Rescinding Regulations for Loans for Minority Business Enterprises Seeking DOE Contracts and Assistance

<RULE> DEPARTMENT OF ENERGY <CFR>10 CFR Part 800</CFR> <DEPDOC>[DOE-HQ-2025-0014]</DEPDOC> <RIN>RIN 1903-AA23</RIN> <SUBJECT>Rescinding Regulations for Loans for Minority Business Enterprises Seeking DOE Contracts and Assistance</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Minority Economic Impact, Department of Energy (DOE). <HD SOURCE="HED">ACTION:</HD> Direct final rule (DFR); request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This DFR rescinds a regulation which sets forth policies and procedures for the award and administration of loans to minority business enterprises. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> The final rule is effective July 15, 2025, unless significant adverse comments are received by June 16, 2025. Significant adverse comments oppose the rule and raise, alone or in combination, a serious enough issue related to each of the independent grounds for the rule that a substantive response is required. If significant adverse comments are received, notice will be published in the <E T="04">Federal Register</E> before the effective date either withdrawing the rule or issuing a new final rule which responds to significant adverse comments. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at <E T="03">www.regulations.gov</E> under docket number DOE-HQ-2025-0014. Follow the instructions for submitting comments. The docket for this final rule, which includes <E T="04">Federal Register</E> notices, comments, and other supporting documents and materials, is available for review at <E T="03">www.regulations.gov.</E> All documents in the docket are listed in the <E T="03">www.regulations.gov</E> 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 <E T="03">www.regulations.gov/docket/DOE-HQ-2025-0014.</E> The docket web page contains instructions on how to access all documents, including public comments, in the docket, as well as a summary. In accordance with 5 U.S.C. 553(b)(4), a summary of this rule may be found at <E T="03">www.regulations.gov,</E> under the docket number. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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: <E T="03">DOEGeneralCounsel@hq.doe.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. General Discussion</FP> <FP SOURCE="FP-2">II. Procedural Issues and Regulatory Review</FP> <FP SOURCE="FP1-2">A. Review Under Executive Order 12866</FP> <FP SOURCE="FP1-2">B. Review Under the Regulatory Flexibility Act</FP> <FP SOURCE="FP1-2">C. Review Under the Paperwork Reduction Act</FP> <FP SOURCE="FP1-2">D. Review Under the National Environmental Policy Act of 1969</FP> <FP SOURCE="FP1-2">E. Review Under Executive Order 13132</FP> <FP SOURCE="FP1-2">F. Review Under Executive Order 12988</FP> <FP SOURCE="FP1-2">G. Review Under the Unfunded Mandates Reform Act</FP> <FP SOURCE="FP1-2">H. Review Under the Treasury and General Government Appropriations Act, 1999</FP> <FP SOURCE="FP1-2">I. Review Under Executive Order 12630</FP> <FP SOURCE="FP1-2">J. Review Under the Treasury and General Government Appropriations Act, 2001</FP> <FP SOURCE="FP1-2">K. Review Under Executive Order 13211</FP> <FP SOURCE="FP1-2">L. Review Under Additional Executive Orders and Presidential Memoranda</FP> <FP SOURCE="FP1-2">M. Congressional Notification</FP> <FP SOURCE="FP-2">III. Approval of the Secretary</FP> </EXTRACT> <HD SOURCE="HD1">I. General Discussion</HD> In <E T="03">Students for Fair Admissions</E> v. <E T="03">Harvard,</E> 600 U.S. 181, 230 (2023), the Supreme Court held that the admissions programs of Harvard and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment. Both institutions included race as an overt consideration in the admissions programs. <E T="03">Id.</E> at 194-98. The programs were unconstitutional because they “lack[ed] sufficiently focused and measurable objectives warranting the use of race, unavoidably employ[ed] race in a negative manner, involve[d] racial stereotyping, and lack[ed] meaningful end points.” <E T="03">Id.</E> at 230. The Supreme Court was clear that “[e]liminating racial discrimination means eliminating all of it.” <E T="03">Id.</E> at 206 (cleaned up). And the Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality.” <E T="03">Id.</E> (cleaned up). Thus, the Court has “time and again forcefully rejected the notion that government actors may intentionally allocate preference to those who may have little in common with one another but the color of their skin.” <E T="03">Id.</E> at 220 (cleaned up). The regulations at 10 CFR part 800 do exactly that, in violation of <E T="03">Students for Fair Admissions</E> and numerous other Supreme Court cases. The purpose of part 800 “is to set forth policies and procedures for the award and administration of loans to minority business enterprises.” 10 CFR 800.001. Minority is defined as “[a]n individual who is a citizen of the United States and who is a Negro, Puerto Rican, American Indian, Eskimo, Oriental, or Aleut, or is a Spanish speaking individual of Spanish descent.” 10 CFR 800.003. The regulations set out to provide preference to minority business owners, based on the color of their skin. For this reason alone, DOE has determined it must rescind these regulations to be in compliance at least with Supreme Court rulings. DOE has determined there is no reliance interest in an unlawful regulation. <E T="03">Dep't of Homeland Sec.</E> v. <E T="03">Regents of the Univ. of California,</E> 591 U.S. 1, 32 (2020). Regardless, and independently, DOE has determined that 10 CFR part 800 violates the Secretary's policy to treat people without regard to the color of their skin. Contrary to this policy, the regulations identify groups based on their race, sort them, and intentionally deliver preferences based on the resulting groups. Even if such regulations were constitutional, DOE would rescind them. DOE also has a preference for deregulation. The provisions in 10 CFR part 800 outline a program that DOE will not use and so they should be rescinded for this additional reason. DOE seeks all comments on this direct final rule. <HD SOURCE="HD1">II. Procedural Issues and Regulatory Review</HD> <HD SOURCE="HD2">A. Review Under Executive Orders 12866</HD> Executive Order (E.O.) 12866, “Regulatory Planning and Review,” requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits; (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. For the reasons stated in the preamble, this direct final rule is consistent with these principles. <HD SOURCE="HD2">B. Review Under the Regulatory Flexibility Act</HD> The Regulatory Flexibility Act (5 U.S.C. 601 <E T="03">et seq.</E> ) requires preparation of an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by E.O. 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's website ( <E T="03">www.energy.gov/gc/office-general-counsel</E> ). DOE reviewed this rescission under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. This rule eliminates unlawful and unnecessary regulations. Therefore, DOE concludes that the impacts of the rescission would not have a “significant economic impact on a substantial number of small entities,” and that the preparation of an IRFA is not warranted. DOE will transmit this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b). <HD SOURCE="HD2">C. Review Under the Paperwork Reduction Act</HD> This rescission imposes no new information or record-keeping requirements. Accordingly, Office of Management and Budget (OMB) clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 <E T="03">et seq.</E> ) <HD SOURCE="HD2">D. Review Under the National Environmental Policy Act of 1969</HD> DOE has analyzed this action in accordance with the National Environmental Policy Act of 1969, as a ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 20k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━