62 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 

* * * * * 

(h) Soliciting under permit. (1) The inperson soliciting or demanding gifts, 

money, goods or services is prohibited, 

unless it occurs as part of a permit 

issued for a demonstration or special 

event. 

(2) Persons permitted to solicit must 

not: 

(i) Give false or misleading 

information regarding their purposes or 

affiliations; 

(ii) Give false or misleading 

information whether any item is 

available without donation. 

* * * * * 

Dated: December 22, 2010. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2010–33071 Filed 12–30–10; 8:45 am] 

BILLING CODE 4312–52–P 

DEPARTMENT OF LABOR 

Office of Federal Contract Compliance 

Programs 

41 CFR Parts 60–1 and 60–2 

RIN 1250–ZA00 

Interpretive Standards for Systemic 

Compensation Discrimination and 

Voluntary Guidelines for SelfEvaluation of Compensation Practices 

Under Executive Order 11246; Notice 

of Proposed Rescission 

AGENCY: Office of Federal Contract 

Compliance Programs, Labor. 

ACTION: Notice of proposed rescission. 

SUMMARY: The Office of Federal Contract 

Compliance Programs (OFCCP) is 

proposing to rescind two guidance 

documents addressing compensation 

discrimination: Interpreting 

Nondiscrimination Requirements of 

Executive Order 11246 with respect to 

Systemic Compensation Discrimination 

(Standards) and Voluntary Guidelines 

for Self-Evaluation of Compensation 

Practices for Compliance with Executive 

Order 11246 with respect to Systemic 

Compensation Discrimination 

(Voluntary Guidelines). OFCCP is 

proposing to rescind the Standards 

which have limited OFCCP’s ability to 

effectively investigate, analyze and 

identify compensation discrimination. 

In so doing, OFCCP will continue to 

adhere to the principles of Title VII of 

the Civil Rights Act of 1964, as amended 

(Title VII) in investigating compensation 

discrimination and will reinstitute 

flexibility in its use of investigative 

approaches and tools. OFCCP also 

proposes to establish procedures for 

investigating compensation 

discrimination through the traditional 

means of using its compliance manual, 

directives and other staff guidance. 

OFCCP is proposing to rescind the 

Voluntary Guidelines because they are 

largely unused by the Federal 

Government contracting community and 

have not been an effective enforcement 

strategy. 

DATES: Comments must be received on 

or before March 4, 2011. 

ADDRESSES: You may submit comments, 

identified by number 1250–ZNE, by any 

of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 693–1304 (for comments 

of 6 pages or fewer). 

• Mail: Director, Division of Policy, 

Planning, and Program Development, 

Office of Federal Contract Compliance 

Programs, Room N3422, 200 

Constitution Avenue, NW., Washington, 

DC 20210. 

Receipt of submissions will not be 

acknowledged; however, the sender may 

request confirmation that a submission 

has been received by telephoning 

OFCCP at (202) 693–0102 (voice) or 

(202) 693–1337 (TTY) (these are not tollfree numbers). 

All comments received, including any 

personal information provided, will be 

available online at http:// 

www.regulations.gov and for public 

inspection during normal business 

hours at Room C3325, 200 Constitution 

Avenue, NW., Washington, DC 20210. 

Individuals needing assistance to review 

comments will be provided with 

appropriate aids such as readers or print 

magnifiers. Copies of this Notice of 

Proposed Rescission will be made 

available in the following formats: Large 

print; Braille; electronic file on 

computer disk; and audiotape. To 

schedule an appointment to review the 

comments and/or to obtain this Notice 

of Proposed Rescission in an alternate 

format, contact OFCCP at the telephone 

numbers or address listed above. 

FOR FURTHER INFORMATION CONTACT: 

Director, Division of Policy, Planning, 

and Program Development, Office of 

Federal Contract Compliance Programs, 

200 Constitution Avenue, NW., Room 

N3422, Washington, DC 20210. 

Telephone: (202) 693–0102 (voice) or 

(202) 693–1337 (TTY). 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Department of Labor’s OFCCP 

enforces Executive Order 11246 which 

requires Federal Government 

contractors and subcontractors to 

provide equal employment opportunity 

through affirmative action and 

nondiscrimination based on race, color, 

national origin, religion, or sex. 

Compensation discrimination is one 

form of discrimination prohibited by the 

Executive Order. 

OFCCP enforces contractors’ 

compliance with this obligation 

primarily by conducting compliance 

evaluations. (See 41 CFR 60–1.20.) 

OFCCP’s longstanding policy is to 

follow Title VII principles when 

conducting analyses of potential 

discrimination under Executive Order 

11246, including compensation 

discrimination. Compensation 

discrimination may occur on an 

individual basis, or systemically, that is, 

it is widespread in an organization due 

to discriminatory compensation 

systems. OFCCP traditionally has 

established procedures for investigating 

compensation discrimination, as well as 

other forms of discrimination, through 

instructions for its compliance officers 

contained in the OFCCP Federal 

Contract Compliance Manual (FCCM), 

directives and other staff guidance 

materials. 

Identifying and remedying 

compensation discrimination has been 

an important part of OFCCP compliance 

efforts for many years. Concerns about 

compensation discrimination led 

OFCCP in Calendar Year (CY) 2000 to 

begin requiring contractors to submit 

compensation data requested in the 

scheduling letter at the outset of a 

compliance evaluation as a matter of 

course and as part of the data reported 

in a new Equal Opportunity Survey, 

which covered contractors were 

required to submit to OFCCP. (The 

Scheduling Letter was approved under 

the Paperwork Reduction Act OMB NO. 

1215–0072; see 65 FR 68022, 68036 

(November 13, 2000) for the notice 

regarding the Equal Opportunity 

Survey.) In CY 2000, OFCCP also began 

requiring contractors to proactively 

conduct in-depth analyses of their 

compensation systems to ensure that 

those systems were not discriminatory. 

(See 41 CFR 60–2.17(b)(3).) 

OFCCP changed its approach to 

investigating compensation 

discrimination in 2006. On June 16, 

2006, OFCCP published in the Federal 

Register two final guidance documents 

related to identifying compensation 

discrimination under Executive Order 

11246 that contained interpretations of 

OFCCP regulations and Title VII 

principles: Interpreting 

Nondiscrimination Requirements of 

Executive Order 11246 with respect to 

Systemic Compensation Discrimination 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 63 

(Standards) and Voluntary Guidelines 

for Self-Evaluation of Compensation 

Practices for Compliance with Executive 

Order 11246 with respect to Systemic 

Compensation Discrimination 

(Voluntary Guidelines). (See 71 FR 

35124 (June 16, 2006) for the Standards 

and 71 FR 35114 (June 16, 2006) for the 

Voluntary Guidelines.) Further, OFCCP 

rescinded the Equal Opportunity Survey 

in 2006. (See 71 FR 53032 (September 

8, 2006).) 

The Standards set forth a new, rigid 

procedure for investigating and 

analyzing systemic compensation 

discrimination cases. Systemic 

compensation discrimination is defined 

as discrimination under a pattern or 

practice of disparate treatment. (See 71 

FR at 35140.) The Standards prescribe 

procedures to be followed by OFCCP 

compliance officers when conducting 

investigations of systemic compensation 

discrimination in all cases, including 

how to group employees whose 

compensation is to be compared in a 

discrimination analysis, requiring 

anecdotal evidence of compensation 

discrimination except in unusual cases, 

and requiring the use of multiple 

regression analysis when deciding 

whether wage differences between 

groups are discriminatory. These 

procedures are to be followed regardless 

of the facts of a particular case. The 

rigidity of the Standards represents a 

significant departure from OFCCP’s 

traditional tailoring of compensation 

investigation and analytical procedures 

to the facts of the case based on Title VII 

principles. Investigations of systemic 

compensation discrimination are 

complex and nuanced. During the 

conduct of compliance evaluations, 

OFCCP has traditionally focused on 

identifying compensation 

discrimination through the development 

of a variety of investigative and 

analytical tools. The use of a particular 

tool, or combination of tools, depends 

upon the facts of a specific case, and 

includes consulting with labor 

economists and other experts, as 

appropriate. 

The Standards also significantly limit 

OFCCP’s ability to identify 

compensation discrimination by 

imposing overly narrow investigation 

procedures that go beyond what would 

be required under Title VII principles in 

litigation. For example, the Standards 

state that, except in unusual cases, 

OFCCP will not issue a notice of 

violation (NOV) without providing 

anecdotal evidence to support OFCCP’s 

statistical analysis. But under Title VII, 

a pattern or practice class-wide 

disparate treatment case may be proven 

by statistics. See, e.g., Int’l Brotherhood 

of Teamsters v. United States, 431 U.S. 

324, 339–40 (1977); Palmer v. Shultz, 

815 F.2d 84, 90–91 (DC Cir. 1987). Cf. 

OFCCP v. Greenwood Mills, Inc., No. 

89–OFC–39, Decision and Order of 

Remand, slip op. at 14 (Sec’y of Labor 

Nov. 20, 1995); OFCCP v. Jacksonville 

Shipyards, 89–OFC–1, Decision and 

Remand Order, slip op. at 5 (Sec’y of 

Labor May 9, 1995). Moreover, requiring 

anecdotal evidence is particularly 

problematic in compensation cases as 

employees often are unaware of the 

compensation received by co-workers 

and, as a result, anecdotal evidence 

from victims of pay discrimination may 

not exist. 

The Standard’s mandate to use a 

multiple regression analysis to identify 

compensation discrimination is also 

overly narrow and is not required under 

Title VII principles. While a multiple 

regression analysis may be a useful tool 

in identifying compensation 

discrimination, other statistical or 

nonstatistical analyses may be better 

suited, depending on the facts of the 

case. 

In short, we now believe the 

Standards significantly undermine 

OFCCP’s ability to vigorously 

investigate and identify compensation 

discrimination. 

The Voluntary Guidelines establish 

procedures that contractors can elect to 

use in conducting the self-analysis of 

their pay practices required by 41 CFR 

60–2.17(b)(3). As an incentive to 

encourage contractors to use the 

analytical procedures contained in the 

Voluntary Guidelines, OFCCP would 

deem a contractor, whose selfevaluation ‘‘reasonably meets’’ the 

procedures outlined in the Voluntary 

Guidelines, to be in compliance with 

section 60–2.17(b)(3) and would 

coordinate OFCCP’s review of the 

contractor’s compensation practices 

during a compliance evaluation in the 

manner specified in the Voluntary 

Guidelines. (See 71 FR at 35122.) In 

OFCCP’s experience since 2006, 

contractors have rarely utilized the 

analytical procedures outlined in the 

Voluntary Guidelines when analyzing 

their compensation practices under 

section 60–2.17(b)(3). 

Additionally, the analytical model set 

forth in the Voluntary Guidelines suffers 

from many of the same flaws as the 

investigative procedures prescribed by 

the Standards. For example, the 

Voluntary Guidelines established 

certain rigid numerical thresholds by 

which the similarly situated employee 

groupings are to be analyzed. OFCCP 

believes that for some contractors, these 

thresholds may be exceedingly difficult 

to meet. 

II. Proposal 

OFCCP proposes to rescind the 

Standards and the Voluntary Guidelines 

in their entirety. OFCCP believes it is 

unnecessary to issue new Federal 

Register notices articulating its 

interpretations of Title VII principles 

related to compensation discrimination. 

OFCCP will continue to follow Title VII 

principles in investigating and 

analyzing compensation discrimination 

and in interpreting regulations related to 

compensation discrimination. The 

agency is proposing to normalize its 

treatment of those cases with other 

types of OFCCP discrimination 

investigations. Once rescinded, nothing 

in the Standards or the Voluntary 

Guidelines or their preambles could be 

relied upon as a statement of OFCCP’s 

interpretation of Title VII principles or 

OFCCP regulations. 

If the Standards are rescinded, OFCCP 

will reinstitute the practice of exercising 

its discretion to develop compensation 

discrimination investigation procedures 

in the same manner it develops other 

investigation procedures. OFCCP will 

continually refine those procedures to 

ensure that they are as effective and 

efficient as possible. OFCCP will 

develop and issue compensation 

investigation procedures in the same 

manner as procedures for investigating 

other forms of discrimination, for 

example through the FCCM, directives 

and staff guidance materials. 

As mentioned above, OFCCP has 

found that contractors rarely use the 

analytical procedure suggested in the 

Voluntary Guidelines for conducting the 

compensation analyses required by 

section 60–2.17(b)(3). In the few 

instances when contractors have 

conducted their compensation analysis 

in the manner suggested in the 

Voluntary Guidelines, the coordination 

procedures of the Voluntary Guidelines 

have not proved to be an efficient 

method for verifying that the 

contractor’s compensation system is not 

discriminatory. The agency has 

concluded that the Voluntary 

Guidelines have not proved to be either 

an effective vehicle for providing 

guidance about how to conduct the 

analyses required by section 60– 

2.17(b)(3) or an effective incentive for 

contractors to conduct the analysis in 

the manner described in the Voluntary 

Guidelines. 

In the absence of the Voluntary 

Guidelines, contractors will still be 

obligated to conduct self-evaluations of 

compensation practices as required by 

41 CFR 60–2.17(b)(3). OFCCP will 

continue to provide any needed 

compliance assistance on section 60– 


srobinson on DSKHWCL6B1PROD with PROPOSALS
64 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules 

2.17(b)(3) through various means, 

including webinars and the Web site 

distribution of Frequently Asked 

Questions as appropriate, rather than 

through the issuance of a Federal 

Register notice. 

OFCCP invites any interested party to 

comment on the proposal to rescind the 

Standards and the Voluntary 

Guidelines. 

Patricia A. Shiu, 

Director, Office of Federal Contract 

Compliance Programs. 

[FR Doc. 2010–32602 Filed 12–30–10; 8:45 am] 

BILLING CODE 4510–45–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 228 

[Docket No. FRA–2009–0042] 

RIN 2130–AC13 

Safety and Health Requirements 

Related to Camp Cars 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: To carry out a 2008 

Congressional rulemaking mandate, 

FRA is proposing to create regulations 

prescribing minimum safety and health 

requirements for camp cars that a 

railroad provides as sleeping quarters to 

any of its train employees, signal 

employees, and dispatching service 

employees and individuals employed to 

maintain its right of way. The proposed 

regulations would supplant existing 

guidelines that interpret existing 

statutory requirements, enacted decades 

earlier, that railroad-provided camp cars 

be clean, safe, and sanitary, and afford 

those employees and individuals an 

opportunity for rest free from the 

interruptions caused by noise under the 

control of the railroad. In further 

response to the rulemaking mandate, the 

proposed regulations would include the 

additional statutory requirements, 

enacted in 2008, that camp cars be 

provided with indoor toilets, potable 

water, and other features to protect the 

health of such workers. 

Under separate but related statutory 

authority, FRA is proposing to amend 

regulations on construction of employee 

sleeping quarters. In particular, FRA 

proposes to implement a 2008 statutory 

amendment that, on and after December 

31, 2009, camp cars provided by a 

railroad as sleeping quarters exclusively 

for individuals employed to maintain 

the right of way of a railroad are within 

the scope of the prohibition against 

beginning construction or 

reconstruction of employee sleeping 

quarters near railroad switching or 

humping of hazardous material. FRA’s 

existing guidelines with respect to the 

location, in relation to switching or 

humping of hazardous material, of a 

camp car that is occupied exclusively by 

individuals employed to maintain a 

railroad’s right of way would be 

replaced with regulatory amendments 

prohibiting a railroad from positioning 

such a camp car in the immediate 

vicinity of the switching or humping of 

hazardous material. 

Finally, FRA would make conforming 

changes, clarify a provision on 

applicability, remove an existing 

provision on preemptive effect as 

unnecessary, and move, without change, 

an existing provision on penalties for 

violation of FRA regulations. 

DATES: (1) Written comments must be 

received by March 4, 2011. Comments 

received after that date will be 

considered to the extent possible 

without incurring additional delay or 

expense. 

(2) FRA anticipates being able to 

resolve this rulemaking without a public 

hearing. However, if FRA receives a 

specific request for a public hearing 

prior to March 4, 2011, one will be 

scheduled, and FRA will publish a 

supplemental notice in the Federal 

Register to inform interested parties of 

the date, time, and location of any such 

hearing. 

ADDRESSES: Comments, which should 

be identified by Docket No. FRA–2009– 

0042, may be submitted by any one of 

the following methods: 

• Fax: 1–202–493–2251; 

• Mail: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590; 

• Hand Delivery: U.S. Department of 

Transportation, Docket Operations, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays; or 

• Electronically through the Federal 

eRulemaking Portal, http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Instructions: All submissions must 

include the agency name, docket name, 

and docket number or Regulatory 

Identification Number (RIN) for this 

rulemaking. Note that all comments 

received will be posted without change 

to http://www.regulations.gov, including 

any personal information provided. 

Please see the Privacy Act section of this 

document. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov at any time or to 

the U.S. Department of Transportation, 

Docket Operations, M–30, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Alan Misiaszek, Certified Industrial 

Hygienist, Staff Director, Industrial 

Hygiene Division, Office of Safety 

Assurance and Compliance, Office of 

Railroad Safety, FRA, 1200 New Jersey 

Avenue, SE., Mail Stop 25, Washington, 

DC 20590 (telephone: (202) 493–6002), 

alan.misiaszek@dot.gov or Ann M. 

Landis, Trial Attorney, Office of Chief 

Counsel, FRA, 1200 New Jersey Avenue, 

SE., Mail Stop 10, Washington, DC 

20590 (telephone: (202) 493–6064), 

ann.landis@dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Statutory, Regulatory, and Factual 

Background 

This proposal is being issued 

primarily to help satisfy the 

requirements of section 420 of the Rail 

Safety Improvement Act of 2008 (RSIA), 

Public Law 110–432, Div. A, 122 Stat. 

4848, October 16, 2008 (amending a 

provision of the hours of service laws at 

49 U.S.C. 21106). RSIA requires the 

Secretary of Transportation (Secretary) 

to adopt regulations no later than April 

1, 2010 establishing minimum standards 

for ‘‘employee sleeping quarters’’ in the 

form of ‘‘camp cars’’ that are provided by 

railroads. 49 U.S.C. 21106(a)(1), (c). 

Specifically, RSIA instructs the 

Secretary to prescribe regulations ‘‘to 

implement [49 U.S.C. 21106(a)(1)] to 

protect the safety and health of any 

employees and individuals employed to 

maintain the right of way of a railroad 

carrier that use camp cars. * * * ’’ 49 

U.S.C. 21106(c). The statutory term 

‘‘employee’’ is defined in 49 U.S.C. 

21101(3) to include a train employee, a 

signal employee, and a dispatching 

service employee, who as a group are 

sometimes referred to as ‘‘covered 

service employees.’’ As amended 

through 2008, 49 U.S.C. 21106(a)(1) 

provides that such camp cars must be— 

clean, safe, and sanitary, give those 

employees and individuals an opportunity 

for rest free from the interruptions caused by 


srobinson on DSKHWCL6B1PROD with PROPOSALS