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Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations
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comments and the requests for additional time, the Department does not believe that extending the comment period is or was necessary for the public to receive sufficient notice of, and opportunity to comment on, the proposed rule. Consequently, the Department concludes that the comment period was legally sufficient and is not extending the comment period.
Section 75.300c and d, Statutory and National Policy Requirements, and the Related Provision at 75.101f As noted above, in proposing to repromulgate 75.300c and d in modified form, the Department noted non-Federal entities have expressed concerns that requiring compliance with certain nonstatutory requirements of those paragraphs violates RFRA or the U.S. Constitution, exceeds the Departments statutory authority, or reduces the effectiveness of its programs. The Department further noted that the existence of complaints and legal actions indicates that 75.300c and d imposed regulatory burden and created a lack of predictability and stability for the Department and stakeholders with respect to these provisions viability and enforcement.
The Department also noted that some Federal grantees had stated that they will require their subgrantees to comply with the nonstatutory requirements of 75.300c and d, even if it means some subgrantees with religious objections would leave the programs and cease providing services rather than comply. Because certain grantees and subgrantees that may cease providing services if forced to comply with 75.300c and d provide a substantial percentage of services pursuant to some Department-funded programs and are effective partners of federal and state governments in providing such services, the Department indicated that it believes that such an outcome would likely reduce the effectiveness of Department-funded programs.
Accordingly, as an exercise of its discretion to establish requirements for its grant programs and to establish enforcement priorities for those programs, the Department proposed to amend 75.300c and d. It proposed to amend 75.300c to require compliance with applicable statutory nondiscrimination requirements. It proposed to amend 75.300d to provide that the Department would follow all applicable Supreme Court decisions in administering its award programs. The Department also proposed to remove 75.101f, which was added by the 2016 rule to clarify that the requirements of 75.300c do
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not apply to the Temporary Assistance for Needy Families Program title IVA
of the Social Security Act, 42 U.S.C.
601619.
The Department reexamined the current 75.300c and d and their authorities after also receiving complaints from recipients and States that these provisions exceeded the Departments authority under the laws cited in 75.103 and the Housekeeping Statute, 5 U.S.C. 301. Several commenters pointed out, for example, that the Social Security Act prohibits discrimination on the basis of race, color or national origin in the foster care and adoption context, 42 U.S.C.
671a18; see 42 U.S.C. 608d incorporating statutory nondiscrimination provisions. And several other statutes, such as Title VI, 42 U.S.C. 2000d et seq, prohibit categories of discrimination by grantees on a government-wide basis. Upon closer scrutiny, the Department has determined it was not appropriate to stray beyond those statutory categories with the 2016 amendments to 75.300.
The Department is finalizing 75.300c as proposed, which states:
It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by federal statute. 15 This change ensures that relevant changes in the law in these areas will be most appropriately monitored by the relevant program offices administering them. The Department also finalizes the removal of 75.101f.
As discussed, OMB issued proposed guidance amending 75.300a in January. OMBs proposed revision, requiring funds to be expended in full accordance with the Constitution and federal laws, could be seen as mirroring the requirements of proposed 75.300d. However, the Department is adopting paragraph d as proposed.
Comments: Some commenters opposed the proposed provisions, contending that the Department had the authority to promulgate the current 75.300c and d in the 2016
rulemaking. Some said concern about the Departments legal authority is 15 The Department notes that federal statute encompasses binding case law authoritatively interpreting the statute, as well as any regulations duly promulgated pursuant to statutory rulemaking authority that address discrimination in particular programs. This clarification should remove possible confusion as to the scope of the provision while still ensuring the agency maintains the balance established by Congress in adopting statutory nondiscrimination provisions in part 75.

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inconsistent with the Departments previous legal position as embodied in the current rule.
Other commenters supported the proposed provisions, contending that the current rule exceeds the Departments authority. Some of these commenters focused on specific programs. For example, some commenters said that the current rule exceeds the Departments authority by expanding the nondiscrimination clause in Title IVE the federal foster care and adoption program to include classifications not found in the statute.
Another commenter said that the current rule exceeds the Departments authority and discretion by unilaterally expanding civil rights protections to persons not protected by existing law or Supreme Court decisions. Another commenter noted that the Department lacks statutory authority to vary the nondiscrimination requirements established by Congress for funded programs. Other commenters labeled the current rule executive overreach, contended that it grossly exceeded the authority of an Executive Branch agency to implement the relevant statutory scheme, or argued that federal discrimination standards should adhere to the Constitution, acts of Congress, and Supreme Court decisions.
Response: The Department, like all federal agencies, has authority to revisit regulations and question the wisdom of its policies on a continuing basis.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842843 1984. The Department has, in fact, written into its UAR regulations a periodic review mechanism. 45 CFR 75.109 HHS will review 45 part 75 at least every five years. In reassessing these provisions, particularly in light of the receipt of letters and complaints,16 ongoing lawsuits, and exception requests, regarding the lawful and appropriate scope of 75.300c and d, the Department is exercising that obligation.
With respect to 75.300c in particular, the Department begins by noting that Congress has selectively imposed nondiscrimination requirements in certain statutes, and with respect to certain grant programs, and not imposed the same requirements in others. For example, Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color and national origin, but not religion or sex. Title IX of the Education 16 While several commenters stressed that important reliance interests are at stake, the 2016
amendment had been in place less than three years when the Department issued the proposed rule.

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