81 FR 11348 - Notice of Proposed Equal Employment Opportunity Program Circular

DEPARTMENT OF TRANSPORTATION
Federal Transit Administration

Federal Register Volume 81, Issue 42 (March 3, 2016)

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.

[Federal Register Volume 81, Number 42 (Thursday, March 3, 2016)]
[Notices]
[Pages 11348-11351]
From the Federal Register Online  [www.thefederalregister.org]
[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 http://www.regulations.gov.
    (1) Federal eRulemaking Portal: Go to http://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

[[Page 11349]]

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 http://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 http://DocketsInfo.dot.gov.
    Docket: For access to the docket to read background documents and 
comments received, go to http://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, 
[email protected]. For legal questions, Gwendolyn Franks, Office of 
Chief Counsel, 915 2nd Avenue, Suite 3142, Seattle, WA 98174, phone: 
206-220-7954, or email: [email protected].

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 http://www.fta.dot.gov, and in the docket, at http://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

[[Page 11350]]

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]
 BILLING CODE 4910-57-P