Notice of Proposed Equal Employment Opportunity Program Circular, 11348-11351 [2016-04648]
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Federal Register / Vol. 81, No. 42 / Thursday, March 3, 2016 / Notices
Locomotive Safety Standards (Sections
229.31, 229.51, 229.47, 229.71, 229.135,
and Appendix D); Part 231, Railroad
Safety Appliance Standards (Section
231.14); and Part 239, Passenger Train
Emergency Preparedness (Section
239.101). FRA assigned the petition
Docket Number FRA–2010–0180.
DCTA operates its ‘‘A-train’’
commuter rail service along a 21.3–mile
corridor adjacent to and parallel with
Interstate 35 between Dallas, TX, and
Denton, TX, featuring six station stops.
The commuter rail operation is
contracted to Herzog for vehicle and
right-of-way maintenance, dispatching
services, dispatching, and operations.
The corridor also has a currently active
freight operation served by the Dallas
Garland and Northeastern Railroad,
which provides freight service to
customers in the Lewisville, TX, area.
The passenger operations are temporally
separated from freight operations
through a plan on file with FRA using
interlocked derails on the southern
terminus and stub-end track on the
northern terminus. In its extension
request, DTCA states that a real-time
shunt monitoring system is being
installed in conjunction with Positive
Train Control.
DCTA operates Stadler diesel
multiple-unit (DMU) vehicles
constructed to meet European safety
standards for crashworthiness and
related safety measures. As asserted in
its original petition, DCTA chose these
vehicles because DCTA believes that
they offer an equivalent or higher level
of safety, security, and performance to
the passenger and crew than
conventional FRA-compliant
equipment.
In a July 13, 2011, decision letter,
FRA granted relief from the Federal
railroad safety regulations listed above.
Additionally, FRA invoked its authority
under 49 U.S.C. 20306 to exempt DCTA
from the requirements of 49 U.S.C.
20302 for sill steps and end handholds.
The current waiver expires on July 13,
2016.
FRA notes that this docket number
includes a separate permanent decision
letter dated May 31, 2012, which was
granted in accordance with FRA’s
October 2011 final report and guidelines
on ‘‘Technical Criteria and Procedures
for Evaluating the Crashworthiness and
Occupant Protection Performance of
Alternatively Designed Passenger Rail
Equipment for Use in Tier I Service,’’
issued by the Engineering Task Force
(ETF). This letter, known as the
‘‘Alternatively Designed Vehicle (AVT)’’
waiver, was granted to DCTA for use of
its Stadler GTW 2/6 DMUs, finding that
they are in compliance with
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crashworthiness criteria contained in
the ETF guidelines. DCTA is not
requesting any modification of the
conditions contained in that decision
letter.
A copy of the petition, as well as any
written communications concerning the
petition, is available for review online at
www.regulations.gov and in person at
the U.S. Department of Transportation’s
(DOT) Docket Operations Facility, 1200
New Jersey Avenue SE., W12–140,
Washington, DC 20590. The Docket
Operations Facility is open from 9 a.m.
to 5 p.m., Monday through Friday,
except Federal Holidays.
Interested parties are invited to
participate in these proceedings by
submitting written views, data, or
comments. FRA does not anticipate
scheduling a public hearing in
connection with these proceedings since
the facts do not appear to warrant a
hearing. If any interested party desires
an opportunity for oral comment, they
should notify FRA, in writing, before
the end of the comment period and
specify the basis for their request.
All communications concerning these
proceedings should identify the
appropriate docket number and may be
submitted by any of the following
methods:
• Web site: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: Docket Operations Facility,
U.S. Department of Transportation, 1200
New Jersey Avenue SE., W12–140,
Washington, DC 20590.
• Hand Delivery: 1200 New Jersey
Avenue SE., Room W12–140,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal Holidays.
Communications received by April
18, 2016 will be considered by FRA
before final action is taken. Comments
received after that date will be
considered as far as practicable.
Anyone is able to search the
electronic form of any written
communications and comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the document, if
submitted on behalf of an association,
business, labor union, etc.). In
accordance with 5 U.S.C. 553(c), DOT
solicits comments from the public to
better inform its processes. DOT posts
these comments, without edit, including
any personal information the
commenter provides, to
www.regulations.gov, as described in
the system of records notice (DOT/ALL–
14 FDMS), which can be reviewed at
www.dot.gov/privacy. See also https://
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www.regulations.gov/#!privacyNotice
for the privacy notice of regulations.gov.
Robert C. Lauby,
Associate Administrator for Railroad Safety,
Chief Safety Officer.
[FR Doc. 2016–04670 Filed 3–2–16; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket Number: FTA–2016–0013]
Notice of Proposed Equal Employment
Opportunity Program Circular
AGENCY:
Federal Transit Administration,
DOT.
Notice of proposed revisions to
circular and request for comment.
ACTION:
The Federal Transit
Administration (FTA) has placed in the
docket and on its Web site proposed
guidance in the form of a Circular to
assist grantees in complying with
various Equal Employment Opportunity
regulations and statutes. The purpose of
this Circular is to provide recipients of
FTA financial assistance with
instructions and guidance necessary to
carry out the U.S. Department of
Transportation’s Equal Employment
Opportunity regulations (*****). FTA is
updating its ‘‘Equal Employment
Opportunity (EEO) Program Guidelines
for Grant Recipients’’ to clarify the
requirements for compliance. By this
notice, FTA invites public comment on
the proposed circular.
DATES: Comments must be submitted by
May 2, 2016. Late-filed comments will
be considered to the extent practicable.
ADDRESSES: Please submit your
comments by only one of the following
methods, identifying your submission
by docket No. FTA–2016–0013. All
electronic submissions must be made to
the U.S. Government electronic site at
https://www.regulations.gov.
(1) Federal eRulemaking Portal: Go to
https://www.regulations.gov and follow
the online instructions for submitting
comments.
(2) Mail: Docket Management Facility:
U.S. Department of Transportation, 1200
New Jersey Avenue SE., West Building,
Ground Floor, Room W12–140,
Washington, DC 20590–0001.
(3) Hand Delivery or Courier: West
Building, Ground Floor, Room W12–
140, 1200 New Jersey Avenue SE.,
between 9 a.m. and 5 p.m. Eastern time,
Monday through Friday, except Federal
holidays.
(4) Fax: (202) 493–2251.
Instructions: You must include the
agency name (Federal Transit
SUMMARY:
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Federal Register / Vol. 81, No. 42 / Thursday, March 3, 2016 / Notices
Administration) and Docket number
(FTA–2016–0013) for this notice at the
beginning of your comments. Submit
two copies of your comments if you
submit them by mail. If you wish to
receive confirmation that FTA received
your comments, you must include a
self-addressed stamped postcard. Note
that all comments received will be
posted without change to https://
www.regulations.gov including any
personal information provided and will
be available to Internet users. You may
review DOT’s complete Privacy Act
Statement published in the Federal
Register on April 11, 2000 (65 FR
19477) or https://DocketsInfo.dot.gov.
Docket: For access to the docket to
read background documents and
comments received, go to https://
www.regulations.gov at any time or to
the U.S. Department of Transportation,
1200 New Jersey Avenue SE., Docket
Operations, M–30, West Building,
Ground Floor, Room W12–140,
Washington, DC 20590 between 9:00
a.m. and 5:00 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Anita Heard, Office of Civil Rights,
Federal Transit Administration, 1200
New Jersey Avenue SE., Room E54–420,
Washington, DC 20590, phone: (202)
493–0318, or email, anita.heard@
dot.gov. For legal questions, Gwendolyn
Franks, Office of Chief Counsel, 915 2nd
Avenue, Suite 3142, Seattle, WA 98174,
phone: 206–220–7954, or email:
gwendolyn.franks@dot.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
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I. Overview
II. Chapter-by-Chapter Analysis
A. Chapter 1—Introduction and
Applicability
B. Chapter 2—EEO Program Requirements
C. Chapter 3—EEO Compliance Oversight,
Complaints, and Enforcement
D. Appendix A—References
I. Overview
FTA is updating its EEO Circular to
clarify what recipients must do to
comply with Titles VI and VII of the
Civil Rights Act of 1964, Title II of the
Genetic Information Nondiscrimination
Act of 2008 (GINA), 49 U.S.C. Chapter
53 (the Federal Transit law), other
Federal civil rights statutes, and the U.S.
Department of Transportation (DOT)
regulations in 49 CFR part 21 . The EEO
Circular, last revised in 1988 when the
Federal Transit Administration (FTA)
was called the Urban Mass
Transportation Administration (UMTA),
requires changes to bring EEO-related
guidance up to date. This notice
provides a summary of proposed
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changes to Circular 4704.1, ‘‘Equal
Employment Opportunity Program
Guidelines for Grant Recipients.’’ The
final Circular, when adopted, will
supersede the existing circular.
The proposed Circular incorporates
the Department of Labor’s standards for
an affirmative action program; the Equal
Employment Opportunity Commission
(EEOC) regulations; the guidelines for
an effective implementation of
Executive Order 11246, as amended;
section 503 of the Rehabilitation Act of
1973, as amended; Title II of the Genetic
Information Nondiscrimination Act of
2008 (GINA), and the Americans with
Disabilities Act of 1990; and other civil
rights statutes related to employment
practices. These laws ban
discrimination and require Federal
contractors and subcontractors to take
affirmative action to ensure that all
individuals have an equal opportunity
for employment, without regard to race,
color, religion, sex, age, national origin,
disability, veteran status, or genetic
information. Additionally, since the
existing Circular went into effect,
legislation and court cases have
transformed affirmative action policies
and affected recipients’ and
beneficiaries’ responsibilities. The
proposed Circular would incorporate
these changes in law and judicial
interpretations. Also, the proposed
Circular would incorporate lessons
learned from FTA administered
oversight activities, including triennial
and state management reviews, and
discretionary EEO compliance reviews.
During these reviews, FTA identified
problems related to ambiguous language
in the existing Circular. These problems
included failure to conduct utilization
analyses, failure to develop effective
and measurable goals and timetables,
and failure to execute a written plan for
internal and external dissemination of
its EEO Policy. The proposed circular
reorganizes, clarifies, and provides
examples of the information that must
be included in a compliant EEO
program. This document does not
include the proposed circular on which
FTA seeks comment; however, an
electronic version may be found on
FTA’s Web site at https://
www.fta.dot.gov, and in the docket, at
https://www.regulations.gov. Paper
copies of the proposed Circular may be
obtained by contacting FTA’s
Administrative Services Help Desk, at
(202) 366–4865.
II. Chapter-by-Chapter Analysis
Readers familiar with the existing
FTA Circular 4704.1 will notice a
number of changes to the proposed
circular.
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The proposed circular eliminates
outdated nomenclature, such as
references to ‘‘UMTA,’’ references to the
‘‘Urban Mass Transit Act,’’ and removes
references to statutory provisions such
as the ‘‘Federal Aid Urban System
Program.’’ The title of the proposed
circular has been change to ‘‘Equal
Employment Opportunity (EEO)
Requirements and Guidelines for
Federal Transit Administration
Recipients.’’
We have also reorganized the
proposed circular for ease-of-read. The
existing Circular is organized as follows:
Chapter I—General;
Chapter II—Coverage;
Chapter III—EEO Program Components;
Chapter IV—Types of Compliance
Reviews;
Chapter V—Remedial Actions and
Enforcement Procedures; and
Chapter VI—Discrimination Complaints.
The proposed circular is organized as
follows:
Chapter 1—Introduction and Applicability;
Chapter 2—EEO Program Requirements;
and
Chapter 3—EEO Compliance Oversight,
Complaints, and Enforcement
Proposed Chapter 1 includes existing
Chapters 1 and 2, excluding the
‘‘Frequency of Update’’ subsection from
existing Chapter II. Proposed Chapter 2
includes the ‘‘Frequency of Update’’
subsection and existing Circular Chapter
III. The Proposed Chapter 3 includes
Chapters IV, V, and VI from the existing
Circular.
FTA seeks comments on the scope
and content of the proposed Circular,
specifically as to whether there are areas
that need more clarification or
explanation, or topics that were
overlooked. FTA also seeks suggestions
for resources that should be included in
the proposed Circular, including good
practices and sample materials.
Additional items FTA seeks comment
on are included in the chapter-bychapter analysis below.
A. Chapter 1—Introduction and
Applicability
Chapter 1 of the proposed circular is
an introductory chapter that reviews the
organization of the circular, the
authority for establishing the circular,
and applicability to grantees.
The proposed circular chapter
includes added sections entitled
Introduction, Organization of this
Circular, and Authorities. The content
of the Introduction and Authorities
sections contain updated information
currently covered in Chapter I of the
existing circular. The authority for the
EEO program requirements includes
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statutes, regulations, and executive
orders that establish the context for
ensuring nondiscrimination in
employment on the basis of a protected
class. The proposed Organization of this
Circular section is new and intended to
assist the reader’s understanding of the
proposed circular structure. The
proposed State Administered Programs
section contains updated references and
includes the most recent information
about the MOU between FTA and
FHWA on this subject. The proposed
Definitions section is significantly
updated.
Where the current circular definitions
reference UMTA, the proposed
definitions reference FTA. We have
proposed new definitions where current
law has created new terminology or
where terms are unclear or undefined in
the existing circular. Some definitions
have been updated to comply with
existing law or to increase clarity.
Where applicable, we have used the
same definitions found in rulemakings
or other circulars to ensure consistency.
Proposed new definitions include:
Adverse impact, Complainant,
Disability, Disparate impact, Disparate
treatment, Employee, Equal
Employment Opportunity Program
(EEOP), Equal Employment Opportunity
statutes and regulations, Federal
financial assistance, FTA activity, Oneperson rule, Programs or activities,
Protected class, and Transit-related
employee. Proposed updated definitions
include: Applicant, Compliance,
Contractor, Discrimination, Good faith
efforts, Minority persons,
Noncompliance, Primary recipient,
Recipient or Grantee, and Secretary.
Two definitions have been removed in
the proposed circular: Affirmative
Action Plan and Probable
Noncompliance.
FTA seeks comment on potential
changes to the Memorandum of
Understanding (MOU) between FTA
and the Federal Highway
Administration (FHWA). Currently,
FTA has the responsibility for
reviewing, monitoring, and approving
state DOT’s EEO Programs in
accordance with FTA’s regulations,
policies, and guidance, while FHWA
has the responsibility for reviewing,
monitoring and approving state DOT’s
EEO Programs in accordance with
FHWA’s regulations, policies, and
guidance. Although FHWA currently
requires an annual to multiyear program
submission, FTA requires EEOP
submissions on a triennial basis. FTA
seeks comments on developing an
updated MOU between FTA and
FHWA, which would allow state DOTs
to submit a single EEO program that will
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satisfy both FTA and FHWA
requirements.
FTA also seeks comment regarding a
potential change to the threshold for
Equal Employment Opportunity
Program submission from the current
standard of grantees with 50 transitrelated employees, to grantees with 100
transit-related employees.
FTA seeks comment on establishing a
Memorandum of Understanding
between FTA and the Department of
Labor (DOL) with regard to EEO
program submissions and approval. The
MOU would allow the agency to submit
an EEO Program that would satisfy both
FTA and DOL submission requirements.
FTA seeks comment on the content of
Chapter 1.
B. Chapter 2—EEO Program
Requirements
Chapter 2 of the proposed Circular
discusses how frequently a grantee must
submit an updated Equal Employment
Opportunity Program (EEOP). The
proposed Frequency of Update section
is moved from the current Chapter II—
Coverage and combined with the
components of the current Chapter III—
EEO Program Requirements. The
Frequency of Update section proposes
to remove the discretion of the FTA
Office of Civil Rights to request less
information from a recipient when the
previous EEO program has not changed
significantly in the intervening three
years.
Proposed Chapter 2 primarily
explains the seven required elements of
an EEOP for FTA review. The chapter
details proposed required language,
required supporting documentation, the
type of analysis that must be conducted,
and the acceptable methods to report
the results of the analysis. The seven
elements proposed are:
(1) Statement of Policy
(2) Dissemination
(3) Designation of Personnel
Responsibility
(4) Utilization Analysis
(5) Goals and Timetables
(6) Assessment of Employment Practices
(7) Monitoring and Reporting
A majority of proposed Chapter 2 has
been relocated from Chapters II and III
of the existing circular. However, those
familiar with the EEOP will notice a few
changes in these sections.
Proposed subsection 2.2.2,
‘‘Dissemination,’’ increases the
frequency requirement for meeting with
top management officials to discuss the
EEOP from a minimum of
‘‘semiannually’’ to a minimum of
‘‘quarterly.’’ This section also proposes
simplification of and updated language
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for External Dissemination
requirements.
Impartiality is important to the
EEOP’s credibility. Specifically, the
separation of functions would entail
separating the EEO Officer position from
human resources positions and other
positions that serve defensive functions
in an agency, such as the legal office.
With regards to ‘‘Designation of
Personnel Responsibility’’ in proposed
subsection 2.2.3, FTA proposes to add a
requirement that agencies must ‘‘ensure
that no conflicts of position or conflicts
of interest occur or appear to occur with
respect to the EEO Officer’s role.’’ The
proposed Circular would require ‘‘the
functional unit that reviews EEO
matters be separate and apart from the
unit that represents the agency in EEO
complaints.’’ This proposed section also
adds requirements for the EEO Officer’s
EEOP Responsibilities, including
reviewing the agency’s
nondiscrimination plan with all
managers and supervisors, periodic
reviews of policies, procedures, and
union agreements, providing training for
employees and managers, advising
employees and applicants of training
and development opportunities, and
auditing of EEO Policy statement
postings to ensure compliance. The
section also proposes to alter existing
responsibilities, including a
requirement for reporting ‘‘quarterly’’
instead of ‘‘periodically’’ on each
department’s progress toward goals, and
‘‘investigating’’ complaints of
discrimination instead of ‘‘processing’’
such complaints. FTA proposes to
remove the requirement that the EEO
Officer concur in all hires and
promotions.
In the area of Agency EEO
Responsibilities, the proposed circular
updates and streamlines some of the
enumerated requirements in the existing
circular and adds two responsibilities.
FTA proposes requirements to add and
update a personnel database, and to
encourage employee participation to
support the advancement of the EEOP.
The proposed section removes explicit
requirements for assisting in the
identification of problem areas, active
involvement in affinity groups and
community organizations, career
counseling of employees, and
participation in periodic audits to
ensure each agency unit is compliance.
FTA believes the concepts in the
removed items are captured elsewhere
in Chapter 2.
Proposed subsection 2.2.4,
‘‘Utilization Analysis,’’ requires
agencies to use EEO–4 reporting
categories. This proposal changes the
approach to Utilization Analysis in the
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current circular. Additionally, this
section discusses a new MOU between
EEOC and FTA which allows FTA to
obtain the agency’s EEO–4 utilization
numbers. As a result, the transit agency
or grantee will be able to access their
current utilization numbers and
complete the required utilization in
FTA’s electronic database under the
proposed language. For agencies under
100 employees that do not submit
reports to EEOC, this proposed section
also includes links to a Microsoft Excel
spreadsheet template (with instructions)
for use in completing the utilization and
availability analysis. The proposed
language adds requirements for
Availability Analysis, including
explanation of and requirements for
explaining why agencies selected
particular areas for the analysis and
quantifying plans when underutilization
is identified.
Proposed subsection 2.2.5, ‘‘Goals and
Timetables,’’ proposes to require
agencies to set long term and short term
numerical goals and timetables for each
individual minority group, broken down
by specific racial/ethnic subcategories
for men and women. This section
includes changes to the guidelines for
goal setting, including a guideline to set
goals that are realistic and measurable.
The proposed requirements reduce the
long term goal period from 4–5 years to
2 or more years. FTA also proposes to
add a requirement that agencies collect
reports from unit managers on a
scheduled basis to determine what goals
are being met and to review these
reports with all levels of management.
Proposed subsection 2.2.6,
‘‘Assessment of Employment Practices,’’
removes reference to ‘‘Affirmative
Action’’ in the heading. It also proposes
to move discussion of self-analysis from
the Goals and Timetables section of the
current circular to proposed subsection
2.2.6. We propose to add a requirement
that statistical data show any potential
impact of an agency’s employment
practices on persons with disabilities
and veterans. This includes the number
of applicants for employment, the
number hired, and the number
promoted, cross-references by sex and
race. Having this data will assist in
measuring the effectiveness of outreach
and recruitment efforts for persons with
disabilities and veterans. The proposed
section also adds requirements for a
description of the agency’s training
programs, review of wage and salary
structure, establishment of privacy
protocols, and collection of reports from
unit managers on a scheduled basis in
a manner similar to Goals and
Timetables requirements.
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Proposed subsection 2.2.7,
‘‘Monitoring and Reporting,’’ updates
the description of the purposes of the
monitoring and reporting system. The
proposed section adds a requirement for
agencies to describe the complaint
process and maintain a log of
complains. The proposed section also
requires agencies to maintain records on
applicants, hires, transfers, promotions,
training and termination. Finally, the
proposed section adds a list of Required
EEOP Attachments.
FTA seeks comment on the content of
Chapter 2. With regards to the EEOP
process, FTA seeks comment on the
paperwork burdens for carrying out the
requirements set forth in the proposed
circular. Specifically FTA seeks
comment on how long it will take to
develop an EEO Program with the
requirements set out in Chapter 2 of the
proposed Circular. FTA also seeks
suggestions from grantees regarding how
to use information technology to
decrease the amount of time it takes to
develop an EEO Program.
C. Chapter 3—EEO Compliance
Oversight, Complaints, and
Enforcement
Chapter 3 of the proposed circular
combines topics covered in chapters IV,
V, and VI of the existing circular. It
explains how FTA carries out its EEO
oversight and enforcement
responsibilities. This includes a
discussion of factors that lead to FTA
conducting a compliance review such as
lawsuits, complaints, or investigations
conducted by organizations other than
FTA, insufficient EEO program
submissions, EEO findings, or
recommendations from prior triennial,
state management reviews that are
deficient. The chapter explains the EEO
compliance review process and the
required steps for implementing
corrective actions for any deficiencies
found during the review. The chapter
also covers the complaint process and
how grantees can file a complaint.
Proposed section 3.1, ‘‘Compliance
Oversight,’’ updates the description of
types of oversight reviews and
authorities for such reviews. FTA
proposes to change the description of
compliance reviews to encompass all
reviews and remove the distinction
between ‘‘Application Reviews’’ and
‘‘Post-Approval Reviews’’ in the existing
circular. Further, FTA proposes to
change the frequency requirement for
compliance reviews outside of the
Triennial Review or State Management
Review cycle. The current circular
requires these reviews ‘‘at least once
every 3 years.’’ FTA proposes to change
the frequency to allow FTA to
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11351
determine the frequency and scope of
the reviews at its discretion and on a
case-by-case basis.
Proposed section 3.1.3 removes the
explanation of Remedial Action Plans.
Proposed section 3.2, ‘‘Complaints,’’
is reorganized and proposes to add
significantly more detail to the
complaint process. In proposed
subsection 3.2.6, FTA proposes to add
an Administrative Closure option.
FTA seeks comment on the content of
Chapter 3.
D. Appendix A—References
Proposed Appendix A adds a list of
references to the proposed circular. A
similar list is contained on the cover
page of the existing circular. The
proposed list of references in Appendix
A updates and adds references based on
the current state of the law and
guidance.
FTA seeks comment on the content of
Appendix A.
Issued in Washington, DC.
Therese W. McMillan,
Acting Administrator.
[FR Doc. 2016–04648 Filed 3–2–16; 8:45 am]
BILLING CODE 4910–57–P
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
Denial of Motor Vehicle Defect Petition
National Highway Traffic
Safety Administration, (NHTSA),
Department of Transportation.
ACTION: Denial of a petition for a defect
investigation.
AGENCY:
This notice sets forth the
reasons for denying a petition (DP15–
007) submitted to NHTSA under 49
U.S.C. 30162 and 49 CFR part 552,
requesting that the agency ‘‘have Toyota
correct software defects in their
electronic throttle control software’’ and
then ‘‘issue a national recall of all
effected [sic] vehicles and have Toyota
replace the old faulty code with the new
safer code.’’
FOR FURTHER INFORMATION CONTACT: Mr.
Stephen McHenry, Vehicle Control
Division, Office of Defects Investigation,
NHTSA, 1200 New Jersey Avenue SE.,
Washington, DC 20590. Telephone 202–
366–4883. Email stephen.mchenry@
dot.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
1.0 Introduction
Interested persons may petition
NHTSA requesting that the agency
initiate an investigation to determine
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Agencies
[Federal Register Volume 81, Number 42 (Thursday, March 3, 2016)]
[Notices]
[Pages 11348-11351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04648]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket Number: FTA-2016-0013]
Notice of Proposed Equal Employment Opportunity Program Circular
AGENCY: Federal Transit Administration, DOT.
ACTION: Notice of proposed revisions to circular and request for
comment.
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SUMMARY: The Federal Transit Administration (FTA) has placed in the
docket and on its Web site proposed guidance in the form of a Circular
to assist grantees in complying with various Equal Employment
Opportunity regulations and statutes. The purpose of this Circular is
to provide recipients of FTA financial assistance with instructions and
guidance necessary to carry out the U.S. Department of Transportation's
Equal Employment Opportunity regulations (*****). FTA is updating its
``Equal Employment Opportunity (EEO) Program Guidelines for Grant
Recipients'' to clarify the requirements for compliance. By this
notice, FTA invites public comment on the proposed circular.
DATES: Comments must be submitted by May 2, 2016. Late-filed comments
will be considered to the extent practicable.
ADDRESSES: Please submit your comments by only one of the following
methods, identifying your submission by docket No. FTA-2016-0013. All
electronic submissions must be made to the U.S. Government electronic
site at https://www.regulations.gov.
(1) Federal eRulemaking Portal: Go to https://www.regulations.gov
and follow the online instructions for submitting comments.
(2) Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building, Ground
Floor, Room W12-140, Washington, DC 20590-0001.
(3) Hand Delivery or Courier: West Building, Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. Eastern
time, Monday through Friday, except Federal holidays.
(4) Fax: (202) 493-2251.
Instructions: You must include the agency name (Federal Transit
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Administration) and Docket number (FTA-2016-0013) for this notice at
the beginning of your comments. Submit two copies of your comments if
you submit them by mail. If you wish to receive confirmation that FTA
received your comments, you must include a self-addressed stamped
postcard. Note that all comments received will be posted without change
to https://www.regulations.gov including any personal information
provided and will be available to Internet users. You may review DOT's
complete Privacy Act Statement published in the Federal Register on
April 11, 2000 (65 FR 19477) or https://DocketsInfo.dot.gov.
Docket: For access to the docket to read background documents and
comments received, go to https://www.regulations.gov at any time or to
the U.S. Department of Transportation, 1200 New Jersey Avenue SE.,
Docket Operations, M-30, West Building, Ground Floor, Room W12-140,
Washington, DC 20590 between 9:00 a.m. and 5:00 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Anita Heard, Office of Civil Rights,
Federal Transit Administration, 1200 New Jersey Avenue SE., Room E54-
420, Washington, DC 20590, phone: (202) 493-0318, or email,
anita.heard@dot.gov. For legal questions, Gwendolyn Franks, Office of
Chief Counsel, 915 2nd Avenue, Suite 3142, Seattle, WA 98174, phone:
206-220-7954, or email: gwendolyn.franks@dot.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview
II. Chapter-by-Chapter Analysis
A. Chapter 1--Introduction and Applicability
B. Chapter 2--EEO Program Requirements
C. Chapter 3--EEO Compliance Oversight, Complaints, and
Enforcement
D. Appendix A--References
I. Overview
FTA is updating its EEO Circular to clarify what recipients must do
to comply with Titles VI and VII of the Civil Rights Act of 1964, Title
II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 49
U.S.C. Chapter 53 (the Federal Transit law), other Federal civil rights
statutes, and the U.S. Department of Transportation (DOT) regulations
in 49 CFR part 21 . The EEO Circular, last revised in 1988 when the
Federal Transit Administration (FTA) was called the Urban Mass
Transportation Administration (UMTA), requires changes to bring EEO-
related guidance up to date. This notice provides a summary of proposed
changes to Circular 4704.1, ``Equal Employment Opportunity Program
Guidelines for Grant Recipients.'' The final Circular, when adopted,
will supersede the existing circular.
The proposed Circular incorporates the Department of Labor's
standards for an affirmative action program; the Equal Employment
Opportunity Commission (EEOC) regulations; the guidelines for an
effective implementation of Executive Order 11246, as amended; section
503 of the Rehabilitation Act of 1973, as amended; Title II of the
Genetic Information Nondiscrimination Act of 2008 (GINA), and the
Americans with Disabilities Act of 1990; and other civil rights
statutes related to employment practices. These laws ban discrimination
and require Federal contractors and subcontractors to take affirmative
action to ensure that all individuals have an equal opportunity for
employment, without regard to race, color, religion, sex, age, national
origin, disability, veteran status, or genetic information.
Additionally, since the existing Circular went into effect, legislation
and court cases have transformed affirmative action policies and
affected recipients' and beneficiaries' responsibilities. The proposed
Circular would incorporate these changes in law and judicial
interpretations. Also, the proposed Circular would incorporate lessons
learned from FTA administered oversight activities, including triennial
and state management reviews, and discretionary EEO compliance reviews.
During these reviews, FTA identified problems related to ambiguous
language in the existing Circular. These problems included failure to
conduct utilization analyses, failure to develop effective and
measurable goals and timetables, and failure to execute a written plan
for internal and external dissemination of its EEO Policy. The proposed
circular reorganizes, clarifies, and provides examples of the
information that must be included in a compliant EEO program. This
document does not include the proposed circular on which FTA seeks
comment; however, an electronic version may be found on FTA's Web site
at https://www.fta.dot.gov, and in the docket, at https://www.regulations.gov. Paper copies of the proposed Circular may be
obtained by contacting FTA's Administrative Services Help Desk, at
(202) 366-4865.
II. Chapter-by-Chapter Analysis
Readers familiar with the existing FTA Circular 4704.1 will notice
a number of changes to the proposed circular.
The proposed circular eliminates outdated nomenclature, such as
references to ``UMTA,'' references to the ``Urban Mass Transit Act,''
and removes references to statutory provisions such as the ``Federal
Aid Urban System Program.'' The title of the proposed circular has been
change to ``Equal Employment Opportunity (EEO) Requirements and
Guidelines for Federal Transit Administration Recipients.''
We have also reorganized the proposed circular for ease-of-read.
The existing Circular is organized as follows:
Chapter I--General;
Chapter II--Coverage;
Chapter III--EEO Program Components;
Chapter IV--Types of Compliance Reviews;
Chapter V--Remedial Actions and Enforcement Procedures; and
Chapter VI--Discrimination Complaints.
The proposed circular is organized as follows:
Chapter 1--Introduction and Applicability;
Chapter 2--EEO Program Requirements; and
Chapter 3--EEO Compliance Oversight, Complaints, and Enforcement
Proposed Chapter 1 includes existing Chapters 1 and 2, excluding
the ``Frequency of Update'' subsection from existing Chapter II.
Proposed Chapter 2 includes the ``Frequency of Update'' subsection and
existing Circular Chapter III. The Proposed Chapter 3 includes Chapters
IV, V, and VI from the existing Circular.
FTA seeks comments on the scope and content of the proposed
Circular, specifically as to whether there are areas that need more
clarification or explanation, or topics that were overlooked. FTA also
seeks suggestions for resources that should be included in the proposed
Circular, including good practices and sample materials. Additional
items FTA seeks comment on are included in the chapter-by-chapter
analysis below.
A. Chapter 1--Introduction and Applicability
Chapter 1 of the proposed circular is an introductory chapter that
reviews the organization of the circular, the authority for
establishing the circular, and applicability to grantees.
The proposed circular chapter includes added sections entitled
Introduction, Organization of this Circular, and Authorities. The
content of the Introduction and Authorities sections contain updated
information currently covered in Chapter I of the existing circular.
The authority for the EEO program requirements includes
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statutes, regulations, and executive orders that establish the context
for ensuring nondiscrimination in employment on the basis of a
protected class. The proposed Organization of this Circular section is
new and intended to assist the reader's understanding of the proposed
circular structure. The proposed State Administered Programs section
contains updated references and includes the most recent information
about the MOU between FTA and FHWA on this subject. The proposed
Definitions section is significantly updated.
Where the current circular definitions reference UMTA, the proposed
definitions reference FTA. We have proposed new definitions where
current law has created new terminology or where terms are unclear or
undefined in the existing circular. Some definitions have been updated
to comply with existing law or to increase clarity. Where applicable,
we have used the same definitions found in rulemakings or other
circulars to ensure consistency.
Proposed new definitions include: Adverse impact, Complainant,
Disability, Disparate impact, Disparate treatment, Employee, Equal
Employment Opportunity Program (EEOP), Equal Employment Opportunity
statutes and regulations, Federal financial assistance, FTA activity,
One-person rule, Programs or activities, Protected class, and Transit-
related employee. Proposed updated definitions include: Applicant,
Compliance, Contractor, Discrimination, Good faith efforts, Minority
persons, Noncompliance, Primary recipient, Recipient or Grantee, and
Secretary. Two definitions have been removed in the proposed circular:
Affirmative Action Plan and Probable Noncompliance.
FTA seeks comment on potential changes to the Memorandum of
Understanding (MOU) between FTA and the Federal Highway Administration
(FHWA). Currently, FTA has the responsibility for reviewing,
monitoring, and approving state DOT's EEO Programs in accordance with
FTA's regulations, policies, and guidance, while FHWA has the
responsibility for reviewing, monitoring and approving state DOT's EEO
Programs in accordance with FHWA's regulations, policies, and guidance.
Although FHWA currently requires an annual to multiyear program
submission, FTA requires EEOP submissions on a triennial basis. FTA
seeks comments on developing an updated MOU between FTA and FHWA, which
would allow state DOTs to submit a single EEO program that will satisfy
both FTA and FHWA requirements.
FTA also seeks comment regarding a potential change to the
threshold for Equal Employment Opportunity Program submission from the
current standard of grantees with 50 transit-related employees, to
grantees with 100 transit-related employees.
FTA seeks comment on establishing a Memorandum of Understanding
between FTA and the Department of Labor (DOL) with regard to EEO
program submissions and approval. The MOU would allow the agency to
submit an EEO Program that would satisfy both FTA and DOL submission
requirements.
FTA seeks comment on the content of Chapter 1.
B. Chapter 2--EEO Program Requirements
Chapter 2 of the proposed Circular discusses how frequently a
grantee must submit an updated Equal Employment Opportunity Program
(EEOP). The proposed Frequency of Update section is moved from the
current Chapter II--Coverage and combined with the components of the
current Chapter III--EEO Program Requirements. The Frequency of Update
section proposes to remove the discretion of the FTA Office of Civil
Rights to request less information from a recipient when the previous
EEO program has not changed significantly in the intervening three
years.
Proposed Chapter 2 primarily explains the seven required elements
of an EEOP for FTA review. The chapter details proposed required
language, required supporting documentation, the type of analysis that
must be conducted, and the acceptable methods to report the results of
the analysis. The seven elements proposed are:
(1) Statement of Policy
(2) Dissemination
(3) Designation of Personnel Responsibility
(4) Utilization Analysis
(5) Goals and Timetables
(6) Assessment of Employment Practices
(7) Monitoring and Reporting
A majority of proposed Chapter 2 has been relocated from Chapters
II and III of the existing circular. However, those familiar with the
EEOP will notice a few changes in these sections.
Proposed subsection 2.2.2, ``Dissemination,'' increases the
frequency requirement for meeting with top management officials to
discuss the EEOP from a minimum of ``semiannually'' to a minimum of
``quarterly.'' This section also proposes simplification of and updated
language for External Dissemination requirements.
Impartiality is important to the EEOP's credibility. Specifically,
the separation of functions would entail separating the EEO Officer
position from human resources positions and other positions that serve
defensive functions in an agency, such as the legal office. With
regards to ``Designation of Personnel Responsibility'' in proposed
subsection 2.2.3, FTA proposes to add a requirement that agencies must
``ensure that no conflicts of position or conflicts of interest occur
or appear to occur with respect to the EEO Officer's role.'' The
proposed Circular would require ``the functional unit that reviews EEO
matters be separate and apart from the unit that represents the agency
in EEO complaints.'' This proposed section also adds requirements for
the EEO Officer's EEOP Responsibilities, including reviewing the
agency's nondiscrimination plan with all managers and supervisors,
periodic reviews of policies, procedures, and union agreements,
providing training for employees and managers, advising employees and
applicants of training and development opportunities, and auditing of
EEO Policy statement postings to ensure compliance. The section also
proposes to alter existing responsibilities, including a requirement
for reporting ``quarterly'' instead of ``periodically'' on each
department's progress toward goals, and ``investigating'' complaints of
discrimination instead of ``processing'' such complaints. FTA proposes
to remove the requirement that the EEO Officer concur in all hires and
promotions.
In the area of Agency EEO Responsibilities, the proposed circular
updates and streamlines some of the enumerated requirements in the
existing circular and adds two responsibilities. FTA proposes
requirements to add and update a personnel database, and to encourage
employee participation to support the advancement of the EEOP. The
proposed section removes explicit requirements for assisting in the
identification of problem areas, active involvement in affinity groups
and community organizations, career counseling of employees, and
participation in periodic audits to ensure each agency unit is
compliance. FTA believes the concepts in the removed items are captured
elsewhere in Chapter 2.
Proposed subsection 2.2.4, ``Utilization Analysis,'' requires
agencies to use EEO-4 reporting categories. This proposal changes the
approach to Utilization Analysis in the
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current circular. Additionally, this section discusses a new MOU
between EEOC and FTA which allows FTA to obtain the agency's EEO-4
utilization numbers. As a result, the transit agency or grantee will be
able to access their current utilization numbers and complete the
required utilization in FTA's electronic database under the proposed
language. For agencies under 100 employees that do not submit reports
to EEOC, this proposed section also includes links to a Microsoft Excel
spreadsheet template (with instructions) for use in completing the
utilization and availability analysis. The proposed language adds
requirements for Availability Analysis, including explanation of and
requirements for explaining why agencies selected particular areas for
the analysis and quantifying plans when underutilization is identified.
Proposed subsection 2.2.5, ``Goals and Timetables,'' proposes to
require agencies to set long term and short term numerical goals and
timetables for each individual minority group, broken down by specific
racial/ethnic subcategories for men and women. This section includes
changes to the guidelines for goal setting, including a guideline to
set goals that are realistic and measurable. The proposed requirements
reduce the long term goal period from 4-5 years to 2 or more years. FTA
also proposes to add a requirement that agencies collect reports from
unit managers on a scheduled basis to determine what goals are being
met and to review these reports with all levels of management.
Proposed subsection 2.2.6, ``Assessment of Employment Practices,''
removes reference to ``Affirmative Action'' in the heading. It also
proposes to move discussion of self-analysis from the Goals and
Timetables section of the current circular to proposed subsection
2.2.6. We propose to add a requirement that statistical data show any
potential impact of an agency's employment practices on persons with
disabilities and veterans. This includes the number of applicants for
employment, the number hired, and the number promoted, cross-references
by sex and race. Having this data will assist in measuring the
effectiveness of outreach and recruitment efforts for persons with
disabilities and veterans. The proposed section also adds requirements
for a description of the agency's training programs, review of wage and
salary structure, establishment of privacy protocols, and collection of
reports from unit managers on a scheduled basis in a manner similar to
Goals and Timetables requirements.
Proposed subsection 2.2.7, ``Monitoring and Reporting,'' updates
the description of the purposes of the monitoring and reporting system.
The proposed section adds a requirement for agencies to describe the
complaint process and maintain a log of complains. The proposed section
also requires agencies to maintain records on applicants, hires,
transfers, promotions, training and termination. Finally, the proposed
section adds a list of Required EEOP Attachments.
FTA seeks comment on the content of Chapter 2. With regards to the
EEOP process, FTA seeks comment on the paperwork burdens for carrying
out the requirements set forth in the proposed circular. Specifically
FTA seeks comment on how long it will take to develop an EEO Program
with the requirements set out in Chapter 2 of the proposed Circular.
FTA also seeks suggestions from grantees regarding how to use
information technology to decrease the amount of time it takes to
develop an EEO Program.
C. Chapter 3--EEO Compliance Oversight, Complaints, and Enforcement
Chapter 3 of the proposed circular combines topics covered in
chapters IV, V, and VI of the existing circular. It explains how FTA
carries out its EEO oversight and enforcement responsibilities. This
includes a discussion of factors that lead to FTA conducting a
compliance review such as lawsuits, complaints, or investigations
conducted by organizations other than FTA, insufficient EEO program
submissions, EEO findings, or recommendations from prior triennial,
state management reviews that are deficient. The chapter explains the
EEO compliance review process and the required steps for implementing
corrective actions for any deficiencies found during the review. The
chapter also covers the complaint process and how grantees can file a
complaint.
Proposed section 3.1, ``Compliance Oversight,'' updates the
description of types of oversight reviews and authorities for such
reviews. FTA proposes to change the description of compliance reviews
to encompass all reviews and remove the distinction between
``Application Reviews'' and ``Post-Approval Reviews'' in the existing
circular. Further, FTA proposes to change the frequency requirement for
compliance reviews outside of the Triennial Review or State Management
Review cycle. The current circular requires these reviews ``at least
once every 3 years.'' FTA proposes to change the frequency to allow FTA
to determine the frequency and scope of the reviews at its discretion
and on a case-by-case basis.
Proposed section 3.1.3 removes the explanation of Remedial Action
Plans.
Proposed section 3.2, ``Complaints,'' is reorganized and proposes
to add significantly more detail to the complaint process. In proposed
subsection 3.2.6, FTA proposes to add an Administrative Closure option.
FTA seeks comment on the content of Chapter 3.
D. Appendix A--References
Proposed Appendix A adds a list of references to the proposed
circular. A similar list is contained on the cover page of the existing
circular. The proposed list of references in Appendix A updates and
adds references based on the current state of the law and guidance.
FTA seeks comment on the content of Appendix A.
Issued in Washington, DC.
Therese W. McMillan,
Acting Administrator.
[FR Doc. 2016-04648 Filed 3-2-16; 8:45 am]
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