[Federal Register Volume 85, Number 230 (Monday, November 30, 2020)]
[Proposed Rules]
[Pages 76500-76502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26274]



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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 230

[FHWA Docket No. FHWA-2019-0026]
RIN 2125-AF87


State Highway Agency Equal Employment Opportunity Programs

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FHWA is proposing to remove its outdated and duplicative 
regulations requiring State highway agencies to submit to FHWA, on an 
annual basis, Equal Employment Opportunity (EEO) Program plans for FHWA 
approval. Currently, FHWA is responsible for oversight of State highway 
agencies' EEO programs, which include collection and analysis of 
internal employment data, development of an internal affirmative action 
hiring plan, and contractor compliance reporting. These regulations 
overlap with, and are duplicative of, other Federal requirements 
enforced by other Federal agencies. Elimination of these regulations 
would reduce administrative and monetary burdens on Federal-aid 
recipients.

DATES: Comments must be received on or before January 29, 2021. Late-
filed comments will be considered to the extent practicable.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, 1200 New Jersey Ave. SE, 
Washington, DC 20590, or submit electronically at www.regulations.gov. 
All comments should include the docket number that appears in the 
heading of this document. All comments received will be available for 
examination and copying at the above address from 9 a.m. to 5 p.m., 
e.t., Monday through Friday, except Federal holidays. Those desiring 
notification of receipt of comments must include a self-addressed, 
stamped postcard or may print the acknowledgment page that appears 
after submitting comments electronically.

FOR FURTHER INFORMATION CONTACT: Nichole McWhorter, Team Leader, Office 
of Civil Rights, Federal Highway Administration, 1200 New Jersey Ave. 
SE, Room E81-330, Washington, DC 20590, [email protected], or 
James Esselman, Office of the Chief Counsel, Federal Highway 
Administration, 1200 New Jersey Ave, SE, Room E82-322, Washington, DC 
20590, [email protected]. Office hours are from 8:00 a.m. to 4:30 
p.m. e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    This document and all comments received may be viewed online 
through the Federal eRulemaking portal at http://www.regulations.gov. 
The website is available 24 hours each day, 365 days each year. An 
electronic copy of this document may also be downloaded by accessing 
the Office of the Federal Register's home page at: https://www.federalregister.gov.

Background

    The FHWA regulations at 23 CFR part 230, subpart C, currently 
require that all State highway agencies submit to FHWA for approval, on 
an annual basis, an EEO Program, which must include provisions for 
reporting on contractor compliance and internal State highway agency 
employment. The internal employment provisions require submission of an 
affirmative action plan and an analysis of employment statistical data.
    In addition to FHWA, other Federal agencies share an interest in 
ensuring nondiscrimination in employment of State highway agency 
personnel and Federal-aid contractors. The Office of Federal Contract 
Compliance (OFCCP) is a U.S. Department of Labor (DOL) program that, 
since reorganization in 2009, reports directly to the Secretary of 
Labor. The OFCCP Program regulations at 41 CFR part 60 were implemented 
to achieve the objectives found in parts II, III, and IV of Executive 
Order (E.O.) 11246 \1\ for the promotion of and ensuring equal 
opportunity for all persons, regardless of race, color, religion, sex, 
sexual orientation, gender identity, or national origin, employed or 
seeking employment with Federal Government contractors or with 
contractors performing under federally assisted construction contracts.
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    \1\ E.O. No. 11,246, 30 FR 12319 (Sept. 24, 1965).
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    The Equal Employment Opportunity Commission (EEOC) is the Federal 
agency responsible for enforcing nondiscrimination laws in the 
workplace. Its jurisdiction extends to private as well as State and 
local government employers that meet certain employee thresholds. The 
EEOC has contracts with State and local fair employment practice 
agencies (FEPA) that may process complaints on EEOC's behalf. The EEOC 
enforces Federal employment laws, including: Title VII of the Civil 
Right Act of 1964, as amended; \2\ the Age Discrimination in Employment 
Act of 1967; \3\ the Equal Pay Act of 1963; \4\ Title I of the 
Americans with Disabilities Act of 1990, as amended; \5\ and the 
Genetic Information Nondiscrimination Act of 2008.\6\
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    \2\ 42 U.S.C. 2000e et seq.
    \3\ 29 U.S.C. 621-634.
    \4\ 29 U.S.C. 206(d).
    \5\ 42 U.S.C. 12101 et seq.
    \6\ Public Law 110-233, 122 Stat 881.
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    The EEOC shares jurisdiction of Title VII and Title I of the 
Americans with Disabilities Act with the U.S. Department of Justice 
(DOJ). Both have the authority to initiate, mediate, investigate, and 
conciliate charges of discrimination, but only DOJ has the jurisdiction 
to litigate cases against State and local employers under these laws. 
In cases where EEOC is unable to satisfactorily resolve employment 
discrimination complaints or reasonable cause findings, it transfers 
the files to DOJ for litigation consideration. For age-related cases, 
EEOC has sole authority for investigation and litigation.
    In addition to addressing charges of discrimination, EEOC collects 
and publishes workforce parity data from private employers each year 
through Form EEO-1 (https://www.eeoc.gov/employers/eeo1survey/index.cfm) and from State and local governments biennially through Form 
EEO-4 (https://egov.eeoc.gov/eeo4/pdf/EEO4.pdf). The reporting agencies 
provide information on their employment totals, employees' job 
categories, and salary by sex and race/ethnic groups as of June 30 of 
the survey year (every odd-numbered year).
    The FHWA added Subpart C to the regulations at 23 CFR part 230, in 
1976, as an administrative amendment to the regulation. The subpart was 
written prior to the creation of many State equal opportunity programs 
and prior to President Carter's issuance of Reorganization Plan No. 1 
of 1978, which consolidated many EEO authorities that had been spread 
among various departments and agencies under the EEOC. The FHWA's 
regulation states that State EEO programs that meet or exceed the 
standards prescribed in the regulation will comply with FHWA 
requirements. In the more than 40 years since the subpart was added to 
the regulation, the equal employment laws of States and related equal 
employment enforcement authority of the EEOC and OFCCP have been 
created or modified to cover any gap in employment discrimination 
coverage for State

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highway employees that might have existed at the time FHWA's regulation 
was promulgated.
    Given that other authorities at both the State and Federal level, 
provide coverage of employment discrimination charges that apply to 
State highway agencies, and given that Congress has not expressly 
directed FHWA to require State highway agencies to create and submit 
affirmative action plans from State highway agencies, FHWA is proposing 
to remove the regulatory requirements at 23 CFR part 230, subpart 230.

General Discussion of the Proposals

    The FHWA seeks public comment on its proposal to eliminate its 
regulation at 23 CFR part 230, subpart C, in its entirety. To the 
extent that this Subpart addresses Federal oversight of State highway 
agencies' internal EEO obligations, it is duplicative of EEOC 
requirements and DOJ enforcement authorities. To the extent that this 
Subpart of FHWA's regulations addresses State highway agency contractor 
compliance on Federal-aid projects, FHWA retains oversight of such 
activities under 23 CFR part 230, subpart D, which sets forth equal 
opportunity compliance procedures for construction contracts. In 
addition, OFCCP retains EEO enforcement authority over Federal-aid 
contractors under E.O. 11246 and DOL regulations at 41 CFR part 60. The 
FHWA's proposal to eliminate its regulation at 23 CFR part 230, subpart 
C, will reduce the reporting and compliance burdens on State highway 
agencies by eliminating duplicative requirements that will ultimately 
result in a cost savings to the State agencies and to FHWA, without 
diminishing Federal oversight of Federal EEO requirements.
    Estimated cost savings are based on reduced staff functions at both 
the State highway agencies and FHWA by eliminating the oversight and 
reporting activities required under the existing regulation. Currently, 
each State highway agency is required by the regulation to have an 
external EEO coordinator and staff support to ensure that the 
contractor compliance component of its EEO Program is carried out 
according to this regulatory subpart. In addition, each State highway 
agency must have an internal EEO officer to develop and manage the 
internal affirmative action plan required by the regulation, including 
undertaking the workforce evaluation and collecting and reporting on 
required data. Multiple members of FHWA staff are also tasked with 
oversight and training of this regulatory subpart. Based on these 
considerations, FHWA estimates that elimination of this regulatory 
subpart will result in savings of approximately $261,374 annually.

Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, 
FHWA may also continue to file relevant information in the docket as it 
becomes available after the comment period closing date, and interested 
persons should continue to examine the docket for new material. A final 
rule may be published at any time after close of the comment period.

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13562 (Improving Regulation and Regulatory Review), Executive Order 
13771 (Reducing Regulations and Controlling Regulatory Costs), and DOT 
Policies and Procedures for Rulemaking

    The FHWA has determined preliminarily that this action would not be 
a significant regulatory action within the meaning of E.O. 12866 or 
would not be significant within the meaning of DOT policies and 
procedures for rulemaking. This action complies with E.O.s 12866, 
13563, and 13771 to improve regulation. It is anticipated that the 
economic impact of this rulemaking would be minimal. This rulemaking 
proposes to eliminate required reporting and analysis that is currently 
required under the regulation; therefore, eliminating this portion of 
the regulation would achieve cost savings.
    Although, FHWA has determined that the proposed rulemaking to 
revise 23 CFR part 230, subpart C would not be a significant regulatory 
action, it does generate cost savings that are applicable to offsetting 
the costs associated with other regulatory actions as required by E.O. 
13771. The cost savings from this proposed regulatory action would 
result from reduced administrative burden associated with the efforts 
by the States and FHWA related to the collecting and analyzing of State 
internal employment data leading to creation of an affirmative action 
plan. The annualized cost savings are estimated to be $493,437 per 
year, measured in 2018 dollars. For the 20-year period from 2020 
through 2039 the estimated cost savings are roughly $5.2 million in net 
present value when discounted at 7 percent to 2018. A summary of the 
results of the analysis and the assumptions underlying the calculations 
are included in the docket for this rulemaking.
    These proposed changes would not adversely affect, in a material 
way, any sector of the economy. In addition, these changes would not 
interfere with any action taken or planned by another agency and would 
not materially alter the budgetary impact of any entitlements, grants, 
user fees, or loan programs. Consequently, a full regulatory evaluation 
is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 60 l-612), FHWA has evaluated the effects of this proposed 
action on small entities. Because the regulations are applicable 
primarily to States, FHWA has determined that the action is not 
anticipated to have a significant economic impact on a substantial 
number of small entities. States are not included in the definition of 
small entity set forth in 5 U.S.C. 601. Therefore, FHWA certifies that 
the action will not have a significant economic impact on a substantial 
number of small entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 
1995, 109 Stat. 48). This proposed rule will not result in the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector, of $155 million or more in any one year (2 
U.S.C. 1532).

Executive Order 13132 (Federalism Assessment)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in E.O. 13132. The FHWA has 
determined that this proposed action would not have sufficient 
federalism implications to warrant the preparation of a federalism 
assessment. The FHWA has also determined that this proposed action 
would not preempt any State law or State regulation or affect the 
States' ability to discharge traditional State governmental functions.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, 
et. seq.), Federal agencies must obtain approval from the Office of 
Management and Budget for each collection of information they conduct, 
sponsor, or

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require through regulations. The FHWA has determined that this proposal 
does not contain collection of information requirements for the 
purposes of the PRA and there was no PRA number associated with this 
regulation. However, the elimination of this regulatory section will 
alleviate current burdens imposed on the State by reducing the need to 
file a lengthy Affirmative Action Plan along with filing duplicative 
EEO-4 documents to FHWA.

National Environmental Policy Act

    The Agency has analyzed this proposed action for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321) and has 
determined that it qualifies for a categorical exclusion under 23 CFR 
771.117(c)(20), which applies to the promulgation of regulations, and 
that no unusual circumstances are present under 23 CFR 771.117(b). 
Categorically excluded actions meet the criteria for categorical 
exclusions under the Council on Environmental Quality regulations (40 
CFR 1508.4) and under 23 CFR 771.117(a) and normally do not require any 
further NEPA approvals by FHWA.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under E.O. 13175 and believes 
that the proposed action would not have substantial direct effects on 
one or more Indian tribes; would not impose substantial direct 
compliance costs on Tribal governments; and, would not preempt Tribal 
law. Therefore, a Tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    The FHWA has analyzed this proposed rule under E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that the rule will not 
constitute a significant energy action under that order because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 23 CFR Part 230

    Federal-aid construction contracts; Grant programs--transportation; 
Highways and roads; Equal employment opportunity; Reporting and 
recordkeeping requirements.

    Issued in Washington, DC, under authority delegated in 49 CFR 
part 1.85(a)(1).
Nicole R. Nason,
Administrator, Federal Highway Administration.

PART 230--EXTERNAL PROGRAMS

0
1. The authority citation for Part 230 is revised to read as follows:

    Authority: 23 U.S.C. 101, 140, and 315; 42 U.S.C. 2000d et seq.; 
and 49 CFR 1.81.

Subpart C--State Highway Agency Equal Employment Opportunity 
Programs

0
2. Remove and reserve Subpart C, consisting of Sec. Sec.  230.301 
through Appendix A to Subpart C of Part 230.

[FR Doc. 2020-26274 Filed 11-27-20; 8:45 am]
BILLING CODE 4910-22-P