Proposed Rule2025-11845
Rescission of Affirmative Outreach Requirements for Recipients of WIOA Title I Financial Assistance
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Published
July 1, 2025
Issuing agencies
Labor Department
Abstract
The Department of Labor (Department), Office of the Assistant Secretary for Administration and Management, Civil Rights Center (CRC), proposes to remove the regulations implementing the nondiscrimination and equal opportunity provisions of the Workforce Innovation and Opportunity Act (WIOA) that contain affirmative outreach requirements for recipients of financial assistance under Title I of WIOA. WIOA does not authorize the Department to require affirmative outreach, therefore the Department is proposing to remove this requirement.
Full Text
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<title>Federal Register, Volume 90 Issue 124 (Tuesday, July 1, 2025)</title>
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[Federal Register Volume 90, Number 124 (Tuesday, July 1, 2025)]
[Proposed Rules]
[Pages 28245-28247]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-11845]
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DEPARTMENT OF LABOR
Office of the Secretary of Labor
29 CFR Part 38
RIN 1291-AA47
Rescission of Affirmative Outreach Requirements for Recipients of
WIOA Title I Financial Assistance
AGENCY: Office of the Secretary, Labor.
ACTION: Proposed rule; request for comment.
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SUMMARY: The Department of Labor (Department), Office of the Assistant
Secretary for Administration and Management, Civil Rights Center (CRC),
proposes to remove the regulations implementing the nondiscrimination
and equal opportunity provisions of the Workforce Innovation and
Opportunity Act (WIOA) that contain affirmative outreach requirements
for recipients of financial assistance under Title I of WIOA. WIOA does
not authorize the Department to require affirmative outreach, therefore
the Department is proposing to remove this requirement.
DATES: Comments must be received on or before July 31, 2025.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1291-AA47, by either of the following methods:
<bullet> Electronic Comments: Submit comments through the Federal
eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
instructions for submitting comments.
<bullet> Mail: Naomi Barry-Perez, Director, Civil Rights Center
(CRC), U.S. Department of Labor, 200 Constitution Avenue NW, Room N-
4123, Washington, DC 20210.
Instructions: All submissions received must include ``RIN 1291-
AA47.'' Please submit only one copy of your comments by only one
method. Commenters submitting file attachments on <a href="https://www.regulations.gov">https://www.regulations.gov</a> are advised that uploading text-recognized
documents--i.e., documents in a native file format or documents which
have undergone optical character recognition (OCR)--enable staff at the
Department to more easily search and retrieve specific content included
in your comment for consideration.
Please be advised that comments received will become a matter of
public record and will be posted to <a href="http://www.regulations.gov">http://www.regulations.gov</a>,
including any personal information provided.
Docket: For access to the docket to read background documents or
comments, go to the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (search using RIN 1291-AA47).
FOR FURTHER INFORMATION CONTACT: Naomi Barry-Perez, Director, Civil
Rights Center (CRC), U.S. Department of Labor, 200 Constitution Avenue
NW, Room N-4123, Washington, DC 20210. Telephone: (202) 693-6500. If
you are deaf, hard of hearing, or have a speech disability, please dial
7-1-1 to access telecommunications relay services.
SUPPLEMENTARY INFORMATION:
I. Discussion
This action proposes to rescind CRC's regulation at 29 CFR 38.40,
which was promulgated in 2016 and states that WIOA recipients ``must
take'' affirmative outreach efforts to groups based on race, sex,
national origin, and other characteristic and provides non-exhaustive
examples of actions that may constitute ``reasonable efforts.''
Recipients are defined in 29 CFR 38.4(zz) as entities to which
financial assistance under Title I of WIOA is extended, directly from
the Department or through the Governor or another recipient (including
any successor, assignee, or transferee of a recipient). The term
``recipient'' excludes any ultimate beneficiary of the WIOA Title I-
financially assisted program or activity.
The Department is proposing to rescind 29 CFR 38.40 because the
statute it implements--Section 188 of the Workforce Innovation and
Opportunity Act (WIOA), 29 U.S.C. 3248--does not require affirmative
outreach, and the Department has tentatively determined that imposing
such a requirement by regulation exceeds its statutory authority.
Section 188 of WIOA (29 U.S.C. 3248) prohibits discrimination on
the basis of race, color, religion, sex, national origin, age,
disability, and political affiliation or belief in programs and
activities funded under Title I of WIOA. However, nothing in the text
of Section 188 mandates that recipients of WIOA Title I financial
assistance conduct proactive or affirmative outreach to particular
demographic groups. The affirmative outreach provision at Sec. 38.40
was added by regulation, not by Congress. The provision created a
substantive compliance obligation not expressly authorized in statute.
In doing so, it required recipients to undertake specific forms of
outreach based solely on the demographic characteristics of individuals
or groups, regardless of whether any actual discrimination had
occurred. The Department now tentatively finds that such a requirement
lacks a statutory foundation based on the best reading of the WIOA. See
Loper Bright Enterprises v. Raimondo, 603 U.S.__ (2024).
The Department is also concerned that affirmative outreach may
conflict with the Supreme Court's decision in Students for Fair
Admissions v. Harvard, 600 U.S. 181 (2023), which reaffirmed that the
government's use race and similar protected traits are subject to
strict scrutiny and must be narrowly tailored to a compelling interest.
While Sec. 38.40 was framed as an outreach provision, it forces
recipients to make ``reasonable efforts'' to take action based on
characteristics like race, sex, and national origin. This may require
recipients to consider protected traits in designing recruitment or
programming. In doing so, Sec. 38.40 risks encouraging demographic
classifications that are suspect under SFFA.
To avoid potential constitutional conflict and ensure the
Department's regulations stay within statutory and constitutional
limits, the Department is rescinding Sec. 38.40. Recipients remain
subject to WIOA's nondiscrimination requirements.
Consistent with E.O. 14219, CRC is rescinding this regulation at
Sec. 38.40. E.O. 14219 directed agencies to review ``all regulations
subject to their sole or joint jurisdiction for consistency with law
and Administration Policy.'' \1\ The Trump Administration provided
additional guidance to agencies via Presidential Memorandum,
``Directing the Repeal of Unlawful Regulations''
[[Page 28246]]
(April 9, 2025). This memorandum directed agencies to take immediate
steps ``to effectuate the repeal of any regulation, or the portion of
any regulation, that clearly exceeds the agency's statutory authority
or is otherwise unlawful.'' \2\ Accordingly, CRC has determined that it
is appropriate to rescind Sec. 38.40 of 29 CFR part 38 as it lacks
authorization in the WIOA statute.
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\1\ See E.O. 14219, 90 FR 10583 (Feb. 19, 2025).
\2\ <a href="https://www.whitehouse.gov/presidential-actions/2025/04/directing-the-repeal-of-unlawful-regulations/">https://www.whitehouse.gov/presidential-actions/2025/04/directing-the-repeal-of-unlawful-regulations/</a>.
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Rescinding Sec. 38.40 from the 29 CFR part 38 regulations will
decrease the burden on recipients, as they will no longer be required
to undertake the affirmative outreach requirements described in detail
above. In addition to ensuring compliance with E.O. 14219, rescinding
this regulation also supports the objectives of Executive Order 14192,
Unleashing Prosperity Through Deregulation, by alleviating unnecessary
regulatory burdens.\3\
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\3\ See E.O. 14192, 90 FR 9065 (Jan. 31, 2025).
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II. Authority
E.O. 14219.
III. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
Executive Order (E.O.) 12866, ``Regulatory Planning and Review,''
58 FR 51735 (Oct. 4, 1993), 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.
Section 6(a) of E.O. 12866 also requires agencies to submit
``significant regulatory actions'' to OIRA for review. OIRA has
determined that this proposed rule does not constitute a ``significant
regulatory action'' under section 3(f) of E.O. 12866. Accordingly, this
proposed 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.
DOL reviewed this proposed rescission under the provisions of the
Regulatory Flexibility Act. This rule eliminates burdensome
regulations. Therefore, DOL has concluded 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
FRFA is not warranted. DOL 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, OMB clearance is not required under the
Paperwork Reduction Act. (44 U.S.C. 3501 et seq.).
D. 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.
DOL 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.
E. 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. DOL has completed the required review and
determined that, to the extent permitted by law, this rescission meets
the relevant standards of E.O. 12988.
F. 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,
[[Page 28247]]
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.
DOL 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.
G. 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, DOL has concluded that it
is not necessary to prepare a Family Policymaking Assessment.
H. 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), DOL has determined that this rescission would not result in
any takings that might require compensation under the Fifth Amendment
to the U.S. Constitution.
I. 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). DOL has reviewed this rescission under the OMB
and has concluded that it is consistent with applicable policies in
those guidelines.
J. Review Under Executive Order 13175
DOL has examined this proposed rule and determined that it does not
have tribal implications under Executive Order 13175 that would require
a tribal summary impact statement. It does not ``have substantial
direct effects on one or more Indian tribes, on the relationship
between the Federal Government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian tribes.''
K. Congressional Notification
As required by 5 U.S.C. 801, if finalized, DOL will report to
Congress on the promulgation of this rule 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).
L. Review Under Additional Executive Orders and Presidential Memoranda
DOL has examined this rescission and has determined that it is
consistent with the policies and directives outlined in E.O. 14219,
``Ensuring Lawful Governance and Implementing the President's
`Department of Government Efficiency' Deregulatory Initiative,'' and
Presidential Memorandum, ``Directing the Repeal of Unlawful
Regulations.'' This rescission is expected to be an Executive Order
14192 deregulatory action.
List of Subjects in 29 CFR Part 38
Civil rights, Employment, Equal employment opportunity,
Discrimination, Affirmative action, Affirmative outreach, Equal access,
Government contracts, Recordkeeping requirements, Labor.
For the reasons set forth in the preamble, DOL proposes to amend
part 38 of subtitle A of title 29 of the Code of Federal Regulations,
as set forth below:
PART 38--IMPLEMETATION OF THE NONDISCRIMINATION AND EQUAL
OPPORTUNITY PROVISIONS OF THE WORKFORCE INNOVATION AND OPPORTUNITY
ACT
0
1. The authority citation for part 38 continues to read as follows:
Authority: 29 U.S.C. 3101 et seq.; 42 U.S.C. 2000d et seq.; 29
U.S.C. 794; 42 U.S.C. 6101 et seq.; and 20 U.S.C. 1681 et seq.
Sec. 38.40 [Reserved]
0
2. Remove and reserve Sec. 38.40.
Dean Heyl,
Assistant Secretary for Administration and Management, Labor.
[FR Doc. 2025-11845 Filed 6-30-25; 8:45 am]
BILLING CODE 4510-04-P
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