specific facts at issue. 

Changes: The Agencies have made the 

aforementioned technical changes in the 

relevant regulations in accordance with 

Zelman and the Joint NPRM and to 

promote consistency among the 

Agencies’ regulatory text. The 

regulations modified are 6 CFR 19.2 

(DHS); 7 CFR 16.2 (USDA); 24 CFR 

5.109(b) (HUD); 28 CFR 38.3(c)(2) (DOJ); 

29 CFR 2.31(a)(2)(ii) (DOL); 34 CFR 

75.52(c)(3)(ii)(B) and 76.52(c)(3)(ii)(B) 

(ED); 38 CFR 50.1(b)(2), 61.64(b)(2), and 

62.62(b)(2) (VA); and 45 CFR 87.1(c)(2) 

(HHS). 

D. Eligibility of Faith-Based 

Organizations and Availability of 

Accommodations 

1. Religious Motives 

Comments: In the Joint NPRM, the 

Agencies made clear that their proposed 

regulations would preserve the 

Agencies’ longstanding policy of 

prohibiting discrimination against an 

organization on the basis of religion. 88 

FR 2402. But, rather than keeping the 

2020 Rule’s formulation of that 

principle, the Agencies proposed 

rewording their regulations for clarity 

and to state the prohibition more 

plainly. Id. In particular, the Joint 

NPRM expressed that the Agencies’ 

regulations would provide that the 

Agencies would not, in their selection of 

service providers, discriminate ‘‘on the 

basis of an organization’s religious 

character, motives, or affiliation, or lack 

thereof.’’ Id. Commenters pointed out, 

however, that some of the Agencies 

(namely, DOJ, DOL, HHS, HUD, VA, 

DHS, and USAID) had, in certain of 

their proposed regulations, retained the 

‘‘motivated or influenced by religious 

faith’’ language of the 2020 Rule, rather 

than the ‘‘motives’’ language set out in 

the Joint NPRM’s preamble. The 

commenters urged those Agencies to 

change their regulatory text to 

consistently adopt the ‘‘motives’’ 

formulation prescribed in the Joint 

NPRM preamble and used elsewhere in 

the proposed regulations. 

Response: The Agencies agree that 

their regulations should consistently 

prohibit discrimination on the basis of 

an organization’s ‘‘religious character, 

motives, or affiliation, or lack thereof,’’ 

instead of preserving the religiousmotivation phrasing used in the 2020 

Rule. As explained in the Joint NPRM, 

the ‘‘motives’’ language maintains the 

Agencies’ longstanding prohibition on 

such discrimination, but ‘‘states it more 

plainly’’ and ‘‘would further guarantee 

that the Agencies will not discriminate 

against providers on grounds that would 

violate the First Amendment.’’ Id. The 

Agencies, moreover, believe there is 

value in ensuring that their regulations 

are consistent in describing the 

prohibition on discriminating against an 

organization based on its religion. 

Accordingly, in this final rule, the 

Agencies have uniformly adopted the 

‘‘motives’’ language in all of the relevant 

regulatory provisions. 

This and the other wording changes 

regarding the protections the law affords 

to faith-based organizations and others 

do not substantively alter the Agencies’ 

longstanding commitment to ensuring 

that faith-based organizations are not 

discriminated against in the selection of 

service providers. Instead, the changes 

simply address confusion introduced by 

the 2020 Rule regarding protections the 

law affords to faith-based organizations 

and others. 

Changes: DOJ, DOL, HHS, HUD, VA, 

DHS, and USAID have revised their 

regulations and associated appendices 

in order to align their regulatory text 

with that appearing elsewhere in the 

relevant regulations. The final 

regulations reflecting these revisions are 

6 CFR 19.3(b), 19.4(c), and appendix A 

to part 19 (DHS); 22 CFR 205.1(b) 

(USAID); 24 CFR 5.109(c) and appendix 

A to subpart A of part 5 (HUD); 28 CFR 

38.4(a), 38.5(d), and appendix A to part 

38 (DOJ); 29 CFR 2.32(a)(1) and 

appendix A to subpart D of part 2 

(DOL); 38 CFR 50.2(a) and appendix A 

to part 50 (VA); and 45 CFR 87.3(a) and 

appendix B to part 87 (HHS). 

2. Religious Accommodations 

Comments: In the Joint NPRM, the 

Agencies stated that they would 

continue to consider requests for 

accommodations on a case-by-case basis 

in accordance with the U.S. 

Constitution and other Federal law. 88 

FR 2402. Some commenters generally 

supported this approach, but urged the 

Agencies to provide further information 

about how such determinations would 

be made. For instance, one commenter 

requested that the Agencies explain how 

they will decide requests for 

accommodations and who will make 

those determinations. The commenter 

also argued that the Agencies should 

institute an expedited procedure for 

appealing accommodation denials, 

before the provider-selection process is 

completed, so as to ensure that religious 

organizations are provided appropriate 

accommodations and are not excluded 

from participating in the Agencies’ 

programs. And another commenter 

urged the Agencies to make clear that 

their case-by-case determinations would 

consider, among other factors, the 

potential impacts of proposed 

accommodations on beneficiaries or 

other third parties. 

Response: As explained in the Joint 

NPRM, the Agencies remain committed 

to considering providers’ requests for 

accommodations on a case-by-case basis 

in accordance with all Federal law, and 

to ensuring faith-based and other 

organizations are not dissuaded from 

participating in the Agencies’ programs. 

Consistent with the Agencies’ 

commitment to taking a case-by-case 

approach, the Agencies do not establish 

in this final rule precisely how or by 

whom such case-by-case determinations 

will be made because such details are 

beyond the scope of this rulemaking and 


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could vary depending on the particular 

program implicated or the facts and 

circumstances of a particular request for 

accommodation. 

Changes: None. 

Comments: Several commenters 

supported the Agencies’ ongoing 

commitment to considering requests for 

accommodations on a case-by-case basis 

in accordance with the U.S. 

Constitution and Federal statutes, as 

reflected in standalone provisions of the 

Agencies’ regulations. At the same time, 

however, the commenters suggested that 

the Agencies remove similar language 

from the regulations’ provisions 

describing program requirements. 

According to the commenters, because 

the exemption language in those 

provisions immediately follows the 

constitutionally required prohibition on 

using direct governmental funding for 

explicitly religious activities, that 

language could be misread to suggest 

that a religious exemption could be 

given to that requirement. In the 

commenters’ view, including such 

language in the program requirement 

provisions could thus engender 

confusion. 

Responses: The Agencies have 

carefully reviewed the language 

regarding accommodations included 

throughout this rule, and they do not 

believe it suggests, regardless of its 

placement, that unconstitutional 

accommodations can or should be 

made. The Agencies agree, however, 

that the accommodation language is 

clearer and easier to find if it appears as 

a standalone statement in each Agency’s 

regulations, rather than if it is subsumed 

in more general provisions. 

Changes: The Agencies that did not 

already include a standalone provision 

in their proposed regulations have 

accordingly revised their regulations to 

do so. The provisions that have been 

revised or added are 6 CFR 19.3(c) 

(DHS); 7 CFR 16.3(h) (USDA); 22 CFR 

205.1(c) (USAID); 24 CFR 5.109(c) 

(HUD); 28 CFR 38.4(b) (DOJ); 29 CFR 

2.32(e)(1) (DOL); 38 CFR 50.2(e) (VA); 

and 45 CFR 87.3(b) (HHS). 

Comments: One commenter faulted 

the Joint NPRM for supposedly adopting 

an ‘‘accommodation-denying position’’ 

that could result in violations of the 

Religious Freedom Restoration Act 

(‘‘RFRA’’), in particular. The commenter 

pointed out, for example, that the Joint 

NPRM’s discussion of Title VII did not 

address the impact of RFRA on the 

application of that statute, and argued 

that there are instances where RFRA 

compels accommodations to the 

requirements of nondiscrimination 

laws. 

Response: The Agencies disagree that, 

either in the Joint NPRM or this final 

rule, they are taking an 

‘‘accommodation-denying position.’’ To 

the contrary, in both documents, the 

Agencies have specifically reaffirmed 

that they will continue to consider faithbased and other organizations’ requests 

for accommodations on a case-by-case 

basis in accordance with the U.S. 

Constitution and Federal statutes. RFRA 

is one Federal law that may require the 

Agencies to grant such an 

accommodation in an appropriate case. 

Specifically, where a provider shows 

that application of a regulatory 

requirement ‘‘substantially burden[s]’’ 

its exercise of religion, RFRA states that 

the Agency may impose the requirement 

only if it demonstrates that application 

of the burden to the organization ‘‘is in 

furtherance of a compelling 

governmental interest’’ and ‘‘is the least 

restrictive means’’ of furthering that 

interest. 42 U.S.C. 2000bb–1(a) through 

(b). 

Changes: None. 

3. Provider Notices 

Comments: The regulations of all the 

Agencies except USAID include 

appendices containing language for 

provider notices—that is, notices or 

announcements of award opportunities 

and notices of award or contracts— 

stating that faith-based organizations are 

eligible for the awards on the same basis 

as any other organization and are 

subject to relevant protections and 

requirements of Federal law. (While 

USAID’s regulations do not include this 

appendix, they do require that notices 

or announcements of funding 

opportunities include such language. 

See 22 CFR 205.1(b).) The Agencies 

proposed certain changes to these 

provider notice appendices in order to 

conform the appendices to proposed 

changes to other parts of their 

regulations. As some commenters 

pointed out, however, several of the 

Agencies’ proposed provider notice 

appendices did not incorporate all of 

the changes described elsewhere in the 

Joint NPRM. For example, the Joint 

NPRM asserted that this rule was 

intended to state more clearly that 

Agencies would not, in selecting service 

providers, discriminate on the basis of 

an organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to favor or 

disfavor a similarly situated secular 

organization. 88 FR 2402. But, in an 

oversight, several Agencies (USDA, 

DOL, HUD, VA, and DHS) did not fully 

incorporate the intended new language 

in their provider notice appendices, 

although they generally did so 

elsewhere in their proposed regulations. 

Commenters recommended that the 

Agencies revise their provider notice 

appendices to be consistent both with 

the remainder of the proposed 

regulatory text and with one another. 

One particular set of proposed 

changes to the provider notice 

appendices drew both support and 

criticism, namely, the removal of a list 

of examples of religious freedom and 

conscience protection laws, along with 

a sentence stating that religious 

accommodations may be sought under 

many of those laws. The proposal 

sought to clarify the nature of the 

protections for faith-based organizations 

by decoupling the rule’s religious 

nondiscrimination protections from the 

question of accommodations. See id. 

Although the NPRM preamble indicated 

that such changes would be made 

throughout the rule, the proposed 

changes were inadvertently omitted 

from USDA and DOL’s proposals. A 

commenter that supported the proposed 

changes urged USDA and DOL to join 

the other Agencies in eliminating the 

illustrative list of Federal laws. Some 

other commenters, by contrast, 

recommended that all of the Agencies 

restore the language, because, in the 

commenters’ view, it makes clear which 

laws require an accommodation. 

Response: The Agencies agree that all 

of their provider notice appendices 

should be revised as necessary to reflect 

fully the changes proposed elsewhere in 

the rule. Doing so will help ensure that 

faith-based and other organizations are 

accurately informed of their eligibility, 

protections, and requirements. The 

Agencies also agree that the provider 

notice appendices should be consistent 

with one another except where Agencyspecific language is required. To 

accomplish these goals, in this final 

rule, the Agencies have generally 

adopted the language of the provider 

notice appendices in DOJ’s proposed 

regulation, which most thoroughly 

incorporated the intended changes. As 

explained in the Joint NPRM, 88 FR 

2402, these changes do not 

substantively change providers’ rights, 

but rather make clearer that the 

Agencies will not discriminate against 

providers in violation of the U.S. 

Constitution or Federal statutes, and 

that the Agencies will continue to 

consider providers’ requests for 

accommodations on a case-by-case basis 

in accordance with all applicable 

Federal law. These changes also avoid 

any unintended implications introduced 

by citing to some, but not all, statutes 

containing religious freedom 

protections. 


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Changes: 

DOJ—28 CFR part 38, appendix A: 

amend paragraph (c) for consistency 

with proposed 28 CFR part 38; 

appendix B: amend paragraph (b) for 

consistency with proposed 28 CFR 

part 38 

Other Agencies— 

DHS—6 CFR part 19, appendices A and 

B: revise language to match DOJ’s 

revised 28 CFR part 38, appendices A 

and B 

USDA—7 CFR part 16, appendices A 

and B: revise language to match DOJ’s 

revised 28 CFR part 38, appendices A 

and B 

HUD—24 CFR part 5, subpart A, 

appendix A: revise language to match 

DOJ’s revised 28 CFR part 38, 

appendix A (except retain heading 

‘‘Notice of Funding Opportunity’’); 

add new appendix B modeled on 

revised 28 CFR part 38, appendix B 

DOL—29 CFR part 2, subpart D, 

appendices A and B: revise language 

to match DOJ’s revised 28 CFR part 

38, appendices A and B 

ED—34 CFR part 75, appendices A and 

B: revise language to match DOJ’s 

revised 28 CFR part 38, appendices A 

and B 

VA—38 CFR part 50, appendices A and 

B: revise language to match DOJ’s 

revised 28 CFR part 38, appendices A 

and B 

HHS—45 CFR part 87, appendices A 

and B: revise language to match DOJ’s 

revised 28 CFR part 38, appendices A 

and B 

4. Merit-Based Considerations in GrantMaking 

Comments: One commenter requested 

that the Agencies include language in 

their regulations ensuring that Agency 

decisions about awards of Federal 

financial assistance will be made on the 

basis of merit, and stating that such 

merit-based decisionmaking will 

include objective consideration of 

whether an organization will serve all 

beneficiaries and perform all services 

that are necessary to fulfill the 

program’s objectives. 

Response: The Agencies agree that 

decisions about awards of Federal 

financial assistance must be free from 

political interference or the appearance 

of such interference, and must be made 

on the basis of merit, not on the basis 

of religion or lack thereof. The Agencies 

do not, however, adopt the commenter’s 

suggestion that they elaborate upon the 

merit-based decisionmaking processes 

in their regulations. Such additional 

details are beyond the scope of this 

rulemaking. The Agencies therefore 

decline to make any changes to their 

regulations based on these comments. 

Changes: None. 

5. Burdens on Faith-Based Grantees 

Comments: According to some 

commenters, certain of the rule’s notice 

requirements are, but should not be, 

imposed exclusively on faith-based 

providers. Other commenters similarly 

contended that the regulations’ 

requirement that a provider’s explicitly 

religious activities, if any, be separated 

from ones supported by direct Federal 

financial assistance is unduly 

burdensome for religious service 

providers. And another commenter 

contended that the rule discriminates 

against faith-based organizations based 

on their religious status, due to certain 

of the rule’s beneficiary protections. 

Response: Neither the Joint NPRM nor 

this final rule imposes any requirements 

exclusively on faith-based providers. 

Rather, the regulations apply equally to 

both faith-based and secular 

organizations. As explained above in 

Part II.B of this joint preamble, the 

Agencies likewise decline to repeal their 

regulatory provisions requiring the 

separation of explicitly religious 

activities from those supported by direct 

Federal financial assistance. That 

requirement applies to all types of 

providers, not just religious 

organizations, and it appropriately 

implements an Executive order and is 

consistent with the Supreme Court’s 

First Amendment jurisprudence. Nor 

does this final rule discriminate against 

faith-based providers in any other way. 

To the contrary, the rule is designed, in 

significant part, to protect providers 

from discrimination based on religion. 

Changes: None. 

E. Title VII 

Comments: Section 703(a) of Title VII 

of the Civil Rights Act of 1964, 42 U.S.C. 

2000e–2(a), generally prohibits 

employers from engaging in 

employment discrimination on the basis 

of an individual’s race, color, religion, 

sex, or national origin. Another 

subsection of Title VII, however, 

exempts certain religious organizations 

with respect to a particular application 

of that prohibition. Specifically, section 

702(a) of Title VII, 42 U.S.C. 2000e–1(a), 

provides that ‘‘[t]his subchapter shall 

not apply . . . to a religious 

corporation, association, educational 

institution, or society with respect to the 

employment of individuals of a 

particular religion to perform work 

connected with the carrying on by such 

corporation, association, educational 

institution, or society of its activities.’’ 

Most of the Agencies’ regulations have 

long provided that a religious 

organization that qualifies for that Title 

VII religious-employer exemption is not 

precluded from invoking it even in 

programs funded by Federal financial 

assistance. In the 2020 Rule, VA joined 

the other Agencies by adding such 

language. 88 FR 2402. Also in 2020, five 

of the Agencies (DOL, HHS, ED, VA, 

and USAID) added text to their 

regulations indicating that the Title VII 

religious-employer exemption allows a 

qualifying organization to hire persons 

on the basis of their ‘‘acceptance of or 

adherence to religious tenets of the 

organization.’’ Id. (quotation marks 

omitted). HUD did not add a similar 

employment-related tenets sentence to 

its regulation, but another provision in 

HUD’s rules (24 CFR 5.109(d)(2)) 

already stated that ‘‘a faith-based 

organization participating in a HUD 

program or activity . . . may . . . select 

its . . . employees on the basis of their 

acceptance of or adherence to the 

religious tenets of the organization 

consistent with’’ the Title VII religiousemployer exemption. 

The Joint NPRM proposed to remove 

the sentence about tenets-based 

employment conditions added by the 

2020 Rule from DOL, HHS, ED, VA, and 

USAID’s regulations on the ground that 

the sentence is unnecessary and 

potentially misleading. 88 FR 2402. As 

the Joint NPRM explained, the sentence 

could mistakenly be read to suggest that 

Title VII permits religious organizations 

that qualify for the Title VII religiousemployer exemption to insist upon 

tenets-based employment conditions 

that would otherwise violate Title VII or 

the particular underlying funding 

statute in question. Id. 

Several commenters argued that the 

Agencies should not remove the tenetsbased employment conditions sentence 

because, they said, the scope of the Title 

VII religious-employer exemption 

permits a qualifying organization to 

require employees to conform to 

religious tenets even where application 

of such a requirement would consist of 

another form of discrimination (e.g., sex 

discrimination) that Title VII prohibits. 

Some of those commenters also 

contended that the sentence reflects 

what the First Amendment requires. 

Other commenters, by contrast, urged 

HUD to remove the sentence in its 

regulation about tenets-based 

employment conditions in order to 

conform to the regulatory text of the 

other eight Agencies. And other 

commenters suggested that the Agencies 

should repeal the provisions in their 

regulations stating that qualifying 

organizations retain their Title VII 

religious-employer exemption with 

respect to federally funded programs, 

because, the commenters argued, 


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application of the exemption in such 

cases would violate the Establishment 

Clause. 

Response: The Agencies decline to 

remove the longstanding provisions in 

their regulations about the continued 

application of the Title VII religiousemployer exemption for religious 

organizations that qualify for it. DOJ’s 

Office of Legal Counsel has concluded 

that the Title VII exemption is a 

permissible religious accommodation 

for qualifying religious organizations 

even in the context of at least some 

Government-funded social service 

programs. See Direct Aid to Faith-Based 

Organizations Under the Charitable 

Choice Provisions of the Community 

Solutions Act of 2001, 25 Op. O.L.C. 

129, 131–33 (2001) (‘‘Direct Aid to 

Faith-Based Organizations’’); see also 

Memorandum for William P. Marshall, 

Deputy Counsel to the President, from 

Randolph D. Moss, Assistant Attorney 

General, Office of Legal Counsel, Re: 

Application of the Coreligionists 

Exemption in Title VII of the Civil Rights 

Act of 1964, 42 U.S.C. 2000e–1(a), to 

Religious Organizations That Would 

Directly Receive Substance Abuse and 

Mental Health Services Administration 

Funds Pursuant to Section 704 of H.R. 

4923, the ‘‘Community Renewal and 

New Markets Act of 2000’’, at 26–30 

(Oct. 12, 2000) (‘‘2000 OLC Opinion’’); 

but cf. id. at 22–25 (explaining that there 

might be as-applied situations in which 

a constitutional issue could be raised if 

and when an agency knowingly chooses 

to provide aid to fund employment 

positions for which the employer 

applies a religious test). 

While recognizing that the Title VII 

religious-employer exemption may 

apply, DOL, HHS, ED, VA, and USAID 

disagree that the language added to their 

regulations in 2020 about tenets-based 

employment conditions is necessary or 

clarifying, given the limiting principles 

on the Title VII exemption that courts 

have recognized. 

Specifically, Federal courts of appeals 

have long held that the Title VII 

religious-employer exemption allows a 

qualifying religious organization 

generally to require employees to 

conform their conduct to the 

organization’s religious tenets. 

Nevertheless, as DOL recently explained 

in another rulemaking, see Rescission of 

Implementing Legal Requirements 

Regarding the Equal Opportunity 

Clause’s Religious Exemption Rule, 88 

FR 12842, 12848–54 (Mar. 1, 2023), the 

weight of Title VII case law has 

determined that qualifying religious 

employers may only impose such a 

requirement where the employment 

condition does not violate the other 

nondiscrimination provisions of Title 

VII, apart from the prohibition on 

religious discrimination. See, e.g., 

Kennedy v. St. Joseph’s Ministries, Inc., 

657 F.3d 189, 192 (4th Cir. 2011) (Title 

VII religious-employer exemption ‘‘does 

not exempt religious organizations from 

Title VII’s provisions barring 

discrimination on the basis of race, 

gender, or national origin’’); Boyd v. 

Harding Acad. of Memphis, Inc., 88 

F.3d 410, 413 (6th Cir. 1996) (the 

exemption ‘‘does not . . . exempt’’ 

religious institutions ‘‘with respect to all 

discrimination’’ and ‘‘Title VII still 

applies’’ to, for example, ‘‘a religious 

institution charged with sex 

discrimination’’); see also 2000 OLC 

Opinion at 30–31 (explaining that 

Congress did not intend to afford 

qualifying religious organizations an 

exemption from such other forms of 

discrimination, even where the 

discrimination is a function of their 

sincere religious tenets); Direct Aid to 

Faith-Based Organizations, 25 Op. 

O.L.C. at 131 n.4 (same). For example, 

even if a qualifying religious 

organization had a religious tenet 

prohibiting interracial marriage, it could 

not invoke the Title VII religiousemployer exemption to refuse to employ 

an applicant with a spouse of a different 

race. Likewise, an organization that 

believes a husband is the head of a 

household and should provide for his 

family but that a woman’s place is in the 

home could not refuse to hire women or 

offer higher benefits to male employees. 

See, e.g., EEOC v. Fremont Christian 

Sch., 781 F.2d 1362 (9th Cir. 1986). 

The Agencies recognize that a few 

judges have recently suggested 

otherwise. See 88 FR 12852. As the Joint 

NPRM made clear, however, the 

applicability of the Title VII exemption 

in any given case will be ‘‘governed by 

the text of that statute, any other 

applicable laws . . . , and the caselaw 

interpreting these authorities.’’ 88 FR 

2402. This rule does not purport to alter 

or otherwise affect the scope of the 

statutory exemption. The Agencies’ goal 

with respect to the tenets-based 

employment condition regulatory text is 

simply to avoid any language that might 

be misconstrued as resolving that 

question against the weight of judicial 

and executive branch authority. 

Accordingly, as proposed, ED, DOL, 

HHS, VA, and USAID are, in this final 

rule, removing the sentence about 

tenets-based employment conditions 

that they added in 2020. And for the 

same reasons, HUD is removing 

language regarding the Title VII 

religious-employer exemption from its 

regulations. 

As noted in the Joint NPRM, the 

Agencies reemphasize that 

constitutional doctrines might also be 

implicated in some cases. See id. at 

2402–03. For example, 

antidiscrimination laws, including Title 

VII, are subject to constitutional 

limitations as applied to certain 

decisions by some religious 

organizations concerning a subset of 

their employees, under what is known 

as the ‘‘ministerial exception.’’ See, e.g., 

Our Lady of Guadalupe Sch. v. 

Morrissey-Berru, 140 S. Ct. 2049 (2020); 

Hosanna-Tabor Evangelical Lutheran 

Church & Sch. v. EEOC, 565 U.S. 171 

(2012). And the Agencies must be 

careful not to unduly interrogate the 

plausibility of a religious justification in 

assessing whether a religious-tenets 

claim is a pretext for some other, 

impermissible form of employment 

discrimination. In addition, as the 

Supreme Court recently recognized, 

‘‘how these doctrines protecting 

religious liberty interact with Title VII 

are questions for future cases.’’ Bostock 

v. Clayton Cnty., 140 S. Ct. 1731, 1754 

(2020). 

Changes: HUD has removed the 

phrase ‘‘and employees’’ from the 

revised version of 24 CFR 5.109(d)(2). 

F. Definition of ‘‘Federal Financial 

Assistance’’ 

Comments: In the Joint NPRM, the 

Agencies sought public comment on 

whether and how they should define the 

term ‘‘Federal financial assistance’’ in 

their regulations. 88 FR 2403–04. In 

particular, the Agencies asked whether 

an Agency that adopts a definition of 

‘‘Federal financial assistance’’ in its 

regulations should use the definition set 

out in Executive Order 13279. Id. at 

2403. The Agencies also inquired about 

the impact of provisions adopted by 

some Agencies in the 2020 Rule 

specifying that certain forms of 

assistance are not ‘‘Federal financial 

assistance,’’ such that the Agencies’ 

definitions of that term ‘‘might be read 

to be materially different from the 

definition in Executive Order 13279.’’ 

Id. One commenter urged the Agencies 

to consistently adopt the definition of 

‘‘Federal financial assistance’’ set forth 

in Executive Order 13279, explaining 

that doing so would promote uniformity 

and avoid confusion. Another 

commenter contended that the term 

should not include indirect aid, and that 

the Agencies should specify that the 

term does not encompass mere 

nonprofit or tax-exempt status. And 

another commenter argued that the 

request for comments was insufficiently 

specific and so the Agencies must 

provide a separate notice with 


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additional opportunity for public 

comment before adopting or 

reformulating a definition of ‘‘Federal 

financial assistance.’’ 

Response: The Agencies conclude that 

their regulations should expressly adopt 

the definition of ‘‘Federal financial 

assistance’’ articulated in Executive 

Order 13279. The regulations seek to 

implement that Executive order and, as 

the Joint NPRM explained, the 

provisions of the Order ‘‘at issue in this 

rulemaking[ ] turn on the conveyance or 

receipt of ‘Federal financial 

assistance.’ ’’ 88 FR 2403. To ensure 

consistency and prevent 

misunderstandings, the Agencies are 

thus amending their regulations to 

uniformly adopt the definition of the 

term set forth in Executive Order 13279, 

which encompasses both direct and 

indirect aid. (The Agencies have 

explained elsewhere why they are 

declining to depart from their proposed 

treatment of indirect aid in this 

rulemaking. See Part II.C of the joint 

preamble.) Consistent with section 1(a) 

of Executive Order 13279, the Agencies 

will therefore all define ‘‘Federal 

financial assistance’’ to mean 

‘‘assistance that non-Federal entities 

receive or administer in the form of 

grants, contracts, loans, loan guarantees, 

property, cooperative agreements, food 

commodities, direct appropriations, or 

other assistance, but does not include a 

tax credit, deduction, or exemption.’’ 

See 67 FR 77141. Importantly, this 

definition encompasses the Agencyspecific forms of assistance that certain 

Agencies expressly referenced in their 

prior definitions of the term. A tax 

exemption, whether or not on the basis 

of nonprofit status, however, does not 

qualify as Federal financial assistance 

under this definition. 

The Agencies disagree that further 

notice and an additional opportunity to 

comment are required. The Joint 

NPRM’s presentation of this issue 

provided more than ‘‘fair notice’’ of the 

changes adopted here. Long Island Care 

at Home, Ltd. v. Coke, 551 U.S. 158, 174 

(2007). The Joint NPRM stated expressly 

that the Agencies were considering 

whether to adopt the definition of the 

term ‘‘Federal financial assistance’’ 

established in Executive Order 13279. 

The Joint NPRM also described the 

Agencies’ prior and current approaches 

to defining the term, and specifically 

requested input on whether the 

Agencies should adopt a different 

definition than the Executive order did. 

88 FR 2403–04. It was thus entirely 

foreseeable that the Agencies would 

adopt that definition in this final rule. 

As a result, the Agencies need not 

institute a separate notice-and-comment 

process to adopt the definition of 

‘‘Federal financial assistance’’ found in 

Executive Order 13279. 

Changes: All of the Agencies have 

included in their final regulations the 

definition of ‘‘Federal financial 

assistance’’ set forth in Executive Order 

13279. The provisions to be modified or 

added are 6 CFR 19.2 (DHS); 7 CFR 16.2 

(USDA); 22 CFR 205.1(a) (USAID); 28 

CFR 38.3(a) (DOJ); 29 CFR 2.31(a) 

(DOL); 34 CFR 75.52(c) and 76.52(c) 

(ED); 38 CFR 50.1(c) (VA); and 45 CFR 

87.1(d) (HHS). 

G. Other Issues 

1. Monitoring Requirements 

Comments: Commenters suggested 

that, in the final rule, the Agencies 

adopt or clarify their procedures for 

monitoring grantees’ compliance with 

these regulations. To further this goal, 

some commenters requested that the 

rule provide that Federal staff will be 

trained on how to oversee and enforce 

the regulations, and that grantees will be 

trained on their rights and 

responsibilities under the rule. 

Specifically, one commenter suggested 

that the Agencies should clarify how 

they will meet their obligations to 

monitor constitutional, statutory, and 

regulatory requirements. Another 

commenter similarly requested that the 

Agencies take additional steps to 

monitor and enforce their regulations. 

Response: These concerns were also 

expressed with respect to the 2016 Rule, 

and the Agencies agreed with them at 

that time. See 81 FR 19370. As the 

Agencies then explained, the Agencies 

must guard against inappropriate uses of 

Federal financial assistance by 

monitoring and enforcing all 

constitutional, statutory, and regulatory 

standards governing such assistance, 

particularly in light of the monitoring 

obligations in Executive Order 13279, as 

amended by Executive Order 13559. Id. 

The Agencies agree with the 

commenters that organizations that 

receive Federal financial assistance 

need to be aware of these new 

regulatory requirements, and that 

Agencies must train appropriate 

individuals on applicable regulations 

and vigorously monitor and enforce 

those regulatory requirements. The 

specific procedures to be adopted, 

however, are beyond the scope of this 

rulemaking. In addition, those 

procedures will vary among the 

Agencies and their programs because 

each Agency has its own organizational 

structure, available resources, legal 

authority, and statutory enforcement 

requirements. Moreover, experience 

implementing these regulations and 

seeing them in operation may provide 

insights that aid development of 

appropriate training, monitoring, and 

oversight mechanisms. Consequently, 

the Agencies have decided not to 

prescribe a single uniform approach to 

these issues in the present rule. Instead, 

each Agency will adopt its own 

measures to train staff and grantees, and 

will monitor projects in a manner that 

is appropriate for each program and 

award that is subject to this rule. 

Appropriate training and oversight 

measures may include, for example, 

Federal staff or grantee conferences or 

workshops, site visits, monitoring 

phone calls, and reviews of grant 

documents, audits, and progress reports. 

Each Agency will devote appropriate 

resources to ensure that its program staff 

understand their responsibilities to 

ensure that grantees, subgrantees, and 

contractors that provide social services 

to beneficiaries under programs of 

Federal financial assistance comply 

with these final regulations. 

Changes: None. 

2. Data Collection 

Comments: Several commenters 

suggested that the Agencies should 

implement and improve their existing 

data collection processes to understand 

whether the safeguards in the 

regulations are sufficient and to inform 

how Agencies can improve award 

outcomes and delivery of services. 

Commenters stated that doing this will 

ensure fidelity to constitutional 

principles and programmatic goals, and 

ultimately, to serving beneficiaries in 

the most equitable, effective, and 

efficient way. 

Response: The Agencies are 

committed to using data to monitor 

compliance with all award conditions, 

and they will comply with all 

applicable requirements regarding data 

collection, including Government-wide 

standards such as Office of Management 

and Budget (‘‘OMB’’) Memorandum M– 

14–06, Guidance for Providing and 

Using Administrative Data for 

Statistical Purposes. Modifying the 

Agencies’ data collection processes or 

imposing additional requirements for 

such collection, however, is beyond the 

scope of this rulemaking. Moreover, 

because of the unique organizational 

structure and context of each Federal 

financial assistance program, mandating 

a single data collection approach would 

be infeasible. The Agencies thus decline 

to make any changes to their regulations 

in response to the comments about data 

collection. 

Changes: None. 


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3. Point of Contact for Complaints 

Comments: Commenters requested 

that the Agencies modify their 

regulations to include a point of contact 

for beneficiaries of federally funded 

social service programs should they 

need to report any complaints of 

discrimination. Several of these 

commenters provided DOJ and DOL’s 

regulations as potential models because 

DOJ designates its Office for Civil Rights 

as the office with which beneficiaries 

may file complaints and DOL’s 

regulations provide specific contact 

information for reporting violations. 

Three commenters recommended that 

all the Agencies designate their Offices 

for Civil Rights, or an equivalent entity, 

to receive any complaints because, in 

the commenters’ view, those offices are 

best equipped to investigate and 

respond to reports of discrimination. 

Response: The Agencies understand 

the need for beneficiaries of Federal 

financial assistance to have an avenue 

for enforcement of their rights 

enumerated in the beneficiary notice. 

Because of differences in Agency 

structures, however, it is best left to 

each Agency to determine which of its 

offices will handle complaints. Some 

Agencies (HUD and VA) do not have an 

Office for Civil Rights. And other 

Agencies may have some other office 

better placed to receive reports of 

violations of this rule. Additionally, for 

federally funded social service programs 

operated by intermediaries, the 

intermediary may be the entity best 

positioned to receive and act on 

complaints of discrimination from 

beneficiaries. 

Similarly, each Agency is best poised 

to determine whether putting specific 

contact information for filing 

complaints in the Agency regulation 

text would serve the interests of 

beneficiaries of federally funded social 

service programs. For instance, DOL has 

a longstanding, single point of contact 

whose information can be placed in its 

regulation text without significant risk 

of becoming outdated. For other 

Agencies without a static point of 

contact, placing a specific person’s 

contact information in regulation text is 

not feasible and could result in 

beneficiaries attempting to use outdated 

contact information to file complaints. 

In acknowledgement that 

beneficiaries of federally funded social 

service programs need clarity about 

what office to contact if they experience 

discrimination in violation of these 

regulations, the Agencies agree that, at 

minimum, either their regulatory texts 

or follow-on guidance should specify 

whom a beneficiary may contact if they 

experience discrimination. 

Changes: USDA amends its regulation 

text to specify that its Office of the 

Assistant Secretary for Civil Rights will 

receive reports of violations of this rule. 

DHS amends its regulation text to state 

that beneficiaries should report such 

violations to its Office for Civil Rights 

and Civil Liberties. The other Agencies 

make no changes to their regulatory text 

in the Joint NPRM. Those other 

Agencies, with the exception of USAID, 

have, however, agreed to include a 

model beneficiary notice as an appendix 

to their regulations, and the model 

notices include a space for the awarding 

entity to include contact information for 

the appropriate office to which 

beneficiaries may direct complaints. 

4. Need for Rulemaking 

Comments: One commenter stated 

that the Agencies had insufficiently 

established the need for this 

rulemaking. According to the 

commenter, the Agencies failed to 

provide evidence of inconsistencies or 

confusion raised by the 2020 Rule. The 

commenter also contended that the 

Agencies did not explain how the 2020 

Rule limited the reach of federally 

funded services and programs, or how 

the proposed rule would better achieve 

the Agencies’ stated goal of reaching the 

widest possible eligible population, 

including historically marginalized 

communities. 

Response: The Agencies disagree that 

the Joint NPRM contained inadequate 

justification for the proposed changes 

and, furthermore, note that numerous 

commenters agreed that this rulemaking 

is necessary. For example, two 

commenters stated that they found the 

2020 Rule confusing because it 

contained language suggesting that the 

Agencies would grant religious 

exemptions to providers even when the 

exemptions were not justified or 

required by Federal law. Another 

commenter agreed with the Agencies 

that the 2020 Rule’s language allowing 

indirect aid providers to require 

beneficiaries to attend all activities that 

are fundamental to the program created 

a confusing tension with the prohibition 

on discriminating against beneficiaries 

because they refuse to attend or 

participate in religious practices. The 

commenter explained that eliminating 

this language is an important step to 

protect the religious freedom of 

beneficiaries of Government-funded 

social services. For the reasons stated in 

the Joint NPRM, and having considered 

these and other comments, the Agencies 

have determined that the 2020 Rule did, 

in fact, create confusion, thus 

necessitating the current rulemaking. 

Many commenters also agreed with 

the Agencies that this rulemaking is 

necessary to ensure that federally 

funded services and programs reach the 

widest possible eligible population, 

including historically marginalized 

communities. For example, one 

commenter stated that the 2020 Rule 

removed protections for populations 

that are at particular risk of being 

economically insecure and are 

discriminated against, such as LGBTQI+ 

people, single mothers and their 

children, and immigrants. The 

commenter stated that strong 

protections are needed to ensure that 

members of these vulnerable 

populations are not purposefully or 

inadvertently excluded from federally 

funded social services. Another 

commenter provided evidence that 

women, people of color, LGBTQI+ 

people, people with disabilities, 

immigrants, people living with HIV, 

religious minorities, and other 

marginalized populations are 

particularly vulnerable to 

discrimination when seeking such 

services. These and other comments 

support the Agencies’ conclusion that 

changes to their regulations are 

necessary for federally funded services 

and programs to reach the widest 

possible eligible population. 

For the reasons explained both in the 

Joint NPRM and in this final rule, and 

in light of the public comments 

supporting the Agencies’ proposals, the 

Agencies believe that the need for this 

rulemaking is well established. 

Changes: None. 

5. Executive Orders 13985 and 14058 

Comments: One commenter expressed 

concern that this rule deprioritizes the 

funding of faith-based groups. As the 

purported basis for that worry, the 

commenter referred to the Agencies’ 

reliance on Executive Order 13985, 

Advancing Racial Equity and Support 

for Underserved Communities Through 

the Federal Government, 86 FR 7009 

(Jan. 20, 2021), and Executive Order 

14058, Transforming Federal Customer 

Experience and Service Delivery To 

Rebuild Trust in Government, 86 FR 

71357 (Dec. 13, 2021). 

Response: As indicated in the Joint 

NPRM, the primary goal of this 

rulemaking is to ensure full access to 

and comprehensive delivery of federally 

funded social services, in keeping with 

governing law and with the policies 

articulated in Executive Order 14015. 

The Joint NPRM also acknowledged that 

the rulemaking sought to advance the 

policies set out in Executive Orders 


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3All of the comments that were directed to DOJ 

or that affect DOJ’s regulations were adequately 

addressed in the joint preamble above. DOJ 

accordingly does not include an Agency-specific 

preamble in this final rule. 

13985 and 14058. In neither the Joint 

NPRM nor this final rule, however, do 

any of the Agencies’ regulations set 

forth any requirements unique to those 

Executive orders, and the Agencies have 

not deprioritized funding for faith-based 

organizations. To the contrary, as the 

Agencies emphasized in the Joint NPRM 

preamble, it is important to strengthen 

the ability of both faith-based and 

secular organizations to deliver services 

in partnership with Federal, State, and 

local governments and with other 

private organizations, while adhering to 

all governing law. 88 FR 2397. Indeed, 

‘‘it has long been Federal policy that 

faith-based organizations are eligible to 

participate in Agencies’ grant-making 

programs on the same basis as any other 

organizations,’’ and the Agencies remain 

committed to preventing discrimination 

against faith-based organizations in the 

selection and regulation of service 

providers. Id. at 2401. 

Changes: None. 

6. Regulatory Impact Analysis 

Comments: Several commenters 

suggested that the Agencies had not 

adequately assessed the potential 

burdens of this rule on faith-based 

providers and therefore on beneficiaries 

who rely on those providers’ services. In 

particular, one commenter urged the 

Agencies to analyze the regulations’ 

effect on faith-based providers leaving 

the Agencies’ programs or not joining 

them in the future; the availability of 

alternative providers to fill any gaps in 

service; the harms to beneficiaries who 

are unable to receive services from a 

provider; any irreparable harm 

associated with the loss of First 

Amendment and religious free exercise 

rights due to an incorrectly denied 

accommodation or lack of appeal 

process; and any distributional effects of 

Federal funds transferring from faithbased providers that leave the program 

under the regulations to new providers. 

Another commenter expressed concern 

that the regulations would likely 

disproportionately burden service 

providers in regions where alternatives 

are scarcest, and thus most needed, 

resulting in fewer service providers in 

those underserved regions and greater 

barriers to access for beneficiaries. 

Response: The Agencies believe that 

this final rule will not have any impact 

on existing faith-based providers’ 

decisions to participate in federally 

funded social service programs or 

discourage new faith-based providers 

from joining such programs in the 

future. As indicated in the Joint NPRM, 

the rule’s compliance cost per covered 

provider is minimal, however figured: 

the ‘‘upper bound’’ estimate cited in the 

Joint NPRM was $240 per year, and the 

‘‘central estimate’’ was $211.25 per year 

plus a one-time cost of $17.72; the 

Agencies have updated the ‘‘central 

estimate’’ to $223.03 plus a one-time 

cost of $18. See id. at 2405–06 & tbls. 

1 & 3; Part IV.A.1 of the joint preamble. 

All of these estimates are modest. The 

Agencies do not expect this 

insignificant cost burden to affect 

existing faith-based providers’ 

participation or to discourage new faithbased providers from joining in the 

future. Accordingly, the Agencies do not 

anticipate that the rule’s regulatory 

requirements will reduce the 

participation of faith-based providers, 

nor do they expect that the rule will 

have disproportionate effects in 

underserved regions. Finally, as the 

final rule makes clear, the Agencies 

remain committed to providing any 

religious accommodations required by 

applicable Federal law, including the 

First Amendment. 

Changes: None. 

Comments: One commenter stated 

that the Joint NPRM’s regulatory impact 

analysis (‘‘RIA’’) failed to properly 

assess the benefits of faith-based 

providers and the burdens on them and 

ignored the economic as well as 

qualitative costs of the rule’s proposed 

changes. 

Response: The Agencies believe that 

the Joint NPRM’s RIA was appropriate 

and sufficient. The commenter, 

moreover, did not specify which 

impacts supposedly were not properly 

assessed or provide any data or analysis 

to allow for quantification of such 

impacts. The Agencies have 

appropriately assessed the potential 

costs, cost savings, and benefits, both 

quantitative and qualitative, of this 

regulatory action. 

Changes: None. 

Comments: One commenter stated 

that it supports the proposal to 

withdraw and replace the 2020 Rule 

because the 2020 Rule’s mandatory costbenefit analysis improperly assessed the 

costs and other harms to beneficiaries to 

be negligible, despite what the 

commenter viewed as ample evidence of 

religion-based denials of service, 

discrimination, and other harmful 

treatment of LGBTQI+ people, people of 

color, people of other faiths, and others 

by service providers. 

Response: The Agencies agree that the 

2020 Rule’s analysis did not adequately 

consider the costs it imposed on 

beneficiaries. In the present rulemaking, 

the Agencies believe that they have 

properly assessed both the costs and 

benefits of the regulations, and they 

have qualitatively shown the benefits to 

beneficiaries in several important ways. 

Specifically, the final notice 

requirement will improve beneficiaries’ 

access to federally funded services by 

informing them of their rights and thus 

removing certain barriers arising from 

discrimination. Additionally, the final 

referral option will make it more likely 

that beneficiaries who object to 

receiving services from one provider 

will be able to learn about alternative 

providers. 

Changes: None. 

III. Agency-Specific Issues 3

A. Department of Agriculture 

In sections (1) through (4) below, 

USDA addresses the few USDA-specific 

comments not addressed in Part II of the 

joint preamble. In section (5) below, 

USDA provides its specific response to 

comments discussed in Part II.A.4 of the 

joint preamble recommending that the 

Agencies generally require that a written 

notice of rights be provided to 

beneficiaries of programs receiving 

indirect Federal financial assistance. All 

other comments received by USDA or 

otherwise affecting USDA’s regulations 

are addressed fully in Part II of the joint 

preamble, and USDA adopts those 

responses. 

1. Unnecessary Definition 

Comments: Two commenters 

recommended that USDA delete the 

definition of the phrase ‘‘[d]iscriminate 

against an organization on the basis of 

the organization’s religious exercise’’ 

found in its proposed rule. According to 

the commenters, the definition is not 

necessary, since the phrase does not 

appear anywhere else in USDA’s 

regulations and changes elsewhere in 

the rule spell out the prohibition 

contained in the definition. 

Response: USDA agrees that the 

definition is not necessary because this 

phrase does not appear elsewhere in 

USDA’s regulations. Moreover, USDA’s 

obligation not to discriminate for or 

against organizations on the basis of 

enumerated religious considerations is 

explicitly set forth in 7 CFR 16.3(a) and 

in appendix A to 7 CFR part 16. In this 

final rule, USDA has accordingly 

deleted the definition in question from 

7 CFR 16.2. 

Changes: The regulation at 7 CFR 16.2 

is amended by deleting the definition of 

the phrase ‘‘[d]iscriminate against an 

organization on the basis of the 

organization’s religious exercise.’’ 


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2. Unnecessary Citations 

Comments: One commenter 

recommended that USDA, in its 

appendices A and B, follow the lead of 

other Agencies and eliminate the list of 

citations to Federal laws that provide for 

religious exemptions. 

Response: USDA agrees that the list of 

citations in its Appendices A and B in 

the proposed rule is unnecessary. USDA 

remains committed to ensuring that 

faith-based organizations retain their 

independence from the Government and 

enjoy all the religious freedom and 

conscience protections to which they 

are entitled under the U.S. Constitution 

and Federal statutes. The removal of the 

list of citations, providing examples of 

such Federal laws, will have no 

substantive effect. Moreover, this 

approach aligns with that of the other 

Agencies, so USDA’s making this 

change will promote consistency among 

the Agencies’ regulations. 

Changes: In this final rule, USDA 

amends appendices A and B to 7 CFR 

part 16 by removing the illustrative 

citations to Federal laws. 

3. Handling of Complaints 

Comments: As discussed in Part II of 

the joint preamble, various commenters 

urged the Agencies to designate a point 

of contact for receiving civil rights 

complaints. In a similar vein, one 

commenter also specifically 

recommended that USDA’s provision on 

written notice to beneficiaries include 

information on where complaints of 

religious discrimination, in particular, 

can be filed. 

Response: USDA agrees with this 

recommendation, and the final rule 

provides for the filing of written 

complaints by beneficiaries in programs 

supported by direct Federal financial 

assistance from USDA, and also for 

written notice to be given to such 

beneficiaries on how and where to file 

complaints. Given the structure and 

particular context of the Federal 

financial assistance programs it 

administers, USDA agrees with 

commenters that beneficiaries’ religious 

freedom protections would be 

strengthened by more clearly notifying 

beneficiaries of their right to file 

complaints and of how to exercise that 

right. To achieve that purpose, USDA 

has made revisions both in its regulatory 

text and in its model beneficiary notice. 

In addition, in the final rule, USDA has 

added language to the regulatory text in 

7 CFR 16.4(d) to make clear that 

beneficiaries and prospective 

beneficiaries in programs supported by 

indirect Federal financial assistance 

from USDA may file written complaints 

with USDA alleging violations of the 

rule’s religious freedom protections. 

USDA’s inclusion of the language about 

the right to file complaints is also 

consistent with other Agencies’ 

regulations, as explained above in Part 

II.G.3 of the joint preamble. Further, 

USDA’s added language on how and 

where to file complaints mirrors 

USDA’s existing processes for filing 

program discrimination complaints. 

Changes: In this final rule, USDA 

amends 7 CFR 16.4(c) and appendix C 

to 7 CFR part 16 by adding language to 

reflect the right of beneficiaries in 

programs supported by direct Federal 

financial assistance to file complaints; 

adds a new 7 CFR 16.4(d) to reflect the 

right of beneficiaries in programs 

supported by indirect Federal financial 

assistance to file complaints; and 

redesignates the current 7 CFR 16.4(d) 

as 7 CFR 16.4(e). 

4. Consistency Between Regulatory Text 

and Appendices 

Comments: One commenter observed 

that USDA’s model provider notice in 

appendix A did not match USDA’s 

regulatory text, because the notice did 

not reflect the regulation’s statement 

that USDA may not favor or disfavor 

religious organizations for receipt of 

Federal financial assistance. 

Response: USDA agrees that it is 

important to include regulatory 

language making plain that an Agency 

may not favor or disfavor religious 

organizations for the receipt of Federal 

financial assistance. In the final rule, 

USDA likewise adds language to its 

provider notice found at 7 CFR part 16, 

appendix A, consistent with USDA’s 

regulatory text, making express that 

USDA may not favor or disfavor 

religious organizations for receipt of 

Federal financial assistance. 

Changes: Appendix A to 7 CFR part 

16 is amended by adding explicit 

language about the prohibition on 

favoring or disfavoring organizations on 

the basis of religious affiliation in 

disbursing Federal financial assistance. 

5. Notice to Beneficiaries of Indirect 

Federal Financial Assistance 

Comments: As explained in Part II.A.4 

of the joint preamble, some comments 

urged the Agencies to adopt notice 

requirements for beneficiaries of 

indirect Federal financial assistance. 

Response: USDA funds several 

programs through indirect Federal 

financial assistance, including SNAP, 

the Special Supplemental Nutrition 

Program for Women, Infants, and 

Children, the Farmers Market Nutrition 

Program, the Seniors Farmers Market 

Nutrition Program, and the Rural 

Development Voucher Program. USDA, 

like the other Agencies, recognizes the 

importance of indirect aid beneficiaries 

being protected against religious and 

other forms of discrimination. For 

example, USDA requires that State 

agencies that distribute program benefits 

or services in the SNAP program 

provide notice of the right to be free 

from discrimination, including religious 

discrimination, by displaying And 

Justice for All posters in their facilities 

where the poster can be viewed by 

program applicants and participants. 

The poster includes the prohibition 

against discrimination based on 

‘‘religious creed,’’ information on how 

to file a discrimination complaint, and 

is available in English, Spanish, and a 

number of other languages. Moreover, 

USDA has added into this final rule, at 

7 CFR 16.4(d), language affirming that 

beneficiaries in USDA programs 

supported by indirect Federal financial 

assistance have the right to file a 

complaint of religious discrimination. 

Nevertheless, USDA has determined 

that its regulations should not require 

that beneficiaries of all indirect aid 

programs be provided a notice about 

religious nondiscrimination rights, 

because requiring such a notice would 

not be administratively feasible. Due to 

the vast number of participants and 

provider locations in USDA’s indirect 

aid programs, there would be significant 

administrative burdens in requiring 

written notice to all beneficiaries. As 

explained in the 2016 Rule, ‘‘there are 

more than a quarter million stores, 

farmers’ markets, direct marketing 

farmers, homeless meal providers, 

treatment centers, group homes, and 

other participants across the nation that 

are authorized [SNAP] retailers.’’ 81 FR 

19363. If providers receiving indirect 

aid were required to give written notice 

to beneficiaries, all of these retailers, for 

example, would have to have the 

notices ready at all times to provide to 

any person using SNAP benefits. 

Instead of requiring that notice be 

provided to beneficiaries in all indirect 

aid programs, USDA intends to utilize a 

more flexible and program-specific 

approach to providing such notice. 

Based on program-specific assessments, 

USDA will, when warranted, require 

notice in programs consistent with risk 

and programmatic experience. For 

example, USDA may require notice in 

programs or specific program activities 

if there is a history of findings of 

religious discrimination, of government 

unduly limiting provider choices, or of 

beneficiaries’ choices for using indirect 

aid being limited for some other reason. 

For the reasons previously explained 

in Part II.A.4 of the joint preamble, 


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4HHS also corrects a technical error that 

appeared in the Joint NPRM. In the listing of agency 

headings, HHS’s regulations at 45 CFR part 87 are 

mistakenly identified with a Regulation Identifier 

Number (‘‘RIN’’) of ‘‘0991–AC13.’’ See 88 FR 2395. 

The correct RIN is ‘‘0991–AA31.’’ This correction 

is of no substantive effect. 

USDA will not revise its regulatory 

language to require that notice of rights 

be provided to beneficiaries in all 

programs supported by indirect USDA 

financial assistance. As described above, 

however, in certain circumstances, 

USDA may determine that providing 

such notice is appropriate and 

administratively feasible and require 

that notice of protections to indirect aid 

beneficiaries be provided. 

Changes: None. 

B. Department of Labor 

In Part III.B.1 below, DOL explains 

additional changes it is making to one 

provision of its regulations in response 

to comments discussed above in Part 

II.D.1 of the joint preamble. In Part 

III.B.2 below, DOL provides its specific 

response to comments addressed in Part 

II.A.4 of the joint preamble 

recommending that the Agencies require 

that a written notice of rights be 

provided to beneficiaries of programs 

receiving indirect Federal financial 

assistance. All other comments received 

by DOL or otherwise affecting DOL’s 

regulations are addressed fully in Part II 

of the joint preamble above, and DOL 

adopts those responses. 

1. Revision and Reorganization of 29 

CFR 2.32 

Comments: As discussed above, the 

Agencies received comments suggesting 

that they revise or reorganize the 

religious accommodations language in 

their program requirements provisions, 

as well as in the provisions that bar 

disqualification of providers based on 

religious character, motives, or 

affiliation, or lack thereof. These 

provisions appear in DOL’s regulations 

at 29 CFR 2.32. 

Response: In addition to prompting 

the changes to 29 CFR 2.32 described 

above in Part II.D.1 of the joint 

preamble, the suggestions from these 

commenters indicated to DOL that the 

organization of 29 CFR 2.32 made the 

provision as a whole difficult to follow. 

For instance, some elements (such as 

the accommodations language noted by 

the commenters) were unintentionally 

repeated, and other elements that were 

similar to one another were separated 

into different paragraphs. 

Changes: In the final rule, DOL 

revises and reorganizes 29 CFR 2.32 to 

make it easier to understand. The 

contents of the section are now ordered 

so that each paragraph addresses only 

one subject, as follows: paragraph (a) 

contains the prohibition on 

discriminating for or against 

organizations based on religious 

character, motives, or affiliation, or lack 

thereof; paragraph (b) sets forth 

requirements regarding grant 

documents, agreements, covenants, 

memoranda of understanding, policies, 

and regulations; paragraph (c) describes 

rights retained by faith-based 

organizations that are DOL social 

service providers; paragraph (d) lists 

restrictions on the use of Federal 

financial assistance; and paragraph (e) 

makes clear that accommodations for 

organizations will be considered on a 

case-by-case basis and explains the 

effect of an accommodation on an 

eligible organization’s qualification to 

participate in a DOL program. These 

revisions are made only for clarity and 

do not alter the substance of DOL’s 

regulations. 

2. Notice to Beneficiaries of Indirect Aid 

Comments: As described in Part II.A.4 

of the joint preamble, several 

commenters recommended that the 

Agencies require that a written notice of 

rights be provided to beneficiaries of 

programs receiving indirect Federal 

financial assistance. 

Response: DOL incorporates all of the 

reasons previously explained above in 

Part II.A.4 of the joint preamble for 

expanding its notice requirement to 

cover beneficiaries and prospective 

beneficiaries of indirect Federal 

financial assistance. DOL has 

determined that, in the context of its 

programs, most of which are subject to 

similar written beneficiary notice 

requirements regardless of whether they 

are funded by what this rule defines as 

direct or indirect aid, providing written 

notice to all beneficiaries and 

prospective beneficiaries of programs 

receiving indirect Federal financial 

assistance is feasible and appropriate. 

Changes: DOL revises 29 CFR 2.34 to 

require that beneficiaries and 

prospective beneficiaries of programs 

receiving indirect Federal financial 

assistance from DOL be provided with 

the written beneficiary notice that 

appears in appendix C to subpart D of 

29 CFR part 2. As revised, 29 CFR 2.34 

states that notice to these beneficiaries 

will be provided by the entity that 

disburses the Federal funds to the 

beneficiary’s chosen provider. For 

example, in the case of WIOA programs, 

the Local Workforce Development Board 

will be responsible for providing the 

notice to beneficiaries and prospective 

beneficiaries of programs receiving 

indirect Federal financial assistance. 

DOL also adds subheadings to 29 CFR 

2.34 to make the components of the 

revised paragraph easier to understand. 

Finally, DOL revises the heading of the 

written beneficiary notice to include a 

designation of the type of Federal 

financial assistance (direct or indirect) 

the program receives. 

C. Department of Health and Human 

Services 

In Part III.C.1 below, HHS provides its 

Agency-specific response to a crosscutting public comment identified in 

Part II.A.4 of the joint preamble, 

recommending that the Agencies require 

written notice be provided not only to 

beneficiaries of programs receiving 

direct Federal financial assistance but 

also to beneficiaries of indirect aid 

programs. In Part III.C.2 below, HHS 

provides its Agency-specific response to 

a comment recommending that DHS, 

HUD, and HHS remove language from 

their proposed regulations stating that 

faith-based organizations are eligible to 

participate in federally funded programs 

‘‘on the same basis as any other 

organization and considering a religious 

accommodation.’’ In Part III.C.3 below, 

HHS responds to a comment that 

concerns language in HHS’s proposed 

regulation referencing the application of 

the Americans with Disabilities Act to 

religious organizations receiving Federal 

financial assistance. In Part III.C.4 

below, HHS responds to a comment 

about HHS’s procedures for receiving 

complaints of alleged violations of its 

regulations and for otherwise enforcing 

this rule. All other comments received 

by HHS, or that affect HHS’s 

regulations, are addressed fully in Part 

II of the joint preamble, and HHS adopts 

those responses.4

1. Notice to Beneficiaries of Indirect Aid 

Comments: As described in Part II.A.4 

of the joint preamble, a cross-cutting 

public comment recommended that the 

Agencies require written notice be 

provided not only to beneficiaries of 

programs receiving direct Federal 

financial assistance but also to 

beneficiaries of indirect aid programs. 

Response: For the reasons explained 

in Part II.A.4 of the joint preamble, and 

as elaborated here, HHS revises the 

beneficiary notice requirement that was 

proposed in 45 CFR 87.3(k) by removing 

the term ‘‘direct’’ from the phrase 

‘‘direct Federal financial assistance.’’ 

With this change, HHS’s regulation will 

require that the notice to beneficiaries 

and prospective beneficiaries be 

provided in covered social services 


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5This final rule also includes technical 

corrections to the Applicability section at § 87.2(a) 

of the proposed rule and § 87.2(b) of the 2020 Rule 

that provide that the written notice to beneficiaries 

in § 87.3(k) through (m), and the requirement that 

funding decisions be free from political interference 

in § 87.3(o) as redesignated, apply to discretionary 

and block grants governed by the Community 

Services Block Grant (‘‘CSBG’’) Charitable Choice 

regulations at 45 CFR part 1050. The sections of the 

rule that addressed those subjects applied to 

discretionary and block grants governed by the 

CSBG Charitable Choice regulations prior to the 

2020 Rule, but the 2020 Rule did not revise the 

Applicability section to accurately identify those 

paragraphs as removed or redesignated. This final 

rule corrects those technical errors. 

programs whether they receive Federal 

funding directly or indirectly.5

While the change to 45 CFR 87.3(k) 

could potentially affect any future 

indirectly funded HHS program that 

Congress authorizes, HHS notes the 

impact of this change on an existing 

HHS program that explicitly authorizes 

indirect funding, known as the Chafee 

Educational and Training Vouchers 

(‘‘ETV’’) program. In the ETV program, 

authorized in section 677(i) of the Social 

Security Act, 42 U.S.C. 677(i), HHS 

awards grants to States, the District of 

Columbia, Puerto Rico, the U.S. Virgin 

Islands, and participating Tribes (known 

as ‘‘pass-through entities’’) to help 

young adults who have experienced 

foster care after age 14 meet their 

postsecondary education and training 

needs. By requiring that a beneficiary 

notice be provided in indirect aid 

programs, this final rule will ensure that 

ETV program voucher holders applying 

for or attending any educational 

institution that receives ETV vouchers 

are informed of prohibitions on their 

being discriminated against on the basis 

of religion, a religious belief, a refusal to 

hold a religious belief, or a refusal to 

attend or participate in a religious 

practice, as provided in 45 CFR 87.3(f) 

of the final rule. 

Because any indirectly funded 

programs that are subject to this rule 

may vary in significant respects, HHS 

will consider how certain protections 

identified in the beneficiary notice 

should apply in the context of each 

specific indirect aid program. For 

example, HHS may consider the 

proportion of explicitly religious 

programming involved in each 

program’s federally funded projects in 

deciding whether to allow recipients of 

indirect Federal financial assistance to 

refrain from modifying their program 

activities to accommodate a beneficiary 

who chooses to expend the indirect aid 

on their organization’s program. Passthrough entities that administer 

indirectly funded HHS programs will 

have the discretion to tailor the notice 

of beneficiary protections to address 

such matters on a program-specific 

basis, as provided in § 87.3(k) as revised 

in this final rule, and HHS intends to 

provide pass-through entities that 

administer ETV program funds with 

guidance on developing that program’s 

notice. When administering indirectly 

funded programs, HHS will work to 

ensure that beneficiaries have a genuine 

and independent choice of providers— 

for example, where necessary and 

appropriate, by making an adequate 

secular alternative reasonably available 

or by requiring each existing provider to 

comply with the same conditions that 

apply to direct aid programs. See 88 FR 

2400–01; Part II.4.C of the joint 

preamble. 

The final rule also identifies 

protections that must be included in the 

notice when it is provided in an 

indirectly funded program context, 

thereby ensuring that the notice 

addresses cross-cutting rights that apply 

to both directly and indirectly funded 

services. Specifically, the notice must 

address the protections that concern 

nondiscrimination on the basis of 

religion in 45 CFR 87.3(f), attendance or 

participation in any explicitly religious 

activities in 45 CFR 87.3(k)(1)(ii), and 

complaints in 45 CFR 87.3(k)(1)(iv). The 

notice must also identify the HHS 

awarding entity or the pass-through 

entity to which any complaints may be 

directed. 

In addition, in HHS mandatory 

formula, block, or entitlement grant 

programs (such as the ETV program), 45 

CFR 87.3(k) of the final rule provides 

that the pass-through entity that 

receives HHS funds, rather than the 

service provider, is obligated to ensure 

that beneficiaries and prospective 

beneficiaries receive the written notice 

of beneficiary protections. This clause 

enables the pass-through entity to 

identify the public or private sector 

organization that will incur the 

obligation to provide the notice. This 

discretion is consistent with the role of 

pass-through entities as primary 

administrators of HHS mandatory 

formula, block, or entitlement grant 

programs, and enables those entities to 

identify the public or private sector 

organization that can most efficiently 

and effectively provide the notice in 

view of the way in which the program 

is administered. 

HHS notes that while the text of 45 

CFR 87.3(k)(1) requires that the notice of 

beneficiary protections in directly 

funded programs identify certain 

protections in a manner that is 

‘‘substantially similar’’ to the model in 

its appendix A to part 87, some HHS 

programs will make changes to the 

model notice to ensure that social 

service providers may continue to 

provide explicitly religious activities 

that are lawfully part of the program 

services. These changes will be 

consistent with the discretion retained 

by HHS under 45 CFR 87.3(d), as 

redesignated by this rule. That 

subsection provides that ‘‘[n]othing in 

this part restricts HHS’ authority under 

applicable Federal law to fund 

activities, such as the provision of 

chaplaincy services, that can be directly 

funded by the Government consistent 

with the Establishment Clause.’’ As the 

Agencies recognized in the 2016 Rule, 

there may be limited instances in which 

religious activities in some federally 

funded program contexts are not subject 

to certain restrictions in these rules, 

such as the requirement that explicitly 

religious activity be separate in time or 

location from activities supported with 

direct Federal financial assistance. 81 

FR 19359–60. HHS will determine on a 

case-by-case basis whether religious 

activities in specific program contexts 

should be subject to this restriction. See 

id. For example, care provider facilities 

in the HHS-funded Unaccompanied 

Children (‘‘UC’’) Program, see 6 U.S.C. 

279, may lawfully provide religious 

services to unaccompanied children to 

meet their obligations to the children 

receiving services in that program. HHS 

anticipates that in the UC Program and 

other similar program contexts, HHS 

will revise the model notice to remove 

any inconsistency between the care 

providers’ obligation to provide an 

unaccompanied child with access to 

religious services of the child’s choice 

whenever possible, and the model 

notice’s provision that explicitly 

religious activities (including activities 

that involve overt religious content such 

as worship, religious instruction, or 

proselytization) be separate from 

activities supported with direct Federal 

financial assistance. 

Changes: HHS amends 45 CFR 87.3(k) 

to remove text limiting the beneficiary 

notice to directly funded social service 

programs, and to require that the passthrough entities administering 

mandatory formula, block, or 

entitlement grant programs ensure that 

the notice is provided. A new 

§ 87.3(k)(1) is also added to require that 

the notice in directly funded programs 

be substantially similar to that set forth 

in appendix A. And a new § 87.3(k)(2) 

is added to require that the notice in 

indirectly funded programs address 

beneficiary protections identified in that 

section, while giving pass-through 

entities discretion to tailor certain other 

aspects of the requisite notice as 

appropriate. 


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2. Religious Accommodations 

Comments: As alluded to above in 

Part II.D.1 of the joint preamble, 

commenters requested that HHS remove 

language from its regulation stating that 

faith-based organizations are eligible to 

participate in Federally funded 

programs ‘‘on the same basis as any 

other organization and considering a 

religious accommodation.’’ The 

commenter suggested that HHS do so in 

order to promote consistency among the 

Agencies’ regulations. 

Response: In this final rule, HHS 

deletes the clause ‘‘and considering any 

permissible accommodation’’ from 45 

CFR 87.3(a). HHS believes that this 

change promotes clarity and avoids 

redundancy in the regulatory text. In 

addition, HHS makes this change to 

ensure consistency with other Agencies’ 

rule texts, as recommended by the 

commenter. 

This clause was added in the 2020 

Rule and retained in the Joint NPRM. 

Upon reflection, however, HHS believes 

the clause is now unnecessary because 

the obligation to consider religious 

accommodations consistent with 

applicable Federal law is already 

separately addressed in the final rule at 

45 CFR 87.3(b), (c), and (g), as well as 

in its appendices B and C. 

HHS emphasizes that the removal of 

the clause in question is not a 

substantive change. Nor does it 

represent any departure from HHS’s 

strong commitment to its obligations to 

comply with the Free Speech and Free 

Exercise Clauses of the First 

Amendment to the U.S. Constitution 

and with Federal laws that support and 

protect religious exercise and freedom 

of conscience, including RFRA. HHS 

remains fully committed to thoroughly 

considering any organization’s assertion 

that an obligation imposed upon it 

conflicts with its rights under those 

authorities, and will provide any 

accommodations required by Federal 

law. 

At the same time, HHS disagrees with 

the recommendation that it rescind the 

clause ‘‘on the same basis as any other 

organization’’ from 45 CFR 87.3(a). That 

clause has long been a part of HHS’s 

regulation and reflects HHS’s deepseated dedication to ensuring that faithbased organizations are not 

discriminated against in HHS’s selection 

of service providers. Moreover, that 

clause is not redundant in the full 

context of the final rule and remains 

consistent with other Agencies’ final 

regulations. 

Changes: HHS deletes the clause ‘‘and 

considering any permissible 

accommodation’’ from the regulatory 

text that was proposed in 45 CFR 

87.3(a). 

3. The Americans With Disabilities Act 

Comments: Three commenters 

requested that HHS strike a reference to 

the Americans with Disabilities Act 

(‘‘ADA’’) from HHS’s proposed rule at 

45 CFR 87.3(h) so that the clause is 

consistent with those of the other 

Agencies. All of the Agencies’ proposed 

rules, including HHS’s, include a 

parallel clause stating that faith-based 

organizations do not forfeit their 

religious exemptions under Title VII of 

the Civil Rights Act of 1964 when 

participating in Federal programs. 

HHS’s clause is unique in including an 

additional reference to an exemption in 

the ADA. All three commenters 

recommended that HHS remove the 

reference to the ADA to promote 

consistency with the other Agencies. 

Two of the commenters also based their 

recommendation on a belief that 

religious exemptions to 

nondiscrimination laws should not 

apply to faith-based organizations that 

are federally funded social service 

providers. 

Response: HHS agrees that it should 

remove the reference to the ADA from 

HHS’s employment discrimination 

provision, because that reference is 

inaccurate and confusing in the way it 

describes the ADA. HHS added the ADA 

reference in 45 CFR 87.3(h) (previously 

found at 45 CFR 87.3(f)) in the 2020 

Rule. That provision refers to a faithbased organization’s right to retain its 

exemption from the Federal prohibition 

on employment discrimination ‘‘on the 

basis of religion.’’ The ADA preserves 

religious organizations’ right to engage 

in hiring on the basis of religion by 

limiting its disability-discrimination 

provisions. But the ADA does not 

authorize hiring on the basis of religion; 

the Civil Rights Act of 1964 does that. 

Consequently, HHS believes its 

regulation would be clearer if it 

removed the ADA reference. By 

removing the ADA reference, HHS will 

also help ensure that its rule is 

consistent with the other Agencies’ 

regulations. 

This change does not alter the 

substantive effect of the ADA or any 

other nondiscrimination statute. As 

noted above, HHS remains committed to 

ensuring that faith-based organizations 

are not discriminated against in HHS’s 

selection of service providers, and to 

affording faith-based and other 

organizations accommodations from 

program requirements in accordance 

with Federal law. 

Changes: HHS removes the phrase 

‘‘and the Americans with Disabilities 

Act, 42 U.S.C. 12113(d)(2)’’ from 45 CFR 

87.3(h). 

4. Complaint and Enforcement 

Procedures 

Comments: As discussed in Part II.G.3 

of the joint preamble, various 

commenters recommended that the 

proposed rule be revised to identify a 

point of contact for complaints in the 

regulatory text. One commenter 

additionally suggested that HHS, in 

particular, specify its enforcement 

procedures in its regulation. The 

commenter also maintained that the 

HHS Office for Civil Rights (‘‘OCR’’) 

may not know how to investigate 

complaints and verify compliance with 

the regulation, and accordingly 

recommended that, in the final rule, 

HHS clarify how complaints for 

violations of its regulation may be filed 

and specify the procedures for 

enforcement as well as consequences for 

violations. 

Response: HHS declines to change 45 

CFR 87.3(k)(4) to identify the process for 

filing complaints concerning violations 

of the rule and to make clear HHS’s 

enforcement procedures. 

Supplementing the proposed rule 

language with greater detail on those 

topics is beyond the scope of this 

rulemaking. Doing so is also 

unnecessary because HHS enforcement 

procedures for violations of applicable 

civil rights statutes are already set forth 

elsewhere in 45 CFR part 80, and 

enforcement procedures for any other 

violations of this rule are set forth in 45 

CFR part 75. Further, 45 CFR 87.3(k)(4) 

already makes clear that any complaint 

concerning violations of this rule may 

be filed with ‘‘either the HHS awarding 

entity or the pass-through entity that 

awarded funds to the organization, 

which must promptly report the 

complaint to the HHS awarding entity.’’ 

The provision adds that the HHS 

awarding entity will address the 

complaint in consultation with HHS’s 

OCR. 

This process is consistent with HHS’s 

organizational structure and delegations 

of authority. On January 15, 2021, the 

Secretary delegated to OCR the 

authority to investigate allegations of 

violations of the nondiscrimination 

provisions in this rule. Also, the 

individual program offices that 

administer each grant program 

(‘‘awarding entities’’) have authority to 

review and enforce other kinds of 

potential violations of this rule, among 

other regulations and award terms and 

conditions that are applicable to the 

specific grant program at issue. 

The enforcement remedies that OCR 

and the awarding entities may adopt in 


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the event of any violation of these rules 

vary according to several factors, such 

as the facts underlying the alleged 

violation, any prior corrective action 

opportunities, and any other applicable 

program authorities. For example, while 

awarding entities that administer a 

given program may be bound by a 

program-specific authority that 

addresses enforcement of program 

requirements, most HHS programs are 

governed by HHS-wide regulations that 

address enforcement of program 

requirements at 45 CFR 75.371 

(‘‘Remedies for noncompliance’’) and 

75.372 (‘‘Termination’’). HHS believes 

that integrating these enforcement 

remedies into this rule text would be 

unnecessary and, in any event, is 

beyond the scope of this rulemaking. 

As indicated in Part II.G.3 of the joint 

preamble above, all of the Agencies, 

including HHS, acknowledge that 

beneficiaries of federally funded social 

service programs need clarity about 

what office to contact if they experience 

discrimination in violation of these 

regulations. At the same time, HHS has 

determined that it is not feasible to 

identify a single address or phone 

number to which all complaints 

concerning this rule may be directed 

because the awarding entity will vary 

according to the program. Consequently, 

consistent with the approach of other 

Agencies, as described in Part II.A.4 of 

the joint preamble, HHS revises the 

model notice of beneficiary protections 

proposed in the Joint NPRM to require 

the awarding entity to identify a point 

of contact to which complaints can be 

directed. To help ensure that this 

information is included in notices to 

beneficiaries, HHS includes a 

requirement at 45 CFR 87.3(k)(1) of this 

final rule that the notice of beneficiary 

protections in directly funded programs 

be substantially similar to the model 

notice in its appendix A. As to 

indirectly funded social service 

programs, a new 45 CFR 87.3(k)(2) of 

this final rule requires that the notice of 

beneficiary protections in indirectly 

funded programs include similar 

contact information. That notice must 

also identify the protections regarding 

nondiscrimination on the basis of 

religion in 45 CFR 87.3(f), and 

attendance or participation in any 

explicitly religious activities in 45 CFR 

87.3(k)(1)(ii). With these changes, the 

notice to beneficiaries will serve as a 

resource, in both direct and indirect 

funding contexts, in which a point of 

contact for any complaints can be 

found. Finally, HHS notes that the name 

of the HHS program office that has 

awarded a project, and contact 

information for that office, is also 

typically made available on HHS’s 

website. 

Changes: The regulation at 45 CFR 

87.3(k)(1) is revised to require that the 

notice of beneficiary protections in 

directly funded programs adopt 

language that is substantially similar to 

that in appendix A, which includes a 

point of contact for any complaints. A 

new § 87.3(k)(2) is added to require that 

beneficiaries and prospective 

beneficiaries in indirectly funded 

programs receive a notice of protections 

that also includes a point of contact for 

complaints. Section 87.3(k)(4) is 

unchanged. 

D. Department of Housing and Urban 

Development 

Unless specified below, all comments 

received by HUD are addressed fully in 

the discussion of cross-cutting issues in 

Part II of the joint preamble, and those 

responses are adopted by HUD. HUD 

here provides additional HUD-specific 

responses to comments. This Agencyspecific discussion is organized in the 

same manner as the joint preamble. 

1. Handling Complaints 

Comments: A commenter 

recommended that HUD charge its 

Office of Fair Housing and Equal 

Opportunity (‘‘FHEO’’) with handling 

complaints implicating this rule’s 

beneficiary protections. The commenter 

expressed that doing so would be 

consistent with HUD’s current practice 

for handling complaints under its HUDwide Equal Access Rule, as well as 

complaints under the Violence Against 

Women Act’s (‘‘VAWA’s’’) housing 

protections. 

Response: HUD recipients must 

comply with all applicable 

programmatic requirements and Federal 

civil rights laws and their implementing 

regulations. Program violations will 

likewise be handled in accordance with 

applicable statutes and regulations. 

Individuals who believe they have 

experienced—or are about to 

experience—a program violation while 

accessing or attempting to access 

programs and activities assisted by HUD 

may complain to the responsible 

program office or to HUD’s Center for 

Faith-Based and Neighborhood 

Partnerships (‘‘CFBNP’’). CFBNP has the 

resources and technical assistance 

experience to work with faith-based and 

community partners and HUD’s 

program offices in ensuring equal 

participation of faith-based 

organizations in HUD programs and 

activities. Furthermore, because a 

complaint may allege violations of 

multiple authorities, CFBNP will work 

with FHEO when a complaint alleges 

discrimination that is potentially 

cognizable under the Fair Housing Act, 

Title VI of the Civil Rights Act of 1964, 

Section 504 of the Rehabilitation Act, 

VAWA, the Age Discrimination Act of 

1975, or any of the other civil rights 

requirements enforced by FHEO. In 

addition, if a person believes that they 

are the victim of discrimination 

prohibited under a different Federal 

civil rights statute or requirement 

enforced by HUD other than those 

discussed in this rule, they may also file 

a complaint with FHEO. To the extent 

a recipient is found to have violated a 

program requirement or an applicable 

civil rights statute, they may be subject 

to sanctions and penalties for such 

violations as provided for under the 

applicable statutes or regulations. 

Changes: None. 

2. Removal of the Reference to Tenets 

Comments: One commenter objected 

to the extension of the Title VII 

religious-employer exemption to 

Government-funded positions, and said 

that the 2020 Rule exacerbated this 

problem by suggesting that Title VII 

permits religious organizations that 

qualify for the Title VII religiousemployer exemption to insist upon 

tenets-based employment conditions 

that would otherwise violate Title VII or 

the particular underlying funding 

statute in question. The commenter 

noted that while most of the Agencies 

proposed removing the ‘‘tenets’’ related 

language in their proposed regulations, 

HUD did not. The commenter urged 

HUD to likewise remove the reference to 

tenets-based employment conditions in 

its regulations. 

Response: For the reasons elaborated 

in Part II.E of the joint preamble, and for 

consistency with the other Agencies, 

HUD will remove the text on tenetsbased employment conditions from its 

regulations as it is unnecessary and 

potentially misleading. 

Changes: HUD removes language 

stating that organizations may select 

their employees on the basis of their 

acceptance of or adherence to religious 

tenets in 24 CFR 5.109(d)(2). 

3. Eligibility and Program Requirements 

Comments: One commenter 

supported the Agencies’ proposal to 

remove the phrase ‘‘on the same basis as 

any other organization and considering 

a religious accommodation’’ from their 

regulations’ provisions regarding 

organizations’ eligibility for program 

participation. The commenter 

contended, however, that HUD had 

failed to remove that language from its 


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proposed regulation and so should do so 

in the final rule. 

Response: In this final rule, HUD 

deletes the clause ‘‘and considering any 

permissible accommodation on a caseby-case basis in accordance with the 

Constitution and laws of the United 

States’’ from 24 CFR 5.109(c)(1). HUD 

believes that this change promotes 

clarity and avoids redundancy in the 

regulatory text. In addition, HUD makes 

this change to promote consistency with 

other Agencies’ rule texts, as 

recommended by the commenter. 

HUD emphasizes that the removal of 

the clause in question is not a 

substantive change, nor does it 

represent any departure from HUD’s 

strong commitment to its obligations to 

comply with the Free Speech and Free 

Exercise Clauses of the First 

Amendment to the U.S. Constitution 

and Federal laws that support and 

protect religious exercise and freedom 

of conscience, including RFRA. HUD 

remains fully committed to thoroughly 

considering any organization’s assertion 

that an obligation imposed upon it 

conflicts with its rights under those 

authorities, and will provide such 

accommodations in accordance with 

Federal law. 

At the same time, HUD disagrees with 

the recommendation that it rescind the 

clause ‘‘on the same basis as any other 

organization’’ from 24 CFR 5.109(c)(1). 

That clause has long been a part of 

HUD’s regulation and reflects HUD’s 

dedication to ensuring that faith-based 

organizations are not discriminated 

against in HUD’s selection of service 

providers. Moreover, HUD has decided 

to keep that clause so that it remains 

consistent with other Agencies’ final 

regulations. 

Changes: HUD deletes the clause ‘‘and 

considering any permissible 

accommodation on a case-by-case basis 

in accordance with the Constitution and 

laws of the United States’’ from 24 CFR 

5.109(c)(1) as proposed. 

4. Beneficiary Notice for Indirect Aid 

Recipients 

Comments: As described in Part II.A.4 

of the joint preamble, some commenters 

recommended that the Agencies require 

that written notice be provided to 

beneficiaries of programs receiving 

indirect Federal financial assistance. 

While recognizing that those 

beneficiaries are not entitled to all of the 

protections identified in the notice—in 

particular, the requirement to separate 

explicitly religious activities applies 

only to activities supported with direct 

Federal financial assistance—the 

commenters asserted that beneficiaries 

of indirectly funded programs should be 

notified of the rights to which they are 

entitled. 

Response: HUD agrees with the other 

Agencies that the rationale for adopting 

the beneficiary notice requirement— 

improving beneficiaries’ access to 

federally funded services by informing 

them of their rights, and thereby 

removing certain barriers arising from 

discrimination—applies equally to all 

beneficiaries, regardless of whether they 

are participating in programs receiving 

direct or indirect Federal financial 

assistance. HUD provides indirect 

Federal financial assistance through 

various programs, including its Housing 

Choice Voucher (‘‘HCV’’) program, 

Project-Based Voucher (‘‘PBV’’) 

program, Section 8 Moderate 

Rehabilitation programs, Housing 

Opportunities for Persons with AIDS 

(‘‘HOPWA’’) program, Continuum of 

Care (‘‘CoC’’) program, and Emergency 

Solution Grants (‘‘ESG’’) program. 

Due to the structure of HUD’s 

programs, HUD has determined that the 

indirect aid beneficiary notice will be 

provided by Public Housing Agencies 

(‘‘PHAs’’) for the HCV, PBV, and Section 

8 Moderate Rehabilitation programs, by 

the grantees or project sponsors 

responsible for making eligibility 

determinations for the HOPWA 

program, and the recipients or 

subrecipients that are responsible for 

determining the eligibility of each 

family or individual for the CoC and 

ESG programs. The final rule further 

clarifies that the entities that receive 

indirect Federal financial assistance are 

not responsible for providing the 

beneficiary notice, to ensure that this 

requirement does not impose a burden 

that negatively affects private provider 

participation in HUD-funded programs. 

Changes: HUD revises its regulations 

to add 24 CFR 5.109(g)(2)(ii). 

5. Model Written Notice 

Comments: A commenter suggested 

that HUD follow the example of DOL 

and HHS by providing a model written 

beneficiary notice as an appendix to 

ensure beneficiaries consistently receive 

adequate notice of their rights. The 

commenter opined that a model notice 

will not only help ensure beneficiary 

rights are respected, but also assist 

Federal awardees and minimize 

administrative burdens. Further, the 

commenter stated that by offering a 

model notice, the Agencies can help 

ensure the nondiscrimination and 

noncoercion requirements of the rule 

are effective in minimizing the risk that 

beneficiaries will encounter 

discrimination when accessing critical 

services. 

Response: HUD agrees with the 

commenter that providing a model 

beneficiary notice will ensure that 

beneficiaries are aware of their rights 

and that the notice will minimize the 

risk that beneficiaries will encounter 

discrimination. Under the final rule, the 

model written notice will ensure 

beneficiaries consistently receive 

adequate notice and will provide clarity 

for beneficiaries regarding protections 

for them. Accordingly, HUD 

incorporates a model beneficiary notice 

in this final rule. 

Changes: HUD adds a model 

beneficiary notice to accompany this 

final rule in 24 CFR part 5, appendix C. 

E. Department of Education 

Unless otherwise specified, all 

comments received by ED are addressed 

fully in the discussion of cross-cutting 

issues in Part II of the joint preamble, 

and those responses are adopted by ED. 

ED addresses in this part of the 

preamble the ED-specific comments not 

fully addressed in Part II of this 

preamble. ED does not discuss in this 

part of the preamble minor or technical 

changes that were made to provide 

greater consistency or simplify the 

language in its regulations. 

1. Beneficiary Protections 

Comments: One commenter 

recommended that ED charge its Office 

for Civil Rights (‘‘OCR’’) with 

responsibility for addressing complaints 

regarding compliance with the 

beneficiary protections set forth in this 

rule. 

Response: ED does not address in this 

rule which of its components will 

handle complaints regarding 

compliance with the rule’s beneficiary 

protections because the ED components 

involved in addressing any alleged 

violation of the rule could vary 

according to multiple factors, such as 

the facts underlying the alleged 

violation or the existence of a dispute 

resolution system under the applicable 

program. 

Changes: None. 

Comments: As described in Part II.A.4 

of the joint preamble, some commenters 

recommended that, in addition to 

requiring that the written notice of 

beneficiary rights be provided to 

beneficiaries of programs receiving 

direct Federal financial assistance, the 

Agencies should require that the notice 

be provided to beneficiaries of indirect 

Federal financial assistance. 

Response: ED declines to extend its 

beneficiary notice requirement to 

programs involving indirect Federal 

financial assistance. Currently, ED 

operates only one such program, the 


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District of Columbia Opportunity 

Scholarship Program authorized under 

the Scholarships for Opportunity and 

Results (‘‘SOAR’’) Act, which provides 

scholarships to enable students from 

low-income families in the District of 

Columbia to attend a participating 

private elementary or secondary school 

of their choice. Under this program, a 

student’s family must apply and gain 

admission to a participating private 

school while separately applying for the 

scholarship. Participating private 

schools from which a student’s family 

may choose include both religious and 

secular schools. 

The SOAR Act includes independent 

requirements governing religious 

discrimination and participation of 

religiously affiliated schools. 

Specifically, Congress prohibited a 

participating private school from 

discriminating against program 

participants or applicants on the basis of 

religion, as well as race, color, national, 

origin, or sex. D.C. Code 38–1853.08(a). 

ED’s grantee administering the program 

provides a notice of these 

nondiscrimination requirements as part 

of the scholarship application that 

parents complete. 

Given the structure of ED’s sole 

indirect aid program and considering 

that a notice of nondiscrimination, 

including religious nondiscrimination, 

is already provided to applicants for 

that program, ED believes it is 

unnecessary to adopt additional notice 

requirements for programs providing 

indirect Federal financial assistance at 

this time. 

Changes: None. 

2. Eligibility of Faith-Based 

Organizations 

Comments: One commenter noted 

that, unlike most other Agencies, ED 

does not include in its provider notice 

appendices (appendices A and B to 34 

CFR part 75) language indicating that an 

organization may not use direct Federal 

financial assistance to ‘‘support or 

engage in explicitly religious activities.’’ 

The commenter recommended that ED 

add this language to its appendices. 

Response: ED agrees with the 

commenter that inclusion of this 

language would be helpful to maintain 

consistency with other Agencies’ 

corresponding appendices. 

Changes: ED has revised appendices 

A and B to 34 CFR part 75 to make clear 

that an organization may not use direct 

Federal financial assistance to ‘‘support 

or engage in explicitly religious 

activities except when consistent with 

the Establishment Clause of the First 

Amendment and any other applicable 

requirements.’’ 

F. Department of Veterans Affairs 

In this section, VA addresses the few 

VA-specific comments not addressed in 

the joint preamble above. All other 

comments received by VA or otherwise 

affecting VA’s regulations are addressed 

fully in Part II of the joint preamble, and 

VA adopts those responses. 

1. Religion or Religious Belief 

Comments: One commenter suggested 

that VA update two of its 

nondiscrimination provisions, 38 CFR 

61.64(e) and 62.62(e), to replace 

‘‘religion or religious belief’’ with 

‘‘religion, a religious belief, a refusal to 

hold a religious belief, or a refusal to 

attend or participate in a religious 

practice.’’ The commenter explained 

that the inclusion of this language 

would further strengthen VA’s 

commitment to ensuring that all 

beneficiaries and prospective 

beneficiaries have access to federally 

funded services and programs without 

unnecessary barriers and free from 

discrimination. 

Response: VA agrees with the 

commenter’s suggestion. VA’s proposed 

regulation text at 38 CFR 50.2(d) already 

stated that ‘‘[a]ny organization that 

participates in programs funded by 

Federal financial assistance from the 

department shall not . . . 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.’’ In an oversight, 

however, VA used different phrasing in 

the proposed versions of 38 CFR 

61.64(e) and 62.62(e). For consistency 

within its own regulations and with 

those of the other Agencies, VA has 

revised the text in 38 CFR 61.64(e) and 

62.62(e) of this final rule to likewise use 

the phrase ‘‘religion, a religious belief, 

a refusal to hold a religious belief, or a 

refusal to attend or participate in a 

religious practice.’’ 

Changes: VA revises 38 CFR 61.64(e) 

and 62.62(e) to incorporate the phrase 

‘‘religion, a religious belief, a refusal to 

hold a religious belief, or a refusal to 

attend or participate in a religious 

practice.’’ 

2. Participation in VA Programs or 

Services 

Comments: The regulation at 38 CFR 

50.2(e) prohibits several forms of 

discrimination against providers 

participating in VA programs or 

services. One commenter suggested 

deleting the first sentence of that 

provision, which reads as follows: ‘‘A 

faith-based organization is not rendered 

ineligible by its religious exercise or 

affiliation to access and participate in 

Department programs.’’ The commenter 

suggested that the sentence is repetitive 

of the substantive prohibitions stated 

elsewhere in 38 CFR 50.2(e), and urged 

that deleting it would avoid confusion 

and advance consistency. 

Response: VA agrees that the first 

sentence of 38 CFR 50.2(e) is repetitive 

of the other language in that provision 

guaranteeing equal access to VA 

programming for faith-based 

organizations and so removes that 

sentence in this final rule. 

Changes: VA revises 38 CFR 50.2(e) to 

remove the first sentence. 

G. Department of Homeland Security 

DHS received several public 

comments that specifically addressed 

DHS’s proposed regulatory changes. The 

majority of the comments requested that 

DHS revise its regulations for 

consistency in regulatory language with 

the other Agencies, and several 

commenters also suggested specific 

revisions to provide clarity and avoid 

confusion. DHS addresses these 

comments below. All other comments 

received by DHS, or that affect DHS’s 

regulations, are addressed in Part II of 

the joint preamble, and DHS adopts 

those responses. 

Comments: One commenter 

recommended that DHS amend its 

definition of ‘‘indirect Federal financial 

assistance’’ in 6 CFR 19.2 to be 

consistent with the language used by the 

majority of the Agencies. Specifically, 

the commenter recommended that DHS 

add ‘‘not a choice of the Government’’ 

after ‘‘genuinely independent and 

private choice of a beneficiary.’’ 

Response: DHS agrees that its 

omitting this additional phrase could be 

confusing and would hinder the goal of 

maximizing consistency across the 

Agencies’ regulations. Accordingly, 

DHS amends the text of 6 CFR 19.2 to 

add that phrase, and thereby to maintain 

consistency of language among the 

Agencies. 

Changes: DHS amends 6 CFR 19.2 by 

adding the phrase ‘‘and not a choice of 

the Government’’ to the definition of 

‘‘indirect Federal financial assistance.’’ 

Comments: Several commenters 

suggested that DHS amend 6 CFR 19.3 

and 19.4 and its appendix A to clarify 

DHS’s regulatory language prohibiting 

discrimination against religious 

organizations. In particular, commenters 

suggested that DHS change the phrase 

‘‘because such organization is motivated 

or influenced by religious faith to 

provide social services’’ to ‘‘because of 

such organization’s religious character, 

motives, or affiliation, or lack thereof,’’ 


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which the commenter asserts is much 

clearer. Finally, another commenter 

recommended that DHS amend its 

appendix A to add ‘‘or lack thereof’’ 

after ‘‘religious character, motives, or 

affiliation’’ in § 19.3. 

Response: DHS agrees with the 

commenters that it should amend 6 CFR 

19.3 and 19.4 and its appendix A in the 

manner suggested. As explained in Part 

II.D.1 of the joint preamble, the 

suggested formulation makes the scope 

of the prohibition on discrimination 

clearer. This change will also promote 

consistency among the Agencies’ 

regulations. 

Changes: DHS amends the text of 6 

CFR 19.3(g)(1) and 19.4(c) and appendix 

A to 6 CFR part 19 as suggested by 

commenters. 

Comments: Commenters observed that 

DHS and a couple of other Agencies 

proposed rule text in the Joint NPRM 

that included a religious 

accommodations clause not found in the 

remaining Agencies’ rule text. 

Specifically, the commenters noted that 

DHS proposed that 6 CFR 19.3 state: 

‘‘Faith-based organizations are eligible, 

on the same basis as any other 

organization, and considering any 

permissible accommodation appropriate 

under the Constitution and other 

provisions of Federal law, to seek and 

receive direct financial assistance from 

DHS for social service programs or to 

participate in social service programs 

administered or financed by DHS.’’ See 

88 FR 2412. By contrast, other Agencies 

omitted the reference to ‘‘any 

permissible accommodation’’ in their 

nondiscrimination provisions. Apart 

from language consistency, the 

commenters also asserted that the 

accommodations clause in DHS’s 

regulations is confusing. 

Response: DHS agrees with the 

commenters’ suggestion and removes 

the ‘‘any permissible accommodation’’ 

language from its final regulations. That 

language was not intended to have any 

substantive effect, so its removal 

likewise effects no substantive change. 

DHS is fully committed to granting 

constitutionally and statutorily required 

accommodations, as it must, 

irrespective of whether that 

commitment is restated in this context. 

DHS recognizes, however, that 

including such accommodations 

language, in deviation from other 

Agencies’ regulatory text, could invite 

readers to infer a substantive difference 

in meaning, contrary to DHS’s 

regulatory intent. DHS therefore deletes 

the ‘‘any permissible accommodation’’ 

language in this final rule. 

Changes: DHS removes the phrase 

‘‘any permissible accommodation’’ from 

6 CFR 19.3(a). 

H. Agency for International 

Development 

Unless otherwise specified, those 

comments received by USAID or 

affecting USAID’s regulations are 

addressed fully in Part II of the joint 

preamble, and USAID adopts those 

responses except where noted. In the 

Joint NPRM, USAID inadvertently 

removed its existing regulatory language 

related to accommodations without 

replacing it with the intended new 

language. USAID adopts the discussion 

of accommodations in Part II of the joint 

preamble and has updated its 

amendatory text accordingly. USAID 

addresses in this part of the preamble 

the USAID-specific comments not 

addressed in the joint preamble and 

provides USAID-specific findings and 

certifications. USAID does not discuss 

in this part of the preamble minor or 

technical changes that were made to 

provide greater consistency or simplify 

the language in the regulations. 

1. Beneficiary Notice Requirement 

As explained in the Joint NPRM, and 

in footnotes 1 and 2 of the joint 

preamble, as a result of several 

distinctive characteristics of its 

programs, USAID does not adopt the 

discussion of the cross-cutting 

comments related to the beneficiary 

notice requirements in Part II.A.4 of the 

joint preamble. Instead, USAID 

addresses the comments it received on 

that topic in the following discussion. 

Comments: USAID received three 

comments regarding its proposal to 

refrain from adopting a written 

beneficiary notice requirement. One 

commenter urged USAID to require 

written notice to beneficiaries of their 

right to be free from religious 

discrimination in all relevant local 

languages, arguing that, if USAID failed 

to do so, beneficiaries of USAID-funded 

programs would have fewer protections 

than beneficiaries of other federally 

funded programs. Another commenter 

acknowledged that the unique 

international context in which USAID 

operates may warrant some adjustment 

to the beneficiary notices provided by 

other Agencies, but argued that some 

form of notice should still be required. 

Another commenter, by contrast, 

contended that while the beneficiary 

notice should be universally required by 

domestic agencies, it should not apply 

to USAID’s programs. 

Response: At this time, USAID 

declines to adopt a requirement that all 

beneficiaries of USAID-funded programs 

receive written notice of a right to be 

free from religious discrimination. 

USAID is, however, exploring ways to 

effectively address current challenges 

associated with written notices in order 

to potentially disseminate information 

about beneficiary protections more 

broadly in the future. 

USAID acknowledges commenters’ 

suggestions that the value of religious 

nondiscrimination protections for 

beneficiaries is strengthened when 

beneficiaries are aware that they have 

such protections. As another commenter 

explained, however, USAID’s global 

programming means USAID operates 

under different circumstances than the 

eight other domestically focused 

Agencies. USAID funds assistance in 

more than 100 countries, many of which 

have multiple official or national 

languages, often in addition to countless 

local languages that are the actual 

primary language of USAID 

beneficiaries. See USAID, Fiscal Year 

2023 Agency Financial Report at iii 

(Nov. 14, 2023), https://www.usaid.gov/ 

sites/default/files/2023-11/USAID_

2023AFR_508.pdf. USAID-funded 

assistance also often targets some of the 

most vulnerable populations in the 

world, and many of these communities 

have varying degrees of literacy, making 

other-than-written forms of 

communication necessary. While 

language and literacy obstacles can also 

affect U.S. domestic programs 

administered by the other Agencies, 

these issues affect USAID programs on 

a much wider scale and highlight some 

of the challenges that impede 

meaningful dissemination of a written 

beneficiary notice throughout USAIDfunded programs. 

USAID does not concur with the 

comment that the Agency lacks 

adequate religious nondiscrimination 

protections for beneficiaries. USAID’s 

existing regulations and award terms 

make explicit that an organization that 

participates in programs funded by 

financial assistance from USAID, 

including through an award or 

subaward, must not, in providing 

services, discriminate against a program 

beneficiary or prospective program 

beneficiary on the basis of religion, a 

religious belief, a refusal to hold a 

religious belief, or a refusal to attend or 

participate in a religious practice. 

Changes: None. 

2. Alternative Provider Requirements 

USAID does not adopt the discussion 

of the cross-cutting comments related to 

the alternative provider requirements in 

Part II.A.4 of the joint preamble. Instead, 

USAID addresses the comments it 


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6To calculate this figure, as well as the adjusted 

upper-bound estimate, the Agencies used the data 

on annual averages of the CPI available at BLS, CPI 

Inflation Calculator, https://www.bls.gov/data/ 

inflation_calculator.htm. The average CPI for 2013 

was $232.957; the average CPI for 2022 was 

$292.613. Using this ratio, the materials cost of 

$100 in 2013 dollars became $125.61 in 2022 

dollars [= $100 × (292.613/232.957)]. 

7BLS, Occupational Employment and Wage 

Statistics, May 2022, https://www.bls.gov/oes/ 

current/oes131151.htm. 

received on that topic in the following 

discussion. 

Comments: USAID received two 

comments regarding its proposal to 

refrain from adopting an alternative 

provider referral requirement. The first 

commenter urged USAID to adopt an 

alternative provider referral requirement 

akin to what the other Agencies adopted 

in the 2016 Rule. In the alternative, the 

commenter encouraged USAID to 

consider adopting the modified referral 

requirement that the rest of the 

domestically focused Agencies 

proposed in the Joint NPRM, under 

which USAID would attempt to identify 

an alternative provider if a beneficiary 

were to object to the nature of a service 

provider, regardless of whether that 

provider was religious or secular. The 

second commenter, in contrast, argued 

that USAID should not adopt an 

alternative provider requirement due to 

the different circumstances in which 

USAID operates. 

Response: USAID declines to adopt an 

alternative provider referral requirement 

at this time. USAID agrees with the 

second commenter that it operates 

under different circumstances than the 

other eight domestically focused 

agencies. As explained above, USAID 

funds activities in more than 100 

countries, often in some of the hardestto-reach places on earth, where social 

services are often not readily available. 

Furthermore, it may be difficult to 

locate alternatives depending on the 

cultural and religious context of the 

country in which USAID is operating. 

USAID also notes that it communicates 

and promotes important religious 

freedom messages through separate, 

targeted programs, such as its 

democracy, rights, and government 

initiatives. 

Changes: None. 

3. Appendices A and B 

Comments: USAID received one 

comment urging it to adopt an appendix 

A (Notice or Announcement of Award 

Opportunities) and an appendix B 

(Notice of Award or Contract). 

Response: USAID declines to adopt 

model language similar to that found in 

other Agencies’ appendix A or B. 

USAID already includes this 

information in its notices of funding 

opportunities and awards through 

inclusion or incorporation by reference 

of USAID’s standard award provisions. 

Changes: None. 

IV. General Regulatory Certifications 

A. Regulatory Planning and Review 

(Executive Order 12866); Improving 

Regulation and Regulatory Review 

(Executive Order 13563); Modernizing 

Regulatory Review (Executive Order 

14094) 

Under section 6(a) of Executive Order 

12866, Regulatory Planning and Review, 

58 FR 51735 (Sept. 30, 1993), the Office 

of Management and Budget (‘‘OMB’’) 

Office of Information and Regulatory 

Affairs (‘‘OIRA’’) determines whether a 

regulatory action is significant and, 

therefore, subject to the requirements of 

the Executive order and review by OMB. 

Section 3(f) of Executive Order 12866, 

as amended by section 1(b) of Executive 

Order 14094, Modernizing Regulatory 

Review, 88 FR 21879 (Apr. 6, 2023), 

defines a ‘‘significant regulatory action’’ 

as an action that is likely to result in a 

rule that may: (1) have an annual effect 

on the economy of $200 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, territorial, or 

Tribal governments or communities; (2) 

create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; (3) 

materially alter the budgetary impacts of 

entitlement grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raise legal or 

policy issues for which centralized 

review would meaningfully further the 

President’s priorities or the principles 

set forth in the Executive order. OIRA 

has determined that this final rule is a 

significant regulatory action under 

section 3(f) of Executive Order 12866, as 

amended by Executive Order 14094. 

Executive Order 13563, Improving 

Regulation and Regulatory Review, 76 

FR 3821 (Jan. 18, 2011), directs agencies 

to propose or adopt a regulation only 

upon a reasoned determination that its 

benefits justify its costs; the regulation 

is tailored to impose the least burden on 

society, consistent with achieving the 

regulatory objectives; and in choosing 

among alternative regulatory 

approaches, the agency has selected 

those approaches that maximize net 

benefits. Executive Order 13563 

recognizes that some benefits 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. 

The Agencies are issuing this final 

rule upon a reasoned determination that 

its benefits justify its costs. In choosing 

among alternative regulatory 

approaches, the Agencies selected those 

approaches that maximize net benefits. 

Based on the analysis that follows, the 

Agencies believe that this final rule is 

consistent with the principles in 

Executive Order 13563. The Agencies 

also have 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 Agencies have 

assessed the potential costs, cost 

savings, and benefits, both quantitative 

and qualitative, of this final rule. 

1. Costs 

The potential costs of this final rule 

are those resulting from implementing 

the beneficiary notice requirements and 

regulatory familiarization. DOL 

previously estimated the cost of 

imposing a similar beneficiary notice 

requirement, reporting an upper-bound 

estimate of $200 per organization per 

year (in 2013 dollars). 81 FR 19395. This 

cost estimate was based on the 

expectation that it would take up to 

$100 in annual material costs and no 

more than two annual burden hours for 

a Training and Development Specialist 

to print, duplicate, and distribute 

notices to beneficiaries. Id. 

For this final rule, the Agencies 

adjusted the estimate to $251.22 (in 

2022) to produce an upper-bound 

estimate, and also replicated this 

methodology to generate a central 

estimate of the cost per organization per 

year. For the replication, the Agencies 

adjusted the annual materials cost to 

$125.61 (in 2022 dollars) using the 

consumer price index (‘‘CPI’’).6 The 

Agencies calculated the cost of labor by 

multiplying the estimated time burden 

by the hourly compensation of a 

Training and Development Specialist 

(SOC Code 13–1151). According to the 

Bureau of Labor Statistics (‘‘BLS’’), the 

mean hourly wage rate for a Training 

and Development Specialist in May 

2022 was $33.59.7 For this analysis, the 

Agencies used a fringe benefits rate of 


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8BLS, Employer Costs for Employee 

Compensation, https://www.bls.gov/ncs/data.htm. 

Wages and salaries averaged $28.31 per hour 

worked in June 2022, while benefit costs averaged 

$12.72, which is a benefits rate of 45 percent. BLS, 

Employer Costs for Employee Compensation 

Archived News Releases, https://www.bls.gov/bls/ 

news-release/ecec.htm#2022. 

9Most Agencies provided their numbers of 

recipients of financial assistance, and the averages 

over three years (fiscal year (‘‘FY’’) 2019 to 

FY2021), where available, are presented in Table 1. 

10See the discussion preceding Table 1 for the 

derivation of a $223.03 estimate. 

11Average number of recipients of DOJ financial 

assistance from the Office on Violence Against 

Women and Office of Justice Programs in FY2019, 

FY2020, and FY2021. 

12Average number of recipients of USDA 

financial assistance from the National Institute of 

Food and Agriculture Program, Community 

Facilities Program, Single Family Housing 

Preservation Grant Program, Multifamily Housing 

Programs, and nutrition assistance programs in 

FY2019, FY2020, and FY2021. All other USDA 

programs, including via State partners, States and 

territories of the United States, and Tribal 

organizations, are estimates for the current fiscal 

year. 

13Number of recipients of DOL financial 

assistance under various programs authorized by 

title I of the Workforce Innovation and Opportunity 

Act in FY2019, FY2020, or FY2021. 

14Average number of prime recipients of HHS 

financial assistance in affected programs in FY2019, 

FY2020, and FY2021. 

15Average number of recipients of HUD financial 

assistance from the Community Development Block 

Grant Program, HOME Investment Partnerships, 

Public Housing Agency, Office of Native American 

Programs, Office of Special Needs, Multifamily 

Assisted Property Owners Program, Office of Rural 

Housing and Economic Development, and 

Comprehensive Housing Counseling Grant Program 

in FY2019, FY2020, and FY2021. 

16Average number of recipients of ED financial 

assistance from discretionary grant programs and 

formula grant programs in FY2019, FY2020, and 

FY2021. 

17Average number of recipients of VA financial 

assistance from the Supportive Services for Veteran 

Families and Grant and Per Diem Programs in 

FY2019, FY2020, and FY2021. In addition, at the 

time of the proposed rule, VA estimated that the 

Staff Sergeant Parker Gordon Fox Suicide 

Prevention Grant Program would fund 90 grantees 

in each of FY2022 and FY2023. The Staff Sergeant 

Parker Gordon Fox Suicide Prevention Grant 

Program has awarded funding to 80 grantees in each 

of FY2022 and FY2023, resulting in a lower annual 

cost than estimated. 

18Average number of recipients of DHS financial 

assistance from USCIS’s Citizenship and Integration 

Grant Program and the Federal Emergency 

Management Agency’s Disaster Case Management, 

Crisis Counseling Assistance and Training Program 

and Emergency Food and Shelter Program in 

FY2019, FY2020, and FY2021. 

19Average number of prime recipients of USAID 

financial assistance in FY2019, FY2020, and 

FY2021. 

20USAID is not adopting the beneficiary notice 

requirement, so this final rule will not result in any 

cost to recipients of financial assistance from 

USAID. 

21BLS, Occupational Employment and Wage 

Statistics, May 2022, https://www.bls.gov/oes/ 

current/oes211099.htm. 

22BLS, Employer Costs for Employee 

Compensation, https://www.bls.gov/ncs/data.htm. 

Wages and salaries averaged $26.22 per hour 

worked in 2020, while benefit costs averaged 

$11.99, which is a benefits rate of 46 percent. 

45 percent,8 resulting in a fully loaded 

hourly compensation rate for Training 

and Development Specialists of $48.71 

[= $33.59 + ($33.59 × 0.45)]. The 

Agencies estimated that a Training and 

Development Specialist will spend on 

average two hours ($97.42) printing, 

duplicating, and distributing notices to 

beneficiaries. The Agencies combined 

these estimates to generate a primary 

cost per organization of the beneficiary 

notice requirement of $223.03 [= 

$125.61 + $97.42]. As shown in Table 1, 

the Agencies estimated the total annual 

cost resulting from the beneficiary 

notice requirement by multiplying the 

number of covered providers of social 

service programs receiving Federal 

financial assistance by the annual 

compliance cost of the notice 

requirement, namely their potential 

central estimate of $223.03. All 

providers receiving direct Federal 

financial assistance, as well as some 

providers receiving indirect Federal 

financial assistance, are subject to the 

beneficiary notice requirement in this 

final rule. The Agencies could not, 

however, differentiate direct recipients 

from indirect recipients in calculating 

the annual cost of the notice 

requirement, and thus the cost is 

overstated to the extent that it includes 

indirect recipients who may not be 

subject to the notice requirement, 

depending on each Agency’s 

determination under its revised 

regulations. On the other hand, for some 

Agencies, the number of providers of 

social service programs does not include 

subrecipients due to data limitations. 

This results in an underestimation of 

the annual cost of the beneficiary notice 

requirement. Overall, the annual cost of 

the final notice requirement is likely to 

be underestimated in this analysis, but 

not enough to change the determination 

of the Agencies that the benefits justify 

the costs. 

TABLE 1—ANNUAL COST OF FINAL BENEFICIARY NOTICE REQUIREMENT BY AGENCY

Agencies 

Number of 

social service providers 

receiving federal 

financial assistance 

Cost per entity Annual cost 

(A) 9 (B) 10 (C = A × B) 

DOJ ................................................................................................................ 11 18,152 $223.03 $4,048,441 

USDA ............................................................................................................. 12 240,810 223.03 53,707,854 

DOL ................................................................................................................ 13 39,981 223.03 8,916,962 

HHS ............................................................................................................... 14 10,287 223.03 2,294,310 

HUD ............................................................................................................... 15 45,321 223.03 10,107,943 

ED .................................................................................................................. 16 10,941 223.03 2,440,171 

VA .................................................................................................................. 17 1,027 223.03 229,052 

DHS ............................................................................................................... 18 10,648 223.03 2,374,823 

USAID ............................................................................................................ 19 1,251 0 20 0 

Total ........................................................................................................ ................................................ .............................. 84,119,556 

The process of regulatory 

familiarization, or reviewing the final 

rule to determine how it applies, will 

impose a one-time direct cost on all 

covered providers of social service 

programs in the first year. The Agencies 

calculated this cost by multiplying the 

estimated time to review the rule by the 

hourly compensation of a Community 

and Social Service Specialist (SOC Code 

21–1099). According to the BLS, the 

mean hourly wage rate for a Community 

and Social Service Specialist in May 

2022 was $24.82.21 For this analysis, the 

Agencies used a fringe benefits rate of 

45 percent,22 resulting in a fully loaded 

hourly compensation rate for 

Community and Social Service 


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Specialists of $35.99 [= $24.82 + ($24.82 

× 0.45)]. The Agencies estimated that a 

Community and Social Service 

Specialist will spend on average 30 

minutes reviewing the rule ($18). Table 

2 shows the one-time regulatory 

familiarization cost by Agency in the 

first year. 

TABLE 2—ONE-TIME REGULATORY FAMILIARIZATION COST BY AGENCY

Agencies Number of 

social service providers Cost per entity Cost in the first year 

(A) (B) (C = A × B) 

DOJ ................................................................................................................ 18,152 $18 $326,736 

USDA ............................................................................................................. 240,810 18 4,334,580 

DOL ................................................................................................................ 39,981 18 719,658 

HHS ............................................................................................................... 10,287 18 185,166 

HUD ............................................................................................................... 45,321 18 815,778 

ED .................................................................................................................. 10,941 18 196,938 

VA .................................................................................................................. 1,027 18 18,486 

DHS ............................................................................................................... 10,648 18 191,664 

USAID ............................................................................................................ 1,251 18 22,518 

Total ........................................................................................................ ................................................ .............................. 6,811,524 

Table 3 shows the total annualized 

cost at a seven percent and a three 

percent discounting for the final 

beneficiary notice requirement and the 

one-time regulatory familiarization cost. 

For example, the annualized cost for 

DOL-regulated entities is $9,018,626 at 

a seven percent discounting. The total 

annualized cost for all nine Agencies is 

$85,081,821 at a seven percent 

discounting. This total cost estimate is 

likely to be understated because some 

subrecipients are not included in the 

analysis, but not enough to change the 

determination of the Agencies that the 

benefits of the beneficiary notice 

requirement justify its costs. 

TABLE 3—TOTAL COST OF FINAL BENEFICIARY NOTICE REQUIREMENT AND REGULATORY FAMILIARIZATION BY AGENCY

Agencies 

Annual cost of final 

beneficiary notice 

requirement 

The one-time regulatory 

familiarization cost 

Total annualized 

cost at a 7 percent 

discounting 

Total annualized 

cost at a 3 percent 

discounting 

DOJ ................................................ $4,048,078 $326,736 $4,094,597 $4,086,381 

USDA ............................................. 53,703,038 4,334,580 54,320,185 54,211,183 

DOL ................................................ 8,916,163 719,658 9,018,626 9,000,529 

HHS ............................................... 2,294,104 185,166 2,320,467 2,315,811 

HUD ............................................... 10,107,036 815,778 10,223,185 10,202,670 

ED .................................................. 2,439,952 196,938 2,467,992 2,463,040 

VA .................................................. 229,031 18,486 231,663 231,198 

DHS ............................................... 2,374,610 191,664 2,401,899 2,397,079 

USAID ............................................ 0 22,518 3,206 2,640 

Total ........................................ ........................................ .............................................. 85,081,821 84,910,532 

2. Cost Savings 

The final beneficiary notice 

requirement could provide some cost 

savings to beneficiaries who may be able 

to receive free information about 

alternative providers in their area and 

therefore may no longer need to 

investigate alternative providers on their 

own. While the Agencies cannot 

quantify this cost savings with a 

reasonable degree of confidence, the 

Agencies expect this cost savings to be 

insignificant because the number of 

beneficiaries who incur costs to identify 

alternative providers is likely very 

small. 

3. Benefits 

As noted above, section 1(c) of 

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 

qualitative values that are difficult or 

impossible to quantify, including 

equity, human dignity, and distributive 

impacts. 76 FR 3821. The Agencies 

recognize a non-quantified benefit to 

social service providers in the form of 

increased clarity, consistency, and 

fairness that will result from imposing 

uniform notice requirements on faithbased and secular organizations alike, in 

accordance with the longstanding 

Federal policy that faith-based 

organizations are eligible to participate 

in grant-making programs on the same 

basis as other organizations. The final 

rule may also benefit providers in that 

it would provide information, where the 

Agencies determine appropriate, that 

could ultimately connect them with 

beneficiaries who are in need of their 

services. Additionally, in situations in 

which beneficiaries lack true private 

choice, the final rule will benefit faithbased organizations by enabling them to 

continue operating indirect aid 

programs, consistent with Executive 

Order 14015’s recognition that faithbased organizations are essential to the 

delivery of social services. 

The final rule will also benefit 

beneficiaries in several important ways. 

Specifically, the final beneficiary notice 

requirement will result both in tangible 

benefits for beneficiaries, as the 

reduction of certain barriers due to 

discrimination improves access to 

federally funded services, and in 

unquantifiable dignitary benefits 

associated with avoiding 

discrimination. Additionally, the final 

referral option will make it easier for 


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23The Agencies again derived this figure from the 

data on annual averages of the CPI available at BLS, 

CPI Inflation Calculator, https://www.bls.gov/data/ 

inflation_calculator.htm. The average CPI for 1995 

was $152.40; the average CPI for 2021 was $270.97. 

Using this ratio, $100 million in 1995 dollars 

became $178 million in 2021 dollars [= 

$100,000,000 × (270.970/152.40)]. 

24See also 2 U.S.C. 1503 (excluding from 

UMRA’s ambit any provision in a proposed or final 

regulation that, among other things, enforces 

constitutional rights of individuals; establishes or 

enforces any statutory rights that prohibit 

discrimination on the basis of race, color, religion, 

sex, national origin, age, handicap, or disability; or 

provides for emergency assistance or relief at the 

request of any State, local, or Tribal government or 

any official of a State, local, or Tribal government). 

beneficiaries who object to receiving 

services from one provider to learn 

about alternative providers. And, where 

such alternatives are unavailable as a 

practical matter, the final rule will allow 

an Agency to ensure that beneficiaries 

are not effectively required to 

participate in religious activities in 

order to receive the benefits of federally 

funded programs. Finally, the final rule 

will benefit all beneficiaries, including 

those who would freely choose faithbased providers, by expanding the 

universe of providers reasonably 

available to them. 

B. Regulatory Flexibility Analysis 

The Regulatory Flexibility Act of 1980 

(‘‘RFA’’), 5 U.S.C. 601 et seq., as 

amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, Public Law 104–121, tit. II, 110 

Stat. 847, 857, requires Federal agencies 

engaged in rulemaking to assess the 

impact of their proposals on small 

entities, consider alternatives to 

minimize that impact, and solicit public 

comment on their analyses. The RFA 

requires the assessment of the impact of 

a regulation on a wide range of small 

entities, including small businesses, 

not-for-profit organizations, and small 

governmental jurisdictions. Agencies 

must perform a review to determine 

whether a rule will have a significant 

economic impact on a substantial 

number of small entities. 5 U.S.C. 603, 

604. 

The Agencies believe that the ‘‘central 

estimate’’ cost of $241.03 per provider 

in the first year is far less than one 

percent of the annual revenue of even 

the smallest providers of social services. 

Therefore, the Agencies certify that this 

final rule will not have a significant 

economic impact on a substantial 

number of small entities. 

C. Civil Justice Reform (Executive Order 

12988) 

Executive Order 12988, Civil Justice 

Reform, 61 FR 4729 (Feb. 5, 1996), 

provides that agencies shall draft 

regulations that meet applicable 

standards to avoid drafting errors and 

ambiguity, minimize litigation, provide 

clear legal standards for affecting 

conduct, and promote simplification 

and burden reduction. This final rule 

meets the applicable standards set forth 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, 61 FR 4731–32. 

D. Consultation and Coordination With 

Indian Tribal Governments (Executive 

Order 13175) 

The Agencies have reviewed this final 

rule in accordance with Executive Order 

13175, Consultation and Coordination 

With Indian Tribal Governments, 65 FR 

67249 (Nov. 6, 2000). Tribal sovereignty 

and self-governance will not be affected 

by this final rule, consistent with 

existing protections for Indian Tribes 

under Federal law, including the Indian 

Civil Rights Act. As nothing in this rule 

affects the existing prerogatives and 

authority of Indian Tribes, no 

interagency consultation with Indian 

Tribes was conducted regarding the 

rule. The Agencies may, however, 

conduct Agency-specific Tribal 

consultations should the 

implementation of an Agency’s 

particular program merit further Tribal 

consultation or coordination. 

E. Federalism 

Section 6 of Executive Order 13132, 

Federalism, 64 FR 43255, 43257–58 

(Aug. 4, 1999), requires Federal agencies 

to consult with State entities when a 

regulation or policy will have a 

substantial direct effect on the States, 

the relationship between the National 

Government and the States, or the 

distribution of power and 

responsibilities among the various 

levels of government within the 

meaning of the Executive order. Section 

3(b) of the Executive order further 

provides that Federal agencies may 

implement a regulation limiting the 

policymaking discretion of the States 

only if constitutional or statutory 

authority permits the regulation and the 

regulation is appropriate in light of the 

presence of a problem of national 

significance. Id. at 43256. The final rule 

does not have a substantial direct effect 

on the States, the relationship between 

the National Government and the States, 

or the distribution of power and 

responsibilities among the various 

levels of government, within the 

meaning of Executive Order 13132. 

Furthermore, relevant constitutional 

and statutory authority supports the 

final rule, and it is appropriate in light 

of the presence of a problem of national 

significance. 

F. Paperwork Reduction Act 

This final rule does not contain any 

new or revised ‘‘collection[s] of 

information’’ as defined by the 

Paperwork Reduction Act of 1995 

(‘‘PRA’’), 44 U.S.C. 3502(3). The 

Agencies have determined in 

consultation with OIRA that the 

requirement to provide written notice to 

beneficiaries of certain 

nondiscrimination protections is not a 

collection of information subject to the 

PRA because the Federal Government 

has provided or will provide the 

information that a provider must use. 

See 5 CFR 1320.3(c)(2). 

G. Unfunded Mandates Reform Act 

Section 202(a) of the Unfunded 

Mandates Reform Act of 1995 

(‘‘UMRA’’), 2 U.S.C. 1532(a), requires 

that a Federal agency determine 

whether a regulation proposes a Federal 

mandate that may result in the 

expenditure by State, local, or Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in a single year (adjusted annually for 

inflation). The inflation-adjusted value 

of $100 million in 1995 was 

approximately $178 million in 2021 

based on the CPI for All Urban 

Consumers.23 If a Federal mandate 

would result in expenditures in excess 

of the threshold, UMRA requires the 

agency to prepare a written statement 

containing, among other things, a 

qualitative and quantitative assessment 

of the anticipated costs and benefits of 

the Federal mandate. 2 U.S.C. 1532(a). 

The Agencies have reviewed this final 

rule in accordance with UMRA and 

determined that the total cost to 

implement the rule in any one year will 

not meet or exceed the threshold. The 

final rule does not include any Federal 

mandate that may result in increased 

expenditure by State, local, and Tribal 

governments in the aggregate of more 

than the threshold, or increased 

expenditures by the private sector of 

more than the threshold.24 Accordingly, 

UMRA does not require any further 

action. 

H. Assessment of Educational Impact 

In the Joint NPRM, the Secretary of 

Education requested comments on 

whether the proposed regulations would 

require transmission of information that 

any other agency or authority of the 

United States gathers or makes 

available. Based on the responses to the 

Joint NPRM and the Agencies’ review, 

the Agencies have determined that these 

final regulations do not require 

transmission of information that any 

other agency or authority of the United 

States gathers or makes available. 


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List of Subjects 

2 CFR Part 3474 

Accounting, Administrative practice 

and procedure, Adult education, Aged, 

Agriculture, American Samoa, Bilingual 

education, Blind, Business and 

industry, Civil rights, Colleges and 

universities, Communications, 

Community development, Community 

facilities, Copyright, Credit, Cultural 

exchange programs, Educational 

facilities, Educational research, 

Education, Education of disadvantaged, 

Education of individuals with 

disabilities, Educational study 

programs, Electric power, Electric 

power rates, Electric utilities, 

Elementary and secondary education, 

Energy conservation, Equal educational 

opportunity, Federally affected areas, 

Government contracts, Grant programs, 

Grants administration, Guam, Home 

improvement, Homeless, Hospitals, 

Housing, Human research subjects, 

Indians, Indians—education, Infants 

and children, Insurance, 

Intergovernmental relations, 

International organizations, Inventions 

and patents, Loan programs, Manpower 

training programs, Migrant labor, 

Mortgage insurance, Nonprofit 

organizations, Northern Mariana 

Islands, Pacific Islands Trust Territories, 

Privacy, Renewable energy, Reporting 

and recordkeeping requirements, Rural 

areas, Scholarships and fellowships, 

School construction, Schools, Science 

and technology, Securities, Small 

businesses, State and local governments, 

Student aid, Teachers, 

Telecommunications, Telephone, Urban 

areas, Veterans, Virgin Islands, 

Vocational education, Vocational 

rehabilitation, Waste treatment and 

disposal, Water pollution control, Water 

resources, Water supply, Watersheds, 

Women. 

6 CFR Part 19 

Civil rights, Government contracts, 

Grant programs, Nonprofit 

organizations, Reporting and 

recordkeeping requirements. 

7 CFR Part 16 

Administrative practice and 

procedure, Grant programs. 

22 CFR Part 205 

Foreign aid, Grant programs, 

Nonprofit organizations. 

24 CFR Part 5 

Administrative practice and 

procedure, Aged, Claims, Crime, 

Government contracts, Grant 

programs—housing and community 

development, Individuals with 

disabilities, Intergovernmental relations, 

Loan programs—housing and 

community development, Low and 

moderate income housing, Mortgage 

insurance, Penalties, Pets, Public 

housing, Rent subsidies, Reporting and 

recordkeeping requirements, Social 

security, Unemployment compensation, 

Wages. 

28 CFR Part 38 

Administrative practice and 

procedure, Grant programs, Reporting 

and recordkeeping requirements. 

29 CFR Part 2 

Administrative practice and 

procedure, Grant programs, Religious 

discrimination, Reporting and 

recordkeeping requirements. 

34 CFR Part 75 

Accounting, Copyright, Education, 

Grant programs—education, Indemnity 

payments, Inventions and patents, 

Private schools, Reporting and 

recordkeeping requirements, Youth 

organizations. 

34 CFR Part 76 

Accounting, Administrative practice 

and procedure, American Samoa, 

Education, Grant programs—education, 

Guam, Northern Mariana Islands, 

Pacific Islands Trust Territory, Prisons, 

Private schools, Reporting and 

recordkeeping requirements, Virgin 

Islands, Youth organizations. 

38 CFR Part 50 

Administrative practice and 

procedure, Alcohol abuse, Alcoholism, 

Day care, Dental health, Drug abuse, 

Government contracts, Grant 

programs—health, Grant programs— 

veterans, Health care, Health facilities, 

Health professions, Health records, 

Homeless, Mental health programs, Per 

diem program, Reporting and 

recordkeeping requirements, Travel and 

transportation expenses, Veterans. 

38 CFR Part 61 

Administrative practice and 

procedure, Alcohol abuse, Alcoholism, 

Day care, Dental health, Drug abuse, 

Government contracts, Grant 

programs—health, Grant programs— 

veterans, Health care, Health facilities, 

Health professions, Health records, 

Homeless, Mental health programs, Per 

diem program, Reporting and 

recordkeeping requirements, Travel and 

transportation expenses, Veterans. 

38 CFR Part 62 

Administrative practice and 

procedure, Day care, Disability benefits, 

Government contracts, Grant 

programs—health, Grant programs— 

housing and community development, 

Grant programs—Veterans, Health care, 

Homeless, Housing, Indians—lands, 

Individuals with disabilities, Low and 

moderate income housing, Manpower 

training programs, Medicaid, Medicare, 

Public assistance programs, Public 

housing, Relocation assistance, Rent 

subsidies, Reporting and recordkeeping 

requirements, Rural areas, Social 

security, Supplemental Security Income 

(SSI), Travel and transportation 

expenses, Unemployment 

compensation. 

45 CFR Part 87 

Administrative practice and 

procedure, Grant programs—social 

programs, Nonprofit organizations, 

Public assistance programs. 

DEPARTMENT OF EDUCATION 

For the reasons set forth in the 

preamble, the Secretary of Education 

amends part 3474 of title 2 of the CFR 

and parts 75 and 76 of title 34 of the 

CFR, respectively, as follows: 

Title 2—Grants and Agreements 

PART 3474—UNIFORM 

ADMINISTRATIVE REQUIREMENTS, 

COST PRINCIPLES, AND AUDIT 

REQUIREMENTS FOR FEDERAL 

AWARDS 

■ 1. Revise the authority citation for part 

3474 to read as follows: 

Authority: 20 U.S.C. 1221e–3, 3474; 42 

U.S.C. 2000bb et seq.; E.O. 13279, 67 FR 

77141, 3 CFR, 2002 Comp., p. 258; E.O. 

13559, 75 FR 71319, 3 CFR, 2010 Comp., p. 

273; E.O. 13831, 83 FR 20715, 3 CFR, 2018 

Comp., p. 806; and 2 CFR part 200, unless 

otherwise noted. 

■ 2. Amend § 3474.15 by: 

■ a. Revising paragraph (b). 

■ b. Removing note 1 to paragraph 

(e)(1). 

■ c. Revising paragraph (f). 

■ d. In paragraph (g), removing the 

second sentence. 

The revisions read as follows: 

§ 3474.15 Contracting with faith-based 

organizations and nondiscrimination. 

* * * * * 

(b)(1) A faith-based organization is 

eligible to contract with grantees and 

subgrantees, including States, on the 

same basis as any other private 

organization. 

(2)(i) In selecting providers of goods 

and services, grantees and subgrantees, 

including States— 

(A) May not discriminate for or 

against a private organization on the 

basis of the organization’s religious 

character, motives, or affiliation, or lack 


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thereof, or on the basis of conduct that 

would not be considered grounds to 

favor or disfavor a similarly situated 

secular organization; and 

(B) Must ensure that the award of 

contracts is free from political 

interference, or even the appearance of 

such interference, and is done on the 

basis of merit, not on the basis of 

religion or religious belief, or lack 

thereof. 

(ii) Notices or announcements of 

award opportunities and notices of 

award or contracts must include 

language substantially similar to that in 

appendices A and B, respectively, to 34 

CFR part 75. 

(3) No grant document, agreement, 

covenant, memorandum of 

understanding, policy, or regulation that 

is used by a grantee or subgrantee in 

administering Federal financial services 

from the Department may require faithbased organizations to provide 

assurances or notices if they are not 

required of non-faith-based 

organizations. Any restrictions on the 

use of grant funds must apply equally to 

faith-based and non-faith-based 

organizations. All organizations that 

participate in Department programs or 

services, including organizations with 

religious character, motives, or 

affiliation, must carry out eligible 

activities in accordance with all 

program requirements, including those 

prohibiting the use of direct Federal 

financial assistance to engage in 

explicitly religious activities, subject to 

any accommodations that are granted to 

organizations on a case-by-case basis in 

accordance with the Constitution and 

laws of the United States, including 

Federal civil rights laws. 

(4) No grant document, agreement, 

covenant, memorandum of 

understanding, policy, or regulation that 

is used by a grantee or subgrantee may 

disqualify faith-based organizations 

from participating in Departmentfunded programs or services on the 

basis of the organization’s religious 

character, motives, or affiliation, or lack 

thereof, or on the basis of conduct that 

would not be considered grounds to 

disqualify a similarly situated secular 

organization. 

(5) Nothing in this section may be 

construed to preclude the Department 

from making an accommodation with 

respect to one or more program 

requirements on a case-by-case basis in 

accordance with the Constitution and 

laws of the United States, including 

Federal civil rights laws. 

(6) Neither a State nor the Department 

may disqualify an organization from 

participating in any Department 

program for which it is otherwise 

eligible on the basis of the 

organization’s indication that it may 

request an accommodation with respect 

to one or more program requirements, 

unless the organization has made clear 

that the accommodation is necessary to 

its participation and the Department has 

determined that it would deny the 

accommodation. 

* * * * * 

(f) A private organization that 

contracts with a grantee or subgrantee, 

including a State, may not discriminate 

against a beneficiary or prospective 

beneficiary in the provision of program 

goods or services, or in outreach 

activities related to such goods or 

services, on the basis of religion or 

religious belief, a refusal to hold a 

religious belief, or a refusal to attend or 

participate in a religious practice. 

However, an organization that 

participates in a program funded by 

indirect Federal financial assistance 

need not modify its program activities to 

accommodate a beneficiary who chooses 

to expend the indirect aid on the 

organization’s program. 

* * * * * 

Title 34—Education 

PART 75—DIRECT GRANT 

PROGRAMS 

■ 3. Revise the authority citation for part 

75 to read as follows: 

Authority: 20 U.S.C. 1221e–3 and 3474; 

E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., 

p. 258; E.O. 13559, 75 FR 71319, 3 CFR, 2010 

Comp., p. 273; and E.O. 13831, 83 FR 20715, 

3 CFR, 2018 Comp., p. 806, unless otherwise 

noted. 

§ 75.51 [Amended] 

■ 4. Amend § 75.51 by: 

■ a. In paragraph (b)(3), adding ‘‘or’’ at 

the end of the paragraph. 

■ b. In paragraph (b)(4), removing ‘‘; or’’ 

and adding, in its place, a period. 

■ c. Removing paragraph (b)(5). 

■ 5. Amend § 75.52 by: 

■ a. Revising paragraphs (a), (c)(3) 

introductory text, (c)(3)(ii)(B), and 

(c)(3)(iii). 

■ b. Removing paragraph (c)(3)(vi) and 

note 1 to paragraph (d)(1). 

■ c. In paragraph (d)(2)(iv), removing 

the words ‘‘and employees.’’ 

■ d. Revising paragraph (e). 

■ e. In paragraph (g), removing the 

second sentence. 

The revisions read as follows: 

§ 75.52 Eligibility of faith-based 

organizations for a grant and 

nondiscrimination against those 

organizations. 

(a)(1) A faith-based organization is 

eligible to apply for and to receive a 

grant under a program of the 

Department on the same basis as any 

other private organization. 

(2)(i) In the selection of grantees, the 

Department— 

(A) May not discriminate for or 

against a private organization on the 

basis of the organization’s religious 

character, motives, or affiliation, or lack 

thereof, or on the basis of conduct that 

would not be considered grounds to 

favor or disfavor a similarly situated 

secular organization; and 

(B) Must ensure that all decisions 

about grant awards are free from 

political interference, or even the 

appearance of such interference, and are 

made on the basis of merit, not on the 

basis of religion or religious belief, or 

the lack thereof. 

(ii) Notices or announcements of 

award opportunities and notices of 

award or contracts must include 

language substantially similar to that in 

appendices A and B, respectively, to 

this part. 

(3) No grant document, agreement, 

covenant, memorandum of 

understanding, policy, or regulation that 

is used by the Department may require 

faith-based organizations to provide 

assurances or notices if they are not 

required of non-faith-based 

organizations. Any restrictions on the 

use of grant funds must apply equally to 

faith-based and non-faith-based 

organizations. All organizations that 

receive grants under a Department 

program, including organizations with 

religious character, motives, or 

affiliation, must carry out eligible 

activities in accordance with all 

program requirements, including those 

prohibiting the use of direct Federal 

financial assistance to engage in 

explicitly religious activities, subject to 

any accommodations that are granted to 

organizations on a case-by-case basis in 

accordance with the Constitution and 

laws of the United States, including 

Federal civil rights laws. 

(4) No grant document, agreement, 

covenant, memorandum of 

understanding, policy, or regulation that 

is used by the Department may 

disqualify faith-based organizations 

from applying for or receiving grants 

under a Department program on the 

basis of the organization’s religious 

character, motives, or affiliation, or lack 

thereof, or on the basis of conduct that 

would not be considered grounds to 

disqualify a similarly situated secular 

organization. 

(5) Nothing in this section may be 

construed to preclude the Department 

from making an accommodation, 

including for religious exercise, with 

respect to one or more program 


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requirements on a case-by-case basis in 

accordance with the Constitution and 

laws of the United States, including 

Federal civil rights laws. 

(6) The Department may not 

disqualify an organization from 

participating in any Department 

program for which it is eligible on the 

basis of the organization’s indication 

that it may request an accommodation 

with respect to one or more program 

requirements, unless the organization 

has made clear that the accommodation 

is necessary to its participation and the 

Department has determined that it 

would deny the accommodation. 

* * * * * 

(c) * * * 

(3) For purposes of 2 CFR 3474.15, 

this section, §§ 75.712 and 75.714, and 

appendices A and B to this part, the 

following definitions apply: 

(ii) * * * 

(B) The organization receives the 

assistance wholly as the result of the 

genuine and independent private choice 

of the beneficiary, not a choice of the 

Government. The availability of 

adequate secular alternatives is a 

significant factor in determining 

whether a program affords a genuinely 

independent and private choice. 

(iii) Federal financial assistance 

means assistance that non-Federal 

entities receive or administer in the 

form of grants, contracts, loans, loan 

guarantees, property, cooperative 

agreements, food commodities, direct 

appropriations, or other assistance, but 

does not include a tax credit, deduction, 

or exemption. 

* * * * * 

(e) An organization that receives any 

Federal financial assistance under a 

program of the Department shall not 

discriminate against a beneficiary or 

prospective beneficiary in the provision 

of program services, or in outreach 

activities related to such services, on the 

basis of religion or religious belief, a 

refusal to hold a religious belief, or a 

refusal to attend or participate in a 

religious practice. However, an 

organization that participates in a 

program funded by indirect Federal 

financial assistance need not modify its 

program activities to accommodate a 

beneficiary who chooses to expend the 

indirect aid on the organization’s 

program. 

* * * * * 

■ 6. Add § 75.712 to read as follows: 

§ 75.712 Beneficiary protections: Written 

notice. 

(a) An organization providing social 

services to beneficiaries under a 

Department program supported by 

direct Federal financial assistance must 

give written notice to a beneficiary or 

prospective beneficiary of certain 

protections. Such notice must be given 

in the manner and form prescribed by 

the Department. This notice must state 

that— 

(1) The organization may not 

discriminate against a beneficiary or 

prospective beneficiary on the basis of 

religion, a religious belief, a refusal to 

hold a religious belief, or a refusal to 

attend or participate in a religious 

practice; 

(2) The organization may not require 

a beneficiary or prospective beneficiary 

to attend or participate in any explicitly 

religious activities that are offered by 

the organization, and any participation 

by a beneficiary in such activities must 

be purely voluntary; 

(3) The organization must separate in 

time or location any privately funded 

explicitly religious activities from 

activities supported by direct Federal 

financial assistance; and 

(4) A beneficiary or prospective 

beneficiary may report an organization’s 

violation of these protections, including 

any denials of services or benefits by an 

organization, by contacting or filing a 

written complaint with the Department. 

(b) The written notice described in 

paragraph (a) of this section must be 

given to a prospective beneficiary prior 

to the time they enroll in the program 

or receive services from the program. 

When the nature of the service provided 

or exigent circumstances make it 

impracticable to provide such written 

notice in advance of the actual service, 

an organization must provide the notice 

at the earliest available opportunity. 

(c) The Department may determine 

that the notice described in paragraph 

(a) of this section must inform each 

beneficiary or prospective beneficiary of 

the option to seek information from the 

Department as to whether there are any 

other federally funded organizations in 

their area that provide the services 

available under the applicable program. 

(d) The notice that an organization 

uses to notify beneficiaries or 

prospective beneficiaries of the rights 

under paragraphs (a) through (c) of this 

section must include language 

substantially similar to that in appendix 

C to this part. 

■ 7. Revise appendix A to part 75 to 

read as follows: 

Appendix A to Part 75—Notice or 

Announcement of Award Opportunities 

(a) Faith-based organizations may apply for 

this award on the same basis as any other 

private organization, as set forth at, and 

subject to the protections and requirements 

of, this part and any applicable constitutional 

and statutory requirements, including 42 

U.S.C. 2000bb et seq. The Department will 

not, in the selection of grantees, discriminate 

for or against an organization on the basis of 

the organization’s religious character, 

motives, or affiliation, or lack thereof, or on 

the basis of conduct that would not be 

considered grounds to favor or disfavor a 

similarly situated secular organization. 

(b) 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 and conscience 

protections in Federal law. 

(c) A faith-based organization may not use 

direct Federal financial assistance from the 

Department to support or engage in any 

explicitly religious activities except when 

consistent with the Establishment Clause of 

the First Amendment and any other 

applicable requirements. Such an 

organization also may not, in providing 

services funded by the Department, or in 

outreach activities related to such services, 

discriminate against a program beneficiary or 

prospective program beneficiary on the basis 

of religion, a religious belief, a refusal to hold 

a religious belief, or a refusal to attend or 

participate in a religious practice. 

■ 8. Revise appendix B to part 75 to read 

as follows: 

Appendix B to Part 75—Notice of 

Award or Contract 

(a) 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 and conscience 

protections in Federal law. 

(b) A faith-based organization may not use 

direct Federal financial assistance from the 

Department to support or engage in any 

explicitly religious activities except when 

consistent with the Establishment Clause of 

the First Amendment and any other 

applicable requirements. Such an 

organization also may not, in providing 

services funded by the Department, or in 

outreach activities related to such services, 

discriminate against a program beneficiary or 

prospective program beneficiary on the basis 

of religion, a religious belief, a refusal to hold 

a religious belief, or a refusal to attend or 

participate in a religious practice. 

■ 9. Add appendix C to part 75 to read 

as follows: 

Appendix C to Part 75—Written Notice 

of Beneficiary Protections 

Name of Organization: 

Name of Program: 

Contact Information for Program Staff: 

[provide name, phone number, and email 

address, if appropriate] 

Because this program is supported in 

whole or in part by financial assistance from 

the U.S. Department of Education, we are 

required to provide you the following 

information: 

(1) We may not discriminate against you 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. 


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(2) We may not require you to attend or 

participate in any explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction, or proselytization) that 

may be offered by our organization, and any 

participation by you in such activities must 

be purely voluntary. 

(3) We must separate in time or location 

any privately funded explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction, or proselytization) from 

activities supported with direct Federal 

financial assistance. 

(4) You may report violations of these 

protections, including any denials of services 

or benefits by an organization, by contacting 

or filing a written complaint with the U.S. 

Department of Education at [insert applicable 

contact information]. 

[When required by the Department, the 

notice must also state:] (5) If you would like 

information about whether there are any 

other federally funded organizations that 

provide the services available under this 

program in your area, please contact the 

awarding agency. 

This written notice must be given to you 

before you enroll in the program or receive 

services from the program, unless the nature 

of the service provided or exigent 

circumstances make it impracticable to 

provide such notice before we provide the 

actual service. In such an instance, this 

notice must be given to you at the earliest 

available opportunity. 

PART 76—STATE-ADMINISTERED 

PROGRAMS 

■ 10. Revise the authority citation for 

part 76 to read as follows: 

Authority: 20 U.S.C. 1221e–3 and 3474; 

E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., 

p. 258; E.O. 13559, 75 FR 71319, 3 CFR, 2010 

Comp., p. 273; and E.O. 13831, 83 FR 20715, 

3 CFR, 2018 Comp., p. 806, unless otherwise 

noted. 

■ 11. Amend § 76.52 by: 

■ a. Revising paragraphs (a), (c)(3) 

introductory text, (c)(3)(ii)(B), and 

(c)(3)(iii). 

■ b. Removing paragraph (c)(3)(vi) and 

note 1 to paragraph (d)(1). 

■ c. In paragraph (d)(2)(iv), removing 

the words ‘‘and employees.’’ 

■ d. Revising paragraph (e). 

■ e. In paragraph (g), removing the 

second sentence. 

The revisions read as follows: 

§ 76.52 Eligibility of faith-based 

organizations for a subgrant and 

nondiscrimination against those 

organizations. 

(a)(1) A faith-based organization is 

eligible to apply for and to receive a 

subgrant under a program of the 

Department on the same basis as any 

other private organization. 

(2)(i) In the selection of subgrantees, 

States— 

(A) May not discriminate for or 

against a private organization on the 

basis of the organization’s religious 

character, motives, or affiliation, or lack 

thereof, or on the basis of conduct that 

would not be considered grounds to 

favor or disfavor a similarly situated 

secular organization; and 

(B) Must ensure that all decisions 

about subgrants are free from political 

interference, or even the appearance of 

such interference, and are made on the 

basis of merit, not on the basis of 

religion or religious belief, or a lack 

thereof. 

(ii) Notices or announcements of 

award opportunities and notices of 

award or contracts must include 

language substantially similar to that in 

appendices A and B, respectively, to 34 

CFR part 75. 

(3) No grant document, agreement, 

covenant, memorandum of 

understanding, policy, or regulation that 

is used by States in administering a 

Department program may require faithbased organizations to provide 

assurances or notices if they are not 

required of non-faith-based 

organizations. Any restrictions on the 

use of subgrant funds must apply 

equally to faith-based and non-faithbased organizations. All organizations 

that receive a subgrant from a State 

under a State-Administered Formula 

Grant program of the Department, 

including organizations with religious 

character, motives, or affiliation, must 

carry out eligible activities in 

accordance with all program 

requirements, including those 

prohibiting the use of direct Federal 

financial assistance to engage in 

explicitly religious activities, subject to 

any accommodations that are granted to 

organizations on a case-by-case basis in 

accordance with the Constitution and 

laws of the United States, including 

Federal civil rights laws. 

(4) No grant document, agreement, 

covenant, memorandum of 

understanding, policy, or regulation that 

is used by States may disqualify faithbased organizations from applying for or 

receiving subgrants under a StateAdministered Formula Grant program of 

the Department on the basis of the 

organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to disqualify a 

similarly situated secular organization. 

(5) Nothing in this section may be 

construed to preclude the Department 

from making an accommodation, 

including for religious exercise, with 

respect to one or more program 

requirements on a case-by-case basis in 

accordance with the Constitution and 

laws of the United States, including 

Federal civil rights laws. 

(6) Neither a State nor the Department 

may disqualify an organization from 

participating in any Department 

program for which it is eligible on the 

basis of the organization’s indication 

that it may request an accommodation 

with respect to one or more program 

requirements, unless the organization 

has made clear that the accommodation 

is necessary to its participation and the 

Department has determined that it 

would deny the accommodation. 

* * * * * 

(c) * * * 

(3) For purposes of 2 CFR 3474.15, 

this section, and §§ 76.712 and 76.714, 

the following definitions apply: 

(ii) * * * 

(B) The organization receives the 

assistance wholly as the result of the 

genuine and independent private choice 

of the beneficiary, not a choice of the 

Government. The availability of 

adequate secular alternatives is a 

significant factor in determining 

whether a program affords a genuinely 

independent and private choice. 

(iii) Federal financial assistance 

means assistance that non-Federal 

entities receive or administer in the 

form of grants, contracts, loans, loan 

guarantees, property, cooperative 

agreements, food commodities, direct 

appropriations, or other assistance, but 

does not include a tax credit, deduction, 

or exemption. 

* * * * * 

(e) An organization that receives any 

Federal financial assistance under a 

program of the Department shall not 

discriminate against a beneficiary or 

prospective beneficiary in the provision 

of program services, or in outreach 

activities related to such services, on the 

basis of religion or religious belief, a 

refusal to hold a religious belief, or a 

refusal to attend or participate in a 

religious practice. However, an 

organization that participates in a 

program funded by indirect Federal 

financial assistance need not modify its 

program activities to accommodate a 

beneficiary who chooses to expend the 

indirect aid on the organization’s 

program. 

* * * * * 

■ 12. Add § 76.712 to read as follows: 

§ 76.712 Beneficiary protections: Written 

notice. 

(a) An organization providing social 

services to beneficiaries under a 

Department program supported by 

direct Federal financial assistance must 

give written notice to a beneficiary or 

prospective beneficiary of certain 


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protections. Such notice must be given 

in the manner and form prescribed by 

the Department. This notice must state 

that— 

(1) The organization may not 

discriminate against a beneficiary or 

prospective beneficiary on the basis of 

religion, a religious belief, a refusal to 

hold a religious belief, or a refusal to 

attend or participate in a religious 

practice; 

(2) The organization may not require 

a beneficiary or prospective beneficiary 

to attend or participate in any explicitly 

religious activities that are offered by 

the organization, and any participation 

by a beneficiary in such activities must 

be purely voluntary; 

(3) The organization must separate in 

time or location any privately funded 

explicitly religious activities from 

activities supported by direct Federal 

financial assistance; and 

(4) A beneficiary or prospective 

beneficiary may report an organization’s 

violation of these protections, including 

any denials of services or benefits by an 

organization, by contacting or filing a 

written complaint with the Department. 

(b) The written notice described in 

paragraph (a) of this section must be 

given to a prospective beneficiary prior 

to the time they enroll in the program 

or receive services from the program. 

When the nature of the service provided 

or exigent circumstances make it 

impracticable to provide such written 

notice in advance of the actual service, 

an organization must provide the notice 

at the earliest available opportunity. 

(c) The Department may determine 

that the notice described in paragraph 

(a) of this section must inform each 

beneficiary or prospective beneficiary of 

the option to seek information from the 

Department, or a State agency or other 

entity administering the applicable 

program, as to whether there are any 

other federally funded organizations in 

their area that provide the services 

available under the applicable program. 

(d) The notice that an organization 

uses to notify beneficiaries or 

prospective beneficiaries of the rights 

under paragraphs (a) through (c) of this 

section must include language 

substantially similar to that in appendix 

C to 34 CFR part 75. 

DEPARTMENT OF HOMELAND 

SECURITY 

For the reasons set forth in the 

preamble, DHS amends part 19 of title 

6 of the CFR as follows: 

Title 6—Domestic Security 

PART 19—NONDISCRIMINATION IN 

MATTERS PERTAINING TO FAITHBASED ORGANIZATIONS 

■ 13. Revise the authority citation for 

part 19 to read as follows: 

Authority: 5 U.S.C. 301; 6 U.S.C. 101 et 

seq.; 8 U.S.C. 1101 et seq.; 42 U.S.C. 5164, 

5183, 5189d; 42 U.S.C. 2000bb et seq.; 42 

U.S.C. 11331 et seq.; E.O. 13279, 67 FR 

77141, 3 CFR, 2002 Comp., p. 258; E.O. 

13403, 71 FR 28543, 3 CFR, 2006 Comp., p. 

228; E.O. 13498, 74 FR 6533, 3 CFR, 2009 

Comp., p. 219; and E.O. 13559, 75 FR 71319, 

3 CFR, 2010 Comp., p. 273. 

■ 14. Revise § 19.1 to read as follows: 

§ 19.1 Purpose. 

It is the policy of the Department of 

Homeland Security (DHS) to ensure the 

equal treatment of faith-based and other 

organizations in social service programs 

administered or supported by DHS or its 

component agencies, enabling those 

organizations to participate in providing 

important social services to 

beneficiaries. The equal treatment 

policies and requirements contained in 

this part are generally applicable to 

faith-based and other organizations 

participating or seeking to participate in 

any such programs. More specific 

policies and requirements regarding the 

participation of faith-based and other 

organizations in individual programs 

may be provided in the statutes, 

regulations, or guidance governing those 

programs, such as regulations in title 44 

of the Code of Federal Regulations. DHS 

or its components may issue policy 

guidance and reference materials at a 

future time with respect to the 

applicability of this policy and this part 

to particular programs. 

■ 15. Amend § 19.2 by: 

■ a. Adding a definition of ‘‘Federal 

financial assistance’’ in alphabetical 

order. 

■ b. Removing the definition of 

‘‘Financial assistance’’. 

■ c. In the definition of ‘‘Indirect 

Federal financial assistance or Federal 

financial assistance provided 

indirectly’’, revising paragraph (2). 

■ d. Revising the definition of 

‘‘Intermediary’’. 

The addition and revisions read as 

follows: 

§ 19.2 Definitions. 

* * * * * 

Federal financial assistance means 

assistance that non-Federal entities 

receive or administer in the form of 

grants, contracts, loans, loan guarantees, 

property, cooperative agreements, food 

commodities, direct appropriations, or 

other assistance, but does not include a 

tax credit, deduction, or exemption. 

* * * * * 

Indirect Federal financial assistance 

or Federal financial assistance provided 

indirectly * * * 

(2) The organization receives the 

assistance wholly as a result of a 

genuinely independent and private 

choice of the beneficiary, not a choice 

of the Government. The availability of 

adequate secular alternatives is a 

significant factor in determining 

whether a program affords true private 

choice. 

Intermediary means an entity, 

including a non-governmental 

organization, acting under a contract, 

grant, or other agreement with the 

Federal Government or with a State or 

local government, that accepts Federal 

financial assistance and distributes that 

assistance to other organizations that, in 

turn, provide government-funded social 

services. If an intermediary, acting 

under a contract, grant, or other 

agreement with the Federal Government 

or with a State or local government that 

is administering a program supported by 

Federal financial assistance, is given the 

authority under the contract, grant, or 

agreement to select non-governmental 

organizations to provide services 

supported by the Federal Government, 

the intermediary must ensure 

compliance with the provisions of this 

part by the recipient of a contract, grant, 

or agreement. If the intermediary is a 

non-governmental organization, it 

retains all other rights of a nongovernmental organization under the 

program’s statutory and regulatory 

provisions. 

* * * * * 

■ 16. Revise § 19.3 to read as follows: 

§ 19.3 Equal ability for faith-based 

organizations to seek and receive financial 

assistance through DHS social service 

programs. 

(a) Faith-based organizations are 

eligible on the same basis as any other 

organization to seek and receive direct 

financial assistance from DHS for social 

service programs or to participate in 

social service programs administered or 

financed by DHS. 

(b) Neither DHS, nor a State or local 

government, nor any other entity that 

administers any social service program 

supported by direct financial assistance 

from DHS, shall discriminate for or 

against an organization on the basis of 

the organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to favor or 

disfavor a similarly situated secular 

organization. 


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(c) Nothing in this part shall be 

construed to preclude DHS from making 

an accommodation, including for 

religious exercise, with respect to one or 

more program requirements on a caseby-case basis in accordance with the 

Constitution and laws of the United 

States. 

(d) DHS shall not disqualify an 

organization from participating in any 

DHS program for which it is otherwise 

eligible on the basis of the 

organization’s indication that it may 

request an accommodation with respect 

to one or more program requirements, 

unless the organization has made clear 

that the accommodation is necessary to 

its participation and DHS has 

determined that it would deny the 

accommodation. 

(e) Decisions about awards of Federal 

financial assistance must be free from 

political interference, or even the 

appearance of such interference, and 

must be made on the basis of merit, not 

on the basis of religion or religious 

belief or lack thereof, or on the basis of 

religious or political affiliation. 

(f) All organizations that participate in 

DHS social service programs, including 

faith-based organizations, must carry 

out eligible activities in accordance with 

all program requirements, including 

those prohibiting the use of direct 

financial assistance from DHS to engage 

in explicitly religious activities, subject 

to any accommodations that are granted 

to organizations on a case-by-case basis 

in accordance with the Constitution and 

laws of the United States. 

(g) 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: 

(1) On the basis of such organization’s 

religious character, motives, or 

affiliation, or lack thereof; or 

(2) On the basis of conduct that would 

not be considered grounds to disqualify 

a similarly situated secular organization. 

(h) 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. 

■ 17. Amend § 19.4 by revising 

paragraph (c) and adding paragraph (f) 

to read as follows: 

§ 19.4 Explicitly religious activities. 

* * * * * 

(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, 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, subject to any 

accommodations that are granted to 

organizations on a case-by-case basis in 

accordance with the Constitution and 

laws of the United States. 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 of such 

organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to disqualify a 

similarly situated secular organization. 

* * * * * 

(f) To the extent that any provision of 

this part is declared invalid by a court 

of competent jurisdiction, the 

Department intends for all other 

provisions that are capable of operating 

in the absence of the specific provision 

that has been invalidated to remain in 

effect. 

■ 18. Revise § 19.5 to read as follows: 

§ 19.5 Nondiscrimination requirements. 

An organization that receives 

financial assistance from DHS for a 

social service program shall not, in 

providing services or in outreach 

activities related to such services, favor 

or discriminate against a beneficiary of 

said program or activity 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. Organizations that favor or 

discriminate against a beneficiary will 

be subject to applicable sanctions and 

penalties, as established by the 

requirements of the particular DHS 

social service program or activity. 

However, an organization that 

participates in a program funded by 

indirect financial assistance need not 

modify its program activities to 

accommodate a beneficiary who chooses 

to expend the indirect aid on the 

organization’s program. 

■ 19. Amend § 19.6 by revising 

paragraph (e) to read as follows: 

§ 19.6 How to prove nonprofit status. 

* * * * * 

(e) Evidence that the DHS awarding 

agency determines to be sufficient to 

establish that the entity would 

otherwise qualify as a nonprofit 

organization. 

■ 20. Amend § 19.9 by revising 

paragraph (b) to read as follows: 

§ 19.9 Exemption from Title VII 

employment discrimination requirements. 

* * * * * 

(b) Where a DHS program contains 

independent statutory or regulatory 

provisions that impose 

nondiscrimination requirements on all 

grantees, those provisions are not 

waived or mitigated by this part. In this 

case, grantees should consult with the 

appropriate DHS program office to 

determine the scope of any applicable 

requirements. 

■ 21. Add § 19.12 to read as follows: 

§ 19.12 Notifications to beneficiaries and 

applicants. 

(a) Organizations providing social 

services to beneficiaries under a 

program supported by direct Federal 

financial assistance from DHS must give 

written notice to beneficiaries and 

prospective beneficiaries of certain 

protections. Such notice must be given 

in a manner and form prescribed by 

DHS’s Office for Civil Rights and Civil 

Liberties, including by incorporating the 

notice into materials that are otherwise 

provided to beneficiaries. This written 

notice shall include language 

substantially similar to that in appendix 

C to this part. 

(b) The written notice described in 

paragraph (a) of this section must be 

given to prospective beneficiaries prior 

to the time the prospective beneficiary 

enrolls in the program or receives 

services from the program. When the 

nature of the service provided or exigent 

circumstances make it impracticable to 

provide such written notice in advance 

of the actual service, organizations must 

advise beneficiaries of their protections 

at the earliest available opportunity. 

(c) DHS may determine that the notice 

described in paragraph (a) of this 

section must inform each beneficiary or 

prospective beneficiary of the option to 

seek information from DHS, or a State 

agency or other entity administering the 

program, as to whether there are any 

other federally funded organizations in 

the area that provide the services 

available under the applicable program. 

(d) Notices or announcements of 

award opportunities and notices of 

award or contracts shall include 

language substantially similar to that in 


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appendices A and B, respectively, to 

this part. 

■ 22. Revise appendix A to part 19 to 

read as follows: 

Appendix A to Part 19—Notice or 

Announcement of Award Opportunity 

(a) 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, this part 

and any applicable constitutional and 

statutory requirements, including 42 U.S.C. 

2000bb et seq. DHS will not, in the selection 

of recipients, discriminate for or against an 

organization on the basis of the 

organization’s religious character, motives, or 

affiliation, or lack thereof, or on the basis of 

conduct that would not be considered 

grounds to favor or disfavor a similarly 

situated secular organization. 

(b) 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 and conscience 

protections in Federal law. 

(c) A faith-based organization may not use 

direct Federal financial assistance from DHS 

to support or engage in any explicitly 

religious activities except where consistent 

with the Establishment Clause of the First 

Amendment and any other applicable 

requirements. An organization receiving 

Federal financial assistance also may not, in 

providing services funded by DHS, or in 

outreach activities related to such services, 

discriminate against a program beneficiary or 

prospective program beneficiary on the basis 

of religion, a religious belief, a refusal to hold 

a religious belief, or a refusal to attend or 

participate in a religious practice. 

■ 23. Revise appendix B to part 19 to 

read as follows: 

Appendix B to Part 19—Notice of 

Award or Contract 

(a) 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 and conscience 

protections in Federal law. 

(b) A faith-based organization may not use 

direct Federal financial assistance from DHS 

to support or engage in any explicitly 

religious activities except where consistent 

with the Establishment Clause of the First 

Amendment and any other applicable 

requirements. An organization receiving 

Federal financial assistance also may not, in 

providing services funded by DHS, or in 

outreach activities related to such services, 

discriminate against a program beneficiary or 

prospective program beneficiary on the basis 

of religion, a religious belief, a refusal to hold 

a religious belief, or a refusal to attend or 

participate in a religious practice. 

■ 24. Add appendix C to part 19 to read 

as follows: 

Appendix C to Part 19—Written Notice 

of Beneficiary Protections 

Name of Organization: 

Name of Program: 

Contact Information for Program Staff: 

[provide name, phone number, and email 

address, if appropriate] 

Because this program is supported in 

whole or in part by financial assistance from 

the Federal Government, we are required to 

let you know that: 

(1) We may not discriminate against you 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; 

(2) We may not require you to attend or 

participate in any explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction, or proselytization) that 

may be offered by our organization, and any 

participation by you in such activities must 

be purely voluntary; 

(3) We must separate in time or location 

any privately funded explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction, or proselytization) from 

activities supported with direct Federal 

financial assistance; 

(4) You may report violations of these 

protections, including any denials of services 

or benefits by an organization, by contacting 

or filing a written complaint with the 

Department of Homeland Security’s Office 

for Civil Rights and Civil Liberties, [address]; 

and 

[When required by DHS, the notice must 

also state:] (5) If you would like to seek 

information about whether there are any 

other federally funded organizations that 

provide these kinds of services in your area, 

please use the contact information set forth 

above. 

This written notice must be given to you 

before you enroll in the program or receive 

services from the program, unless the nature 

of the service provided or exigent 

circumstances make it impracticable to 

provide such notice before we provide the 

actual service. In such an instance, this 

notice must be given to you at the earliest 

available opportunity. 

DEPARTMENT OF AGRICULTURE 

For the reasons set forth in the 

preamble, USDA amends part 16 of title 

7 of the CFR as follows: 

Title 7—Agriculture 

PART 16—EQUAL OPPORTUNITY FOR 

FAITH-BASED ORGANIZATIONS 

■ 25. Revise the authority citation for 

part 16 to read as follows: 

Authority: 5 U.S.C. 301; 42 U.S.C. 2000bb 

et seq.; E.O. 13279, 67 FR 77141, 3 CFR, 2002 

Comp., p. 258; E.O. 13280, 67 FR 77145, 3 

CFR, 2002 Comp., p. 262; E.O. 13559, 75 FR 

71319, 3 CFR, 2010 Comp., p. 273; E.O. 

13831, 83 FR 20715, 3 CFR, 2018 Comp., p. 

806; E.O. 14015, 86 FR 10007, 3 CFR, 2021 

Comp., p. 517. 

■ 26. Revise § 16.1 to read as follows: 

§ 16.1 Purpose and applicability. 

(a) The purpose of this part is to set 

forth Department of Agriculture (USDA) 

policy regarding equal opportunity for 

faith-based organizations to participate 

in USDA assistance programs for which 

other private organizations are eligible. 

(b) Except as otherwise specifically 

provided in this part, the policy 

outlined in this part applies to all 

recipients and subrecipients of USDA 

assistance to which 2 CFR part 400 

applies, and to recipients and 

subrecipients of Commodity Credit 

Corporation assistance that is 

administered by agencies of USDA. 

■ 27. Amend § 16.2 by: 

■ a. Removing the definition of 

‘‘Discriminate against an organization 

on the basis of the organization’s 

religious exercise.’’ 

■ b. Revising the definitions of ‘‘Federal 

financial assistance’’ and ‘‘Indirect 

Federal financial assistance or Federal 

financial assistance provided 

indirectly.’’ 

The revisions read as follows: 

§ 16.2 Definitions. 

* * * * * 

Federal financial assistance means 

assistance that non-Federal entities 

receive or administer in the form of 

grants, contracts, loans, loan guarantees, 

property, cooperative agreements, food 

commodities, direct appropriations, or 

other assistance, but does not include a 

tax credit, deduction, or exemption. 

Federal financial assistance may be 

direct or indirect. 

Indirect Federal financial assistance 

or Federal financial assistance provided 

indirectly refers to situations where the 

service provider receives the assistance 

wholly as a result of a genuine and 

independent private choice of the 

beneficiary, not a choice of the 

Government, and the cost of that service 

is paid through a voucher, certificate, or 

other similar means of Governmentfunded payment. The availability of 

adequate secular alternatives is a 

significant factor in determining 

whether a program affords a genuine 

and independent private choice. 

* * * * * 

■ 28. Amend § 16.3 by: 

■ a. Revising the section heading and 

paragraph (a). 

■ b. In paragraph (b) introductory text, 

removing ‘‘or religious’’ wherever it 

appears. 

■ c. Revising paragraphs (c), (d), and (f). 

■ d. Adding paragraph (h). 

The revisions and addition read as 

follows: 

§ 16.3 Faith-based organizations and 

Federal financial assistance. 

(a) A faith-based organization is 

eligible, on the same basis as any other 

organization, to access and participate 


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in any USDA assistance programs for 

which it is otherwise eligible. Neither 

the USDA awarding agency nor any 

State or local government or other 

intermediary receiving funds under any 

USDA awarding agency program or 

service shall, in the selection of service 

providers, discriminate for or against an 

organization on the basis of the 

organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to favor or 

disfavor a similarly situated secular 

organization. Decisions about awards of 

USDA direct assistance or USDA 

indirect assistance must also be free 

from political interference, or even the 

appearance of such interference, and 

must be made on the basis of merit, not 

on the basis of religion or religious 

belief, or lack thereof. Notices or 

announcements of award opportunities 

and notices of award or contracts shall 

include language substantially similar to 

that in appendices A and B to this part. 

* * * * * 

(c) A faith-based organization’s 

exemption from the Federal prohibition 

on employment discrimination on the 

basis of religion, set forth in section 

702(a) of the Civil Rights Act of 1964, 

42 U.S.C. 2000e–1, is not forfeited when 

an organization participates in a USDA 

assistance program. 

(d) No grant document, agreement, 

covenant, memorandum of 

understanding, policy, or regulation that 

is used by a USDA awarding agency or 

a State or local government in 

administering Federal financial 

assistance from the USDA awarding 

agency shall require faith-based 

organizations to provide assurances or 

notices where they are not required of 

non-faith-based organizations. 

(1) Any restrictions on the use of grant 

funds shall apply equally to faith-based 

organizations and non-faith-based 

organizations. 

(2) All organizations that participate 

in USDA awarding agency programs or 

services, including organizations with 

religious character, motives, or 

affiliation, must carry out eligible 

activities in accordance with all 

program requirements and other 

applicable requirements governing the 

conduct of USDA awarding agencyfunded activities, including those 

prohibiting the use of direct financial 

assistance to engage in explicitly 

religious activities, subject to any 

accommodations that are granted to 

organizations on a case-by-case basis in 

accordance with the Constitution and 

laws of the United States. 

(3) No grant document, agreement, 

covenant, memorandum of 

understanding, policy, or regulation that 

is used by the USDA awarding agency 

or a State or local government in 

administering financial assistance from 

the USDA awarding agency shall 

disqualify faith-based organizations 

from participating in the USDA 

awarding agency’s programs or services 

on the basis of the organizations’ 

religious character, motives, or 

affiliation, or lack thereof, or on the 

basis of conduct that would not be 

considered grounds to disqualify a 

similarly situated secular organization. 

* * * * * 

(f) USDA direct financial assistance 

may be used for the acquisition, 

construction, or rehabilitation of 

structures to the extent authorized by 

the applicable program statutes and 

regulations. USDA direct assistance may 

not be used for the acquisition, 

construction, or rehabilitation of 

structures to the extent that those 

structures are used by the USDA 

funding recipients for explicitly 

religious activities. Where a structure is 

used for both eligible and ineligible 

purposes, USDA direct financial 

assistance may not exceed the cost of 

those portions of the acquisition, 

construction, or rehabilitation that are 

attributable to eligible activities in 

accordance with the cost accounting 

requirements applicable to USDA funds. 

Sanctuaries, chapels, or other rooms 

that an organization receiving direct 

assistance from USDA uses as its 

principal place of worship, however, are 

ineligible for USDA-funded 

improvements. Disposition of real 

property after the term of the grant or 

any change in use of the property during 

the term of the grant is subject to 

government-wide regulations governing 

real property disposition (see 2 CFR part 

400). 

(1) Any use of USDA direct financial 

assistance for equipment, supplies, 

labor, indirect costs, and the like shall 

be prorated between the USDA program 

or activity and any ineligible purposes 

by the faith-based organization in 

accordance with applicable laws, 

regulations, and guidance. 

(2) Nothing in this section shall be 

construed to prevent the residents of 

housing who are receiving USDA direct 

assistance funds from engaging in 

religious exercise within such housing. 

* * * * * 

(h) Nothing in this part shall be 

construed to preclude a USDA awarding 

agency or any State or local government 

or other intermediary from 

accommodating religion or making an 

accommodation for religious exercise 

with respect to one or more program 

requirements on a case-by-case basis in 

accordance with the Constitution and 

laws of the United States. A USDA 

awarding agency, State or local 

government, or other intermediary shall 

not disqualify an organization from 

participating in any USDA assistance 

program for which it is eligible on the 

basis of the organization’s indication 

that it may request an accommodation 

with respect to one or more program 

requirements, unless the organization 

has made clear that the accommodation 

is necessary to its participation and the 

USDA awarding agency, State or local 

government, or other intermediary has 

determined that it would deny the 

accommodation. 

■ 29. Amend § 16.4 by: 

■ a. Revising paragraph (a). 

■ b. Redesignating paragraph (c) as 

paragraph (e). 

■ c. Adding new paragraphs (c) and (d). 

■ d. Revising newly redesignated 

paragraph (e). 

The revisions and additions read as 

follows: 

§ 16.4 Responsibilities of participating 

organizations. 

(a) Any organization that receives 

direct or indirect Federal financial 

assistance shall not, with respect to 

services supported in whole or in part 

with Federal financial assistance, or in 

their outreach activities related to such 

services, discriminate against a current 

or prospective program beneficiary on 

the basis of religion, religious belief, a 

refusal to hold a religious belief, or a 

refusal to attend or participate in a 

religious practice. However, an 

organization that participates in a 

program funded by indirect financial 

assistance need not modify its program 

activities to accommodate a beneficiary 

who chooses to expend the indirect aid 

on the organization’s program. 

* * * * * 

(c)(1) All organizations that receive 

USDA direct assistance under any 

domestic USDA program must give 

written notice to all beneficiaries and 

prospective beneficiaries of certain 

protections in a manner and form 

prescribed by USDA. The required 

language for this written notice to 

beneficiaries is set forth in appendix C 

to this part. This notice must include 

the following information: 

(i) The organization may not 

discriminate against beneficiaries or 

prospective beneficiaries on the basis of 

religion, a religious belief, a refusal to 

hold a religious belief, or a refusal to 

attend or participate in a religious 

practice; 

(ii) The organization may not require 

beneficiaries or prospective 


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beneficiaries to attend or participate in 

any explicitly religious activities that 

are offered by the organization, and any 

participation by beneficiaries or 

prospective beneficiaries in such 

activities must be purely voluntary; 

(iii) The organization must separate in 

time or location any privately funded 

explicitly religious activities from 

activities supported by direct Federal 

financial assistance; and 

(iv) Beneficiaries or prospective 

beneficiaries may report violations of 

these protections (including denials of 

services or benefits) by an organization 

by contacting or filing a written 

complaint with USDA’s Office of the 

Assistant Secretary for Civil Rights. 

(2) The USDA awarding agency may 

determine that this written notice must 

also inform beneficiaries and 

prospective beneficiaries about how to 

obtain information from the awarding 

agency about other federally funded 

service providers in their area that 

provide the services available under the 

applicable program. 

(3) This written notice must be given 

to beneficiaries prior to the time they 

enroll in the program or receive services 

from the program. When the nature of 

the service provided or exigent 

circumstances make it impracticable to 

provide such written notice in advance 

of the actual service, service providers 

must advise beneficiaries of their 

protections at the earliest available 

opportunity. 

(d) A beneficiary or prospective 

beneficiary in a program supported by 

indirect Federal financial assistance 

may report an organization’s violation of 

the religious protections in this part, 

including any denials of services or 

benefits by an organization, by 

contacting or filing a written complaint 

with USDA’s Office of the Assistant 

Secretary for Civil Rights. 

(e) Nothing in paragraphs (a) through 

(c) of this section shall be construed to 

prevent faith-based organizations that 

receive USDA assistance under the 

Richard B. Russell National School 

Lunch Act, 42 U.S.C. 1751 et seq., the 

Child Nutrition Act of 1966, 42 U.S.C. 

1771 et seq., or USDA international 

school feeding programs from 

considering religion in their admissions 

practices or from imposing religious 

attendance or curricular requirements at 

their schools. 

■ 30. Add § 16.6 to read as follows: 

§ 16.6 Compliance. 

USDA agencies will monitor 

compliance with this part in the course 

of regular oversight of USDA programs. 

■ 31. Revise appendix A to part 16 to 

read as follows: 

Appendix A to Part 16—Notice or 

Announcement of Award Opportunities 

(a) 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, this part 

and any applicable constitutional and 

statutory requirements, including 42 U.S.C. 

2000bb et seq. USDA will not, in the 

selection of recipients, discriminate for or 

against an organization on the basis of the 

organization’s religious character, motives, or 

affiliation, or lack thereof, or on the basis of 

conduct that would not be considered 

grounds to favor or disfavor a similarly 

situated secular organization. 

(b) 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 and conscience 

protections in Federal law. Religious 

accommodations may also be sought under 

many of these religious freedom and 

conscience protection laws. 

(c) A faith-based organization may not use 

direct Federal financial assistance from 

USDA to support or engage in any explicitly 

religious activities except when consistent 

with the Establishment Clause of the First 

Amendment and any other applicable 

requirements. An organization receiving 

Federal financial assistance also may not, in 

providing services funded by USDA, or in 

their outreach activities related to such 

services, discriminate against a program 

beneficiary or prospective program 

beneficiary on the basis of religion, a 

religious belief, a refusal to hold a religious 

belief, or a refusal to attend or participate in 

a religious practice. 

■ 32. Revise appendix B to part 16 to 

read as follows: 

Appendix B to Part 16—Notice of 

Award or Contract 

(a) 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 and conscience 

protections in Federal law. Religious 

accommodations may also be sought under 

many of these religious freedom and 

conscience protection laws. 

(b) A faith-based organization may not use 

direct Federal financial assistance from 

USDA to support or engage in any explicitly 

religious activities except when consistent 

with the Establishment Clause of the First 

Amendment and any other applicable 

requirements. An organization receiving 

Federal financial assistance also may not, in 

providing services funded by USDA, or in 

their outreach activities related to such 

services, discriminate against a program 

beneficiary or prospective program 

beneficiary on the basis of religion, a 

religious belief, a refusal to hold a religious 

belief, or a refusal to attend or participate in 

a religious practice. 

■ 33. Add appendix C to part 16 to read 

as follows: 

Appendix C to Part 16—Written Notice 

of Beneficiary Protections 

Name of Organization: 

Name of Program: 

Contact Information for Program Staff: 

[provide name, phone number, and email 

address, if appropriate] 

Because this program is supported in 

whole or in part by financial assistance from 

the Federal Government, we are required to 

let you know that: 

(1) We may not discriminate against you 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; 

(2) We may not require you to attend or 

participate in any explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction, or proselytization) that 

are offered by our organization, and any 

participation by you in such activities must 

be purely voluntary; 

(3) We must separate in time or location 

any privately funded explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction, or proselytization) from 

activities supported with direct Federal 

financial assistance; and 

(4) You may report violations of these 

protections, including any denials of services 

or benefits by an organization, by contacting 

or filing a written complaint with the U.S. 

Department of Agriculture, Office of the 

Assistant Secretary for Civil Rights, 

Executive Director, Center for Civil Rights 

Enforcement, 1400 Independence Avenue 

SW, Washington, DC 20250–9410, or by 

email to program.intake@usda.gov. 

[When required by the Department, the 

notice must also state:] (5) If you would like 

to seek information about whether there are 

any other federally funded organizations that 

provide these kinds of services in your area, 

please contact [insert appropriate point of 

contact]. 

This written notice must be given to you 

before you enroll in the program or receive 

services from the program, unless the nature 

of the service provided or exigent 

circumstances make it impracticable to 

provide such notice before we provide the 

actual service. In such an instance, this 

notice must be given to you at the earliest 

available opportunity. 

AGENCY FOR INTERNATIONAL 

DEVELOPMENT 

For the reasons set forth in the 

preamble, USAID amends part 205 of 

title 22 of the CFR as follows: 

Title 22—Foreign Relations 

PART 205—PARTICIPATION BY 

RELIGIOUS ORGANIZATIONS IN 

USAID PROGRAMS 

■ 34. The authority citation for part 205 

continues to read as follows: 

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

■ 35. Revise § 205.1 to read as follows: 


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§ 205.1 Grants and cooperative 

agreements. 

(a) As used in this section, the term 

‘‘award’’ has the definition in 2 CFR 

700.1 and the term ‘‘Federal financial 

assistance’’ has the definition in 

Executive Order 13279 (signed by 

President Bush on December 12, 2002). 

As used in this section, the following 

terms have the definitions in 2 CFR 

200.1: ‘‘pass-through entity,’’ 

‘‘recipient,’’ ‘‘subaward,’’ and 

‘‘subrecipient’’ as modified by 2 CFR 

700.3 to apply to both nonprofit and forprofit entities. 

(b) Faith-based organizations are 

eligible on the same basis as any other 

organization to receive any U.S. Agency 

for International Development (USAID) 

award for which they are otherwise 

eligible. In the selection of recipients by 

USAID and subrecipients by passthrough entities, neither USAID nor 

pass-through entities shall discriminate 

for, or against, an organization on the 

basis of the organization’s religious 

character, motives, or affiliation, or lack 

thereof, or on the basis of conduct that 

would not be considered grounds to 

favor or disfavor a similarly situated 

secular organization. Notices or 

announcements of award opportunities 

shall include language to indicate that 

faith-based organizations are eligible on 

the same basis as any other organization 

and subject to the protections and 

requirements of Federal law. 

(c) Nothing in this part shall be 

construed to preclude USAID from 

making an accommodation, including 

for religious exercise, with respect to 

one or more award requirements on a 

case-by-case basis in accordance with 

the Constitution and laws of the United 

States. 

(d) USAID shall not disqualify an 

organization from participating in any 

USAID award for which it is eligible on 

the basis of the organization’s indication 

that it may request an accommodation 

with respect to one or more award 

requirements, unless the organization 

has made clear that the accommodation 

is necessary to its participation and 

USAID has determined that it would 

deny the accommodation. 

(e) Organizations that receive direct 

Federal financial assistance from USAID 

under any USAID award or subaward 

may not engage in explicitly religious 

activities (including activities that 

involve overt religious content such as 

worship, religious instruction, or 

proselytization) as part of the programs 

or services directly funded with direct 

Federal financial assistance from 

USAID. If an organization conducts 

such activities, the activities must be 

offered separately, in time or location, 

from the programs or services funded 

with direct Federal financial assistance 

from USAID, and participation must be 

voluntary for beneficiaries of the 

programs or services funded with such 

assistance. Nothing in this part restricts 

USAID’s authority under applicable 

Federal law to fund activities, such as 

the provision of chaplaincy services, 

that can be directly funded by the 

Government consistent with the 

Establishment Clause. 

(f) A faith-based organization that 

applies for, or participates in, USAIDfunded awards or subawards will retain 

its autonomy, religious character, and 

independence, and may continue to 

carry out its mission consistent with 

religious freedom protections in Federal 

law, including the definition, 

development, practice, and expression 

of its religious beliefs, provided that it 

does not use direct Federal financial 

assistance from USAID to support or 

engage in any explicitly religious 

activities (including activities that 

involve overt religious content such as 

worship, religious instruction, or 

proselytization), or in any other manner 

prohibited by law. Among other things, 

a faith-based organization that receives 

Federal financial assistance from USAID 

may use space in its facilities, without 

concealing, altering, or removing 

religious art, icons, scriptures, or other 

religious symbols. In addition, a faithbased organization that receives Federal 

financial assistance from USAID retains 

its authority over its internal 

governance, and it may retain religious 

terms in its organization’s name, select 

its board members on a religious basis, 

and include religious references in its 

organization’s mission statement and 

other governing documents. 

(g) USAID must implement its awards 

in accordance with the Establishment 

Clause. Nothing in this part shall be 

construed as authorizing the use of 

USAID funds for activities that are not 

permitted by Establishment Clause 

jurisprudence or otherwise by law. 

USAID will consult with the U.S. 

Department of Justice if, in 

implementing a specific program 

involving overseas acquisition, 

rehabilitation, or construction of 

structures used for explicitly religious 

activities, there is any question about 

whether such funding is consistent with 

the Establishment Clause. USAID will 

describe any program implemented after 

such consultation on its website. 

(h) An organization that receives a 

USAID-funded award or subaward shall 

not, in providing services or outreach 

activities related to such services, 

discriminate against a program 

beneficiary or potential 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. 

(i) No grant document, contract, 

agreement, covenant, memorandum of 

understanding, policy, or regulation 

used by USAID shall require faith-based 

organizations to provide assurances or 

notices where the Agency does not 

require them of secular organizations. 

Any restrictions on the use of award or 

subaward funds shall apply equally to 

faith-based and secular organizations. 

All organizations that receive USAID 

awards and subawards, including faithbased organizations, must carry out 

eligible activities in accordance with all 

award requirements and other 

applicable requirements that govern the 

conduct of USAID-funded activities, 

including those that prohibit the use of 

direct Federal financial assistance from 

USAID to engage in explicitly religious 

activities. No grant document, contract, 

agreement, covenant, memorandum of 

understanding, policy, or regulation 

used by USAID shall disqualify faithbased organizations from receiving 

USAID awards on the basis of the 

organization’s religious character, 

motives, or affiliation, or lack thereof. 

(j) A religious organization does not 

forfeit its exemption from the Federal 

prohibition on employment 

discrimination on the basis of religion, 

set forth in section 702(a) of the Civil 

Rights Act of 1964, 42 U.S.C. 2000e–1, 

when the organization receives Federal 

financial assistance from USAID. 

(k) If a USAID award requires an 

organization to be a ‘‘nonprofit 

organization’’ in order to be eligible for 

funding, the individual solicitation will 

specifically indicate the requirement for 

nonprofit status in the eligibility section 

of the solicitation. Potential applicants 

should consult with the appropriate 

USAID program office to determine the 

scope of any applicable requirements. In 

USAID awards in which an applicant 

must show that it is a nonprofit 

organization, other than programs 

which are limited to registered Private 

and Voluntary Organizations, the 

applicant may do so by any of the 

following means: 

(1) 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; 

(2) A statement from a state taxing 

body or the State secretary of state 

certifying that: 

(i) The organization is a nonprofit 

organization operating within the State; 

and 


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(ii) No part of its net earnings may 

lawfully benefit any private shareholder 

or individual; 

(3) A certified copy of the applicant’s 

certificate of incorporation or similar 

document that clearly establishes the 

nonprofit status of the applicant; or 

(4) Any item described in paragraphs 

(k)(1) through (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. 

(l) Decisions about awards of USAID 

Federal financial assistance must be free 

from political interference, or even the 

appearance of such interference, and 

must be made on the basis of merit, not 

on the basis of religion or religious 

belief, or lack thereof. 

(m) Nothing in this part shall be 

construed as authorizing the use of 

USAID funds for the acquisition, 

construction, or rehabilitation of 

religious structures inside the United 

States. 

(n) The Secretary of State may waive 

the requirements of this section in 

whole or in part, on a case-by-case basis, 

where the Secretary determines that 

such waiver is necessary to further the 

national security or foreign policy 

interests of the United States. 

(o) Nothing in this section shall be 

construed in such a way as to 

advantage, or disadvantage, faith-based 

organizations affiliated with historic or 

well-established religions or sects in 

comparison with other religions or 

sects. 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

For the reasons set forth in the 

preamble, HUD amends part 5 of title 24 

of the CFR as follows: 

PART 5—GENERAL HUD PROGRAM 

REQUIREMENTS; WAIVERS 

■ 36. Revise the authority citation for 

part 5 to read as follows: 

Authority: 12 U.S.C. 1701x; 42 U.S.C. 

1437a, 1437c, 1437f, 1437n, 3535(d); 42 

U.S.C. 2000bb et seq.; 34 U.S.C. 12471 et seq.; 

Sec. 327, Pub. L. 109–115, 119 Stat. 2396; 

E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., 

p. 258; E.O. 13559, 75 FR 71319, 3 CFR, 2010 

Comp., p. 273; E.O. 14015, 86 FR 10007, 3 

CFR, 2021 Comp., p. 517. 

■ 37. Amend § 5.109 by: 

■ a. In paragraph (a), removing the 

words ‘‘Executive Order 13831, entitled 

‘‘Establishment of a White House Faith 

and Opportunity Initiative,’’ ’’ and 

adding, in their place, the words 

‘‘Executive Order 14015, entitled 

‘‘Establishment of the White House 

Office of Faith-Based and Neighborhood 

Partnerships,’’ ’’. 

■ b. In paragraph (b), revising the 

definition of ‘‘Indirect Federal financial 

assistance’’. 

■ c. Removing the introductory text of 

paragraph (c). 

■ d. Revising paragraphs (c)(1) through 

(3). 

■ e. In paragraph (c)(4), removing the 

word ‘‘availability’’ and adding, in its 

place, the word ‘‘opportunity’’. 

■ f. Revising paragraphs (d)(1) and (2), 

(g), and (h). 

■ g. In paragraph (l)(3), adding an ‘‘or’’ 

at the end of the paragraph. 

■ h. In paragraph (l)(4), removing ‘‘; or’’ 

and adding, in its place, a period. 

■ i. Removing paragraph (l)(5). 

The revisions read as follows: 

§ 5.109 Equal participation of faith-based 

organizations in HUD programs and 

activities. 

* * * * * 

(b) * * * 

Indirect Federal financial assistance 

means Federal financial assistance 

provided when the choice of the 

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 Governmentfunded payment. Federal financial 

assistance provided to an organization is 

considered indirect when the 

Government program through which the 

beneficiary receives the voucher, 

certificate, or other similar means of 

Government-funded payment is neutral 

toward religion meaning that it is 

available to providers without regard to 

the religious or non-religious nature of 

the institution and there are no program 

incentives that deliberately skew for or 

against religious or secular providers; 

and the organization receives the 

assistance wholly as a result of a 

genuine and independent private choice 

of the beneficiary, not a choice of the 

Government. The availability of 

adequate secular alternatives is a 

significant factor in determining 

whether a program affords true private 

choice. 

* * * * * 

(c) Equal participation of faith-based 

organizations in HUD programs and 

activities.(1) Faith-based organizations 

are eligible, on the same basis as any 

other organization, to participate in any 

HUD program or activity for which they 

are otherwise eligible. Neither the 

Federal Government, nor a State, Tribal, 

or local government, nor any other 

entity that administers any HUD 

program or activity, shall discriminate 

for or against an organization on the 

basis of the organization’s religious 

character, motives, or affiliation, or lack 

thereof, or on the basis of conduct that 

would not be considered grounds to 

favor or disfavor a similarly situated 

secular organization. 

(2) Nothing in this section shall be 

construed to preclude HUD from 

making an accommodation, including 

for religious exercise, with respect to 

one or more program requirements on a 

case-by-case basis in accordance with 

the Constitution and laws of the United 

States. 

(3) HUD shall not disqualify an 

organization from participating in any 

HUD program for which it is eligible on 

the basis of the organization’s indication 

that it may request an accommodation 

with respect to one or more program 

requirements, unless the organization 

has made clear that the accommodation 

is necessary to its participation and, in 

accordance with the Constitution and 

laws of the United States, HUD has 

determined that it would deny the 

accommodation. 

* * * * * 

(d) * * * 

(1) A faith-based organization that 

applies for, or participates in, a HUD 

program or activity supported with 

Federal financial assistance retains its 

autonomy, right of expression, religious 

character, authority over its governance, 

and independence, 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, whether 

received through a prime award or subaward, to support or engage in any 

explicitly religious activities, including 

activities that involve overt religious 

content such as worship, religious 

instruction, or proselytization. 

(2) A faith-based organization that 

receives direct Federal financial 

assistance may use space (including a 

sanctuary, chapel, prayer hall, or other 

space) in its facilities (including a 

temple, synagogue, church, mosque, or 

other place of worship) to carry out 

activities under a HUD program without 

concealing, altering, or removing 

religious art, icons, scriptures, or other 

religious symbols. In addition, a faithbased organization participating in a 

HUD program or activity retains its 

authority over its internal governance, 

and 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 

consistent with paragraph (i) of this 

section, and include religious references 


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in its organization’s mission statements 

and other governing documents. 

* * * * * 

(g) Nondiscrimination and beneficiary 

notice requirements—(1) 

Nondiscrimination. Any organization 

that receives Federal financial 

assistance under a HUD program or 

activity shall not, in providing services 

supported in whole or in part with 

Federal financial assistance, or in their 

outreach activities related to such 

services, discriminate against a 

beneficiary or prospective beneficiary 

on the basis of religion, a religious 

belief, a refusal to hold a religious 

belief, or a refusal to attend or 

participate in a religious practice. 

However, an organization that 

participates in a program funded by 

indirect Federal financial assistance 

need not modify its program or 

activities to accommodate a beneficiary 

who chooses to expend the indirect aid 

on the organization’s program. 

(2) Beneficiary notice. (i) An 

organization providing services under a 

program supported by direct Federal 

financial assistance from HUD, or an 

entity that administers indirect Federal 

financial assistance from HUD, must 

give written notice to beneficiaries and 

prospective beneficiaries of certain 

protections in a manner and form 

prescribed by HUD, including by 

incorporating the notice into materials 

that are otherwise provided to 

beneficiaries. The required language for 

this written notice to beneficiaries is set 

forth in appendix C to this subpart. 

(ii) For the Housing Choice Voucher 

(HCV), Project-Based Voucher (PBV), 

and Section 8 Moderate Rehabilitation 

programs, the respective recipient (i.e., 

Public Housing Agency) is required to 

provide the written beneficiary notice. 

For the Housing Opportunities for 

Persons with AIDS (HOPWA) program, 

the grantee or project sponsor that is 

responsible for making eligibility 

determinations is required to provide 

the written beneficiary notice. For the 

Continuum of Care (CoC) and 

Emergency Solutions Grants (ESG) 

programs, the recipient or subrecipient 

that is responsible for determining the 

eligibility of each family or individual is 

required to provide the written 

beneficiary notice. The participating or 

prospective providers (landlords) are 

not responsible for providing the 

written beneficiary notice for indirect 

aid recipients. The notice must include 

the following information: 

(A) Nondiscrimination requirements 

of paragraph (g)(1) of this section; 

(B) Notification that a beneficiary or 

prospective beneficiary may report an 

organization’s violation of these 

protections, including any denials of 

services or benefits by an organization, 

by contacting or filing a written 

complaint with the Center for FaithBased and Neighborhood Partnerships 

or the intermediary that awarded funds 

to the organization; and 

(C) For direct Federal financial 

assistance only, prohibitions with 

respect to explicitly religious activities 

as set forth in paragraph (e) of this 

section. 

(3) Notice timing. The written notice 

described in paragraph (g)(2) of this 

section must be given to a prospective 

beneficiary prior to the time the 

prospective beneficiary enrolls in the 

program or receives services from the 

program. When the nature of the service 

provided or exigent circumstances make 

it impracticable to provide such written 

notice in advance of the actual service, 

an organization must advise 

beneficiaries of their protections at the 

earliest available opportunity. 

(4) Alternative option information. 

HUD may determine that the notice 

described in paragraph (g)(2) of this 

section must inform each beneficiary or 

prospective beneficiary about how to 

obtain information from HUD, or a State 

agency or other entity administering the 

applicable program, about other 

federally funded service providers in 

their area that provide the services 

available under the applicable program. 

(h) No additional assurances from 

faith-based organizations. A faith-based 

organization is not rendered ineligible 

by its religious nature to access and 

participate in HUD programs. Absent 

regulatory or statutory authority, no 

notice of funding opportunity, grant 

agreement, cooperative agreement, 

covenant, memorandum of 

understanding, policy, or regulation that 

is used by HUD or a recipient or 

intermediary in administering Federal 

financial assistance from HUD shall 

require otherwise eligible faith-based 

organizations to provide assurances or 

notices where they are not required of 

similarly situated secular organizations. 

All organizations that participate in 

HUD programs or activities, including 

organizations with religious character, 

motives, or affiliation, must carry out 

eligible activities in accordance with all 

program requirements, including those 

prohibiting the use of direct financial 

assistance to engage in explicitly 

religious activities, subject to any 

accommodations that are granted to 

organizations on a case-by-case basis in 

accordance with the Constitution and 

laws of the United States. No notice of 

funding opportunity, grant agreement, 

cooperative agreement, covenant, 

memorandum of understanding, policy, 

or regulation that is used by HUD or a 

recipient or intermediary in 

administering financial assistance from 

HUD shall disqualify otherwise eligible 

faith-based organizations from 

participating in HUD’s programs or 

activities on the basis of the 

organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to disqualify a 

similarly situated secular organization. 

* * * * * 

■ 38. Revise appendix A to subpart A of 

part 5 to read as follows: 

Appendix A to Subpart A of Part 5— 

Notice of Funding Opportunity 

(a) Faith-based organizations may apply for 

this award on the same basis as any other 

organization, as set forth at § 5.109, and 

subject to the protections and requirements 

of any applicable constitutional and statutory 

requirements, including 42 U.S.C. 2000bb et 

seq. HUD will not, in the selection of 

recipients, discriminate for or against an 

organization on the basis of the 

organization’s religious character, motives, or 

affiliation, or lack thereof, or on the basis of 

conduct that would not be considered 

grounds to favor or disfavor a similarly 

situated secular organization. 

(b) 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 and conscience 

protections in Federal law. 

(c) A faith-based organization may not use 

direct financial assistance from HUD to 

support or engage in any explicitly religious 

activities except where 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 HUD, or 

in their outreach activities related to such 

services, discriminate against a program 

beneficiary or prospective program 

beneficiary on the basis of religion, a 

religious belief, a refusal to hold a religious 

belief, or a refusal to attend or participate in 

a religious practice. 

■ 39. Add appendix B to subpart A of 

part 5 to read as follows: 

Appendix B to Subpart A of Part 5— 

Notice of Award or Contract 

(a) 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 and conscience 

protections in Federal law. 

(b) A faith-based organization may not use 

direct Federal financial assistance from HUD 

to support or engage in any explicitly 

religious activities except when consistent 

with the Establishment Clause of the First 

Amendment and any other applicable 

requirements. An organization receiving 


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Federal financial assistance also may not, in 

providing services funded by HUD, or in 

their outreach activities related to such 

services, discriminate against a program 

beneficiary or prospective program 

beneficiary on the basis of religion, a 

religious belief, a refusal to hold a religious 

belief, or a refusal to attend or participate in 

a religious practice. 

■ 40. Add appendix C to subpart A of 

part 5 to read as follows: 

Appendix C to Subpart A of Part 5— 

Department of Housing and Urban 

Development Model Written Notice of 

Beneficiary Rights 

Name of Organization: 

Name of Program: 

Contact Information for Program Staff: 

[provide name, phone number, and email 

address, if appropriate] 

Because this program is supported in 

whole or in part by financial assistance from 

the Federal Government, we are required to 

let you know that: 

(1) We may not discriminate against you 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; 

(2) We may not require you to attend or 

participate in any explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction, or proselytization) that 

are offered by our organization, and any 

participation by you in such activities must 

be purely voluntary; 

(3) We must separate in time or location 

any privately funded explicitly religious 

activities from activities (including activities 

that involve overt religious content such as 

worship, religious instruction, or 

proselytization) from activities supported 

with direct Federal financial assistance; 

(4) You may report an organization’s 

violations of these protections, including any 

denial of services or benefits by an 

organization, by contacting or filing a written 

complaint with HUD’s Center for Faith-Based 

and Neighborhood Partnership, 451 7th 

Street SW, Washington, DC 20410, or by 

email to partnerships@hud.gov; and 

(5) If you would like to seek information 

about whether there are any other federally 

funded organizations that provide these 

kinds of services in your area, please use the 

contact information set forth above. 

This written notice must be given to you 

before you enroll in the program or receive 

services from the program, unless the nature 

of the service provided or exigent 

circumstances make it impracticable to 

provide such notice before we provide the 

actual service. In such an instance, this 

notice must be given to you at the earliest 

available opportunity. 

DEPARTMENT OF JUSTICE 

For the reasons set forth in the 

preamble, the Attorney General amends 

part 38 of title 28 of the CFR as follows: 

Title 28—Judicial Administration 

PART 38—PARTNERSHIPS WITH 

FAITH-BASED AND OTHER 

NEIGHBORHOOD ORGANIZATIONS 

■ 41. Revise the authority citation for 

part 38 to read as follows: 

Authority: 28 U.S.C. 509; 5 U.S.C. 301; 

E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., 

p. 258; 18 U.S.C. 4001, 4042, 5040; 21 U.S.C. 

871; 25 U.S.C. 3681; Pub. L. 107–273, 116 

Stat. 1758; Pub. L. 109–162, 119 Stat. 2960; 

34 U.S.C. 10152, 10154, 10172, 10221, 10382, 

10388, 10444, 10446, 10448, 10473, 10614, 

10631, 11111, 11182, 20110, 20125; E.O. 

13559, 75 FR 71319, 3 CFR, 2010 Comp., p. 

273; E.O. 13831, 83 FR 20715, 3 CFR, 2018 

Comp., p. 806; 42 U.S.C. 2000bb et seq.; E.O. 

14015, 86 FR 10007, 3 CFR, 2021 Comp., p. 

517. 

■ 42. Revise § 38.1 to read as follows: 

§ 38.1 Purpose. 

The purpose of this part is to 

implement Executive Order 13279, 

Executive Order 13559, and Executive 

Order 14015. 

■ 43. Amend § 38.3 by: 

■ a. Redesignating paragraphs (a) 

through (g) as paragraphs (b) through 

(h). 

■ b. Adding a new paragraph (a). 

■ c. Revising newly redesignated 

paragraphs (b), (c)(2), (e), and (g). 

The addition and revisions read as 

follows: 

§ 38.3 Definitions. 

* * * * * 

(a) ‘‘Federal financial assistance’’ 

means assistance that non-Federal 

entities receive or administer in the 

form of grants, contracts, loans, loan 

guarantees, property, cooperative 

agreements, food commodities, direct 

appropriations, or other assistance, but 

does not include a tax credit, deduction, 

or exemption. 

(b) ‘‘Direct Federal financial 

assistance’’ or ‘‘Federal financial 

assistance provided directly’’ refers to 

situations in which the Government or 

an intermediary (under this part) selects 

the provider and either purchases 

services from that provider (e.g., via a 

contract) or awards funds to that 

provider to carry out a service (e.g., via 

a grant or cooperative agreement). This 

includes recipients of subawards that 

receive Federal financial assistance 

through State administering agencies or 

State-administered programs. In general, 

Federal financial assistance shall be 

treated as direct, unless it meets the 

definition of ‘‘indirect Federal financial 

assistance’’ or ‘‘Federal financial 

assistance provided indirectly.’’ 

(c) * * * 

(2) The service provider receives the 

assistance wholly as a result of a 

genuine and independent private choice 

of the beneficiary, not a choice of the 

Government. The availability of 

adequate secular alternatives is a 

significant factor in determining 

whether a program affords a genuinely 

independent and private choice. 

* * * * * 

(e) ‘‘Department program’’ refers to a 

discretionary, formula, or block grant 

program administered by or from the 

Department. 

* * * * * 

(g) The ‘‘Office for Civil Rights’’ refers 

to the Office for Civil Rights of the 

Department’s Office of Justice Programs. 

* * * * * 

■ 44. Revise § 38.4 to read as follows: 

§ 38.4 Policy. 

(a) Faith-based organizations are 

eligible, on the same basis as any other 

organization, to participate in any 

Department program for which they are 

otherwise eligible. Neither the 

Department nor any State or local 

government receiving funds under any 

Department program shall, in the 

selection of service providers, 

discriminate for or against an 

organization on the basis of the 

organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to favor or 

disfavor a similarly situated secular 

organization. 

(b) Nothing in this part shall be 

construed to preclude the Department 

from making an accommodation, 

including for religious exercise, with 

respect to one or more program 

requirements on a case-by-case basis in 

accordance with the Constitution and 

laws of the United States. 

(c) The Department shall not 

disqualify an organization from 

participating in any Department 

program for which it is eligible on the 

basis of the organization’s indication 

that it may request an accommodation 

with respect to one or more program 

requirements, unless the organization 

has made clear that the accommodation 

is necessary to its participation and the 

Department has determined that it 

would deny the accommodation. 

(d) Decisions about awards of Federal 

financial assistance must be free from 

political interference or even the 

appearance of such interference and 

must be made on the basis of merit, not 

on the basis of religion or a religious 

belief, or lack thereof. 

■ 45. Amend § 38.5 by: 

■ a. Revising paragraphs (c) through (f). 

■ b. In paragraph (g)(3), adding the word 

‘‘or’’ at the end of the paragraph. 


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■ c. In paragraph (g)(4), removing ‘‘; or’’ 

and adding, in its place, a period. 

■ d. Removing paragraph (g)(5). 

The revisions read as follows: 

§ 38.5 Responsibilities. 

* * * * * 

(c) Any organization that participates 

in programs funded by Federal financial 

assistance from the Department shall 

not, in providing services supported in 

whole or in part with Federal financial 

assistance, or in their outreach activities 

related to such services, discriminate 

against a program beneficiary or 

prospective program beneficiary on the 

basis of religion, a religious belief, a 

refusal to hold a religious belief, or a 

refusal to attend or participate in a 

religious practice. However, an 

organization that receives indirect 

Federal financial assistance need not 

modify its program activities to 

accommodate a beneficiary who chooses 

to expend the indirect aid on the 

organization’s program. 

(d) No grant document, agreement, 

covenant, memorandum of 

understanding, policy, or regulation that 

the Department or a State or local 

government uses in administering 

Federal financial assistance from the 

Department shall require faith-based or 

religious 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 participate 

in Department programs must carry out 

all eligible activities in accordance with 

all program requirements, including 

those prohibiting the use of direct 

Federal financial assistance from the 

Department to engage in explicitly 

religious activities, subject to any 

accommodations that are granted to 

organizations on a case-by-case basis in 

accordance with the Constitution and 

laws of the United States. No grant 

document, agreement, covenant, 

memorandum of understanding, policy, 

or regulation that is used by the 

Department or a State or local 

government in administering Federal 

financial assistance from the 

Department shall disqualify faith-based 

or religious organizations from 

participating in the Department’s 

programs on the basis of the 

organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to disqualify a 

similarly situated secular organization. 

(e) A faith-based organization’s 

exemption from the Federal prohibition 

on employment discrimination on the 

basis of religion, set forth in section 

702(a) of the Civil Rights Act of 1964, 

42 U.S.C. 2000e–1(a), is not forfeited 

when the organization receives direct or 

indirect Federal financial assistance 

from the Department. Some Department 

programs, however, contain 

independent statutory provisions 

requiring that all grantees agree not to 

discriminate in employment on the 

basis of religion. Grantees receiving 

Federal financial assistance from such 

programs should consult with the 

appropriate Department program office 

to determine the scope of any applicable 

requirements. 

(f) If an intermediary, acting under a 

contract, grant, or other agreement with 

the Federal Government or with a State 

or local government that is 

administering a program supported by 

Federal financial assistance, is given the 

authority under the contract, grant, or 

agreement to select organizations to 

provide services funded by the Federal 

Government, the intermediary must 

ensure the compliance of the recipient 

of a contract, grant, or agreement with 

the provisions of Executive Order 

13279, as amended by Executive Order 

13559, and any implementing rules or 

guidance. If the intermediary is a 

nongovernmental organization, it retains 

all other rights of a nongovernmental 

organization under the program’s 

statutory and regulatory provisions. 

* * * * * 

■ 46. Revise § 38.6 to read as follows: 

§ 38.6 Procedures. 

(a) If a State or local government 

voluntarily contributes its own funds to 

supplement activities carried out under 

the applicable programs, the State or 

local government has the option to 

separate out the Federal funds or 

commingle them. If the funds are 

commingled, the provisions of this 

section shall apply to all of the 

commingled funds in the same manner, 

and to the same extent, as the provisions 

apply to the Federal funds. 

(b) An organization providing social 

services under a program of the 

Department supported by Federal 

financial assistance must give written 

notice to beneficiaries and prospective 

beneficiaries of certain protections in a 

manner and form prescribed by the 

Office for Civil Rights, including by 

incorporating the notice into materials 

that are otherwise provided to 

beneficiaries. This written notice shall 

include language substantially similar to 

that in appendix C to this part. The 

notice must include the following 

information: 

(1) The organization may not 

discriminate against a beneficiary or 

prospective beneficiary on the basis of 

religion, a religious belief, a refusal to 

hold a religious belief, or a refusal to 

attend or participate in a religious 

practice; 

(2) The organization may not require 

a beneficiary or prospective beneficiary 

to attend or participate in any explicitly 

religious activities that are offered by 

the organization, and any participation 

by a beneficiary in such activities must 

be purely voluntary; 

(3) The organization must separate in 

time or location any privately funded 

explicitly religious activities from 

activities supported by direct Federal 

financial assistance; and 

(4) A beneficiary or prospective 

beneficiary may report an organization’s 

violation of these protections, including 

any denials of services or benefits by an 

organization, by contacting or filing a 

written complaint with the Office for 

Civil Rights or the intermediary that 

awarded funds to the organization. 

(c) The written notice described in 

paragraph (b) of this section must be 

given to a prospective beneficiary prior 

to the time the prospective beneficiary 

enrolls in the program or receives 

services from the program. When the 

nature of the service provided or exigent 

circumstances make it impracticable to 

provide such written notice in advance 

of the actual service, an organization 

must advise beneficiaries of their 

protections at the earliest available 

opportunity. 

(d) The Department may determine 

that the notice described in paragraph 

(b) of this section must inform each 

beneficiary or prospective beneficiary of 

the option to seek information from the 

Department, or a State agency or other 

entity administering the applicable 

program, as to whether there are any 

other federally funded organizations in 

their area that provide the kind of 

services available under the applicable 

program. 

(e) 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. 

■ 47. Revise appendix A to part 38 to 

read as follows: 

Appendix A to Part 38—Notice or 

Announcement of Award Opportunities 

(a) 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, this part 

and any applicable constitutional and 

statutory requirements, including 42 U.S.C. 


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2000bb et seq. The Department of Justice will 

not, in the selection of recipients, 

discriminate for or against an organization on 

the basis of the organization’s religious 

character, motives, or affiliation, or lack 

thereof, or on the basis of conduct that would 

not be considered grounds to favor or 

disfavor a similarly situated secular 

organization. 

(b) 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 and conscience 

protections in Federal law. 

(c) An organization may not use direct 

Federal financial assistance from the 

Department of Justice to support or engage in 

any explicitly religious activities except 

when consistent with the Establishment 

Clause of the First Amendment and any other 

applicable requirements. An organization 

receiving Federal financial assistance also 

may not, in providing services funded by the 

Department of Justice, or in their outreach 

activities related to such services, 

discriminate against a program beneficiary or 

prospective program beneficiary on the basis 

of religion, a religious belief, a refusal to hold 

a religious belief, or a refusal to attend or 

participate in a religious practice. 

■ 48. Revise appendix B to part 38 to 

read as follows: 

Appendix B to Part 38—Notice of 

Award or Contract 

(a) 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 and conscience 

protections in Federal law. 

(b) An organization may not use direct 

Federal financial assistance from the 

Department of Justice to support or engage in 

any explicitly religious activities except 

when consistent with the Establishment 

Clause of the First Amendment and any other 

applicable requirements. An organization 

receiving Federal financial assistance also 

may not, in providing services funded by the 

Department of Justice, or in their outreach 

activities related to such services, 

discriminate against a program beneficiary or 

prospective program beneficiary on the basis 

of religion, a religious belief, a refusal to hold 

a religious belief, or a refusal to attend or 

participate in a religious practice. 

■ 49. Add appendix C to part 38 to read 

as follows: 

Appendix C to Part 38—Written Notice of 

Beneficiary Protections 

Name of Organization: 

Name of Program: 

Contact Information for Program Staff: 

[provide name, phone number, and email 

address, if appropriate] 

Because this program is supported in 

whole or in part by financial assistance from 

the Federal Government, we are required to 

let you know that: 

(1) We may not discriminate against you 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; 

(2) We may not require you to attend or 

participate in any explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction, or proselytization) that 

may be offered by our organization, and any 

participation by you in such activities must 

be purely voluntary; 

(3) We must separate in time or location 

any privately funded explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction, or proselytization) from 

activities supported with direct Federal 

financial assistance; 

(4) You may report violations of these 

protections, including any denials of services 

or benefits by an organization, by contacting 

or filing a written complaint with the 

Department of Justice’s Office for Civil 

Rights, 810 7th Street NW, Washington, DC 

20531, or by email to AskOCR@usdoj.gov; 

and 

[When required by the Department, the 

notice must also state:] (5) If you would like 

to seek information about whether there are 

any other federally funded organizations that 

provide these kinds of services in your area, 

please use the contact information for the 

Department’s Office for Civil Rights set forth 

above. 

We are required to give this written notice 

to you before you enroll in the program or 

receive services from the program, unless the 

nature of the service provided or exigent 

circumstances make it impracticable for us to 

provide such notice before we provide the 

actual service. In such an instance, we must 

give this notice to you at the earliest available 

opportunity. 

DEPARTMENT OF LABOR 

For the reasons set forth in the 

preamble, DOL amends part 2 of title 29 

of the CFR as follows: 

Title 29—Labor 

PART 2—GENERAL REGULATIONS 

■ 50. Revise the authority citation for 

part 2 to read as follows: 

Authority: 5 U.S.C. 301; E.O. 13198, 66 FR 

8497, 3 CFR, 2001 Comp., p. 750; E.O. 13279, 

67 FR 77141, 3 CFR, 2002 Comp., p. 258; E.O. 

13559, 75 FR 71319, 3 CFR, 2010 Comp., p. 

273; E.O. 14015, 86 FR 10007, 3 CFR, 2021 

Comp., p. 517. 

■ 51. Revise the heading for subpart D 

to read as follows: 

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 

■ 52. Amend § 2.31 by revising 

paragraph (a) and the second sentence 

of paragraph (d) to read as follows: 

§ 2.31 Definitions. 

* * * * * 

(a) The term Federal financial 

assistance means assistance that nonFederal entities receive or administer in 

the form of grants, contracts, loans, loan 

guarantees, property, cooperative 

agreements, food commodities, direct 

appropriations, or other assistance, but 

does not include a tax credit, a 

deduction, or an exemption. Federal 

financial assistance may be direct or 

indirect. 

(1) The term direct Federal financial 

assistance or Federal financial 

assistance provided directly means that 

the Government or a DOL social service 

intermediary provider under this part 

selects the provider and either 

purchases services from that provider 

(e.g., via a contract) or awards funds to 

that provider to carry out a service (e.g., 

via a grant or cooperative agreement). In 

general, Federal financial assistance 

shall be treated as direct, unless it meets 

the definition of indirect Federal 

financial assistance or Federal financial 

assistance provided indirectly. 

(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 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 wholly as a result of a 

genuine and independent private choice 

of the beneficiary, not a choice of the 

Government. The availability of 

adequate secular alternatives is a 

significant factor in determining 

whether a program affords a genuinely 

independent and private choice. 

(3) The recipient of sub-awards 

received through programs administered 

by States or other intermediaries that are 

themselves recipients of Federal 

financial assistance (e.g., local areas that 

receive within-state allocations to 

provide workforce services under title I 

of the Workforce Innovation and 

Opportunity Act) are not considered 

recipients of indirect Federal financial 

assistance or recipients of Federal 

financial assistance provided indirectly 

as those terms are used in Executive 

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awards are considered recipients of 

direct Federal financial assistance. 

* * * * * 

(d) * * * Such programs include, but 

are not limited to, the one-stop delivery 

system, Job Corps, and other programs 

supported through the Workforce 

Innovation and Opportunity Act. 

* * * * * 

■ 53. Revise § 2.32 to read as follows: 

§ 2.32 Equal participation of faith-based 

organizations. 

(a)(1) Faith-based organizations are 

eligible, on the same basis as any other 

organization, 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 character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to favor or 

disfavor a similarly situated secular 

organization. 

(2) Notices and announcements of 

award opportunities, and notices of 

awards and contracts, shall include 

language substantially similar to that in 

appendices A and B to this subpart, 

respectively. 

(b)(1) 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. 

(2) No 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 shall disqualify faith-based or 

religious organizations from receiving 

DOL support or participating in DOL 

programs on the basis of the 

organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to disqualify a 

similarly situated secular organization. 

(c)(1) 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, provided that it does not use 

direct Federal financial assistance, 

whether received through a prime 

award or sub-award, to support or 

engage in any explicitly religious 

activities (including activities that 

involve overt religious content such as 

worship, religious instruction, or 

proselytization). 

(2) Among other things, a faith-based 

organization must be permitted to: 

(i) Use its facilities to provide DOLsupported social services without 

concealing, removing, or altering 

religious art, icons, scriptures, or other 

religious symbols from those facilities; 

and 

(ii) 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 

religious references in its mission 

statements and other governing 

documents. 

(d)(1) Any restrictions on the use of 

financial assistance under a grant shall 

apply equally to faith-based and nonfaith-based organizations. 

(2) All organizations, including 

religious ones, that are DOL social 

service providers must carry out DOLsupported activities in accordance with 

all program requirements, including 

those prohibiting the use of direct 

Federal financial assistance for 

explicitly religious activities (including 

worship, religious instruction, or 

proselytization). 

(e)(1) Nothing in this subpart shall be 

construed to preclude DOL from making 

an accommodation, including for 

religious exercise, with respect to one or 

more program requirements on a caseby-case basis in accordance with the 

Constitution and laws of the United 

States, including Federal civil rights 

laws. 

(2) DOL shall not disqualify an 

organization from participating in any 

DOL program for which it is eligible on 

the basis of the organization’s indication 

that it may request an accommodation 

with respect to one or more program 

requirements, unless the organization 

has made clear that the accommodation 

is necessary to its participation and DOL 

has determined that it would deny the 

accommodation. 

■ 54. Amend § 2.33 by revising the 

section heading, the first two sentences 

of paragraph (a), and paragraphs (b)(1) 

and (c) to read as follows: 

§ 2.33 Responsibilities of DOL, DOL social 

service providers, and State and local 

governments administering DOL support. 

(a) Any organization that participates 

in a program funded by Federal 

financial assistance shall not, in 

providing services supported in whole 

or in part with Federal financial 

assistance, or in conducting outreach 

activities related to such services, 

discriminate against a current 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. However, an 

organization that participates in a 

program funded by indirect Federal 

financial assistance need not modify its 

program activities to accommodate a 

beneficiary who chooses to expend the 

indirect aid on the organization’s 

program. * * * 

(b)(1) Organizations that receive direct 

Federal financial assistance may not 

engage in explicitly religious activities 

(including activities that involve overt 

religious content such as worship, 

religious instruction, or proselytization) 

as part of the programs or services 

funded with direct Federal financial 

assistance. If an organization conducts 

such explicitly religious activities, the 

activities must be offered separately, in 

time or location, from the programs or 

services funded with direct Federal 

financial assistance, and participation 

must be voluntary for beneficiaries of 

the programs and services funded with 

such assistance. 

* * * * * 

(c) If a DOL social service 

intermediary provider, acting under a 

contract, grant, or other agreement with 

the Federal Government or with a State 

or local government that is 

administering a program supported by 

Federal financial assistance, is given the 

authority under the contract, grant, or 

agreement to select non-governmental 

organizations to provide services funded 

by the Federal Government, the DOL 

social service intermediary provider 

must ensure the recipient’s compliance 

with the provisions of Executive Order 

13279, as amended by Executive Order 

13559, and any implementing rules or 

guidance. If the DOL social service 

intermediary provider is a nongovernmental organization, it retains all 

other rights of a non-governmental 

organization under the program’s 

statutory and regulatory provisions. 

■ 55. Add § 2.34 to read as follows: 

§ 2.34 Written notice to beneficiaries. 

(a) Notice to beneficiaries of programs 

supported by direct Federal financial 

assistance. Organizations providing 


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social services to beneficiaries under 

programs supported by direct Federal 

financial assistance from DOL must give 

the written notice described in 

paragraph (c) of this section to 

beneficiaries and prospective 

beneficiaries. 

(b) Notice to beneficiaries of programs 

supported by indirect Federal financial 

assistance. The entity responsible for 

disbursing Federal funds as part of a 

program of indirect Federal financial 

assistance administered by DOL must 

give the written notice described in 

paragraph (c) of this section to 

beneficiaries and prospective 

beneficiaries. 

(c) Contents of the notice. The 

required language for the written notice 

to beneficiaries and prospective 

beneficiaries is set forth in appendix C 

to this subpart. The notice includes the 

following: 

(1) The organization may not 

discriminate against beneficiaries or 

prospective beneficiaries on the basis of 

religion, a religious belief, a refusal to 

hold a religious belief, or a refusal to 

attend or participate in a religious 

practice; 

(2) The organization may not require 

beneficiaries or prospective 

beneficiaries to attend or participate in 

any explicitly religious activities that 

are offered by the organization, and any 

participation by beneficiaries in such 

activities must be purely voluntary; 

(3) The organization must separate in 

time or location any privately funded 

explicitly religious activities from 

activities supported by direct Federal 

financial assistance; 

(4) Beneficiaries and prospective 

beneficiaries may report an 

organization’s violation of these 

protections, including any denials of 

services or benefits by an organization, 

by contacting or filing a written 

complaint with DOL’s Civil Rights 

Center, 200 Constitution Avenue NW, 

Room N–4123, Washington, DC 20210, 

or by email to CRCExternalComplaints@

dol.gov; and 

(5) Beneficiaries and potential 

beneficiaries may seek information 

about whether there are any other 

federally funded organizations that 

provide these kinds of services in their 

area by calling DOL’s US2–JOBS 

helpline toll-free at 1–877–US2–JOBS 

(1–877–872–5627) or TTY 1–877–889– 

5627. 

(d) Timing. The written notice set 

forth in appendix C to this subpart must 

be given to prospective beneficiaries 

before they enroll in the program or 

receive services from the program. The 

written notice may be incorporated into 

materials that are otherwise provided to 

prospective beneficiaries. When the 

nature of the service provided or exigent 

circumstances make it impracticable to 

provide such written notice in advance 

of the actual service, organizations must 

advise beneficiaries of their protections 

at the earliest available opportunity. 

■ 56. Revise § 2.37 to read as follows: 

§ 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 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 

Federal financial assistance from DOL. 

Some DOL programs, however, were 

established through Federal statutes 

containing independent statutory 

provisions requiring that recipients 

refrain from discriminating on the basis 

of religion. In this case, to determine the 

scope of any applicable requirements, 

recipients and potential recipients 

should consult with the appropriate 

DOL program office or with the Civil 

Rights Center, U.S. Department of Labor, 

200 Constitution Avenue NW, Room N– 

4123, Washington, DC 20210, (202) 693– 

6500. If you are deaf, hard of hearing, 

or have a speech disability, please dial 

7–1–1 to reach the number in the 

preceding sentence through 

telecommunications relay services. 

■ 57. Amend § 2.38 by: 

■ a. Revising paragraphs (b)(3) and (4). 

■ b. Removing paragraph (b)(5). 

The revisions read as follows: 

§ 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; or 

(4) Any item described in paragraphs 

(b)(1) through (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. 

■ 58. Add appendix A to subpart D to 

read as follows: 

Appendix A to Subpart D of Part 2— 

Notice or Announcement of Award 

Opportunities 

(a) Faith-based organizations may apply for 

this award on the same basis as any other 

organization, subject to the protections and 

requirements of this subpart and any 

applicable constitutional and statutory 

requirements, including 42 U.S.C. 2000bb et 

seq. DOL will not, in the selection of 

recipients, discriminate for or against an 

organization on the basis of the 

organization’s religious character, motives, or 

affiliation, or lack thereof, or on the basis of 

conduct that would not be considered 

grounds to favor or disfavor a similarly 

situated secular organization. 

(b) 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 and conscience 

protections in Federal law. 

(c) A faith-based organization may not use 

direct Federal financial assistance to support 

or engage in any explicitly religious activities 

except where consistent with the 

Establishment Clause of the First 

Amendment and any other applicable 

requirements. An organization receiving 

Federal financial assistance also may not, in 

providing services funded by DOL, or in 

conducting outreach activities related to such 

services, discriminate against a program 

beneficiary or prospective program 

beneficiary on the basis of religion, a 

religious belief, a refusal to hold a religious 

belief, or a refusal to attend or participate in 

a religious practice. 

■ 59. Add appendix B to subpart D to 

read as follows: 

Appendix B to Subpart D of Part 2— 

Notice of Award or Contract 

(a) 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 and conscience 

protections in Federal law. 

(b) A faith-based organization may not use 

direct Federal financial assistance to support 

or engage in any explicitly religious activities 

except where consistent with the 

Establishment Clause of the First 

Amendment and any other applicable 

requirements. An organization receiving 

Federal financial assistance also may not, in 

providing services funded by DOL, or in 

conducting outreach activities related to such 

services, discriminate against a program 

beneficiary or prospective program 

beneficiary on the basis of religion, a 

religious belief, a refusal to hold a religious 

belief, or a refusal to attend or participate in 

a religious practice. 

■ 60. Add appendix C to subpart D to 

read as follows: 

Appendix C to Subpart D of Part 2— 

Written Notice of Beneficiary 

Protections 

Name of Organization: 

Name of Program: 

Type of Federal Financial Assistance: 

[specify DIRECT Federal financial assistance 

or INDIRECT Federal financial assistance] 

Contact Information for Program Staff: 

[provide name, phone number, and email 

address, if appropriate] 

Because this program is supported in 

whole or in part by financial assistance from 


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15718 Federal Register / Vol. 89, No. 43 / Monday, March 4, 2024 / Rules and Regulations 

the Federal Government, we are required to 

let you know that: 

(1) We may not discriminate against you 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; 

(2) We may not require you to attend or 

participate in any explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction, or proselytization) that 

are offered by our organization, and any 

participation by you in such activities must 

be purely voluntary; 

(3) We must separate in time or location 

any privately funded explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction, or proselytization) from 

activities supported with direct Federal 

financial assistance; 

(4) You may report violations of these 

protections, including any denials of services 

or benefits by an organization, by contacting 

or filing a written complaint with the U.S. 

Department of Labor’s Civil Rights Center, 

200 Constitution Avenue NW, Room N–4123, 

Washington, DC 20210, or by email to 

CRCExternalComplaints@dol.gov; and 

(5) If you would like to seek information 

about whether there are any other federally 

funded organizations that provide these 

kinds of services in your area, please call tollfree 1–877–US2–JOBS (1–877–872–5627) or 

TTY 1–877–889–5627. 

This written notice must be given to you 

before you enroll in the program or receive 

services from the program, unless the nature 

of the service provided or exigent 

circumstances make it impracticable to 

provide such notice before we provide the 

actual service. In such an instance, this 

notice must be given to you at the earliest 

available opportunity. 

Appendix A to Part 2 [Removed] 

■ 61. Remove appendix A to part 2. 

Appendix B to Part 2 [Removed] 

■ 62. Remove appendix B to part 2. 

DEPARTMENT OF VETERANS 

AFFAIRS 

For the reasons set forth in the 

preamble, VA amends 38 CFR parts 50, 

61, and 62 as follows: 

Title 38—Pensions, Bonuses, and Veterans’ 

Relief 

PART 50—EQUAL TREATMENT OF 

FAITH-BASED ORGANIZATIONS 

■ 63. The authority citation for part 50 

continues to read as follows: 

Authority: 38 U.S.C. 501 and as noted in 

specific sections. 

■ 64. Amend § 50.1 by revising 

paragraphs (b)(2) and (c) to read as 

follows: 

§ 50.1 Definitions. 

* * * * * 

(b) * * * 

(2) The organization receives the 

assistance wholly as a result of a 

genuine and independent private choice 

of the beneficiary, not a choice of the 

Government. The availability of 

adequate secular alternatives is a 

significant factor in determining 

whether a program affords a genuine 

and independent private choice. 

(c) Federal financial assistance means 

assistance that non-Federal entities 

receive or administer in the form of 

grants, contracts, loans, loan guarantees, 

property, cooperative agreements, food 

commodities, direct appropriations, or 

other assistance, but does not include a 

tax credit, deduction, or exemption. 

* * * * * 

■ 65. Revise § 50.2 to read as follows: 

§ 50.2 Faith-based organizations and 

Federal financial assistance. 

(a) Faith-based organizations are 

eligible, on the same basis as any other 

organization, to participate in any VA 

program or service for which they are 

otherwise eligible. Neither the VA 

program nor any State or local 

government or other pass-through entity 

receiving funds under any VA program 

shall, in the selection of service 

providers, discriminate for or against an 

organization on the basis of the 

organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to favor or 

disfavor a similarly situated secular 

organization. 

(b) Organizations that receive direct 

Federal financial assistance from a VA 

program may not engage in any 

explicitly religious activities (including 

activities that involve overt religious 

content such as worship, religious 

instruction, or proselytization) as part of 

the programs or services funded with 

direct Federal financial assistance from 

the VA program, or in any other manner 

prohibited by law. If an organization 

conducts such activities, the activities 

must be offered separately, in time or 

location, from the programs or services 

funded with direct Federal financial 

assistance from the VA program, and 

participation must be voluntary for 

beneficiaries of the programs or services 

funded with such assistance. The use of 

indirect Federal financial assistance is 

not subject to this restriction. Nothing in 

this part restricts VA’s authority under 

applicable Federal law to fund 

activities, such as the provision of 

chaplaincy services, that can be directly 

funded by the Government consistent 

with the Establishment Clause. 

(c) A faith-based organization that 

participates in programs or services 

funded by a VA program will retain its 

autonomy; right of expression; religious 

character; 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. A faith-based 

organization that receives direct Federal 

financial assistance may use space in its 

facilities to provide programs or services 

funded with financial assistance from 

the VA program without concealing, 

removing, or altering religious art, icons, 

scriptures, or other religious symbols. In 

addition, a faith-based organization that 

receives Federal financial assistance 

from a VA program does not lose the 

protections of law. Such a faith-based 

organization retains its authority over its 

internal governance, and it may retain 

religious terms in its 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 

mission statements and other governing 

documents. 

(d) Any organization that participates 

in programs funded by Federal financial 

assistance from the VA shall not, in 

providing services supported in whole 

or in part with Federal financial 

assistance, or in their outreach activities 

related to such services, discriminate 

against a program beneficiary or 

prospective program beneficiary on the 

basis of religion, a religious belief, a 

refusal to hold a religious belief, or a 

refusal to attend or participate in a 

religious practice. However, an 

organization receiving indirect Federal 

financial assistance need not modify its 

program activities to accommodate a 

beneficiary who chooses to expend the 

indirect aid on the organization’s 

program. 

(e) No grant document, agreement, 

covenant, memorandum of 

understanding, policy, or regulation that 

is used by a VA program or a State or 

local government in administering 

Federal financial assistance from any 

VA program 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. All 

organizations that participate in VA 

programs or services, including faithbased ones, must carry out eligible 

activities in accordance with all 

program requirements, including those 

prohibiting the use of direct financial 

assistance to engage in explicitly 

religious activities, subject to any 

accommodations that are granted on a 

case-by-case basis in accordance with 


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the Constitution and laws of the United 

States. No grant document, agreement, 

covenant, memorandum of 

understanding, policy, or regulation that 

is used by VA or a State or local 

government in administering financial 

assistance from VA shall disqualify 

faith-based organizations from 

participating in the VA programs or 

services on the basis of the 

organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to disqualify a 

similarly situated secular organization. 

(f) Nothing in this part shall be 

construed to preclude VA from making 

an accommodation, including for 

religious exercise, with respect to one or 

more program requirements on a caseby-case basis in accordance with the 

Constitution and laws of the United 

States. 

(g) VA shall not disqualify an 

organization from participating in any 

VA program for which it is eligible on 

the basis of the organization’s indication 

that it may request an accommodation 

with respect to one or more program 

requirements, unless the organization 

has made clear that the accommodation 

is necessary to its participation and VA 

has determined that it would deny the 

accommodation. 

(h) A faith-based organization’s 

exemption from the Federal prohibition 

on employment discrimination on the 

basis of religion, set forth in section 

702(a) of the Civil Rights Act of 1964 (42 

U.S.C. 2000e–1), is not forfeited when 

the organization receives direct or 

indirect Federal financial assistance 

from a VA program. Some VA programs, 

however, contain independent statutory 

provisions affecting a recipient’s ability 

to discriminate on the basis of religion 

in employment. In this case, recipients 

should consult with the appropriate VA 

program office if they have questions 

about the scope of any applicable 

requirements. 

(i) In general, VA programs do not 

require that a recipient, including a 

faith-based organization, obtain taxexempt status under section 501(c)(3) of 

the Internal Revenue Code to be eligible 

for funding under VA programs. Some 

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 VA program office to 

determine the scope of any applicable 

requirements. In VA programs in which 

an applicant must show that it is a 

nonprofit organization, the applicant 

may do so by any of the following 

means: 

(1) 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; 

(2) A statement from a State or other 

governmental taxing body or the State 

secretary of State certifying that: 

(i) The organization is a nonprofit 

organization operating within the State; 

and 

(ii) No part of its net earnings may 

benefit any private shareholder or 

individual; 

(3) A certified copy of the applicant’s 

certificate of incorporation or similar 

document that clearly establishes the 

nonprofit status of the applicant; or 

(4) Any item described in paragraphs 

(i)(1) through (3) 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. 

(j) If a recipient contributes its own 

funds in excess of those funds required 

by a matching or grant agreement to 

supplement VA program-supported 

activities, the recipient has the option to 

segregate those additional funds or 

commingle them with the Federal award 

funds. If the funds are commingled, the 

provision of this part shall apply to all 

of the commingled funds in the same 

manner, and to the same extent, as the 

provisions apply to the Federal funds. 

With respect to the matching funds, the 

provisions of this part apply irrespective 

of whether such funds are commingled 

with Federal funds or segregated. 

(k) Decisions about awards of Federal 

financial assistance must be made on 

the basis of merit, not on the basis of the 

religious affiliation, or lack thereof, of a 

recipient organization, and must be free 

from political interference or even the 

appearance of such interference. 

(l) Neither VA nor any State or local 

government or other pass-through entity 

receiving funds under any VA program 

or service 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. 

(m) If a pass-through entity, acting 

under a contract, grant, or other 

agreement with the Federal Government 

or with a State or local government that 

is administering a program supported by 

Federal financial assistance, is given the 

authority under the contract, grant, or 

agreement to select non-governmental 

organizations to provide services funded 

by the Federal Government, the passthrough entity must ensure compliance 

by the subrecipient with the provisions 

of this part and any implementing 

regulations or guidance. If the passthrough entity is a non-governmental 

organization, it retains all other rights of 

a non-governmental organization under 

the program’s statutory and regulatory 

provisions. 

■ 66. Add § 50.3 to read as follows: 

§ 50.3 Notice requirements. 

(a) An organization providing social 

services under a program of VA 

supported by Federal financial 

assistance must give written notice to 

beneficiaries and prospective 

beneficiaries of certain protections in a 

manner and form prescribed by the VA 

program. The language for this written 

notice to beneficiaries must be 

substantially similar to the text set forth 

in appendix C to this part. Specifically, 

the notice must include the following: 

(1) The organization may not 

discriminate against a beneficiary or 

prospective beneficiary on the basis of 

religion, a religious belief, a refusal to 

hold a religious belief, or a refusal to 

attend or participate in a religious 

practice; 

(2) The organization may not require 

a beneficiary or prospective beneficiary 

to attend or participate in any explicitly 

religious activities that are offered by 

the organization, and any participation 

by a beneficiary in such activities must 

be purely voluntary; 

(3) The organization must separate in 

time or location any privately funded 

explicitly religious activities from 

activities supported by direct Federal 

financial assistance; and 

(4) A beneficiary or prospective 

beneficiary may report an organization’s 

violation of these protections, including 

any denials of services or benefits by an 

organization, by contacting or filing a 

written complaint with the VA program 

or the intermediary that awarded funds 

to the organization. 

(b) The written notice described in 

paragraph (a) of this section must be 

given to a prospective beneficiary prior 

to the time the prospective beneficiary 

enrolls in the program or receives 

services from the program. When the 

nature of the service provided or exigent 

circumstances make it impracticable to 

provide such written notice in advance 

of the actual service, an organization 


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15720 Federal Register / Vol. 89, No. 43 / Monday, March 4, 2024 / Rules and Regulations 

must advise beneficiaries of their 

protections at the earliest available 

opportunity. 

(c) VA may determine that the notice 

described in paragraph (a) of this 

section must inform each beneficiary or 

prospective beneficiary of the option to 

seek information from VA, or another 

entity administering the program, as to 

whether there are any other federally 

funded organizations in their area that 

provide the services available under the 

applicable program. 

(d) 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. 

■ 67. Revise appendix A to part 50 to 

read as follows: 

Appendix A to Part 50—Notice or 

Announcement of Award Opportunities 

(a) 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, this part 

and any applicable constitutional and 

statutory requirements, including 42 U.S.C. 

2000bb et seq. VA will not, in the selection 

of recipients, discriminate for or against an 

organization on the basis of the 

organization’s religious character, motives, or 

affiliation, or lack thereof, or on the basis of 

conduct that would not be considered 

grounds to favor or disfavor a similarly 

situated secular organization. 

(b) 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 and conscience 

protections in Federal law. 

(c) A faith-based organization may not use 

direct financial assistance from VA to 

support or engage in any explicitly religious 

activities except where consistent with the 

Establishment Clause of the First 

Amendment and any other applicable 

requirements. An organization receiving 

Federal financial assistance also may not, in 

providing services funded by VA, or in their 

outreach activities related to such services, 

discriminate against a program beneficiary or 

prospective program beneficiary on the basis 

of religion, a religious belief, a refusal to hold 

a religious belief, or a refusal to attend or 

participate in a religious practice. 

■ 68. Revise appendix B to part 50 to 

read as follows: 

Appendix B to Part 50—Notice of 

Award or Contract 

(a) 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 and conscience 

protections in Federal law. 

(b) A faith-based organization may not use 

direct Federal financial assistance from VA to 

support or engage in any explicitly religious 

activities except when consistent with the 

Establishment Clause and any other 

applicable requirements. An organization 

receiving Federal financial assistance also 

may not, in providing services funded by VA, 

or in their outreach activities related to such 

services, discriminate against a program 

beneficiary or prospective program 

beneficiary on the basis of religion, a 

religious belief, a refusal to hold a religious 

belief, or a refusal to attend or participate in 

a religious practice. 

■ 69. Add appendix C to part 50 to read 

as follows: 

Appendix C to Part 50—Written Notice 

of Beneficiary Protections 

Name of Organization: 

Name of Program: 

Contact Information for VA Grant Program 

Office (name, phone number, and email 

address, if appropriate): 

Because this program is supported in 

whole or in part by financial assistance from 

the Federal Government, we are required to 

let you know that: 

(1) We may not discriminate against you 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; 

(2) We may not require you to attend or 

participate in any explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction, or proselytization) that 

may be offered by our organization, and any 

participation by you in such activities must 

be purely voluntary; 

(3) We must separate in time or location 

any privately funded explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction, or proselytization) from 

activities supported with direct Federal 

financial assistance; 

(4) You may report violations of these 

protections, including any denials of services 

or benefits by an organization, by contacting 

or filing a written complaint with the grant 

program office using the contact information 

set forth above; and 

[When required by VA, the notice must 

also state:] (5) If you would like to seek 

information about whether there are any 

other federally funded organizations that 

provide these kinds of services in your area, 

please use the contact information set forth 

above. 

This written notice must be given to you 

before you enroll in the program or receive 

services from the program, unless the nature 

of the service provided or exigent 

circumstances make it impracticable to 

provide such notice before we provide the 

actual service. In such an instance, this 

notice must be given to you at the earliest 

available opportunity. 

PART 61—VA HOMELESS PROVIDERS 

GRANT AND PER DIEM PROGRAM 

■ 70. The authority citation for part 61 

continues to read as follows: 

Authority: 38 U.S.C. 501, 2001, 2002, 2011, 

2012, 2013, 2061, 2064. 

■ 71. Amend § 61.64 by revising 

paragraphs (b)(2), (e), and (g) to read as 

follows: 

§ 61.64 Faith-based organizations. 

* * * * * 

(b) * * * 

(2) For purposes of this section, 

‘‘indirect Federal financial assistance’’ 

means Federal financial assistance in 

which a service provider receives 

program funds through a voucher, 

certificate, agreement, or other form of 

disbursement, wholly as a result of the 

genuinely independent and private 

choice of a beneficiary, not a choice of 

the Government. The availability of 

adequate secular alternatives is a 

significant factor in determining 

whether a program affords true private 

choice. ‘‘Direct Federal financial 

assistance’’ means Federal financial 

assistance received by an entity selected 

by the Government or a pass-through 

entity as defined in 38 CFR 50.1(d) to 

provide or carry out a service (e.g., by 

contract, grant, or cooperative 

agreement). References to ‘‘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’’ 

in this paragraph (b)(2). 

* * * * * 

(e) An organization that participates 

in a VA program under this part shall 

not, in providing direct program 

assistance, discriminate against a 

program beneficiary or prospective 

program beneficiary regarding housing, 

supportive services, or technical 

assistance, 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. 

* * * * * 

(g) To the extent otherwise permitted 

by Federal law, the restrictions on 

explicitly religious activities set forth in 

this section do not apply where VA 

funds are provided to faith-based 

organizations through indirect 

assistance wholly as a result of a 

genuinely independent and private 

choice of a beneficiary, provided the 

faith-based organizations otherwise 

satisfy the requirements of this part. A 

faith-based organization may receive 

such funds as the result of a 

beneficiary’s genuine and independent 

choice if, for example, a beneficiary 

redeems a voucher, coupon, or 

certificate, allowing the beneficiary to 

direct where funds are to be paid, or a 

similar funding mechanism provided to 


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Federal Register / Vol. 89, No. 43 / Monday, March 4, 2024 / Rules and Regulations 15721 

that beneficiary and designed to give 

that beneficiary a choice among 

providers. 

PART 62—SUPPORTIVE SERVICES 

FOR VETERAN FAMILIES PROGRAM 

■ 72. The authority citation for part 62 

continues to read as follows: 

Authority: 38 U.S.C. 501, 2044, and as 

noted in specific sections. 

■ 73. Amend § 62.62 by revising 

paragraphs (b)(2), (e), and (g) to read as 

follows: 

§ 62.62 Faith-based organizations. 

* * * * * 

(b) * * * 

(2) For purposes of this section, 

‘‘indirect Federal financial assistance’’ 

means Federal financial assistance in 

which a service provider receives 

program funds through a voucher, 

certificate, agreement, or other form of 

disbursement, wholly as a result of the 

genuinely independent and private 

choice of a beneficiary, not a choice of 

the Government. The availability of 

adequate secular alternatives is a 

significant factor in determining 

whether a program affords true private 

choice. ‘‘Direct Federal financial 

assistance’’ means Federal financial 

assistance received by an entity selected 

by the Government or a pass-through 

entity as defined in 38 CFR 50.1(d) to 

provide or carry out a service (e.g., by 

contract, grant, or cooperative 

agreement). References to ‘‘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’’ 

in this paragraph (b)(2). 

* * * * * 

(e) An organization that participates 

in a VA program under this part shall 

not, in providing direct program 

assistance, discriminate against a 

program beneficiary or prospective 

program beneficiary regarding housing, 

supportive services, or technical 

assistance, 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. 

* * * * * 

(g) To the extent otherwise permitted 

by Federal law, the restrictions on 

explicitly religious activities set forth in 

this section do not apply where VA 

funds are provided to faith-based 

organizations through indirect 

assistance wholly as a result of a 

genuinely independent and private 

choice of a beneficiary, provided the 

faith-based organizations otherwise 

satisfy the requirements of this part. A 

faith-based organization may receive 

such funds as the result of a 

beneficiary’s genuine and independent 

choice if, for example, a beneficiary 

redeems a voucher, coupon, or 

certificate, allowing the beneficiary to 

direct where funds are to be paid, or a 

similar funding mechanism provided to 

that beneficiary and designed to give 

that beneficiary a choice among 

providers. 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

For the reasons set forth in the 

preamble, HHS amends part 87 of title 

45 of the CFR as follows: 

Title 45—Public Welfare 

PART 87—EQUAL TREATMENT FOR 

FAITH-BASED ORGANIZATIONS 

■ 74. The authority citation for part 87 

continues to read as follows: 

Authority: 5 U.S.C. 301; 42 U.S.C. 2000bb 

et seq. 

■ 75. Amend § 87.1 by revising 

paragraphs (c) and (d) to read as follows: 

§ 87.1 Definitions. 

* * * * * 

(c) Indirect Federal financial 

assistance or Federal financial 

assistance provided indirectly means 

Federal 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, 

and: 

(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 service provider receives the 

assistance wholly as a result of a 

genuine and independent private choice 

of the beneficiary, not a choice of the 

Government. The availability of 

adequate secular alternatives is a 

significant factor in determining 

whether a program affords true private 

choice. 

(d) Federal financial assistance means 

assistance that non-Federal entities 

receive or administer in the form of 

grants, contracts, loans, loan guarantees, 

property, cooperative agreements, food 

commodities, direct appropriations, or 

other assistance, but does not include a 

tax credit, deduction, or exemption. 

Federal financial assistance may be 

direct or indirect. 

* * * * * 

■ 76. Amend § 87.2 by revising 

paragraphs (a) and (b) to read as follows: 

§ 87.2 Applicability. 

* * * * * 

(a) Discretionary grants. This part is 

not applicable to the discretionary grant 

programs that are governed by the 

Substance Abuse and Mental Health 

Services Administration (SAMHSA) 

Charitable Choice regulations found at 

42 CFR part 54a. This part is also not 

applicable to discretionary grant 

programs that are governed by the 

Community Services Block Grant 

(CSBG) Charitable Choice regulations at 

45 CFR part 1050, with the exception of 

§§ 87.1 and 87.3(k) through (m) and (o), 

which do apply to such CSBG 

discretionary grants. Discretionary 

grants authorized by the Child Care and 

Development Block Grant Act are also 

not governed by this part. 

(b) Formula and block grants. This 

part does not apply to non-discretionary 

and block grant programs governed by 

the SAMHSA Charitable Choice 

regulations found at 42 CFR part 54, or 

the Temporary Assistance for Needy 

Families (TANF) Charitable Choice 

regulations at 45 CFR part 260. Block 

grants governed by the CSBG Charitable 

Choice regulations at 45 CFR part 1050 

are not subject to this part, with the 

exception of §§ 87.1 and 87.3(k) through 

(m) and (o), which do apply to such 

CSBG block grants. This part is not 

applicable to Child Care and 

Development Block Grants governed by 

45 CFR part 98. 

■ 77. Amend § 87.3 by: 

■ a. Revising paragraph (a). 

■ b. Redesignating paragraphs (b) 

through (h) and (i) through (k) as 

paragraphs (d) through (j) and (o) 

through (q), respectively. 

■ c. Adding new paragraphs (b) and (c). 

■ d. Removing note 1 following newly 

redesignated paragraph (e). 

■ e. Revising newly redesignated 

paragraphs (f) through (h) and (i)(3) and 

(4). 

■ f. Removing newly redesignated 

paragraph (i)(5). 

■ g. Adding a new paragraph (k) and 

paragraphs (l) through (n). 

The revisions and additions read as 

follows: 

§ 87.3 Faith-based organizations and 

Federal financial assistance. 

(a) Faith-based organizations are 

eligible, on the same basis as any other 

organization, to participate in any HHS 

awarding agency program or service for 

which they are otherwise eligible. 

Neither the HHS awarding agency nor 

any State or local government or other 

pass-through entity receiving funds 


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15722 Federal Register / Vol. 89, No. 43 / Monday, March 4, 2024 / Rules and Regulations 

under any HHS awarding agency 

program or service shall, in the selection 

of service providers, discriminate for or 

against an organization on the basis of 

the organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to favor or 

disfavor a similarly situated secular 

organization. 

(b) Nothing in this part shall be 

construed to preclude HHS from making 

an accommodation, including for 

religious exercise, with respect to one or 

more program requirements on a caseby-case basis in accordance with the 

Constitution and laws of the United 

States. 

(c) HHS shall not disqualify an 

organization from participating in any 

HHS program for which it is eligible on 

the basis of the organization’s indication 

that it may request an accommodation 

with respect to one or more program 

requirements, unless the organization 

has made clear that the accommodation 

is necessary to its participation and 

HHS has determined that it would deny 

the accommodation. 

* * * * * 

(f) An organization, whether faithbased or not, that receives Federal 

financial assistance from HHS shall not, 

in providing services supported in 

whole or in part with Federal financial 

assistance, or in their outreach activities 

related to such services, discriminate 

against a program beneficiary or 

prospective program beneficiary on the 

basis of religion, a religious belief, a 

refusal to hold a religious belief, or a 

refusal to attend or participate in a 

religious practice. However, a faithbased organization receiving indirect 

Federal financial assistance need not 

modify any religious components or 

integration with respect to its program 

activities to accommodate a beneficiary 

who chooses to expend the indirect aid 

on the organization’s program. 

(g) No grant document, agreement, 

covenant, memorandum of 

understanding, policy, or regulation 

used by an HHS awarding agency or a 

State or local government in 

administering Federal financial 

assistance from the HHS awarding 

agency 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. All 

organizations, whether faith-based or 

not, that participate in HHS awarding 

agency programs or services must carry 

out eligible activities in accordance with 

all program requirements, including 

those prohibiting the use of direct 

Federal financial assistance to engage in 

explicitly religious activities, subject to 

any accommodations that HHS grants to 

organizations on a case-by-case basis in 

accordance with the Constitution and 

laws of the United States. No grant 

document, agreement, covenant, 

memorandum of understanding, policy, 

or regulation used by an HHS awarding 

agency or a State or local government in 

administering Federal financial 

assistance from the HHS awarding 

agency shall disqualify faith-based 

organizations from participating in the 

HHS awarding agency’s programs or 

services on the basis of the 

organization’s religious character, 

motives, or affiliation, or lack thereof, or 

on the basis of conduct that would not 

be considered grounds to disqualify a 

similarly situated secular organization. 

(h) A faith-based organization’s 

exemption from the Federal prohibition 

on employment discrimination on the 

basis of religion, set forth in the Civil 

Rights Act of 1964, 42 U.S.C. 2000e–1, 

is not forfeited when the faith-based 

organization receives direct or indirect 

Federal financial assistance from an 

HHS awarding agency. Some HHS 

awarding agency programs, however, 

contain independent statutory 

provisions requiring that all grantees 

agree not to discriminate in employment 

on the basis of religion. In this case, 

grantees should consult with the 

appropriate HHS awarding agency 

program office to determine the scope of 

any applicable requirements. 

(i) * * * 

(3) A certified copy of the applicant’s 

certificate of incorporation or similar 

document that clearly establishes the 

nonprofit status of the applicant; or 

(4) Any item described in paragraphs 

(i)(1) through (3) 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. 

* * * * * 

(k) An organization providing social 

services under a discretionary grant 

program of HHS that is supported by 

Federal financial assistance must give 

written notice to beneficiaries and 

prospective beneficiaries of certain 

protections. A pass-through entity 

administering social service programs 

under a mandatory formula, block or 

entitlement grant of HHS that is 

supported by Federal financial 

assistance shall ensure that beneficiaries 

and prospective beneficiaries receive 

written notice of certain protections. 

(1) The written notice to beneficiaries 

and prospective beneficiaries of directly 

funded social services shall include 

language substantially similar to that 

found in appendix A to this part. The 

notice must include the following 

information: 

(i) The organization may not 

discriminate against a beneficiary or 

prospective beneficiary on the basis of 

religion, a religious belief, a refusal to 

hold a religious belief, or a refusal to 

attend or participate in a religious 

practice; 

(ii) The organization may not require 

a beneficiary or prospective beneficiary 

to attend or participate in any explicitly 

religious activities that are offered by 

the organization, and any participation 

by a beneficiary in such activities must 

be purely voluntary; 

(iii) The organization must separate in 

time or location any privately funded 

explicitly religious activities from 

activities supported by direct Federal 

financial assistance; and 

(iv) A beneficiary or prospective 

beneficiary may report an organization’s 

violation of these protections, including 

any denials of services or benefits by an 

organization, by contacting or filing a 

written complaint with either the HHS 

awarding entity or the pass-through 

entity that awarded funds to the 

organization, which must promptly 

report the complaint to the HHS 

awarding entity. The HHS awarding 

entity will address the complaint in 

consultation with the HHS Office for 

Civil Rights. 

(2) The written notice to beneficiaries 

of indirectly funded social services must 

identify the protections in paragraphs (f) 

and (k)(1)(ii) and (iv) of this section; it 

must also provide the contact 

information of the HHS awarding entity 

or the pass-through entity that 

administers the program. 

(l) The written notice described in 

paragraph (k) of this section must be 

given to a prospective beneficiary prior 

to the time the prospective beneficiary 

enrolls in the program or receives 

services from the program. When the 

nature of the service provided or exigent 

circumstances make it impracticable to 

provide such written notice in advance 

of the actual service, an organization 

must advise beneficiaries of their 

protections and provide the notice at the 

earliest available opportunity. 

(m) The written notice described in 

paragraph (k) of this section must be 

given in a manner prescribed by the 

HHS awarding agency in consultation 

with the HHS Office for Civil Rights, 

such as by incorporating the notice into 

materials that are otherwise provided to 

beneficiaries. The HHS awarding 


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Federal Register / Vol. 89, No. 43 / Monday, March 4, 2024 / Rules and Regulations 15723 

agency, in consultation with the HHS 

Office for Civil Rights, may determine 

that the notice must inform each 

beneficiary or prospective beneficiary of 

the option to seek information from the 

HHS awarding agency, or another entity 

administering the applicable program, 

about other federally funded 

organizations in their area, if any, that 

provide the services available under the 

applicable program. 

(n) Notices or announcements of 

award opportunities and notices of 

award or contracts shall include 

language substantially similar to that in 

appendices B and C to this part. 

* * * * * 

■ 78. Revise § 87.4 to read as follows: 

§ 87.4 Severability. 

To the extent that any provision of 

this part is declared invalid by a court 

of competent jurisdiction, the 

Department intends for all other 

provisions that are capable of operating 

in the absence of the specific provision 

that has been invalidated to remain in 

effect. 

Appendices A and B to Part 87 

[Redesignated as Appendices B and C 

to Part 87] 

■ 79. Redesignate appendices A and B 

to part 87 as appendices B and C to part 

87, respectively. 

■ 80. Add a new appendix A to part 87 

to read as follows: 

Appendix A to Part 87—Direct Aid 

Programs: Written Notice of Beneficiary 

Protections 

Name of Organization: 

Name of Program: 

Contact Information for Program Staff: 

[provide name, phone number, and email 

address, if appropriate] 

Because this program is supported in 

whole or in part by financial assistance from 

the Federal Government, we are required to 

let you know that— 

(1) We may not discriminate against you 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; 

(2) We may not require you to attend or 

participate in any explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction or proselytization) that 

may be offered by our organization, and any 

participation by you in such activities must 

be purely voluntary; 

(3) We must separate in time or location 

any privately funded explicitly religious 

activities (including activities that involve 

overt religious content such as worship, 

religious instruction or proselytization) from 

activities supported with direct Federal 

financial assistance; 

(4) You may report violations of these 

protections, including any denials of services 

or benefits by an organization, by contacting 

or filing a written complaint with [identify 

the HHS awarding entity, or the pass-through 

entity that awarded funds to your 

organization, and the phone number and 

physical street and/or email address of the 

identified office]. The HHS awarding entity 

will address the complaint in consultation 

with the HHS Office for Civil Rights; 

[When required by the HHS awarding 

agency, the notice must also state:] (5) If you 

would like to seek information about whether 

there are any other federally funded 

organizations that provide these kinds of 

services in your area, please use the contact 

information set forth above. 

We must give you this notice before you 

enroll in or receive services from the 

program, unless the nature of the service 

provided or exigent circumstances make 

advanced notice impracticable. In that case, 

this notice must be given to you at the 

earliest available opportunity. 

■ 81. Revise newly redesignated 

appendix B to part 87 to read as follows: 

Appendix B to Part 87—Notice or 

Announcement of Award Opportunities 

(a) 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, this part 

and any applicable constitutional and 

statutory requirements, including 42 U.S.C. 

2000bb et seq. HHS will not, in the selection 

of recipients, discriminate for or against an 

organization on the basis of the 

organization’s religious character, motives, or 

affiliation, or lack thereof, or on the basis of 

conduct that would not be considered 

grounds to favor or disfavor a similarly 

situated secular organization. 

(b) 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, nondiscrimination, 

and conscience protections in Federal law. 

(c) A faith-based organization may not use 

direct Federal financial assistance from HHS 

to support or engage in any explicitly 

religious activities (including activities that 

involve overt religious content such as 

worship, religious instruction, or 

proselytization) 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 HHS, or 

in their outreach activities related to such 

services, discriminate against a program 

beneficiary or prospective program 

beneficiary on the basis of religion, a 

religious belief, a refusal to hold a religious 

belief, or a refusal to attend or participate in 

a religious practice. 

■ 82. Revise newly redesignated 

appendix C to part 87 to read as follows: 

Appendix C to Part 87—Notice of 

Award or Contract 

(a) 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, nondiscrimination, 

and conscience protections in Federal law. 

(b) A faith-based organization may not use 

direct Federal financial assistance from HHS 

to support or engage in any explicitly 

religious activities (including activities that 

involve overt religious content such as 

worship, religious instruction, or 

proselytization) except when consistent with 

the Establishment Clause of the First 

Amendment and any other applicable 

requirements. Such an organization also may 

not, in providing services funded by the 

Department, or in their outreach activities 

related to such services, discriminate against 

a program beneficiary or prospective program 

beneficiary on the basis of religion, a 

religious belief, a refusal to hold a religious 

belief, or a refusal to attend or participate in 

a religious practice. 

Miguel A. Cardona, 

Secretary, U.S. Department of Education. 

Alejandro N. Mayorkas, 

Secretary, U.S. Department of Homeland 

Security. 

Dated: February 21, 2024. 

Thomas J. Vilsack, 

Secretary, U.S. Department of Agriculture. 

Colleen R. Allen, 

Assistant Administrator, Bureau for 

Management, U.S. Agency for International 

Development. 

Marcia L. Fudge, 

Secretary, U.S. Department of Housing and 

Urban Development. 

Dated: February 12, 2024. 

Merrick B. Garland, 

Attorney General, U.S. Department of Justice. 

Julie A. Su, 

Acting Secretary, U.S. Department of Labor. 

Denis McDonough, 

Secretary, U.S. Department of Veterans 

Affairs. 

Xavier Becerra, 

Secretary, U.S. Department of Health and 

Human Services. 

[FR Doc. 2024–03869 Filed 3–1–24; 8:45 am] 

BILLING CODE P 


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