[Federal Register Volume 90, Number 94 (Friday, May 16, 2025)]
[Rules and Regulations]
[Pages 20786-20788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-08557]
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DEPARTMENT OF ENERGY
10 CFR Part 1042
[DOE-HQ-2025-0016]
RIN 1903-AA25
Nondiscrimination on the Basis of Sex in Sports Programs Arising
Out of Federal Financial Assistance
AGENCY: Department of Energy (DOE); Office of Civil Rights and EEO.
ACTION: Direct final rule (``DFR''); request for comments.
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SUMMARY: This DFR amends existing regulations requiring certain funding
recipients that sponsor sports teams for members of one sex to allow
members of the opposite sex to try out for the team. Accordingly, these
requirements will no longer be a factor when recipients operate sports
teams.
DATES: The final rule is effective July 15, 2025, unless significant
adverse comments are received by June 16, 2025. Significant adverse
comments oppose the rule and raise, alone or in combination, a serious
enough issue related to each of the independent grounds for the rule
that a substantive response is required. If significant adverse
comments are received, notice will be published in the Federal Register
before the effective date either withdrawing the rule or issuing a new
final rule which responds to significant adverse comments.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at www.regulations.gov under docket
number DOE-HQ-2025-0016. Follow the instructions for submitting
comments. The docket for this final rule, which includes Federal
Register notices, comments, and other supporting documents and
materials, is available for review at www.regulations.gov. All
documents in the docket are listed in the www.regulations.gov index.
However, not all documents listed in the index may be publicly
available, such as information that is exempt from public disclosure.
The docket web page can be found at www.regulations.gov/docket/DOE-HQ-2025-0016. The docket web page contains instructions on how to access
all documents, including public comments, in the docket, as well as a
summary.
In accordance with 5 U.S.C. 553(b)(4), a summary of this rule may
be found at regulations.gov, under the docket number.
FOR FURTHER INFORMATION CONTACT: Mr. David Taggart, U.S. Department of
Energy, Office of the General Counsel, GC-1, 1000 Independence Avenue
SW, Washington, DC 20585-0121. Telephone: (202) 586-5281. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Discussion
II. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act
D. Review Under the National Environmental Policy Act of 1969
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Review Under Executive Order 12630
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Review Under Executive Order 13211
L. Review Under Additional Executive Orders and Presidential
Memoranda
M. Congressional Notification
III. Approval of the Office of the Secretary
I. General Discussion
DOE is amending 10 CFR 1042.450 which establishes athletics rules
in view of provisions regarding nondiscrimination on the basis of sex
in education program or activities receiving federal financial
assistance. Specifically DOE is rescinding the following requirement:
``where a recipient operates or sponsors a team in a particular sport
for members of one sex but operates or sponsors no such team for
members of the other sex, and athletic opportunities for members of
that sex have previously been limited, members of the excluded sex must
be allowed to try out for the team offered unless the sport involved is
a contact sport. For the purposes of these Title IX regulations,
contact sports include boxing, wrestling, rugby, ice hockey, football,
basketball, and other sports the purpose or major activity of which
involves bodily contact.'' 10 CFR 1042.450.
Such athletics rules ignore differences between the sexes which are
grounded in fundamental and incontrovertible reality while also
imposing a burden on local governments and small businesses who are in
the best position to determine the needs of their community and
constituents. The modification also aligns the rule with Presidential
direction under E.O. 14201 ``Keeping Men Out of Women's Sports'' which
makes clear it is the policy of the United States to ``oppose male
competitive participation in women's sports more broadly, as a matter
of safety, fairness, dignity and truth.''
DOE seeks comment on all aspects of the rule, including but not
limited to the prior rule's consistency with statutory authority and
the Constitution, the prior rule's costs and benefits, and the prior
rule's effect on small business, entrepreneurship and private
enterprise.
II. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866
Executive Order (``E.O.'') 12866, ``Regulatory Planning and
Review,'' requires agencies, to the extent permitted by law, to (1)
propose or adopt a regulation only upon a reasoned determination that
its benefits justify its costs (recognizing that some benefits and
costs are difficult to quantify); (2) tailor regulations to impose the
least burden on society, consistent with obtaining regulatory
objectives, taking into account, among other things, and to the extent
practicable, the costs of cumulative regulations; (3) select, in
choosing among alternative regulatory approaches, those approaches that
maximize net benefits; (4) to the extent feasible, specify performance
objectives, rather than specifying the behavior or
[[Page 20787]]
manner of compliance that regulated entities must adopt; and (5)
identify and assess available alternatives to direct regulation,
including providing economic incentives to encourage the desired
behavior, such as user fees or marketable permits, or providing
information upon which choices can be made by the public.
For the reasons stated in the preamble, this direct final rule is
consistent with these principles. Section 6(a) of E.O. 12866 also
requires agencies to submit ``significant regulatory actions'' to OIRA
for review. OIRA has determined that this direct final rule does not
constitute a ``significant regulatory action'' under section 3(f) of
E.O. 12866. Accordingly, this direct final rule was not submitted to
OIRA for review under E.O. 12866.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis (``IRFA'')
and a final regulatory flexibility analysis (``FRFA'') for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by E.O. 13272, ``Proper Consideration of Small Entities in Agency
Rulemaking,'' 67 FR 53461 (Aug. 16, 2002), DOE published procedures and
policies on February 19, 2003, to ensure that the potential impacts of
its rules on small entities are properly considered during the
rulemaking process. 68 FR 7990. DOE has made its procedures and
policies available on the Office of the General Counsel's website
(www.energy.gov/gc/office-general-counsel).
DOE reviewed this rescission under the provisions of the Regulatory
Flexibility Act and the policies and procedures published on February
19, 2003. DOE initially concludes that the impacts of the rescission
would not have a ``significant economic impact on a substantial number
of small entities,'' and that the preparation of an IRFA is not
warranted. DOE will transmit this certification and supporting
statement of factual basis to the Chief Counsel for Advocacy of the
Small Business Administration for review under 5 U.S.C. 605(b).
C. Review Under the Paperwork Reduction Act
This rule imposes no new information or record-keeping
requirements. Accordingly, OMB clearance is not required under the
Paperwork Reduction Act. (44 U.S.C. 3501 et seq.).
D. Review Under the National Environmental Policy Act of 1969
DOE has analyzed this proposed action in accordance with the
National Environmental Policy Act of 1969, as amended, (``NEPA'') and
DOE's NEPA implementing regulations (10 CFR part 1021). DOE has
determined that this rule qualifies for categorical exclusion under 10
CFR part 1021, subpart D, appendix A5 because it is an interpretive
rulemaking that does not change the environmental effect of the rule.
E. Review Under Executive Order 13132
E.O. 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), imposes
certain requirements on Federal agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. The Executive Order requires agencies to examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and to carefully assess
the necessity for such actions. The Executive Order also requires
agencies to have an accountable process to ensure meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications. On March 14, 2000, DOE
published a statement of policy describing the intergovernmental
consultation process it will follow in the development of such
regulations. 65 FR 13735.
DOE has examined this rescission and has determined that it would
not have a substantial direct effect on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
F. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform,'' imposes on Federal agencies the general duty to
adhere to the following requirements: (1) eliminate drafting errors and
ambiguity, (2) write regulations to minimize litigation, (3) provide a
clear legal standard for affected conduct rather than a general
standard, and (4) promote simplification and burden reduction. 61 FR
4729 (Feb. 7, 1996). Regarding the review required by section 3(a),
section 3(b) of E.O. 12988 specifically requires that Executive
agencies make every reasonable effort to ensure that the regulation (1)
clearly specifies the preemptive effect, if any, (2) clearly specifies
any effect on existing Federal law or regulation, (3) provides a clear
legal standard for affected conduct while promoting simplification and
burden reduction, (4) specifies the retroactive effect, if any, (5)
adequately defines key terms, and (6) addresses other important issues
affecting clarity and general draftsmanship under any guidelines issued
by the Attorney General.
Section 3(c) of E.O. 12988 requires Executive agencies to review
regulations in light of applicable standards in section 3(a) and
section 3(b) to determine whether they are met or it is unreasonable to
meet one or more of them. DOE has completed the required review and
determined that, to the extent permitted by law, this proposed
amendment meets the relevant standards of E.O. 12988.
G. Review Under the Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA'')
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531).
For a regulatory action likely to result in a rule that may cause the
expenditure by State, local, and Tribal governments, in the aggregate,
or by the private sector of $100 million or more in any one year
(adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy.
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect them. On March 18, 1997, DOE published
a statement of policy on its process for intergovernmental consultation
under UMRA. 62 FR 12820. DOE's policy statement is also available at
www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
DOE examined this proposed amendment according to UMRA and its
statement of policy and determined that the proposed amendment does not
contain a Federal intergovernmental mandate, nor is it expected to
require
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expenditures of $100 million or more in any one year by State, local,
and Tribal governments, in the aggregate, or by the private sector. As
a result, the analytical requirements of UMRA do not apply.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This proposed amendment would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
I. Review Under Executive Order 12630
Pursuant to E.O. 12630, ``Governmental Actions and Interference
with Constitutionally Protected Property Rights,'' 53 FR 8859 (March
18, 1988), DOE has determined that this proposed amendment would not
result in any takings that might require compensation under the Fifth
Amendment to the U.S. Constitution.
J. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to
review most disseminations of information to the public under
information quality guidelines established by each agency pursuant to
general guidelines issued by OMB. OMB's guidelines were published at 67
FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR
62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving
Implementation of the Information Quality Act (April 24, 2019), DOE
published updated guidelines which are available at: https://www.energy.gov/cio/department-energy-information-quality-guidelines.
DOE has reviewed this proposed amendment under the OMB and DOE
guidelines and has concluded that it is consistent with applicable
policies in those guidelines.
K. Review Under Executive Order 13211
E.O. 13211, ``Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 (May 22,
2001), requires Federal agencies to prepare and submit to OIRA at OMB,
a Statement of Energy Effects for any significant energy action. A
``significant energy action'' is defined as any action by an agency
that promulgates or is expected to lead to promulgation of a final
rule, and that: (1) is a significant regulatory action under Executive
Order 12866, or any successor order and is likely to have a significant
adverse effect on the supply, distribution, or use of energy; or (2) is
designated by the Administrator of OIRA as a significant energy action.
For any significant energy action, the agency must give a detailed
statement of any adverse effects on energy supply, distribution, or use
should the proposal be implemented, and of reasonable alternatives to
the action and their expected benefits on energy supply, distribution,
and use.
This proposed amendment is not a significant regulatory action
under E.O. 12866. Moreover, it would not have a significant adverse
effect on the supply, distribution, or use of energy, nor has it been
designated as such by the Administrator at OIRA. Accordingly, DOE has
not prepared a Statement of Energy Effects.
L. Review Under Additional Executive Orders and Presidential Memoranda
DOE has examined this proposal and has determined that it is
consistent with the policies and directives outlined in E.O. 14154
``Unleashing American Energy,'': E.O. 14192, ``Unleashing Prosperity
Through Deregulation,''; E.O. 14219 ``Ensuring Lawful Governance and
Implementing the President's `Department of Government Efficiency'
Deregulatory Initiative'' and Presidential Memorandum, ``Delivering
Emergency Price Relief for American Families and Defeating the Cost-of-
Living Crisis.'' This final rule is expected to be an Executive Order
14192 deregulatory action.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule before its effective date. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 804(2).
III. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this direct
final rule; request for comment.
List of Subjects in 10 CFR Part 1042
Education, Sex discrimination.
Signing Authority
This document of the Department of Energy was signed on May 9,
2025, by Chris Wright, Secretary of Energy. That document with the
original signature and date is maintained by DOE. For administrative
purposes only, and in compliance with requirements of the Office of the
Federal Register, the undersigned DOE Federal Register Liaison Officer
has been authorized to sign and submit the document in electronic
format for publication, as an official document of the Department of
Energy. This administrative process in no way alters the legal effect
of this document upon publication in the Federal Register.
Signed in Washington, DC, on May 9, 2025.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set forth in the preamble, DOE amends part 1042 of
chapter X, of title 10 of the Code of Federal Regulations, as set
forth:
PART 1042--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
0
1. The authority citation for part 1042 continues to read as follows:
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688;
42 U.S.C. 7101 et seq.; and 50 U.S.C. 2401 et seq.
0
2. Amend Sec. 1042.450 by revising paragraph (b) to read as follows:
Sec. 1042.450 Athletics.
* * * * *
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport.
* * * * *
[FR Doc. 2025-08557 Filed 5-12-25; 9:30 am]
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