Proposed Rule2025-08595
Rescinding Regulations Related to Nondiscrimination in Federally Assisted Programs or Activities (Nondiscrimination on the Basis of Age)
Primary source
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Published
May 16, 2025
Issuing agencies
Energy Department
Abstract
DOE is proposing to rescind certain regulatory provisions related to nondiscrimination based on age in federally assisted programs or activities.
Full Text
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<title>Federal Register, Volume 90 Issue 94 (Friday, May 16, 2025)</title>
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[Federal Register Volume 90, Number 94 (Friday, May 16, 2025)]
[Proposed Rules]
[Pages 20949-20952]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-08595]
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DEPARTMENT OF ENERGY
10 CFR Part 1040
[DOE-HQ-2025-0023]
RIN 1903-AA21
Rescinding Regulations Related to Nondiscrimination in Federally
Assisted Programs or Activities (Nondiscrimination on the Basis of Age)
AGENCY: Office of Minority Economic Impact, Department of Energy (DOE).
ACTION: Proposed rule; request for comments.
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SUMMARY: DOE is proposing to rescind certain regulatory provisions
related to nondiscrimination based on age in federally assisted
programs or activities.
[[Page 20950]]
DATES: Comments must be received on or before July 15, 2025.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at <a href="http://www.regulations.gov">www.regulations.gov</a> under docket
number DOE-HQ-2025-0023. Follow the instructions for submitting
comments. The docket for this proposed rule, which includes Federal
Register notices, comments, and other supporting documents and
materials, is available for review at <a href="http://www.regulations.gov">www.regulations.gov</a>. All
documents in the docket are listed in the <a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov/docket/DOE-HQ-2025-0023">www.regulations.gov/docket/DOE-HQ-2025-0023</a>. 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.
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:
<a href="/cdn-cgi/l/email-protection#fabeb5bfbd9f949f889b96b9958f94899f96ba928bd49e959fd49d958c"><span class="__cf_email__" data-cfemail="ace8e3e9ebc9c2c9decdc0efc3d9c2dfc9c0ecc4dd82c8c3c982cbc3da">[email protected]</span></a>.
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
III. Approval of the Secretary
I. General Discussion
DOE is proposing to rescind certain provisions from its regulations
found in subpart E (``Nondiscrimination on the Basis of Age'') to part
1040 of chapter X of title 10 of the Code of Federal Regulations (CFR)
(``Nondiscrimination in Federally Assisted Programs or Activities'').
Specifically, DOE is rescinding subparagraphs (b) through (c) of 10 CFR
1040.88, ``Remedial and affirmative action by recipients.'' Upon
further evaluation, and for the reasons explained subsequently, DOE has
determined these provisions to be unnecessary.
Under 10 CFR 1040.88(a), if the Director of DOE's Office of Equal
Opportunity finds that a recipient of financial assistance has
discriminated against persons on the basis of age, the recipient shall
take such remedial action as the Director considers necessary to
overcome the effects of discrimination. This provision can be
distinguished from 10 CFR 1040.88(b), which suggests financial
assistance recipients may take other affirmative actions, even in the
absence of any finding of discrimination. ``Even in the absence of a
finding of discrimination, a recipient may take affirmative action to
overcome the effects of conditions that resulted in limited
participation in the recipient's program or activity on the basis of
age.'' 10 CFR 1040.88(b). This provision contains no substantive right
or obligation but rather grants permission for a recipient to take
action in the absence of a finding of discrimination. Accordingly, DOE
finds this provision to be unnecessary. 10 CFR 1040.88(c) clarifies the
conditions under which a recipient operating a program or activity
shall be presumed to be providing voluntary affirmative action. 10 CFR
1040.88(c) states, ``If a recipient operating a program or activity
which serves the elderly or children, in addition to persons of other
ages, provides special benefits to the elderly or to children, the
provision of those benefits shall be presumed to be voluntary
affirmative action provided that it does not have the effect of
excluding otherwise eligible persons from participation in the program
or activity.'' 10 CFR 1040.88(c). Given the general prohibition on age-
related discriminatory activities and related penalties, DOE finds
these additional provisions unnecessary. DOE finds no reason to suggest
additional actions associated with the provisions under 10 CFR
1040.88(b) in the absence of any improper action or attempt to provide
unnecessary ``clarification'' of age based ``voluntary affirmative
action'' under 10 CFR 1040.88(c). Accordingly, DOE finds good reason to
eliminate these regulatory provisions. DOE seeks all comments.
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 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. 12866 also requires agencies to submit
``significant regulatory actions'' to OIRA for review. OIRA has
determined that this proposed regulatory action does not constitute a
``significant regulatory action'' under section 3(f) of E.O. 12866.
Accordingly, this proposed rulemaking action 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 (<a href="http://www.energy.gov/gc/office-general-counsel">www.energy.gov/gc/office-general-counsel</a>).
DOE reviewed this proposed rule rescission under the provisions of
the Regulatory Flexibility Act and the policies and procedures
published on February 19, 2003. This proposal eliminates provisions in
regulations that are unnecessary and create no substantive right or
obligation.
[[Page 20951]]
Therefore, DOE initially concludes that the impacts of the proposed
rule 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 proposed rule rescission 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
Pursuant to the National Environmental Policy Act of 1969 (NEPA),
DOE is analyzing this proposed rule rescission in accordance with 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
anticipates that this rulemaking qualifies for categorical exclusion A6
because it is a strictly procedural rulemaking and otherwise meets the
requirements for application of a categorical exclusion. See 10 CFR
1021.410.
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 proposed rule 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 proposed rule
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 statement is also available at
<a href="http://www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf">www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf</a>.
DOE examined this proposed rule rescission according to UMRA and
its statement of policy and determined that the proposed rule
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 proposed rule 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 proposed rule 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
[[Page 20952]]
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: <a href="https://www.energy.gov/cio/department-energy-information-quality-guideline">https://www.energy.gov/cio/department-energy-information-quality-guideline</a>. DOE has reviewed this proposed rule
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.
This proposed rule rescission 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 rescission and has tentatively determined
that it is consistent with the policies and directives outlined in
Executive Order 14192, ``Unleashing Prosperity Through Deregulation.''
This rescission is expected to be an Executive Order 14192 deregulatory
action.
III. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this proposed
rule; request for comment.
List of Subjects in 10 CFR Part 1040
Age, 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 proposes to amend
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 subpart E of part 1040 continues to read
as follows:
Authority: Age Discrimination Act of 1975, as amended (42
U.S.C. 6101 et seq.); 45 CFR part 90.
Sec. 1040.88 [Amended]
0
2. Amend Sec. 1040.88, by removing and reserving paragraphs (b) and
(c).
[FR Doc. 2025-08595 Filed 5-12-25; 9:30 am]
BILLING CODE 6450-01-P
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