Rule2025-09753
State Highway Agency Equal Employment Opportunity Programs
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 30, 2025
Effective
June 30, 2025
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
The FHWA is removing outdated and duplicative regulations requiring State highway agencies to submit to FHWA, on an annual basis, Equal Employment Opportunity (EEO) Program plans for FHWA approval. Currently, FHWA is responsible for oversight of State highway agencies' EEO programs, which include collection and analysis of internal employment data, development of an internal affirmative action hiring plan, and contractor compliance reporting. These regulations overlap with, and are duplicative of, other Federal requirements enforced by other Federal agencies. In addition, an Executive order (E.O.) issued by President Donald J. Trump repealed a previous E.O. that was relied on to initially promulgate the regulation. Elimination of these regulations will reduce administrative and monetary burdens on Federal- aid recipients.
Full Text
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<title>Federal Register, Volume 90 Issue 103 (Friday, May 30, 2025)</title>
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[Federal Register Volume 90, Number 103 (Friday, May 30, 2025)]
[Rules and Regulations]
[Pages 22850-22852]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-09753]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 230
[FHWA Docket No. FHWA-2019-0026]
RIN 2125-AF87
State Highway Agency Equal Employment Opportunity Programs
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: The FHWA is removing outdated and duplicative regulations
requiring State highway agencies to submit to FHWA, on an annual basis,
Equal Employment Opportunity (EEO) Program plans for FHWA approval.
Currently, FHWA is responsible for oversight of State highway agencies'
EEO programs, which include collection and analysis of internal
employment data, development of an internal affirmative action hiring
plan, and contractor compliance reporting. These regulations overlap
with, and are duplicative of, other Federal requirements enforced by
other Federal agencies. In addition, an Executive order (E.O.) issued
by President Donald J. Trump repealed a previous E.O. that was relied
on to initially promulgate the regulation. Elimination of these
regulations will reduce administrative and monetary burdens on Federal-
aid recipients.
DATES: This final rule is effective June 30, 2025.
FOR FURTHER INFORMATION CONTACT: Nichole McWhorter, Acting Associate
Administrator, Office of Civil Rights, Federal Highway Administration,
1200 New Jersey Avenue SE, Washington, DC 20590, (202) 366-1396,
<a href="/cdn-cgi/l/email-protection#bef0d7ddd6d1d2db90f3dde9d6d1cccadbccfedad1ca90d9d1c8"><span class="__cf_email__" data-cfemail="96d8fff5fef9faf3b8dbf5c1fef9e4e2f3e4d6f2f9e2b8f1f9e0">[email protected]</span></a>; or James Esselman, Office of the Chief
Counsel, Federal Highway Administration, 1200 New Jersey Avenue SE,
Room E82-322, Washington, DC 20590, (202) 366-6181,
<a href="/cdn-cgi/l/email-protection#6228030f07114c271111070e0f030c22060d164c050d14"><span class="__cf_email__" data-cfemail="97ddf6faf2e4b9d2e4e4f2fbfaf6f9d7f3f8e3b9f0f8e1">[email protected]</span></a>. Office hours are from 8 a.m. to 4:30 p.m. e.t.,
Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
This document, as well as the notice of proposed rulemaking (NPRM)
and all comments received, may be viewed online through the Federal
eRulemaking portal at <a href="http://www.regulations.gov">www.regulations.gov</a>. The website is available 24
hours each day, 365 days each year. An electronic copy of this document
may also be downloaded by accessing the Office of the Federal
Register's website at: <a href="http://www.federalregister.gov">www.federalregister.gov</a> and the Government
Publishing Office's website at: <a href="http://www.GovInfo.gov">www.GovInfo.gov</a>.
Background
On November 30, 2020, at 85 FR 76500, FHWA published a notice of
proposed rulemaking (NPRM) proposing to remove its State Highway
Administration Equal Employment Opportunity Programs regulations at 23
Code of Federal Regulations (CFR) part 230, subpart C. These
regulations require State highway agencies to submit to FHWA, on an
annual basis, EEO Program plans, which include collection and analysis
of internal employment data, development of an internal affirmative
action hiring plan, and contractor compliance reporting. The NPRM
described how these regulations overlap with, and are duplicative of,
other Federal requirements ensuring nondiscrimination in employment
that are enforced by other Federal agencies. The NPRM further outlined
how elimination of FHWA's regulations would reduce administrative and
monetary burdens on FHWA recipients.
The FHWA received four public comment submissions in response to
the NPRM. Commenters included two State highway agencies and two
individuals. One of the individuals supported the proposed rule. The
second individual's comments did not address the NPRM at all. One State
highway agency did not express an opinion in favor of or against the
proposed regulatory rescission, but commented that it was not concerned
by the duplicative nature of FHWA's EEO regulations, noting that while
other authorities require the submission of data, no other authorities
require the submission of EEO program plans. The second State highway
agency
[[Page 22851]]
commented that it would continue to implement an EEO plan even if FHWA
rescinds its EEO regulations. It noted that FHWA's rescission of the
regulations would reduce the credibility of FHWA's EEO program
activities. After carefully considering the comments received in
response to the NPRM, along with changes in Federal EEO authorities
since FHWA issued the NPRM, FHWA is promulgating final regulations
without changes to the proposed regulatory text.
FHWA Response to Comments and Discussion of Regulatory Changes
As discussed in the NPRM, FHWA's regulations at 23 CFR part 230,
subpart C, currently require that all State highway agencies submit to
FHWA for approval, on an annual basis, an EEO Program, which must
include provisions for reporting on contractor compliance and internal
State highway agency employment. The internal employment provisions
require submission of an affirmative action plan and an analysis of
employment statistical data. The NPRM explained why these requirements
are outdated and duplicative of other employment nondiscrimination
authorities enforced by other Federal agencies, including the Equal
Employment Opportunity Commission (EEOC) and the Department of Justice
(DOJ). None of the comments received in response to the NPRM disputed
the existence of this overlap among employment nondiscrimination
authorities and Federal enforcement agencies. The only point of
difference noted by one of the State highway agency commenters is that
FHWA's regulations require submission of an EEO program plan, not just
the submission of employment data.
The FHWA acknowledges that its regulations require that State
highway agencies submit formal EEO program plans addressing contractor
compliance and State internal employment, which other authorities do
not require. This distinction, however, is not a justification for
retaining FHWA's regulations.
As an initial matter, FHWA's regulatory requirement that State
highway agencies submit reports on their own internal employment EEO
programs is not directly required by statute. In issuing the regulation
in 1976, FHWA cited authority at title 23 United States Code (U.S.C.),
140(a). See 41 FR 28270 (July 9, 1976). That authority directs the
Department to require State highway agencies provide assurances that
employment in connection with proposed Federal-aid highway projects
will be provided without regard to race, color, creed, national origin,
or sex. Providing assurances that Federal-aid project employment will
be provided in a nondiscriminatory manner does not mandate the
submission of an internal EEO report. The assurance of complying with
nondiscrimination requirements overlaps with requirements under title
VII of the Civil Rights Act, enforced by EEOC and DOJ. There is no
separate need for FHWA to conduct such oversight.
To the extent that FHWA issued its regulations based on the
direction provided under E.O. 11246, regarding EEO responsibilities of
Federal and Federal-aid contractors, implementation of EEO requirements
under that authority was consolidated under the Office of Federal
Contract Compliance Programs (OFCCP) in 1978 through E.O. 12086,
Consolidation of Contract Compliance Functions for Equal Employment
Opportunity, issued by President Carter. That action, coupled with the
issuance of OFCCP's EEO regulations at 41 CFR part 60 in 1978, rendered
FHWA's Federal-aid contractor EEO provisions under subpart C
duplicative of the OFCCP framework.
The overlap with OFCCP authority was reason enough to support
FHWA's rescission of its Subpart C regulations. More significantly,
however, through E.O. 14173, Ending Illegal Discrimination and
Restoring Merit-Based Opportunity, issued January 21, 2025, President
Donald J. Trump revoked E.O. 11246. Without E.O. 11246 FHWA's Subpart C
regulations addressing Federal-aid highway EEO requirements, such
requirements can longer be justified.
Given that other authorities at both the State and Federal level
provide coverage of employment discrimination applicable to State
highway agencies and Federal-aid contractors, and given that Congress
never expressly directed FHWA to require State highway agencies to
create and submit affirmative action plans, FHWA is proceeding with
removing the regulatory requirements at 23 CFR part 230, subpart C.
The elimination of this regulation at 23 CFR part 230, subpart C,
will reduce the reporting and compliance burdens on State highway
agencies by eliminating duplicative requirements that will ultimately
result in a cost savings to the State agencies and to FHWA, without
diminishing Federal oversight of Federal employment nondiscrimination
requirements.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Rulemaking Policies and Procedures
The Office of Management and Budget (OMB) has not designated this
rule a significant action under section 3(f) of Executive Order (E.O.)
12866. Accordingly, OMB has not reviewed it. It is anticipated that the
economic impact of this rulemaking would be minimal. This rulemaking
eliminates required reporting and analysis that is currently required
under the regulation; therefore, eliminating this portion of the
regulation would achieve cost savings.
Although this rulemaking to revise 23 CFR part 230, subpart C would
not be a significant regulatory action, it does generate cost savings
resulting from reduced administrative burden associated with the
efforts by the States and FHWA related to the collecting and analyzing
of State internal employment data leading to creation of an affirmative
action plan.
Executive Order 14192 (Unleashing Prosperity Through Deregulation)
This final rule is an E.O. 14192 deregulatory action. The
annualized cost savings are estimated to be $832,116 per year, measured
in 2024 dollars. For the 20-year period from 2026 through 2045 the
estimated cost savings are roughly $8.8 million in net present value
when discounted at 7 percent to 2024. A summary of the results of the
analysis and the assumptions underlying the calculations are included
in the docket for this rulemaking.
These changes would not adversely affect, in a material way, any
sector of the economy. In addition, these changes would not interfere
with any action taken or planned by another Agency and would not
materially alter the budgetary impact of any entitlements, grants, user
fees, or loan programs. Consequently, a full regulatory evaluation is
not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), FHWA has evaluated the effects of this action on
small entities. Because the regulations are applicable primarily to
States, FHWA has determined that the action is not anticipated to have
a significant economic impact on a substantial number of small
entities. States are not included in the definition of small entity set
forth in 5 U.S.C. 601. Therefore, FHWA certifies that the action will
not have a significant
[[Page 22852]]
economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
The FHWA has determined that this rule does not impose unfunded
mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub.
L. 104-4, March 22, 1995, 109 Stat. 48). This rule will not result in
the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year (when adjusted for inflation) (2 U.S.C. 1532). In addition, the
definition of ``Federal Mandate'' in the Unfunded Mandates Reform Act
excludes financial assistance of the type in which State, local, or
Tribal governments have authority to adjust their participation in the
program in accordance with changes made in the program by the Federal
Government. The Federal-aid highway program permits this type of
flexibility.
Executive Order 13132 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in E.O. 13132. The FHWA has determined that this
action does not have sufficient federalism implications to warrant the
preparation of a federalism assessment. The FHWA has also determined
that this action does not preempt any State law or State regulation or
affect the States' ability to discharge traditional State governmental
functions.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget for each collection of information they conduct,
sponsor, or require through regulations. The FHWA has determined that
this action does not contain collection of information requirements for
the purposes of the PRA and there was no PRA number associated with
this regulation. However, the elimination of this regulatory section
will alleviate current burdens imposed on the States by reducing the
need to file lengthy Affirmative Action Plans along with filing
duplicative EEO-4 documents to FHWA.
National Environmental Policy Act
The Agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321) and has determined
that it qualifies for a categorical exclusion under 23 CFR
771.117(c)(20), which applies to the promulgation of regulations, and
that no unusual circumstances are present under 23 CFR 771.117(b).
Categorically excluded actions meet the criteria for categorical
exclusions under 23 CFR 771.117(a) and normally do not require any
further NEPA approvals by FHWA.
Executive Order 13175 (Tribal Consultation)
The FHWA has analyzed this action under E.O. 13175 and believes
that it would not have substantial direct effects on one or more Indian
tribes; would not impose substantial direct compliance costs on Tribal
governments; and, would not preempt Tribal law. Therefore, a Tribal
summary impact statement is not required.
Rulemaking Summary, 5 U.S.C. 553(b)(4)
As required by 5 U.S.C. 553(b)(4), a summary of this rule can be
found in the Abstract section of the Department's Unified Agenda entry
for this rulemaking at <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202410&RIN=2125-AF87">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202410&RIN=2125-AF87</a>.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in the spring and fall of each year. The RIN contained in the heading
of this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 23 CFR Part 230
Equal employment opportunity, Federal-aid construction contracts,
Grant programs--transportation, Highways and roads, Reporting and
recordkeeping requirements.
Issued in Washington, DC, under authority delegated in 49 CFR
1.85(a)(1).
Gloria M. Shepherd,
Executive Director, Federal Highway Administration.
In consideration of the foregoing, FHWA amends 23 CFR part 230 as
set forth below:
PART 230--EXTERNAL PROGRAMS
0
1. The authority citation for part 230 is revised to read as follows:
Authority: 23 U.S.C. 101, 140, and 315; 42 U.S.C. 2000d et seq.;
and 49 CFR 1.81.
Subpart C--[Removed and Reserved]
0
2. Remove and reserve subpart C, consisting of Sec. 230.301 through
appendix A to subpart C of part 230.
[FR Doc. 2025-09753 Filed 5-27-25; 4:15 pm]
BILLING CODE 4910-22-P
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</html>Indexed from Federal Register on May 30, 2025.
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