[Federal Register Volume 90, Number 94 (Friday, May 16, 2025)]
[Rules and Regulations]
[Pages 20777-20783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-08593]
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DEPARTMENT OF ENERGY
10 CFR Part 1040
[DOE-HQ-2025-0024]
RIN 1903-AA20
Rescinding Regulations Related to Nondiscrimination in Federally
Assisted Programs or Activities (General Provisions)
AGENCY: Office of Minority Economic Impact, Department of Energy (DOE).
ACTION: Direct final rule; request for comments.
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SUMMARY: This direct final rule rescinds certain unnecessary regulatory
provisions related to nondiscrimination in federally assisted programs
or activities.
DATES: The direct final rule is effective July 15, 2025, unless
significant adverse comments are received by June 16, 2025. Significant
adverse comments are ones which 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, notification will be
published in the Federal Register before the effective date either
withdrawing the rule or issuing a new direct 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-2025-0024. Follow the instructions for submitting
comments.
The docket for this direct 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-2025-0024. The docket web page contains instructions on how to
access all documents, including public comments, in the docket, as well
as a summary of the rulemaking. 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 Secretary
I. General Discussion
DOE is rescinding certain provisions from its regulations codified
at part 1040 of chapter X of title 10 of the Code of Federal
Regulations (CFR) (``Nondiscrimination in Federally Assisted Programs
or Activities'') under subpart A--``General Provisions''; subpart B--
``Title VI of the Civil Rights Act of 1964'' \1\ (``title VI'');
section 16 of the Federal Energy Administration Act of 1974, as Amended
\2\ (``section 16''); and section 401 of the Energy Reorganization Act
of 1974 \3\ (``section 401'')''; subpart D--``Nondiscrimination on the
Basis of Handicap--Section 504 of the Rehabilitation Act of 1973, as
amended'' \4\ (``section 504''); subpart F--Nondiscrimination Under
Title VIII of the Civil Rights Act of 1968, as Amended [Reserved] \5\
(``title VIII'')''; and subpart G--Program Monitoring. DOE is
rescinding twelve (12) provisions under these subparts as follows:
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\1\ Public Law 88-352.
\2\ Public Law 93-275.
\3\ Public Law 93-438.
\4\ Public Law 93-112.
\5\ Public Law 90-284.
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(1) a clause in subpart A at 10 CFR 1040.1 covering employment
practices
(2) a clause in 10 CFR 1040.12 at subpart A, covering employment
practices
(3) a clause in 10 CFR 1040.14 at subpart A, covering employment
practices
(4) paragraph (c) of 10 CFR 1040.5 at subpart A, covering
information in appropriate languages
(5) paragraph (c) of 10 CFR 1040.6 at subpart A, covering
information in appropriate languages
(6) the entirety of 10 CFR 1040.8 at subpart A, covering the effect
of employment opportunity
(7) paragraph (c) of 10 CFR 1040.13 at subpart B, covering the
effect of criteria or methods
(8) paragraph (d) of 10 CFR 1040.13 at subpart B, covering the
effect of facilities location
(9) paragraph (c) of 10 CFR 1040.72 at subpart D, covering a time
period (now past)
(10) paragraph (d) of 10 CFR 1040.72 at subpart D, covering a
transition plan (now obsolete)
[[Page 20778]]
(11) the entirety of subpart F, reserved for a statute (title VIII)
that is not enforced by DOE;
(12) paragraph (d) of 10 CFR 1040.102 at subpart G covering
superfluous information
For the reasons explained further below, DOE is rescinding these
provisions after determining that they are either outdated, raise
serious constitutional difficulties, or are based on anything other
than the best reading of the underlying statutory authority or
prohibition.
Covered Employment Practices at 10 CFR 1040.1, 1040.12, and 1040.14
According to 10 CFR 10401.1 the purpose of part 1040
(Nondiscrimination in federally assisted programs or activities) is to
implement a variety of civil rights and nondiscrimination laws. These
laws ensure that no one may ``be excluded from participation in, be
denied the benefits of, be subjected to discrimination under, or be
denied employment, where a primary purpose of the Federal financial
assistance is to provide employment or when the delivery of services is
affected by the recipient's employment practices (under section 504,
all grantee and subgrantee employment practices are covered regardless
of the purpose of the program), in connection with any program or
activity receiving Federal financial assistance from [DOE].'' 10 CFR
10401.1.
This employment coverage also extends to subpart B of 10 CFR part
1040 implementing title VI, section 16, and section 401. Specifically,
the subpart B definitions at 10 CFR 1040.12(a)(1) state that covered
employment practices not only include those which exist in programs
where a primary objective of the Federal financial assistance is to
provide employment, but also to practices which ``(ii) Cause
discrimination on the basis of race, color, or national origin with
respect to beneficiaries or potential beneficiaries of the assisted
program.'' Furthermore, under 10 CFR 1040.12(a)(2), ``[a]ll employment
practices of a recipient or subrecipient of Federal financial
assistance subject to section 16 and section 401 are covered employment
practices.'' Additionally, 10 CFR 1040.14(a)(2) states that, ``[i]n
regard to Federal financial assistance which does not have the
provision of employment as a primary objective, the provisions of
paragraph (a)(1) of this section (enumerating prohibited employment
discrimination) apply to the employment practices of the recipient if
discrimination on the ground of race, color, national origin, or sex
(when covered by section 16 or section 401) in such employment
practices tends to exclude persons from participation in, deny them the
benefits of, or subject them to discrimination under the program
receiving Federal financial assistance.''
DOE has determined that the expansive coverage of employment by
these clauses as applied to title VI (and through incorporation by
reference, section 16, and section 401 \6\) find no support in the
statute itself. Rather, section 2000d-3 of title VI expressly provides
that: ``Nothing contained in this subchapter shall be construed to
authorize action under this subchapter by any Department or agency with
respect to any employment practice of any employer, employment agency,
or labor organization except where a primary objective of the Federal
financial assistance is to provide employment.'' \7\ As the U.S.
Supreme Court explains, ``Statutory construction must begin with the
language employed by Congress and the assumption that the ordinary
meaning of that language accurately expresses the legislative
purpose.'' \8\ ``Where . . . that examination yields a clear answer,
[we] must stop.'' \9\ In acknowledgement of this judicial precedent,
and the express statutory language of title VI, DOE's direct final rule
rescinds the following:
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\6\ Both section 16 and section 401 expressly provide that each
section ``will be enforced through agency provisions and rules
similar to those already established, with respect to racial and
other discrimination, under Title VI of the Civil Rights Act of
1964.''
\7\ See section 2000d-3--Construction of provisions not to
authorize administrative action with respect to employment practices
except where primary objective of Federal financial assistance is to
provide employment. Public Law 88-352, Title VI, section 604, July
2, 1964, 78 Stat. 253.
\8\ See Gross v. FBL Financial Services, Inc., 557 U.S. 167,
175, 129 S. Ct. 2343, 2350, 174 L. Ed. 2d 119 (2009); see also
Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S.
401, 407, 131 S. Ct. 1885, 179 L.Ed.2d 825 (2011).
\9\ Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 436,
139 S. Ct. 2356, 2364, 204 L. Ed. 2d 742 (2019).
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(1) The clause in 10 CFR 1040.1(a) stating, ``or when the delivery
of services is affected by the recipient's employment practices.''
Importantly, the rescission of this clause in no way disturbs the
following clauses stating that, ``under section 504, all grantee and
subgrantee employment practices are covered regardless of the purpose
of the program'' and, ``Employment coverage may be broader in scope
when section 16, section 401, or Title IX are applicable.'' As to these
undisturbed clauses, it is further noted that the employment practices
covered by DOE's section 504 regulations at subpart D are not affected
by this direct final rule. Additionally, the remedies available under
section 16 and section 401 are not exclusive to subpart B of 10 CFR
part 1040, and thus, do not prejudice any other legal remedies
available to any persons alleging sex discrimination in a programs
authorized by the Federal Energy Administration Act or the Federal
Energy Organization Act that are not covered by 10 CFR part 1040.
Finally, the coverage of employment under title IX, which is enforced
by DOE regulations at 10 CFR part 1042, is not affected by this direct
final rule.
(2) The portion of the definition in 10 CFR 1040.12(a) regarding
covered employment practices under title VI, section 16, and section
401, stating--``or . . . (ii) Cause discrimination on the basis of
race, color, or national origin with respect to beneficiaries or
potential beneficiaries of the assisted program''; and the definition
stating 10 CFR 1040.12(a)(2) that--``All employment practices of a
recipient or subrecipient of Federal financial assistance subject to
section 16 and section 401 are covered employment practices.''
(3) 10 CFR 1040.14(a)(2), stating--``In regard to Federal financial
assistance which does not have provision of employment as a primary
objective, the provisions of paragraph (a)(1) of this section apply to
the employment practices of the recipient if discrimination on the
ground of race, color, national origin, or sex (when covered by section
16 or section 401) in such employment practices tends to exclude
persons from participation in, deny them the benefits of, or subject
them to discrimination under the program receiving Federal financial
assistance. In any such case, the provisions of paragraph (a)(1) of
this section apply to the extent necessary to assure equality of
opportunity to and nondiscriminatory treatment of beneficiaries.''
Information in Appropriate Languages Under 10 CFR 1040.5(c) and
1040.6(c)
The DOE regulation at 10 CFR 1040.5(c) provides that: ``Where a
significant number or proportion of the population eligible to be
served or likely to be directly affected by a federally assisted
program or activity requires service or information in a language other
than English in order to be informed of or to participate in the
program, the recipient shall take reasonable steps, considering the
scope of the program and size and concentration of such population, to
provide information in appropriate languages (including braille) to
such
[[Page 20779]]
persons. This requirement applies to written material of the type which
is ordinarily distributed to the public. The Department may require a
recipient to take additional steps to carry out the intent of this
subsection.'' The Notice requirements of 10 CFR 1040.6 further state at
paragraph (c) that: ``The provisions of Sec. 1040.5(c) to provide
information in appropriate languages (including braille), apply to this
section.''
DOE has determined that the requirements imposed by 10 CFR
1040.5(c) and 1040.6(c) are not based on the best reading of the
underlying statutory authority or prohibition. Rather, those
requirements promote the policy goals of revoked Executive Order (E.O.)
13166, Improving Access to Services for Persons with Limited English
Proficiency (LEP).\10\
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\10\ 65 FR 50121 (August 16, 2000).
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Notwithstanding the fact that E.O. 13166 sought ``to improve access
to federally conducted and federally assisted programs and activities
for persons who, as a result of national origin, are limited in their
English proficiency (LEP),'' title VI must be enforced consistent with
the Fourteenth Amendment to the U.S. Constitution.\11\ Consequently,
while title VI authorizes and directs agencies to issue rules,
regulations, and orders of general applicability that prohibit
intentional discrimination,\12\ it does not authorize an agency to
dictate that a recipient provide services or information in languages
other than English.
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\11\ See Regents of University of California v. Bakke, 438 U.S.
265, 285 (1978); see also Students for Fair Admissions, Inc. v.
President and Fellows of Harvard College and Students for Fair
Admissions, Inc. v. University of North Carolina, et al, 143 S. Ct.
2141 (2023).
\12\ Public Law 88-352, title VI, section 601, July 2, 1964, 78
Stat. 252. To effectuate the purpose of section 601, section 602 of
title VI specifically states that--``Each Federal Department and
agency which is empowered to extend Federal financial assistance to
any program or activity, by way of grant, loan, or contract other
than a contract of insurance or [contract of] guaranty, is
authorized and directed to effectuate the provisions of [Sec. 601
of this Title] with respect to such program or activity by issuing
rules, regulations, or orders of general applicability which shall
be consistent with achievement of the objectives of the statute
authorizing the financial assistance in connection with which the
action is taken.''
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Consistent with its statutory authority, DOE is rescinding 10 CFR
1040.5(c) and 1040.6(c). Importantly, the rescission of these
provisions in no way eliminates or alters the right of any federally
assisted program applicant, participant, other eligible beneficiary, or
validly covered employee, to be free of intentional discrimination
because of national origin, as that has always been prohibited by title
VI and the statutorily authorized and valid sections of 10 CFR part
1040. The rescission of these provisions also does not affect the
prohibitions on disability discrimination under subpart D implementing
section 504.
Effect of Employment Opportunity Under 10 CFR 1040.8
According to 10 CFR 1040.8, ``due to limited opportunities in the
past, certain protected groups may be underrepresented in some
occupations or professions.'' Based on that stated presumption, this
provision further asserts that ``a recipient's obligation to comply
with this part is not alleviated by use of statistical information
which reflects limited opportunities in these occupations or
professions.''
DOE has determined that 10 CFR 1040.8 suffers from fatal
constitutional infirmities. Despite the provision's presumption, the
effects of past societal discrimination are not a sufficiently
compelling justification for racial classifications by or for any level
of government.\13\ Furthermore, absent a specific, identified, instance
of intentional discrimination, statistical information indicating that
certain protected groups are underrepresented in some occupations or
professions does not obligate any FFA recipient to take remedial or
affirmative action under this part. To the contrary, any affirmative
action for which ``measures of success'' depend on ``whether some
proportional goal has been reached'' amounts to ``outright racial
balancing'' which is ``patently unconstitutional.'' \14\ For these
reasons, DOE is rescinding 10 CFR 1040.8 in its entirety.
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\13\ See Students For Fair Admissions, Inc. v. President and
Fellows of Harvard College and University of North Carolina, et al.,
143 S. Ct. 2141 (2023). See also Adarand Constructors, Inc. v.
Pe[nacute]a, 515 U.S. 200, 217 (1995) (``the equal protection
obligations imposed by the Fifth and the Fourteenth Amendments [are]
indistinguishable,'' so that ``the standards for federal and state
racial classifications [are] the same'').
\14\ Students For Fair Admissions, Inc. v. President and Fellows
of Harvard College and University of North Carolina, et al., 143 S.
Ct. 2141 (2023).
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Prohibited Effects Under 10 CFR 1040.13(c) and (d)
According to 10 CFR 1040.13(c), ``A recipient . . . may not,
directly or through contractual or other arrangements, utilize criteria
or methods of administration which have the effect of subjecting
individuals to discrimination because of their race, color, national
origin, or sex . . . or have the effect of defeating or substantially
impairing accomplishment of the objectives of the program with respect
to individuals of a particular race, color, national origin, or sex . .
. .''
According to 10 CFR 1040.13(d), ``In determining the site or
location of facilities, a recipient or applicant may not make
selections with the purpose or effect of excluding individuals from,
denying them the benefits of, or subjecting them to discrimination
because of race, color, national origin, or sex . . . or with the
purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of title VI or this subpart.''
DOE has determined that the ``effect'' language of 10 CFR
1040.13(c) and (d) raises serious constitutional difficulties and is
not based on the best reading of title VI. In fact, unlike the results-
oriented terms in other statutes, the express statutory language of
title VI only prohibits intentional discrimination.\15\ It contains no
such clause prohibiting ``effects'' (commonly known as disparate
impact). Rather, the words ``have the effect of'' were embedded in the
title VI regulations by the Department of Justice decades ago, to
reflect agency policy preferences. Most recently, a solid majority of
the U.S. Supreme Court Justices reaffirmed that the equal protection
principles of the Constitution, which extend to title VI, do not permit
the elimination of society's racial disparities through race-based
means.\16\ Furthermore, even as far back as the case of Village of
Arlington Heights v. Metropolitan Housing Development Corp.,\17\ the
Supreme Court explained that official action will not be held
unconstitutional solely because it results in a racially
disproportionate impact. ``Such impact is not irrelevant. . . but it is
not the sole touchstone of invidious racial discrimination.'' Rather,
``Determining whether [an] invidious discriminatory purpose was a
motivating factor demands a sensitive inquiry into such circumstantial
and direct evidence of intent as may be available.'' \18\
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\15\ Public Law 88-352, title VI, section 601, July 2, 1964, 78
Stat. 252.
\16\ See Students For Fair Admissions, Inc. v. President and
Fellows of Harvard College and University of North Carolina, et al.,
143 S. Ct. 2141 (2023).
\17\ 429 U.S. 252 (1977).
\18\ Powell, J. quoting Washington v. Davis, 426 U.S. 229, 242,
96 S. Ct. 2040, 2049, 48 L.Ed.2d 597.
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DOE's rescission of the ``effect'' language in 10 CFR 1040.13(c)
and (d) aligns with the evidentiary approach set forth by the Supreme
Court in Arlington Heights, and the express statutory authority of
title VI, interpreted coextensively with the Constitution's guarantee
of equal protection. Thus, no FFA recipient will be held liable by
[[Page 20780]]
DOE under 10 CFR part 1040 for disparate impacts it did not
intentionally cause. However, where DOE ``smokes out'' \19\ a recipient
policy masking intentional discrimination, the recipient will be
required to take any and all remedial action necessary to overcome the
harms of that discrimination. Such remedy shall concentrate on the
elimination of the offending practice, consistent with the U.S.
Constitution. For these reasons, DOE's direct final rule rescinds the
following:
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\19\ See Ricci v. DeStefano, 557 U.S. 557, 595 (2009) (Scalia,
J., concurring).
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(1) The clause in 10 CFR 1040.13(c) prohibiting recipients from
utilizing criteria or methods of administration that ``have the effect
of subjecting individuals to discrimination. . . .'' This clause will
be replaced and instead prohibit recipients from utilizing ``criteria
or methods of administration which intentionally subject individuals to
discrimination.''
(2) The clauses in 10 CFR 1040.13(d) prohibiting recipients from
making ``selections with the purpose or effect of excluding individuals
from, denying them the benefits of, or subjecting them to
discrimination because of race, color, national origin, or sex'' and
from determining a site or location of facilities with the ``purpose or
effect of defeating or substantially impairing the accomplishment of
the objectives of title VI or this subpart.'' These clauses will be
replaced and instead prohibit recipients from making ``selections with
the intent of excluding individuals from, denying them the benefits of,
or subjecting them to discrimination because of race, color, national
origin, or sex'' and from determining a site or location of facilities
with the ``intent of defeating or substantially impairing the
accomplishment of the objectives of title VI or this subpart.''
Time Period and Transition Plan Under 10 CFR 1040.72(c) and (d)
The DOE regulations implementing section 504 provide a time period
and transition plan for recipient compliance with section 504
accessibility standards applicable to existing facilities.
Specifically, 10 CFR 1040.72(c) provides that ``A recipient shall
comply with the requirement of paragraph (a) of this section within 60
days of the effective date of this subpart except that where structural
changes in facilities are necessary, the changes are to be made as
expeditiously as possible, but in no event later than three years after
the effective date of this subpart.'' Paragraph (d) of Sec. 1040.72
further provides that ``In the event that structural changes to
facilities are necessary to meet the requirement of paragraph (a) of
this section, a recipient shall develop, within 6 months of the
effective date of this subpart, a transition plan setting forth the
steps necessary to complete the changes.''
In light of the fact that over two decades have passed since the
effective date of subpart D of 10 CFR part 1040 implementing section
504, DOE has determined that 10 CFR 1040.72(c) and (d) are obsolete and
outdated. DOE's direct final rule thus rescinds each of these
provisions in their entirety.
Implementation of Title VIII Regulations Under Subpart F
When DOE first promulgated 10 CFR part 1040, it reserved subpart F
for regulations that would implement title VIII of the Civil Rights Act
of 1968 (known as the Fair Housing Act or FHA). Although DOE never
issued FHA regulations under subpart F, in the intervening years the
U.S. Department of Housing and Urban Development (HUD) was tasked with
enforcing the FHA. DOE's direct final rule thus rescinds subpart F as
the purpose for its reservation has been rendered obsolete. DOE will
continue to refer any and all received complaints of housing
discrimination to HUD pursuant to the FHA.
Information to Program Participants and Beneficiaries Under 10 CFR
1040.102(d)
Under 10 CFR 1040.102(d), ``Each recipient shall make available to
participants, beneficiaries, and other interested persons information
regarding the provisions of this section and its applicability to the
program under which the recipient receives Federal financial
assistance. Information is to be made available to beneficiaries,
participants, and other interested persons in a manner which the
responsible Department officials find necessary to inform such persons
of the protections against discrimination assured them by this part and
the statutes to which this part applies.''
DOE's direct final rule rescinds 10 CFR 1040.102(d) for the
following reasons. DOE has determined that this paragraph is
superfluous because other provisions of 10 CFR part 1040 include
similar or sizably more requirements. Specifically, 10 CFR 1040.6(a)
requires that every recipient ``take appropriate, initial and
continuing steps to notify participants, beneficiaries, applicants and
employees, including those with impaired vision or hearing, and unions
or professional organizations . . . that it does not discriminate on
the basis of race, color, national origin, sex, disability, or age. The
notification is to include an identification of the responsible
employee designated under 10 CFR 1040.5.'' Additionally, 10 CFR
1040.6(b) requires a recipient that publishes or uses recruitment
materials or publications containing general information that it makes
available to participants, beneficiaries, applicants, or employees to
also include the notice described in 10 CFR 1040.6(a). Another
provision at 10 CFR 1040.5(b) states that every ``recipient shall
display prominently, in reasonable numbers and places, posters which
state that the recipient operates a program or activity subject to the
nondiscrimination provisions of applicable subparts, summarize those
requirements, note availability of information regarding this part from
the recipient and DOE, and explain briefly the procedures for filing a
complaint. Information on requirements of this part, complaint
procedures and the rights of beneficiaries are to be included in
handbooks, manuals, pamphlets, and other materials which are ordinarily
distributed to the public to describe the federally assisted programs
or activities and the requirements for participation by recipients and
beneficiaries. To the extent that recipients are required by law or
regulation to publish or broadcast information in the news media, the
recipient shall insure that such publications and broadcasts state that
the program or activity in question is an equal opportunity program or
activity or otherwise indicate that discrimination in the program is
prohibited by Federal law.''
II. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866
Executive Order (E.O.) 12866, ``Regulatory Planning and Review,''
as supplemented and reaffirmed by E.O. 13563, ``Improving Regulation
and Regulatory Review, 76 FR 3821 (Jan. 21, 2011), 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
[[Page 20781]]
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. Section 6(a) of E.O. 12866 also
requires agencies to submit ``significant regulatory actions'' to the
Office of Information and Regulatory Affairs (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 (August 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 final rule eliminates unnecessary regulations.
Therefore, 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 rescission imposes no new information or recordkeeping
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's regulations include
a categorical exclusion for rulemakings that are strictly procedural.
See 10 CFR part 1021, subpart D, appendix A6. DOE has determined that
this rulemaking qualifies for categorical exclusion A6 because it is a
strictly procedural rulemaking.
E. Review Under Executive Order 13132
E.O. 13132, ``Federalism,'' 64 FR 43255 (August 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 tentatively 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 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). 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
[[Page 20782]]
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 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.
L. Review Under Additional Executive Orders and Presidential Memoranda
DOE has examined this rescission and has tentatively determined
that it is consistent with the policies and directives outlined in E.O.
14192. 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. 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 Secretary
The Secretary of Energy has approved publication of this direct
final rule; request for comment.
List of Subjects in 10 CFR Part 1040
Aged, Civil rights, Equal employment opportunity, Individuals with
disabilities, Sex discrimination.
Signing Authority
This document of the Department of Energy was signed on May 9,
2025, by Chris Wright, Secretary, Department 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.
Jennifer Hartzell,
Alternate Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set forth in the preamble, DOE amends part 1040 of
chapter X of title 10 of the Code of Federal Regulations, as set forth
below:
PART 1040--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OR
ACTIVITIES
0
1. The authority citation for part 1040 continues to read as follows:
Authority: 20 U.S.C. 1681-1686; 29 U.S.C. 794; 42 U.S.C. 2000d
to 2000d-7, 3601-3631, 5891, 6101-6107, 7101 et seq.
0
2. Amend Sec. 1040.1 by revising paragraph (a) to read as follows:
Sec. 1040.1 Purpose.
(a) The purpose of this part is to implement title VI of the Civil
Rights Act of 1964, Public Law 88-352; section 16 of the Federal Energy
Administration Act of 1974, as amended, Public Law 93-275; section 401
of the Energy Reorganization Act of 1974, Public Law 93-438; title IX
of the Education Amendments of 1972, as amended, Public Law 92-318,
Public Law 93-568 and Public Law 94-482; section 504 of the
Rehabilitation Act of 1973, as amended, Public Law 93-112; the Age
Discrimination Act of 1975, Public Law 94-135; title VIII of the Civil
Rights Act of 1968, Public Law 90-284; and civil rights provisions of
statutes administered pursuant to authority under the DOE Organization
Act, Public Law 95-91, so no person shall, on the ground of race,
color, national origin, sex (when covered by section 16 and section
401), handicap, or age, be excluded from participation in, be denied
the benefits of, be subjected to discrimination under, or be denied
employment, where a primary purpose of the Federal financial assistance
is to provide employment (under section 504, all grantee and subgrantee
employment practices are covered regardless of the purpose of the
program), in connection with any program or activity receiving Federal
financial assistance from the Department of Energy (after this referred
to as DOE or the Department). Employment coverage may be broader in
scope when section 16, section 401, or title IX are applicable.
* * * * *
[[Page 20783]]
0
3. Amend Sec. 1040.12 by revising paragraph (a) to read as follows:
Sec. 1040.12 Definitions.
(a) Covered employment means employment practices covered by title
VI, section 16 and section 401.
(1) Under title VI, such practices are those which, exist in a
program where a primary objective of the Federal financial assistance
is to provide employment; or
(2) Under section 16 and section 401, such practices include, but
are not limited to, employment practices covered by title VI when
alleging discrimination on the basis of sex.
* * * * *
Sec. 1040.5 [Amended]
0
4. Amend Sec. 1040.5 by removing and reserving paragraph (c).
Sec. 1040.6 [Amended]
0
5. Amend Sec. 1040.6 by removing and reserving paragraph (c).
Sec. 1040.8 [Removed and Reserved]
0
6. Remove and reserve Sec. 1040.8.
0
7. Amend Sec. 1040.13 by revising paragraphs (c) and (d) to read as
follows:
Sec. 1040.13 Discrimination prohibited.
* * * * *
(c) Type of Federal financial assistance. A recipient, in
determining the type of Federal financial assistance (i.e.,
disposition, services, financial aid, benefits, or facilities) which
will be provided under any program, or the class of individuals to
whom, or the situations in which the assistance will be provided, may
not, directly or through contractual or other arrangements, utilize
criteria or methods of administration which intentionally subject
individuals to discrimination because of their race, color, national
origin, or sex (when covered by section 16 and section 401) or have the
effect of defeating or substantially impairing accomplishment of the
objectives of the program with respect to individuals of a particular
race, color, national origin, or sex (when covered by section 16 or
section 401).
(d) Site or location of facilities. In determining the site or
location of facilities, a recipient or applicant may not make
selections with the intent of excluding individuals from, denying them
the benefits of, or subjecting them to discrimination because of race,
color, national origin, or sex (when covered by section 16 or 401) or
with the intent of defeating or substantially impairing the
accomplishment of the objectives of title VI or this subpart.
* * * * *
Sec. 1040.14 [Amended]
0
8. Amend Sec. 1040.14 by removing and reserving paragraph (a)(2).
Sec. 1040.72 [Amended]
0
9. Amend Sec. 1040.72 by removing and reserving paragraphs (c) and
(d).
Subpart F [Removed]
0
10. Remove subpart F.
Subparts G and H [Redesignated as Subparts F and G]
0
11. Redesignate subparts G and H as subparts F and G.
Sec. 1040.102 [Amended]
0
12. Amend Sec. 1040.102 by removing and reserving paragraph (d).
[FR Doc. 2025-08593 Filed 5-12-25; 9:30 am]
BILLING CODE 6450-01-P