[Federal Register Volume 85, Number 102 (Wednesday, May 27, 2020)]
[Notices]
[Pages 31777-31780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11259]
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FEDERAL HOUSING FINANCE AGENCY
[No. 2020-N-12]
Proposed Collection; Comment Request
AGENCY: Federal Housing Finance Agency.
ACTION: Contractor Workforce Inclusion Good Faith Efforts--60-day
Notice of submission of information collection for approval from Office
of Management and Budget.
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SUMMARY: In accordance with the requirements of the Paperwork Reduction
Act of 1995 (PRA), the Federal Housing Finance Agency (FHFA or the
Agency) is seeking public comments concerning an information collection
known as ``Contractor Workforce Inclusion Good Faith Efforts,'' which
has been assigned control number 2590-0016 by the Office of Management
and Budget (OMB). FHFA intends to submit the information
[[Page 31778]]
collection to OMB for review and approval of a three-year extension of
the control number, which is due to expire on July 31, 2020.
DATES: Interested persons may submit comments on or before July 27,
2020.
ADDRESSES: Submit comments to FHFA, identified by ``Proposed
Collection; Comment Request: `Contractor Workforce Inclusion Good Faith
Efforts, (No. 2020-N-12)' '' by any of the following methods:
Agency Website: www.fhfa.gov/open-for-comment-or-input.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments. If you submit your
comment to the Federal eRulemaking Portal, please also send it by email
to FHFA at [email protected] to ensure timely receipt by the agency.
Mail/Hand Delivery: Federal Housing Finance Agency, Eighth
Floor, 400 Seventh Street SW, Washington, DC 20219, ATTENTION: Proposed
Collection; Comment Request: ``Contractor Workforce Inclusion Good
Faith Efforts, (No. 2020-N-12).''
We will post all public comments we receive without change,
including any personal information you provide, such as your name and
address, email address, and telephone number, on the FHFA website at
http://www.fhfa.gov. In addition, copies of all comments received will
be available for examination by the public through the electronic
comment docket for this PRA Notice also located on the FHFA website.
FOR FURTHER INFORMATION CONTACT: Kenneth Hunter, Office of Minority and
Women Inclusion, [email protected], (202) 649-3127; Karen
Lambert, Associate General Counsel, [email protected], (202) 649-
3094; or Angela Supervielle, Counsel, [email protected],
(202) 649-3973 (these are not toll-free numbers); Federal Housing
Finance Agency, 400 Seventh Street SW, Washington, DC 20219. The
Telecommunications Device for the Deaf is (800) 877-8339.
SUPPLEMENTARY INFORMATION:
A. Background
Section 342(a)(1)(A) of the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010 (the Dodd-Frank Act) requires FHFA and
certain other Federal agencies each to establish an Office of Minority
and Women Inclusion (OMWI) responsible for all matters of the agency
relating to diversity in management, employment, and business
activities.\1\ Section 342(c)(1) requires the OMWI Director at each
agency to develop and implement standards and procedures to ensure, to
the maximum extent possible, the fair inclusion and utilization of
minorities, women, and minority- and women-owned businesses in all
business and activities of the agency at all levels, including in
procurement, insurance, and all types of contracts. Section 342(c)(2)
requires that the OMWI Director include in the agency's procedures for
evaluating contract proposals and hiring service providers a component
that gives consideration to the diversity of an applicant, to the
extent consistent with applicable law. That statutory provision also
requires that each agency's procedures include a written statement that
a contractor shall ensure, to the maximum extent possible, the fair
inclusion of women and minorities in the workforce of the contractor
and, as applicable, subcontractors.
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\1\ 12 U.S.C. 5452.
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Further, section 342(c)(3)(A) of the Dodd-Frank Act requires that
each agency's standards and procedures include a procedure for
determining whether an agency contractor or subcontractor has failed to
make a good faith effort to include minorities and women in its
workforce. If the OMWI Director determines that a contractor or
subcontractor has failed to make such a good faith effort, section
342(c)(3)(B)(i) provides that the OMWI Director shall recommend to the
agency administrator that the contract be terminated. Section
342(c)(3)(B)(ii) provides that, upon receipt of such a recommendation,
the agency administrator may either terminate the contract, make a
referral to the Office of Federal Contract Compliance Programs (OFCCP)
of the Department of Labor, or take other appropriate action.
As a means of implementing the requirements of section 342(c) of
the Dodd-Frank Act, FHFA developed a Minority and Women Inclusion
Clause (MWI Clause) that it includes in Agency contracts with a dollar
value greater than the ``simplified acquisition threshold'' established
in the Federal Acquisition Regulation (FAR).\2\ The MWI Clause requires
a contractor to confirm its commitment to equal opportunity in
employment and contracting, and to implement that commitment by
ensuring, to the maximum extent possible consistent with applicable
law, the fair inclusion of minorities and women in its workforce. The
MWI Clause also requires that a contractor include the substance of the
MWI Clause in all subcontracts with a dollar value greater than
$150,000 awarded under the contract. (Hereinafter, contractors that are
subject to the MWI Clause and subcontractors that are subject to a
similar clause required to be included in a subcontract are referred to
as ``covered'' contractors and subcontractors.)
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\2\ See FAR 2.101. The FAR appears at 48 CFR chapter 1. Although
the FAR has not yet been updated, Congress increased the simplified
acquisition threshold to $250,000 in 2017. See National Defense
Authorization Act for Fiscal Year 2018, Public Law 115-91, section
805, 131 Stat. 1283, 1456 (2017), codified at 41 U.S.C. 134. The
Civilian Agency Acquisition Council Memorandum for Civilian Agencies
dated February 16, 2018 provides instructions to agencies that
desire to issue a class deviation prior to this change being
incorporated in the FAR. To date, FHFA has not issued such a
deviation to increase the simplified acquisition threshold.
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Finally, the MWI Clause requires a contractor to provide, when
requested by FHFA, documentation demonstrating that the contractor, as
well as any covered subcontractor has made a good faith effort to
ensure the fair inclusion of minorities and women in its workforce. The
MWI Clause provides that such documentation may include, but is not
limited to: (1) The contractor's total number of employees, and the
number of minority and women employees, by race, ethnicity, and gender
(e.g., an EEO-1 Employer Information Report (Form EEO-1)); (2) a list
of the subcontracts the contractor awarded including the dollar amount,
date of the award, and the ownership status of the subcontractor by
race, ethnicity, and/or gender; (3) information similar to that
required under the first item above for each subcontractor; and (4) the
contractor's plan to ensure that minorities and women have appropriate
opportunities to enter and advance within its workforce, including
outreach efforts (hereinafter, a ``workforce inclusion plan''). A
request for documentation by FHFA pursuant to this provision of the MWI
Clause constitutes a ``collection of information'' within the meaning
of the PRA.
On March 9, 2018, FHFA finalized its ``Policy Establishing
Procedures to Determine Compliance by Contractors with the Minority and
Women Inclusion Contract Clause'' (Good Faith Efforts Policy (GFEP)),
which establishes a process to determine whether covered contractors or
subcontractors are making good faith efforts to ensure the fair
inclusion of minorities and women in their respective workforces. The
GFEP ensures transparency, clarity, and consistency in the good faith
effort review process. Covered contractors
[[Page 31779]]
agree to provide documentation of the good faith effort they have made
in support of this commitment within 10 business days after a request
from FHFA. According to the GFEP, ``OMWI will rely on the conclusions
of a prior GFE review if OMWI conducted that review within the past two
fiscal years.''
FHFA's OMWI implemented the GFEP by conducting its first round of
reviews of 20 covered contractors in May 2018. OMWI initiated another
round of reviews in December 2018. The contractors' sizes ranged from
small companies to large corporations. In March 2019, OMWI provided a
summary of its reviews of 32 covered contractors. OMWI's GFEP review
found that all the selected contractors had submitted satisfactory
information to show compliance with their GFE contractual obligation.
OMWI also considered developing new tools to capture and display
information from GFE reviews to streamline the current process.
B. Need for and Use of the Information Collection
The purpose of this information collection is to fulfill the
requirements of section 342(c) of the Dodd-Frank Act. The collected
information allows FHFA's OMWI Director to determine whether covered
contractors and subcontractors have complied with their contractual
obligations to make good faith efforts to ensure, to the maximum extent
possible consistent with applicable law, the fair inclusion of
minorities and women in their respective workforces.
C. Burden Estimate
FHFA estimates that the average annual burden imposed on all
respondents by this information collection over the next three years
will be 172 hours.
Because, as explained below, the amount of burden imposed upon a
contractor by this information collection will differ depending upon
whether the contractor has 50 or more employees, FHFA has based its
total burden estimate on two separate sets of calculations--(1) one for
contractors and subcontractors with 50 or more employees (16 hours);
and (2) another for contractors and subcontractors with fewer than 50
employees (156 hours).
FHFA includes the MWI Clause in Agency contracts with a dollar
value greater than $150,000. Under the MWI Clause, FHFA may also
request information about covered subcontractors' ownership status,
workforce demographics, and workforce inclusion plans. Contractors
would request this information from their covered subcontractors, who,
because the substance of the MWI Clause would be included in their
subcontracts, would have a contractual obligation to keep records and
report data as required under the MWI Clause.
FHFA data on the dollar value of contracts awarded by the Agency
from the beginning of fiscal year 2016 through the third quarter of
fiscal year 2019 shows that 61 contractors were subject to the MWI
Clause. FHFA believes that 44 of those contractors have 50 or more
employees, while 17 contractors have fewer than 50 employees. FHFA
estimates that no more than two subcontracts with a dollar value of
$150,000 or more were awarded by Agency contractors during that same
time period. Both of those subcontractors have 50 or more employees
each. Thus, over the preceding three years, a total of 63 contractors
and subcontractors were subject to the MWI Clause--46 of which have 50
or more employees and 17 of which have fewer than 50 employees.
Based on these figures, FHFA estimates that, on average over the
next three years, 48 contractors and subcontractors with 50 or more
employees and 18 contractors or subcontractors with fewer than 50
employees will be subject to the MWI Clause at any given time. As
mentioned above, the GFEP provides that OMWI will rely on the
conclusions of a prior GFE review if OMWI conducted that review within
the past two fiscal years. Accordingly, a covered contractor or
subcontractor is required to submit new information only once within
any three year period.
(1) Documentation Submitted by Contractors With 50 or More Employees
FHFA estimates that the average annual burden on contractors with
50 or more employees will be 16 hours (0 recordkeeping hours + 16
reporting hours).
Because Federal contractors with 50 or more employees are already
required to maintain the same types of records that may be requested
pursuant to the MWI Clause under regulations implementing Title VII of
the Civil Rights Act of 1964 \3\ and Executive Order 11246 (E.O.
11246),\4\ this information collection does not impose additional
recordkeeping burdens on such contractors and subcontractors. FAR
52.222-26, Equal Opportunity, requires that such contractors' contracts
and subcontracts include a clause implementing E.O. 11246. OFCCP
regulations require each contractor with 50 or more employees and a
Federal contract or subcontract of $50,000 or more to maintain records
on the race, ethnicity, gender, and EEO-1 job category of each
employee.\5\ OFCCP regulations also require each such contractor to:
(1) Demonstrate that it has made a good faith effort to remove
identified barriers, expand employment opportunities, and produce
measurable results; \6\ and (2) develop and maintain a written program
summary describing the policies, practices, and procedures that the
contractor uses to ensure that applicants and employees received equal
opportunities for employment and advancement.\7\ In lieu of creating
and maintaining a separate workforce inclusion plan to submit in
satisfaction of the MWI Clause, a contractor or subcontractor with 50
or more employees could submit the written program summary that it is
already required to maintain under the OFCCP regulations to demonstrate
its good faith efforts to ensure the fair inclusion of minorities and
women in its workforce.
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\3\ 42 U.S.C. 2000e, et seq.
\4\ Exec. Order No. 11246, 30 FR 12319 (Sept. 28, 1965).
\5\ See 41 CFR 60-1.7.
\6\ See 41 CFR 60-2.17.
\7\ See 41 CFR 60-2.31.
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With respect to reporting burden, FHFA estimates that it will take
each contractor or subcontractor with 50 or more employees
approximately one hour to retrieve, review, and submit the
documentation specified in the MWI Clause. Thus, the estimate of the
triennial burden upon contractors or subcontractors with 50 or more
employees associated with reporting requirements under this information
collection is 48 hours (48 respondents x 1 hour per respondent) and the
annual burden is 16 hours.
(2) Documentation Submitted by Contractors With Fewer Than 50 Employees
FHFA estimates that the average annual burden on contractors and
subcontractors with fewer than 50 employees will be 156 hours (150
recordkeeping hours + 6 reporting hours).
OFCCP regulations require contractors with fewer than 50 employees
to maintain records on the race, ethnicity, and gender of each
employee.\8\ FHFA believes that such contractors also keep EEO-1 job
category information in the normal course of business, despite the fact
that they are not required by law to do so. However, contractors or
subcontractors with fewer than 50
[[Page 31780]]
employees may not have the type of written program summary that is
required of larger contractors under the OFCCP regulations or any
similar document that could be submitted as a workforce inclusion plan
under the MWI Clause. Accordingly, such contractors or subcontractors
may need to create a workforce inclusion plan to comply with the MWI
Clause.
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\8\ See 41 CFR 60-3.4.
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In order to estimate the burden associated with creating a
workforce inclusion plan, FHFA considered the OFCCP's burden estimates
for the time needed to develop the written program summaries required
under its regulations.\9\ In its OMB Supporting Statement, the OFCCP
estimated that a contractor with 50 to 100 employees would take
approximately 73 hours to create an initial written program summary.
While the OFCCP regulations require contractors to perform time-
consuming quantitative analyses when developing their written program
summaries, such analyses would not be required in connection with the
creation of a workforce inclusion plan. For this reason, FHFA believes
that a contractor could develop a workforce inclusion plan in about
one-third of the time that it would take to develop the written program
summary required under the OFCCP regulations.
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\9\ See PRA Supporting Statement for the OFCCP Recordkeeping and
Requirements-Supply and Service Program, OMB Control No. 1250-0003,
at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201906-1250-001.
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FHFA estimates that a contractor or subcontractor with fewer than
50 employees would spend approximately 25 hours creating a workforce
inclusion plan for the first time. It is likely that, going forward,
many small contractors and subcontractors will simply submit updated
versions of workforce inclusion plans that they have submitted
previously. For purposes of this burden estimate, however, FHFA has
assumed that all small contractors and subcontractors will need to
create a new plan every time they are required to submit information
under the MWI clause. This results in an estimated average triennial
recordkeeping burden on all contractors and subcontractors with fewer
than 50 employees over the next three years of 450 hours (18
respondents x 25 hours per respondent), with an annual burden of 150
hours.
As with larger entities, FHFA estimates that it will take each
contractor and subcontractor with fewer than 50 employees approximately
one hour to retrieve, review, and submit the documentation specified in
the MWI Clause. Thus, FHFA estimates that the average triennial
reporting burden on all contractors and subcontractors with fewer than
50 employees will be 18 hours (18 respondents x 1 hour per respondent),
with an annual burden of 6 hours.
D. Comment Request
FHFA requests written comments on the following: (1) Whether the
collection of information is necessary for the proper performance of
FHFA functions, including whether the information has practical
utility; (2) the accuracy of FHFA's estimates of the burdens of the
collection of information; (3) ways to enhance the quality, utility,
and clarity of the information collected; and (4) ways to minimize the
burden of the collection of information on respondents, including
through the use of automated collection techniques or other forms of
information technology.
Robert Winkler,
Chief Information Officer, Federal Housing Finance Agency.
[FR Doc. 2020-11259 Filed 5-26-20; 8:45 am]
BILLING CODE 8070-01-P