Proposed Rule2026-04687
Notification of Petition for Rulemaking; America First Legal Foundation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 10, 2026
Issuing agencies
Energy Department
Abstract
This document announces receipt of a petition for rulemaking received by the Department of Energy (DOE) on January 7, 2026, from the America First Legal Foundation (AFL) requesting that DOE update its regulations concerning procedures requiring that management and operating contractors (M&Os) who enter into agreements with DOE submit and implement a written Diversity, Equity, Inclusion, and Accessibility (DEIA) Plan. This document summarizes the substantive aspects of this petition and requests public comments on the merits of the petition.
Full Text
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<title>Federal Register, Volume 91 Issue 46 (Tuesday, March 10, 2026)</title>
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[Federal Register Volume 91, Number 46 (Tuesday, March 10, 2026)]
[Proposed Rules]
[Pages 11495-11498]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-04687]
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DEPARTMENT OF ENERGY
48 CFR Part 970
[DOE-HQ-2026-0199]
Notification of Petition for Rulemaking; America First Legal
Foundation
AGENCY: Office of the General Counsel, Department of Energy (DOE).
ACTION: Notification of petition for rulemaking; request for comments.
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SUMMARY: This document announces receipt of a petition for rulemaking
received by the Department of Energy (DOE) on January 7, 2026, from the
America First Legal Foundation (AFL) requesting that DOE update its
regulations concerning procedures requiring that management and
operating contractors (M&Os) who enter into agreements with DOE submit
and implement a written Diversity, Equity, Inclusion, and Accessibility
(DEIA) Plan. This document summarizes the substantive aspects of this
petition and requests public comments on the merits of the petition.
DATES: DOE will accept comments, data, and information with respect to
the America First Legal Foundation Petition until April 9, 2026.
ADDRESSES: You may submit comments, identified by docket number ``DOE-
HQ-2026-0199,'' by the following method:
Federal eRulemaking Portal: <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the
instructions for submitting comments. For detailed instructions on
submitting comments and additional information on this process, see the
SUPPLEMENTARY INFORMATION section of this document.
Docket: The docket, which includes Federal Register notices,
comments, and other supporting documents/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. The docket web page can be found at:
<a href="http://www.regulations.gov/docket/DOE-HQ-2026-0199">www.regulations.gov/docket/DOE-HQ-2026-0199</a>. The docket web page will
contain simple instructions on how to access all documents, including
public comments, in the docket.
FOR FURTHER INFORMATION CONTACT: Mr. Lawrence Butler, U.S. Department
of Energy, Office of Management, 1000 Independence Avenue SW,
Washington, DC 20585-0121. Telephone: (240) 805-8181. Email:
<a href="/cdn-cgi/l/email-protection#8ec3cfb8bedcfbe2ebe3efe5e7e0e9cee6ffa0eae1eba0e9e1f8"><span class="__cf_email__" data-cfemail="91dcd0a7a1c3e4fdf4fcf0faf8fff6d1f9e0bff5fef4bff6fee7">[email protected]</span></a>. Ms. Jody TallBear, U.S. Department of
Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue
SW, Washington, DC 20585-0103. Telephone: (202) 586-4798. Email:
<a href="/cdn-cgi/l/email-protection#a6ecc9c2df88f2c7cacae4c3c7d4e6ced788c2c9c388c1c9d0"><span class="__cf_email__" data-cfemail="165c79726f3842777a7a54737764567e673872797338717960">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.,
provides, among other things, that ``[e]ach agency shall give an
interested person the right to petition for the issuance, amendment, or
repeal of a rule.'' (5 U.S.C. 553(e)) DOE received a petition for
rulemaking from the America First Legal Foundation requesting that DOE
update its regulations at DOE Federal Acquisition Regulation (referred
to as ``DEAR'') by rescinding DEAR clause provision 48 CFR 970.5226-1
titled ``Diversity Plan.'' The subject provision was last updated in
December 2024. 89 FR 89799 (November 13, 2024).
In their petition, the petitioners assert that the ``Diversity
Plan: provision is problematic for several reasons including that it is
drafted in vague, subjective terms that invite arbitrary application as
contractors endeavor to create and implement Diversity Plans. Secondly,
petitioners assert that this vagueness is particularly problematic
related to promoting race and identity-conscious initiatives that may
conflict with federal civil rights laws. Additionally, petitioners
assert that the provision is at odds with current Administration policy
as outlined in Executive Order (E.O.) 14151, ``Ending Radical and
Wasteful Government DEI Programs and Preferencing.''
DOE notes that it has taken action to implement E.O. 14151 as it
relates to contracting to include modifying contract terms and
conditions to strengthen civil rights compliance language and related
specifically to the ``Diversity Plan'' provision. First, on January 23,
2025, DOE issued Policy Flash 2025-16 entitled, ``Rescission of DEI,
CBP, and Justice40 Policy Flashes, Acquisition Letters, and Financial
Assistance Letters.'' This Policy Flash rescinded former DOE guidance
on DEI, CBP, and Justice40 requirements. DOE later issued a class
deviation from DEAR 970.5226-1 on February 3, 2025. The deviation
eliminated the requirement to include the DEIA Plan clause at 970.5226-
1, directed contracting officers to immediately notify affected
contractors that DOE will no longer enforce the clause, and instructed
contracting officers to modify affected solicitations and contracts to
remove the clause as soon as practicable. The AFL petition acknowledges
that DOE issued the deviation but asserts that DOE could ``reactivate''
the regulation at any time so it should be rescinded.
The petition is described in this document and set forth verbatim
below. The petition and class deviation are also available in the
docket at <a href="http://www.regulations.gov/docket/DOE-HQ-2026-0199">www.regulations.gov/docket/DOE-HQ-2026-0199</a>. Through this
notification, DOE is seeking views on whether it should grant the
petition and undertake a rulemaking to rescind the ``Diversity Plan''
provision. By seeking comment on whether to grant this petition, DOE
takes no position at this time regarding the merits of the suggested
rulemaking or the assertions made by the petitioners.
DOE welcomes comments and views of interested parties on any aspect
of the petition for rulemaking and on whether DOE should proceed with
the rulemaking.
Submission of Comments
DOE invites all interested parties to submit in writing by the date
under the DATES heading, comments and information regarding this
petition via <a href="http://www.regulations.gov">www.regulations.gov</a>. All submissions must include the
agency name, ``Department of Energy,'' and docket number, DOE-HQ-2026-
0199, for this rulemaking. All comments received will be posted without
change to <a href="http://www.regulations.gov">www.regulations.gov</a>, including any personal information
provided. Do not include personal information you would not want
publicly shared, including social security information, home addresses,
or any other personal identifying information not to be publicly
shared. DOE will not take responsibility for sharing information shared
by you. Do not submit to <a href="http://www.regulations.gov">www.regulations.gov</a> information for which
disclosure is restricted by statute, such as trade secrets and
commercial or financial information (hereinafter referred to as
Confidential Business Information (CBI)). Comments submitted through
<a href="http://www.regulations.gov">www.regulations.gov</a> cannot be claimed as CBI. Comments received through
the website will waive any CBI claims for the information submitted.
DOE considers public participation to be a very important part of
its process for considering rulemaking petitions. DOE actively
encourages the participation and interaction of the
[[Page 11496]]
public during the comment period. Interactions with and between members
of the public provide a balanced discussion of the issues and assist
DOE in determining how to proceed with a petition.
Signing Authority
This document of the Department of Energy was signed on March 6,
2026, by Jonathan Brightbill, General Counsel, pursuant to delegated
authority from the Secretary of Energy. That document with the original
signature and date is maintained by DOE. For administrative purposes
only, and in compliance with requirements of the Office of the Federal
Register, the undersigned DOE Federal Register Liaison Officer has been
authorized to sign and submit the document in electronic format for
publication, as an official document of the Department of Energy. This
administrative process in no way alters the legal effect of this
document upon publication in the Federal Register.
Signed in Washington, DC, on March 6, 2026.
Jennifer Hartzell,
Alternate Federal Register Liaison Officer, U.S. Department of Energy.
Petition of America First Legal Foundation for Rulemaking
Petition To Rescind Rule Requiring Department of Energy Contractors To
Develop a Diversity Plan
Petition for Rulemaking
Summary of Petition
1. This petition for rulemaking is submitted pursuant to 5 U.S.C.
553(e) and 42 U.S.C. 7191, which grant any interested person the right
to petition the Department of Energy for the issuance, amendment, or
repeal of a rule. America First Legal Foundation (``AFL'') respectfully
requests that the Department of Energy (``DOE'') rescind 48 CFR
970.5226-1--which requires management and operating contractors who
enter into engagements with the DOE to prepare, submit, and annually
update a written diversity, equity, inclusion, and accessibility plan.
The diversity plan requirement pressures contractors to sort and
evaluate employees and applicants by race and sex, encouraging quotas
and preferences that contravene federal civil rights guarantees and the
Constitution's promise of equal protection. Prompt rescission of this
rule is essential to restoring fair, merit-based federal contracting
untethered from compelled ``diversity'' metrics.
Statement of Interest
2. AFL is a national, 501(c)(3) nonprofit organization working to
promote the rule of law, prevent executive overreach, protect our
citizens' civil rights, and promote public understanding of the
Constitution and the laws of the United States. Our mission includes
promoting government transparency and accountability by gathering
official information, analyzing it, and disseminating it through
reports, press releases, and media, including social media platforms,
all to educate the public and to keep government officials accountable
for their duty to faithfully execute, protect, and defend the
Constitution, laws, and citizens of the United States.
Jurisdiction & Authority
3. Congress created the Department of Energy with the passage of
the Department of Energy Organization Act \1\ and authorized it to
manage and operate nuclear and other energy facilities through
contracts with private entities.\2\ Acting under this general
contracting authority, the Department adopted acquisition regulations
in 48 CFR part 970 to govern its management-and-operating contracts.\3\
One such provision, 48 CFR 970.5226-1, requires covered contractors to
submit and implement a written Diversity (or DEIA) Plan.\4\ The clause
requires contractors to prepare, submit, and annually update a written
diversity, equity, inclusion, and accessibility plan for approval by
the contracting officer.\5\ The plan must describe how they will
promote workforce and supplier diversity, set specific goals, and
periodically report on their progress.\6\ DOE inserts this clause into
its M&O contracts to operationalize its diversity policies within the
contractor workforce and subcontracting base.\7\
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\1\ 42 U.S.C. 7101 et seq.
\2\ 42 U.S.C. 7256(a) (authorizing the Secretary ``to enter into
and perform such contracts . . . as he may deem to be necessary or
appropriate to carry out functions . . . vested in the Secretary'').
\3\ 48 CFR 970; see also 42 U.S.C. 7191 (outlining the DOE's
general rulemaking authority).
\4\ 48 CFR 970.5226-1 (2024).
\5\ Id.
\6\ Id.
\7\ Id.
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Background
4. 48 CFR 970.5226-1 originated in 2000, when the DOE undertook a
comprehensive rewrite of its management and operating contract
regulations and added a Diversity Policy and Diversity Contract Clause
to its regulations governing management and operating contracts.\8\
Under that original framework from 2000, the clause was presented as a
tool for encouraging contractors to ``foster and enhance partnerships
with small, small disadvantaged, women-owned small businesses, and
educational institutions.'' \9\ Contractors were not required to pursue
racial diversity or to prepare any sort of diversity plan.\10\
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\8\ 48 CFR 970.2671 (2000).
\9\ Id.
\10\ Id.
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5. But several decades later, in 2023, the DOE proposed 48 CFR
970.5226-1, which rebranded the ``Diversity Contract Clause'' as a
``Diversity Plan.'' \11\ The amendment requires contractors to submit a
``Diversity, Equity, Inclusion, and Accessibility (DEIA) Plan'' to the
contracting officer. The amendments were finalized in November
2024.\12\ The Federal Register notice explained that this change was
intended ``to incorporate the more current terminology of `Diversity,
Equity, Inclusion, and Accessibility' (DEIA)'' and to ``better align
the DOE clause with current Administration initiatives'' and ``the
broader scope of recent DEIA initiatives.'' \13\
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\11\ 48 CFR 970.5226-1 (2024).
\12\ Id.
\13\ 48 CFR Chapter 9 (Department of Energy Acquisition
Regulation (DEAR)).
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6. The addition of the ``Diversity Plan'' was closely tied to the
Biden Administration's agenda of promoting diversity, equity, and
inclusion.\14\ For example, in the first few days of the Biden
administration, President Biden ordered the federal workforce to apply
DEI principles in its hiring.\15\ DOE's Diversity Plan clause became
one vehicle for operationalizing that mandate in the management and
operating contracting space, by requiring contractors to internalize
DEIA priorities in areas that extend well beyond traditional equal-
employment-opportunity compliance. In practice, the clause invites
contractors to treat DEIA as a freestanding policy objective, rather
than as a constraint defined and limited by existing civil-rights
statutes.
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\14\ See e.g., Exec. Order No. 14,035, 86 FR 34,593 (Jun. 25,
2021) (Diversity, Equity, Inclusion, and Accessibility in the
Federal Workforce); Exec. Order No. 13,985, 86 FR 7,009 (Jan. 25,
2021) (Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government); Exec. Order No. 14,091,
88 FR 10,825 (Feb. 16, 2023) (Further Advancing Racial Equity and
Support for Underserved Communities Through the Federal Government).
\15\ See Exec. Order No. 14,035, 86 FR 34,593 (Jun. 25, 2021)
(Diversity, Equity, Inclusion, and Accessibility in the Federal
Workforce).
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[[Page 11497]]
The Diversity Plan Conflicts With Current Executive Policy
7. The Diversity Plan clause at 48 CFR 970.5226-1 is fundamentally
at odds with the current Trump Administration's stated policy goals.
8. On January 20, 2025, President Trump responded to the widespread
support for eliminating the government's race- and sex-conscious
policies by signing Executive Order 14,151, Ending Radical and Wasteful
Government DEI Programs and Preferencing.\16\ The Executive Order
``coordinate[s] the termination of all discriminatory programs,
including illegal DEI and `diversity, equity, inclusion, and
accessibility' (DEIA) mandates, policies, programs, preferences, and
activities in the Federal Government.'' \17\
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\16\ Exec. Order No. 14,151, 90 FR 8,339 (Jan. 29, 2025) (Ending
Radical and Wasteful Government DEI Programs and Preferencing).
\17\ Id.
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9. The DOE has recognized that this Executive Order poses problems
for 48 CFR 970.5226-1 and has issued a class deviation for the
Diversity Plan requirement.\18\ The deviation instructs contracting
officers to notify contractors that the DOE ``will no longer enforce''
the clause, that they ``should not submit'' DEIA plans or updates, and
that they should remove Diversity Plan clauses from existing contracts
``as soon as practicable,'' pending formal amendment of the DEAR.\19\
But that formal amendment has not yet been made.
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\18\ Class Deviation Findings And Determination Department Of
Energy Acquisition Regulation (DEAR) 970.5226-1, DOE (Feb. 3, 2025),
<a href="https://perma.cc/M2MJ-U6D2">https://perma.cc/M2MJ-U6D2</a>.
\19\ Id.
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10. According to both the APA and the Supreme Court's
interpretation of the APA, the DOE may rescind or revise a prior rule
when it concludes the rule is unlawful, no longer justified, or
inconsistent with current policy, so long as it provides a reasoned
explanation and complies with the APA's procedural requirements.\20\
Given this landscape, rescission is the logical next step. Maintaining
this clause in the Code of Federal Regulations, even while the DOE has
formally suspended its use, prolongs uncertainty for contracting
officers and contractors and creates an invitation for future
administrators to revive the unlawful requirements.
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\20\ See 5 U.S.C. 553(b)-(c), 706(2)(A); FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 514-16 (2009); DHS v. Regents of the
Univ. of Cal., 591 U.S. 1, 29-34 (2020).
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The Diversity Plan Imposes Additional Regulatory Burdens With No
Legitimate Purpose
11. Requiring contractors to develop, update, and negotiate a
stand-alone DEIA Plan diverts management time and resources from the
technical, safety, and mission-critical work those contracts are
supposed to advance. When the DOE revised Sec. 970.5226-1 in 2024, it
did not identify any concrete evidence that the Diversity Plan
requirement had improved contract performance or addressed documented
deficiencies in contractor practices. Instead, the DOE's stated
rationale was largely to ``incorporate'' updated DEIA terminology and
align the clause with contemporary policy priorities.\21\
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\21\ See 48 CFR Chapter 9 (Department of Energy Acquisition
Regulation (DEAR)), supra n. 7.
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12. Because it does not serve a legitimate purpose, the DEIA Plan
requirement functions less as a neutral compliance mechanism and more
as a preferential channel for contractors willing to endorse a woke
ideological framework. The clause does not turn on legal noncompliance,
performance failures, or identifiable risks; instead, it directs
contractors to describe ``innovative strategies'' to advance
``diversity, equity, inclusion, and accessibility'' across broad
categories of activity.\22\ Contractors that adopt expansive DEIA
rhetoric can readily represent themselves as meeting the clause's
expectations, while those that simply adhere to existing, content-
neutral civil-rights and procurement requirements may be perceived as
deficient. This inherently subjective standard invites contracting
officials to inject their own political or ideological preferences into
what should be an objective, performance-based process.
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\22\ 48 CFR 970.5226-1 (2024).
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The Diversity Plan Requirement Exposes Contractors to Legal Risk
13. The text of Sec. 970.5226-1 is drafted in vague, subjective
terms that invite arbitrary application. Contractors are left to guess
at the DOE's expectations, and contracting officers are given broad
discretion to approve or disapprove plans based on their own policy
preferences rather than on clear, objective standards.
14. The clause requires contractors to submit a DEIA Plan that
``include[s] innovative strategies for increasing opportunities to
fully use the talents and capabilities of a diverse work force'' and
that describes the contractor's approach to ``promoting diversity'' in
a wide range of areas, including workforce practices, educational
outreach, community involvement, subcontracting, economic development,
and the prevention of profiling and discrimination.\23\ Yet the
regulation nowhere explains what counts as a ``diverse work force,''
what it means to ``promot[e] diversity'' in these contexts, or what
qualifies as an acceptable ``innovative strategy.''
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\23\ Id.
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15. This vagueness is particularly problematic because the subject
matter of the clause lies close to areas regulated by federal civil-
rights statutes.\24\ By instructing contractors to devise ``innovative
strategies'' to promote ``diversity'' in hiring, subcontracting, and
economic-development activities, the clause creates pressure to adopt
race- and identity-conscious initiatives that may exceed, or even
conflict with, the contractors' obligations under federal law.\25\
Contractors who understand the clause as a signal to prioritize
particular demographic characteristics in employment or subcontracting
may find themselves navigating an untenable tension between perceived
expectations of the DEIA Plan and their duty to adhere to statutes that
require equal treatment without regard to protected characteristics.
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\24\ See, e.g., Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e-2 (1964) (prohibiting employment discrimination); Title
VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d (1964)
(prohibiting discrimination under federally funded programs); 42
U.S.C. 1981 (1866) (guaranteeing equal rights to make and enforce
contracts).
\25\ See id.
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Requested Action
16. To promote equality of opportunity and meritocracy, the
Department of Energy should initiate the process to rescind 48 CFR
970.5226-1's requirement for contractors to create a Diversity Plan.
Conclusion
17. The DOE must rescind 48 CFR 970.5226-1 to comply with current
law and the President's agenda. The Diversity Plan requirement uses the
procurement process to pressure contractors to adopt contested DEIA
priorities, rather than simply ensuring that they can perform the work
safely, effectively, and in compliance with neutral civil-rights and
procurement laws. By layering vague, subjective DEIA criteria onto the
contracting process, the clause injects uncertainty and politics into
award and oversight decisions, distracting contractors from their core
technical, safety, and mission-critical responsibilities. For these
reasons, AFL respectfully requests that
[[Page 11498]]
the DOE initiate the process of removing the Diversity Plan for
contractors from its rules, regulations, and guidance materials, and
return to a neutral, statutorily grounded approach that serves all
Americans equally.
18. Please confirm receipt of this petition and advise on the
timeline and process for the DOE's consideration. We stand ready to
provide additional information or participate in any public comment
process that may follow.
Respectfully submitted,
/s/Alice Kass
America First Legal Foundation; 611 Pennsylvania Ave. SE #231,
Washington, DC 20003.
[FR Doc. 2026-04687 Filed 3-9-26; 8:45 am]
BILLING CODE 6450-01-P
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