[Federal Register Volume 90, Number 94 (Friday, May 16, 2025)]
[Rules and Regulations]
[Pages 20769-20772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-08573]
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DEPARTMENT OF ENERGY
10 CFR Part 800
[DOE-HQ-2025-0014]
RIN 1903-AA23
Rescinding Regulations for Loans for Minority Business
Enterprises Seeking DOE Contracts and Assistance
AGENCY: Office of Minority Economic Impact, Department of Energy (DOE).
ACTION: Direct final rule (DFR); request for comments.
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SUMMARY: This DFR rescinds a regulation which sets forth policies and
procedures for the award and administration of loans to minority
business enterprises.
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-2025-0014. 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-2025-0014. 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 www.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 Order 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 Secretary
I. General Discussion
In Students for Fair Admissions v. Harvard, 600 U.S. 181, 230
(2023), the Supreme Court held that the admissions programs of Harvard
and the University of North Carolina violated the Equal Protection
Clause of the Fourteenth Amendment. Both institutions included race as
an overt consideration in the admissions programs. Id. at 194-98. The
programs were unconstitutional because they ``lack[ed] sufficiently
focused and measurable objectives warranting the use of race,
unavoidably employ[ed] race in a negative manner, involve[d] racial
stereotyping, and lack[ed] meaningful end points.'' Id. at 230.
[[Page 20770]]
The Supreme Court was clear that ``[e]liminating racial
discrimination means eliminating all of it.'' Id. at 206 (cleaned up).
And the Equal Protection Clause applies ``without regard to any
differences of race, of color, or of nationality.'' Id. (cleaned up).
Thus, the Court has ``time and again forcefully rejected the notion
that government actors may intentionally allocate preference to those
who may have little in common with one another but the color of their
skin.'' Id. at 220 (cleaned up).
The regulations at 10 CFR part 800 do exactly that, in violation of
Students for Fair Admissions and numerous other Supreme Court cases.
The purpose of part 800 ``is to set forth policies and procedures for
the award and administration of loans to minority business
enterprises.'' 10 CFR 800.001. Minority is defined as ``[a]n individual
who is a citizen of the United States and who is a Negro, Puerto Rican,
American Indian, Eskimo, Oriental, or Aleut, or is a Spanish speaking
individual of Spanish descent.'' 10 CFR 800.003. The regulations set
out to provide preference to minority business owners, based on the
color of their skin. For this reason alone, DOE has determined it must
rescind these regulations to be in compliance at least with Supreme
Court rulings. DOE has determined there is no reliance interest in an
unlawful regulation. Dep't of Homeland Sec. v. Regents of the Univ. of
California, 591 U.S. 1, 32 (2020).
Regardless, and independently, DOE has determined that 10 CFR part
800 violates the Secretary's policy to treat people without regard to
the color of their skin. Contrary to this policy, the regulations
identify groups based on their race, sort them, and intentionally
deliver preferences based on the resulting groups. Even if such
regulations were constitutional, DOE would rescind them.
DOE also has a preference for deregulation. The provisions in 10
CFR part 800 outline a program that DOE will not use and so they should
be rescinded for this additional reason. DOE seeks all comments on this
direct final rule.
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; (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 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.
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. This rule eliminates unlawful and unnecessary regulations.
Therefore, DOE 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 rescission imposes no new information or record-keeping
requirements. Accordingly, Office of Management and Budget (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 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 A4, because it is an interpretation or ruling in
regards to an existing regulation.
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 Federal 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
[[Page 20771]]
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 rescission 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)) 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 rescission according to UMRA and its statement of
policy and determined that the rescission does not contain a Federal
intergovernmental mandate, nor is it expected to require 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 rescission 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 rescission 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 rescission 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 the Office of
Information and Regulatory Affairs (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.
DOE has determined that this rule would not have a significant
adverse effect on the supply, distribution, or use of energy.
Accordingly, DOE has not prepared a Statement of Energy Effects. DOE
may prepare such a statement for the final rule, and seeks all
comments.
L. Review Under Additional Executive Orders and Presidential Memoranda
DOE has examined this rescission 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,'' and Presidential Memorandum, ``Delivering
Emergency Price Relief for American Families and Defeating the Cost-of-
Living Crisis.'' This rescission 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.
III. Approval of the Secretary
The Secretary of Energy has approved publication of this direct
final rule; request for comments.
List of Subjects in 10 CFR Part 800
Government contracts, Loan programs--business, Minority businesses,
Research.
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
[[Page 20772]]
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.
Jennifer Hartzell,
Alternate Federal Register Liaison Officer, U.S. Department of Energy.
PART 800 [Removed]
0
For the reasons set forth in the preamble, under the authority sec.
211(e) of the Department of Energy (DOE) Organization Act, Pub. L. 95-
91, Title II, as amended by Pub. L. 95-619, Title VI, sec. 641, Nov. 9,
1978, 92 Stat. 3284 (42 U.S.C. 7141), DOE removes part 800 of chapter
III of title 10 of the Code of Federal Regulations.
[FR Doc. 2025-08573 Filed 5-12-25; 9:30 am]
BILLING CODE 6450-01-P