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Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations
who share their religious beliefs and values and faith traditions.
This final rule removes the federal regulatory barriers that would have precluded such faith-based organization from participating in the federally funded Title IVE foster care and adoption programs.
Removing regulatory barriers to participation of faith-based child placement agencies thus serves the Departments goals of creating more options for children in need of loving homes. State child welfare agencies are best situated to determine how to serve the diversity of children and families within their states, but the changes in this final rule will ensure that they have the flexibility to work with all available providers. Such providers include not only those child placing agencies that operate within the context of their sincerely held religious beliefs, but also other providers that do not have such beliefs, including State agency placement services. The Department and ACF place the best interests of the child first, as participants in Department-funded Title IVE programs must; ensuring qualified providers can participate allows ACF to continue to prioritize the childs best interest and to avoid any violation of RFRA.
Comments: Several commenters including the Chairs of House Committees with jurisdiction opposed the proposed rule, arguing that it would create a confusing, uneven patchwork of civil rights protections across HHS
programs, and undermine a uniform nondiscrimination standard for HHS
grant programs. Several commenters contended that the proposed rule would confuse beneficiaries and recipients of HHS services, and inevitably lead to extensive litigation; they also claimed that it would create conflicts between federal, state, and local law and with prior Executive Orders. Several commenters contended that the proposed rule creates greater ambiguity, compliance complexity and uncertainty for both providers and beneficiaries of HHS-funded programs.
Response: As noted above, Congress has been selective in imposing specific nondiscrimination criteria in certain statutes and programs, and not imposing the same criteria in other statutes and programs. The Department has elected to follow those selections, and leaves for Congress the determination whether to create a uniform nondiscrimination standard for all of the Departments grant programs.
The Department doubts that the lack of a uniform standard will cause confusion among grantees, beneficiaries, and recipients of Department-funded
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services. These organizations and individuals are likely familiar with the varying eligibility requirements imposed by Congress for various grant programsthat there may be varying nondiscrimination requirements among such programs is unlikely to come as a surprise. Moreover, the Departments agencies are required to inform recipients of the relevant public policy requirementswhich includes the applicable nondiscrimination requirementsand to incorporate them either directly or by reference in the terms and conditions of the Federal award. See 45 CFR 75.300a. This would minimize any potential for uncertainty or confusion as to what is required.
The Department respectfully disagrees that the proposed rules provisions that are finalized here will create a conflict with state or local laws. A conflict arises when an entity cannot comply with two different laws. The Departments action here merely removes certain federal regulatory requirements. Regulated entities may follow such nondiscrimination principles voluntarily or as a result of other law, consistent with their other legal obligations. And consistent with their constitutional and legal obligations, State and local governments remain free to adopt additional nondiscrimination requirements.
The Department also notes that commenters appear to have misunderstood its expressed concern in the proposed rule that the existence of the referenced complaints and legal actions created a lack of predictability and stability for the Department and stakeholders with respect to the viability and enforcement of the current 75.300c and d in the proposed rule.
84 FR at 63832. In particular, the Department was focused on the situations that had been brought to its attention where under the current rule, nonstatutory requirements conflict with statutory requirements e.g., RFRA. It was in this context that the Department determined that the adoption of this regulatory approach would make compliance more predictable and simple for grant recipients, and, thus, control regulatory costs and relieve regulatory burden. The final rule is consistent with that comment.
Section 75.305, Payment In the proposed rule, the Department proposed to repromulgate 75.305
without change. As stated in the proposed rule, the 2016 Rule modified the language in 75.305 to clarify the relation between it, the Treasury-State Cash Management Improvement Act,
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and other regulatory provisions. The Department is reaffirming this clarification so that all states are aware of the necessity, for example, to expend refunds and rebates prior to drawing down additional grant funds. The Department repromulgates this provision without change.
As with the 2016 rulemaking, the Department received no comments on this proposal.
Section 75.365, Restrictions on Public Access to Records In the proposed rule, the Department proposed to repromulgate this section without change. Section 75.365 clarifies the limits on the restrictions that can be placed on non-federal entities that limit public access to records pertinent to certain federal awards. As stated in the proposed rule, it also implements Executive Order 13642 May 9, 2013, and corresponding law. See, e.g., https www.federalregister.gov/
documents/2013/05/14/2013-11533/
making-open-and-machine-readablethe-new-default-for-governmentinformation/, and Departments of Labor, Health, and Human Services, and Education Appropriations Act of 2014, Public Law 11376, Div. H, Sec. 527
requiring each Federal agency, or in the case of an agency with multiple bureaus, each bureau or operating division funded under this Act that has research and development expenditures in excess of $100,000,000 per year to develop a Federal research public access policy. The language in this final rule codifies permissive authority for the Departments awarding agencies to require public access to manuscripts, publications, and data produced under an award, consistent with applicable law. The Department repromulgates this provision without change.
As with the 2016 rulemaking, the Department received no comments on this proposal.
Section 75.414, Indirect Facilities and Administration Costs This provision, as published in 2016, restricted indirect cost rates for certain grants. The Department is repromulgating this provision without change. As stated in the proposed rule, it is long-standing HHS policy to restrict training grants to a maximum eight percent indirect cost rate. In addition to implementing this limit for training grants, this section imposes the same limitation on foreign organizations and foreign public entities, which typically do not negotiate indirect cost rates, and includes clarifying language to 75.414f, which would permit an entity that had never received an
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