76500 Federal Register / Vol. 85, No. 230 / Monday, November 30, 2020 / Proposed Rules 

1E.O. No. 11,246, 30 FR 12319 (Sept. 24, 1965). 

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. 

6Public Law 110–233, 122 Stat 881. 

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). 

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remove its outdated and duplicative 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 selfaddressed, 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, Nichole.McWhorter@dot.gov, or 

James Esselman, Office of the Chief 

Counsel, Federal Highway 

Administration, 1200 New Jersey Ave, 

SE, Room E82–322, Washington, DC 

20590, James.Esselman@dot.gov. 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. 

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

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 agerelated 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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Federal Register / Vol. 85, No. 230 / Monday, November 30, 2020 / Proposed Rules 76501 

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 


TKELLEY on DSKBCP9HB2PROD with PROPOSALS
76502 Federal Register / Vol. 85, No. 230 / Monday, November 30, 2020 / Proposed Rules 

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 

■ 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 

■ 2. Remove and reserve Subpart C, 

consisting of §§ 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 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2019–0785] 

RIN 1625–AA11 

Regulated Navigation Areas; Harbor 

Entrances Along the Coast of Northern 

California 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard is proposing 

to amend the Regulated Navigation Area 

(RNA) at the harbor bar entrance to 

Crescent City Harbor. This document 

proposes to update coordinates. We 

invite your comments on this proposed 

rulemaking. 

DATES: Comments and related material 

must be received by the Coast Guard on 

or before December 30, 2020. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2019–0785 using the Federal 

eRulemaking Portal at http:// 

www.regulations.gov. See the ‘‘Public 

Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section for 

further instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this proposed 

rulemaking, call or email Lieutenant 

Marcia Medina, Coast Guard District 11 

Waterways Office; telephone 510–437– 

2978, email Marcia.A.Medina@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

NOAA National Oceanic and Atmospheric 

Administration 

NPRM Notice of Proposed Rulemaking 

OMB Office of Management and Budget 

RNA Regulated Navigation Area 

§ Section 

U.S.C. United States Code 

II. Background, Purpose, and Legal 

Basis 

On July 17, 2020, the Coast Guard 

published a final rule titled ‘‘Regulated 

Navigation Area: Harbor Entrances 

along the Coast of Northern California’’ 

at 33 CFR 165.1196 (85 FR 43437). That 

rule established an RNA at the harbor 

entrance of Crescent City, California. 

Since publishing the previous rule, the 

Eleventh Coast Guard District was 

contacted by the National 

Oceanographic and Atmospheric 

Administration (NOAA) Marine Chart 

Division, part of the Nautical Data 

Branch of the Office of Coast Survey of 

the National Ocean Service. The NOAA 

Marine Chart Division brought to the 

Coast Guard’s attention that the 

geographic coordinates for the RNA at 

the harbor entrance of Crescent City 

appeared to incorrectly capture the 

entirety of the harbor entrance. The 

Coast Guard agreed, and worked with 

the NOAA Marine Chart Division to 

develop new coordinates that properly 

capture the entirety of the harbor 

entrance of Crescent City. The Coast 

Guard is proposing to revise the RNA to 

account for these discussions and to 

ensure the safety and security of the 

marine environment. The Coast Guard 

proposes this rulemaking under 

authority in 46 U.S.C. 70034. 

III. Discussion of Proposed Rule 

The Commander of the Eleventh Coast 

Guard District proposes to amend the 

Regulated Navigation Area: Harbor 

Entrances along the Coast of Northern 

California at (33 CFR 165.1196) by 

updating the coordinates of the Crescent 

City RNA. Updating the coordinates will 

not materially affect the size or the 

general geographic location of the RNA. 

Instead, the update will correct an issue 

raised by the NOAA Marine Chart 

Division. Specifically, the updated 

coordinates will fully and properly 


TKELLEY on DSKBCP9HB2PROD with PROPOSALS