[Federal Register Volume 79, Number 169 (Tuesday, September 2, 2014)]
[Notices]
[Pages 52044-52056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-20711]
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
RIN 1250-0001
Proposed Extension of the Approval of Information Collection
Requirements; Comment Request
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Notice.
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SUMMARY: The Department of Labor, as part of its continuing effort to
reduce paperwork and respondent burden, conducts a pre-clearance
consultation program to provide the general public and Federal agencies
with an opportunity to comment on proposed and/or continuing
collections of information in accordance with the Paperwork Reduction
Act of 1995 (PRA95). 44 U.S.C. 3506(c)(2)(A). This program helps ensure
that requested data is provided in the desired format, that the
reporting burden (time and financial resources) is minimized, that the
collection instruments are clearly understood, and that the impact of
collection requirements on respondents is properly assessed. Currently,
the Office of Federal Contract Compliance Programs is soliciting
comments on its
[[Page 52045]]
proposal to extend the Office of Management and Budget (OMB) approval
of the Construction Information Collection. You can obtain a copy of
the proposed information collection request by contacting the office
listed below in the addresses section of this Notice.
DATES: Written comments must be submitted to the Office of Federal
Contract Compliance Programs at the addresses listed in section below
on or before November 3, 2014.
ADDRESSES: You may submit comments, identified by Control Number 1250-
0001, by either one of the following methods:
Electronic comments: Through the Federal eRulemaking portal at
http://www.regulations.gov. Follow the instructions for submitting
comments.
Mail, Hand Delivery, Courier: Addressed to Debra A. Carr, Director,
Division of Policy and Program Development, Office of Federal Contract
Compliance Programs, 200 Constitution Avenue NW., Room C-3325,
Washington, DC 20210. Telephone: (202) 693-0103 (voice) or (202) 693-
1337 (TTY).
Instructions: Please submit one copy of your comments by only one
method. All submissions must include the agency's name and Control
Number identified above for this information collection. Because we
continue to experience delays in receiving mail in the Washington, DC
area, we strongly encourage commenters to transmit their comments
electronically via the regulations.gov Web site or to submit them by
mail early. Comments, including any personal information provided,
become a matter of public record and will be posted to the
regulations.gov Web site. They will also be summarized and/or included
in the request for Office of Management and Budget approval of the
information collection request.
FOR FURTHER INFORMATION CONTACT: Debra A. Carr, Director, Division of
Policy and Program Development, Office of Federal Contract Compliance
Programs, Room C-3325, 200 Constitution Avenue NW., Washington, DC
20210. Telephone: (202) 693-0103 (voice) or (202) 693-1337 (TTY) (these
are not toll-free numbers). Copies of this notice may be obtained in
alternative formats (Large Print, Braille, Audio Tape or Disc), upon
request, by calling (202) 693-0103 (not a toll-free number). TTY/TDD
callers may call (202) 693-1337 (not a toll-free number) to obtain
information or request materials in alternative formats.
SUPPLEMENTARY INFORMATION:
I. Background: The Office of Federal Contractor Compliance Programs
(OFCCP) administers three nondiscrimination and equal employment
opportunity laws:
Executive Order 11246, as amended (EO 11246);
Section 503 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. 793 (referred to as Section 503); and
the Vietnam Era Veterans' Readjustment Assistance Act of
1974, as amended, 38 U.S.C. 4212 (referred to as Section 4212 or
VEVRAA).
These authorities prohibit employment discrimination but also
require affirmative action to ensure that equal employment
opportunities are available regardless of race, sex, color, national
origin, religion, or status as an individual with a disability or
protected veteran by Federal contractors.
For purposes of this clearance, OFCCP is dividing its
responsibilities under these authorities into categories: (1)
Construction and (2) non-construction (supply and service). This
clearance request covers the EO 11246 construction aspects of OFCCP's
program. To view the current construction Information Collection, go to
http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201003-1250-001. A separate Information Collection Request (ICR), approved by
the Office of Management and Budget (OMB) under OMB No. 1250-0003
(formerly 1215-0072), covers the supply and service aspects of these
programs.
E.O. 11246 prohibits Federal contractors from discriminating
against applicants and employees on the basis of race, color, religion,
sex, or national origin and requires affirmative action. The E.O. 11246
applies to Federal contractors and subcontractors and to federally
assisted construction contractors and subcontractors holding a
Government contract of $10,000 or more, or Government contracts which
have, or can reasonably be expected to have, an aggregate total value
exceeding $10,000 in a 12-month period. The E.O. 11246 also applies to
government bills of lading, depositories of Federal funds in any
amount, and to financial institutions that are issuing and paying
agents for U.S. Savings Bonds.
Section 503 prohibits employment discrimination against any
employee or applicant for employment because of physical or mental
disability and requires affirmative action to ensure that persons are
treated without regard to either of these prohibited factors. Section
503 applies to Federal contractors and subcontractors with a contract
in excess of $10,000. Because some construction contractors and
subcontractors may be subject to these requirements, the burden hours
associated with reporting compliance is included in this Information
Collection Requirement (ICR).
The affirmative action provisions of VEVRAA prohibit employment
discrimination against any protected veteran. VEVRAA applies to Federal
contractors and subcontractors with a contract of $100,000 or more.
Because some construction contractors and subcontractors may be subject
to these requirements, the burden hours associated with reporting
compliance is included in this ICR.
The ICR addresses recordkeeping and reporting for compliance with
EO 11246, Section 503, and VEVRAA for the construction aspects of
OFCCP's program which are subject to the Paperwork Reduction Act of
1995 (PRA).
II. Review Focus: The Department of Labor is particularly
interested in comments which:
Evaluate whether the proposed collection of information is
necessary for the compliance and enforcement functions of the agency,
including whether the information will have practical utility;
evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
enhance the quality, utility and clarity of the
information to be collected; and
minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submissions of responses.
III. Current Actions: The DOL seeks the approval of the renewal of
this information in order to carry out its responsibility to enforce
the anti-discrimination and affirmative action provisions of the three
legal authorities it administers.
Type of Review: Renewal--Extension.
Agency: Office of Federal Contract Compliance Programs.
Title: Recordkeeping and Reporting Requirements, Construction.
OMB Number: 1250-0001.
Agency Number: None.
Affected Public: Business or other for-profit, not-for-profit
institutions.
Total Respondents: 52,429.
Total Annual Responses: 52,429.
Average Time per Response (approximation due to rounding): 16
hours.
[[Page 52046]]
Total Burden Hours: 816,832.
Frequency: Annually.
Total Burden Cost (capital/startup): $0.
Total Burden Cost (operating/maintenance): $83,131.
Comments submitted in response to this notice will be summarized
and/or included in the request for Office of Management and Budget
approval of the information collection request; they will also become a
matter of public record.
Debra A. Carr,
Director, Division of Policy and Program Development, Office of Federal
Contract Compliance Programs.
Note to Reviewer
OFCCP is requesting OMB approval of 816,832 hours in combined
recordkeeping, reporting, and third party disclosure burden for
compliance with OFCCP's regulatory requirements by Federal and
federally assisted construction contractors. This compares with
1,326,320 hours for the last clearance request, a decrease of 509,488
hours. This change is due to an estimated decrease in the number of
Federal construction contractor respondents from 75,696 to 52,429 or a
decrease of 23,267 construction contractors. OFCCP used data from the
General Services Administration's System for Award Management (SAM) to
determine the number of Federal construction contractors covered by
this Information Collection Request (ICR).
The authorization for this ICR (OMB Control No. 1250-0001) expires
December 31, 2014. This submission is for publication in the Federal
Register for the initial 60-day comment period.
Supporting Statement
Construction Recordkeeping Requirements
OMB Number 1250-0001
A. Justification
The Office of Federal Contract Compliance Programs (OFCCP) is
responsible for administering three equal opportunity mandates that
prohibit employment discrimination based on race, sex, sexual
orientation, gender identity, color, national origin, religion,
disability, and status as a protected veteran by Federal
contractors.\1\ Discrimination based on an employee or job applicant
discussing, inquiring about, or disclosing pay is also prohibited.\2\
The authorities OFCCP enforces also require affirmative action to
provide equal employment opportunities:
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\1\ On July 21, 2014, the President signed Executive Order13672
amending Executive Order 11246 to include nondiscrimination based on
sexual orientation and gender identity. This Order requires that a
regulation be prepared within 90 days of the date of the Order.
Though the new Executive Order is effective immediately, the
protections apply to contracts entered into on or after the
effective date of the new DOL regulation. The regulations
implementing Executive Order 13672 will require amending 60-1.4,
Equal opportunity clause, to include sexual orientation and gender
identity.
\2\ Executive Order 13665, Non-Retaliation for Disclosure of
Compensation Information, 79 FR 20749 (April 11, 2014). This order
become effective immediately, and applies to contracts entered into
on or after the effective date of rules being promulgated by the
Department of Labor under section 3 of the order.
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Executive Order 11246, as amended (referred to as ``EO
11246''),\3\
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\3\ The regulations implementing Executive Order 11246
applicable to construction contractors are published at 41 CFR Parts
60-1, 60-4, 60-3, 60-20, and 60-50.
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Section 503 of the Rehabilitation Act of 1973, as amended
(referred to as ``Section 503''),\4\ and
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\4\ See ``Affirmative Action and Nondiscrimination Obligations
of Contractors and Subcontractors Regarding Individuals With
Disabilities,'' 78 Federal Register 185, pp. 58682-58752 (24
September 2013). The regulations implementing Section 503 are
published at 41 CFR Part 60-741.
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The affirmative action provisions of the Vietnam Era
Veterans' Readjustment Assistance Act of 1974,\5\ as amended, 38 U.S.C.
4212 (referred to as ``VEVRAA'').
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\5\ See ``Affirmative Action and Nondiscrimination Obligations
of Contractors and Subcontractors Regarding Special Disabled
Veterans, Veterans of the Vietnam Era, Disabled Veterans, Recently
Separated Veterans, Active Duty Wartime or Campaign Badge Veterans,
and Armed Forces Service Medal Veterans,'' 78 Federal Register 185,
pp. 58614-58679, (24 September 2013). The regulations implementing
VEVRAA are published at 41 CFR Part 60-300.
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OFCCP promulgated regulations implementing these programs
consistent with the Administrative Procedure Act. These regulations are
found at Title 41 of the Code of Federal Regulations (CFR) in Chapter
60 and are accessible on the Web at http://www.ecfr.gov/cgi-bin/text-idx?SID=aa406f536b889c43ca553a8983d4c42c&c=ecfr&tpl=/ecfrbrowse/Title41/41cfrv1_02.tpl#6000.
EO 11246 prohibits employment discrimination on the basis of race,
color, religion, sex, or national origin. The most recent amendment of
EO 11246 includes sexual orientation, and gender identity in the
nondiscrimination provision. This EO also creates affirmative action
requires that contractors take affirmative action to ensure that
applicants and employees are treated without regard to these protected
categories. EO 11246 applies to Federal contractors and subcontractors,
and to federally-assisted construction contractors and subcontractors,
holding a Federal Government contract or subcontract of more than
$10,000 or Federal Government contracts or subcontracts that have, or
can reasonably expect to have, an aggregate total value exceeding
$10,000 in a 12-month period. EO 11246 also applies to Federal
Government bills of lading, depositories of Federal funds in any
amount, and to financial institutions that are issuing and paying
agents for U.S. Savings Bonds.
Section 503 prohibits employment discrimination on the basis of
disability, and requires Federal contractors and subcontractors to take
affirmative action to employ and advance in employment qualified
individuals with disabilities. Its requirements apply to Federal
contractors and subcontractors with a Federal Government contract or
subcontract that meet the statutory contract dollar threshold value of
in excess of $10,000. However, this threshold amount is periodically
adjusted pursuant to an inflation-adjustment statute and is currently
$15,000.\6\
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\6\ The threshold for Section 503 of the Rehabilitation Act is
subject to 41 U.S.C. 431(a) that adjusts certain acquisition related
thresholds for inflation. Thus, the threshold for Section 503
increased to $15,000 on August 30, 2010 (75 FR 53129). These
inflationary adjustments also apply to VEVRAA's $100,000 statutory
minimum threshold but they do not apply to Executive Order 11246 and
its dollar threshold of more than $10,000. The procurement
adjustments are made every five years.
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The affirmative action provisions of VEVRAA prohibit employment
discrimination against protected veterans and require Federal
contractors and subcontractors to take affirmative action to employ and
advance in employment protected veterans. Its requirements apply to
Federal contractors and subcontractors with a Federal Government
contract or subcontract of $100,000 or more.
For the purposes of OFCCP's recordkeeping and reporting
requirements, the agency divides the obligations under these
authorities into the information collection requests (ICR) listed in
the table below. These divisions are based on the distinct programs and
related regulatory requirements.
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OMB Number Description
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1250-0001......................... Construction Recordkeeping
Requirements
1250-0002......................... Complaint Procedures
1250-0003......................... Supply and Service Program
1250-0004......................... VEVRAA Requirements
1250-0005......................... Section 503 Requirements
1250-0006......................... Functional Affirmative Action
Program Agreement Procedures
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Some general approaches and assumptions are applicable across the
[[Page 52047]]
regulations enforced by OFCCP. Many relate to assessing cost and burden
in this ICR, including those listed below.
This ICR does not include burden estimates for compliance
with the information collections in VEVRAA and Section 503 because the
burdens for these collections are covered elsewhere.\7\ However,
because construction contractors are required to provide documents and
information relevant to their compliance with VEVRAA and Section 503,
OFCCP references these statutes in this ICR.\8\ The burden associated
with reporting compliance with Section 503 and VEVRAA during a
construction compliance evaluation is included in this ICR.
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\7\ Control Numbers 1250-0004 (VEVRAA) and 1250-0005 (Section
503) cover these requirements.
\8\ Construction contractors working on federally assisted
construction projects are not subject to the requirements of Section
503 and VEVRAA.
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The General Services Administration's System for Award
Management (SAM) is the system where all bidders must register in order
to receive a Federal contract or grant. There are approximately 500,000
contractor companies registered in SAM. This ICR focuses on
construction contractors, thus using the North American Industry
Classification System code 23, OFCCP estimates that there are 52,429
Federal construction contractors.
Pursuant to the expiration of OMB No. 1250-0001, this ICR seeks
approval of the agency's construction recordkeeping requirements.
1. Legal and Administrative Requirements
a. Executive Order 11246 Regulations
41 CFR Part 60-1--Obligations of Contractors and Subcontractors
This regulation sets out the basic nondiscrimination and
affirmative action requirements of the EO 11246 enforcement program. It
defines coverage, specifies clauses to be included in contracts,
provides a procedure to ensure compliance by covered contractors, and
specifies certain reporting and recordkeeping requirements. Part 60-1
contains recordkeeping, reporting and third party disclosure
requirements for the construction program. OFCCP discusses specific
sections of this part below.
Section 60-1.4 describes the equal opportunity clause in Government
contracts. Sections 60-1.4(a)(3) and 60-1.4(b)(3) require contractors
to notify labor organizations of their obligations under EO 11246 and
the implementing regulations. OFCCP explains third party disclosure
requirements in numbered paragraph 12.c below, titled Third Party
Disclosure Burden.
Section 60-1.7 requires specific Federal prime contractors and
first-tier subcontractors to file an Employer Information Report EEO-1
(EEO-1 Report) annually. The U.S. Equal Employment Opportunity
Commission (EEOC) and OFCCP use EEO-1 Report data to analyze employment
patterns for women and minorities and as a civil rights enforcement
tool. OMB approved the EEO-1 Report information collection under OMB
No. 3046-0007. The EEO-1 Report requires reporting in seven racial and
ethnic categories \9\ within nine job categories.\10\ To view the
information collection, go to http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=200901-3046-001.
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\9\ Hispanic or Latino, White not Hispanic or Latino, Black or
African-American not Hispanic or Latino, Native Hawaiian or Other
Pacific Islander not Hispanic or Latino, Asian not Hispanic or
Latino, American Indian or Alaska Native not Hispanic or Latino, and
Two or More Races not Hispanic or Latino.
\10\ The Officials and Managers category is divided into the
subcategories--Executive/Senior Level Officials and Managers, and
First/Mid-Level Officials and Managers.
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Section 60-1.12 requires contractors to preserve any personnel or
employment record made or kept for a period of not less than two years.
However, if the contractor has fewer than 150 employees or does not
have a contract of at least $150,000, this retention period is one
year. Section 60-1.12 provides that the contractor must be able to
identify the gender, race and ethnicity of each employee for any record
the contractor maintains. Where possible, the contractor must also
identify the gender, race and ethnicity of each applicant or Internet
applicant.
Section 60-1.20 addresses the methods OFCCP uses to assess
contractors' compliance with the agency's regulations during compliance
evaluations. These methods range from an in-depth comprehensive
evaluation of the contractor's employment practices (e.g., a
``compliance review'') to a determination of whether the contractor
maintained records consistent with section 60-1.12 (e.g., a
``compliance check'').
41 CFR Part 60-3--Uniform Guidelines on Employee Selection Procedures
The EEOC, the U.S. Office of Personnel Management (OPM), the
Department of Labor (DOL), and the Department of Justice (DOJ) adopted
the Uniform Guidelines on Employee Selection Procedures (UGESP) in
1978. UGESP applies to tests and other selection procedures used as a
basis to make any employment-related decision. UGESP was incorporated
into the EO 11246 regulatory scheme through notice and comment
rulemaking and has the full force and effect of law. Under UGESP, each
contractor maintains records and other information for each job
sufficient to permit analyses of the impact of its selection procedures
on the employment opportunities of people based on race, sex, or ethnic
group.\11\ Using this information, contractors and OFCCP identify and
evaluate selection procedures for adverse impact.
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\11\ Section 60-3.4 requires recordkeeping and analyses on the
following race and ethnic groups: Black, Hispanic, Asian/Pacific
Islander, American Indian, and White (other than Hispanic). A total
is also provided for each group.
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When a test or other selection procedure is determined to have an
adverse impact, UGESP requires the contractor to validate the test or
procedure (41 CFR 60-3.4) and to retain its validation study
documentation.
Section 60-3.15 requires contractors with 100 or more employees to
keep records for each job that are sufficient to allow contractors to
make an adverse impact determination. Contractors make this
determination at least annually and make it for each racial or ethnic
group constituting of at least 2 percent of the labor force in the
relevant labor area or 2 percent of the applicable workforce.
Section 60-3.15 requires contractors with fewer than 100 employees
to keep records on the number of persons hired, promoted, and
terminated for each job by sex and, where appropriate, by race and
national origin. Section 60-3.15 also requires contractors to keep
records showing the number of applicants for hire and promotion by sex
and, where appropriate, by race and national origin, as well as records
showing the selection procedures used.
The OMB approved the information collection required under UGESP
under OMB No. 3046-0017. To view the information collection, go to this
Web address: http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=200807-3046-001.
41 CFR Part 60-4--Construction Contractors--Affirmative Action
Requirements
This part sets out the affirmative action requirements of the EO
11246 that apply to all construction contractors, contracting agencies,
applicants \12\ for construction contracts
[[Page 52048]]
and nonconstruction contractors.\13\ It defines coverage, specifies
clauses to be included in contracts, provides a procedure to ensure
compliance by covered contractors, and specifies certain recordkeeping
and reporting requirements. OFCCP discusses specific sections of this
part below.
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\12\ Applicants are defined as an applicant for Federal
assistance involving a construction contract, or other participant
in a program involving a construction contract as determined by
regulation of an administering agency. The terms also include such
persons after they become recipients of such Federal assistance. 41
CFR 60-1.3.
\13\ Nonconstruction contractors and subcontractors are required
to comply with these requirements if, as a part of their Federal
contract or subcontract, construction work is necessary in whole or
in part to the performance of a nonconstruction contract or
subcontract. 41 CFR 60-4.1.
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Section 4.2 requires all contracting officers, applicants for
construction contracts and covered nonconstruction contractors to
include the ``Notice of Requirement for Affirmative Action to Ensure
Equal Employment Opportunity'' set forth in section 4.2 in all
solicitations for offers and bids on all Federal and federally assisted
construction contracts or subcontracts. This notice includes the goals
for the specific project based on its location. In addition,
contracting officers, applicants for construction contracts and covered
nonconstruction contractors must notify OFCCP within 10 working days of
award of a covered contract. Similarly, subsection 4.2(d)3 requires
that all contractors provide OFCCP written notification of covered
subcontract awards in excess of $10,000 within 10 working days of the
award.
Section 4.3 requires all contracting officers, applicants for
construction contracts, construction contractors, and covered
nonconstruction contractors to incorporate the ``Standard Federal Equal
Employment Opportunity Construction Contracts Specifications'' set
forth in section 4.3 into all nonexempt Federal contracts and
subcontracts. Briefly, the specifications require covered contractors
to engage in specific affirmative activities including:
Ensuring and maintaining a work environment free of
harassment;
establishing and maintaining a list of minority and female
recruitment resources;
contacting recruitment sources and training institutions
when employment opportunities are available;
maintaining a file of minority and female walk-in
applicants;
notifying OFCCP if a union is impeding its efforts to meet
its obligations;
developing on the job training programs or participating
in training programs;
disseminating its equal employment opportunity policy both
externally and internally;
encouraging current minority and female employees to
recruit others;
validating all tests;
conducting annual assessments and inventories of current
minority and female employees for promotional opportunities;
ensuring that seniority practices, job classifications,
work assignments, and other personnel practices do not have a
discriminatory effect;
ensuring that all facilities are nonsegregated; \14\
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\14\ This requirement includes an exception for separate or
single-user toilet and necessary changing facilities.
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documenting and maintaining records of compliance; and
conducting an annual review of supervisory performance and
adherence to contractor's affirmative action obligations.
Sections 60-4.4 and 60-4.5 describe Hometown Plans and the
requirements of contractors participating in approved Hometown
Plans.\15\
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\15\ OFCCP no longer approves Hometown Plans.
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Section 60-4.6 explains the goals and timetables set by OFCCP and
their application to a contractor's workforce.
Section 60-4.7 explains the effect of the regulations in part 60-4
to the requirements of 60-1, 60-3, 60-20, and 60-50.
b. VEVRAA Regulations
41 CFR Part 60-300
OFCCP recently revised its regulations implementing VEVRAA.
Included in the revisions was the rescission of 41 CFR Part 60-250.
Regulations on the rights and protections provided to veterans, and the
related obligations and responsibilities of contractors, are set forth
in 41 CFR Part 60-300.
These regulations establish the basic nondiscrimination and
affirmative action requirements of the VEVRAA enforcement program. They
define coverage, specify clauses to be included in contracts, provide
procedures to ensure compliance by covered contractors, specify certain
reporting and recordkeeping requirements, establish an annual benchmark
for veteran hiring, and specify the basic requirements for affirmative
action programs (AAPs) under VEVRAA. A discussion of the relevant
sections of 60-300 follows.
Section 60-300.5 describes the equal opportunity clause in Federal
contracts.
Section 60-300.40 requires contractors with 50 or more employees
and contracts of $100,000 or more to implement the requirements of
Subpart C of the regulation including inviting applicants to self-
identify and developing an AAP.
Section 60-300.42 requires contractors to invite applicants to
voluntarily self-identify their protected veteran status at the pre-
offer and post-offer stage.
Section 60-300.44 identifies required elements of an AAP, including
those listed below.
Develop and include an equal opportunity policy statement
in the AAP.
Review personnel processes to ensure that qualified
protected veterans are provided equal opportunity.
Review all physical and mental job qualification standards
to ensure that those that screen out or tend to screen out qualified
disabled veterans are job-related and are based on business necessity.
Provide reasonable accommodations for physical and mental
limitations of an applicant or employee who is a qualified disabled
veteran.
Develop procedures to ensure that employees are not
harassed because of their veteran status.
Undertake appropriate outreach and positive recruitment
activities reasonably designed to effectively recruit protected
veterans, document and assess these activities on an annual basis, and
disseminate its affirmative action policy to all subcontractors.
Develop procedures and practices to disseminate
affirmative action policies internally.
Establish an audit and reporting system to measure the
effectiveness of the AAP.
Collect and maintain certain applicant and hiring data.
Designate a responsible official to implement and oversee
the AAP.
Section 60-300.45 requires contractors to either adopt the national
hiring benchmark published on OFCCP's Web site or establish their own
hiring benchmark at each establishment for protected veterans using
five factors.\16\
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\16\ 41 CFR 60-300.45.
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Section 60-300.60 identifies the methods OFCCP uses to assess
contractors' compliance with the agency's regulations during a
compliance evaluation. These methods range from an in-depth
comprehensive evaluation of the contractor's employment practices
(e.g., a compliance review) to determination of whether the contractor
maintained records consistent with section 60-300.80 (e.g. a
``compliance check). Evaluation of compliance with VEVRAA
[[Page 52049]]
is concurrent with evaluation of the contractor's compliance with
Executive Order 11246.
Detailed instructions for the development of a VEVRAA AAP are in
Subpart C of 41 CFR Part 60-300.
c. Section 503 Regulations
41 CFR Part 60-741
OFCCP recently revised its regulations implementing Section 503,
which are found at 41 CFR 60-741 and address the affirmative action and
nondiscrimination obligations of contractors and subcontractors related
to individuals with disabilities. It defines coverage, specifies
clauses to be included in contracts, provides a procedure to ensure
compliance by covered contractors, specifies certain reporting and
recordkeeping requirements, establishes an aspirational utilization
goal of 7 percent, and specifies the basic requirements for AAPs under
Section 503.
Section 60-741.5 describes the equal opportunity clause in Federal
contracts.
Section 60-741.40 requires the development and maintenance of a
Section 503 AAP. This regulation requires each contractor and
subcontractor that has 50 or more employees, and a contract of $50,000
or more to implement the requirements of Subpart C of these regulations
including inviting applicants and employees to self-identify and
developing an AAP for each establishment.
Section 60-741.42 requires contractors to invite applicants to
voluntarily self-identify as an individual with a disability at the
pre-offer and post-offer stage of the employment process. Additionally,
it requires contractors to invite employees in the first year of
becoming subject to these requirements and at five year intervals
thereafter to invite employees to voluntarily inform the contractor
whether the employee believes that he or she is an individual with a
disability.
Section 60-741.44 identifies required elements of an AAP, including
those listed below.
Develop and include an equal opportunity policy statement
in the AAP.
Review personnel processes to ensure that qualified
individuals with disabilities are provided equal opportunity.
Review all physical and mental job qualification standards
to ensure that those that screen out qualified individuals with
disabilities on the basis of disability are job-related and are based
on business necessity.
Provide reasonable accommodations for physical and mental
limitations.
Develop procedures to ensure that employees are not
harassed because of their disability.
Undertake appropriate outreach and positive recruitment
activities reasonably designed to effectively recruit individuals with
disabilities, document and assess these activities on an annual basis,
and disseminate its affirmative action policy to all subcontractors.
Develop procedures and practices to disseminate
affirmative action policies internally.
Establish an audit and reporting system to measure the
effectiveness of the AAP.
Collect and maintain certain applicant and hiring data.
Designate a responsible official to implement and oversee
the AAP.
Section 60-741.45 requires contractors to apply a 7 percent
utilization goal to each of their job groups or to their entire
workforce if the contractor has 100 or fewer employees.
Section 60-741.60 identifies the methods OFCCP uses to assess
contractors' compliance with the agency's regulations during compliance
evaluations. These methods range from an in-depth comprehensive
evaluation of contractors' employment practices (e.g., a compliance
review) to determination of whether the contractor maintained records
consistent with section 60-741.80 (e.g. a ``compliance check'').
Evaluation of compliance with Section 503 is concurrent with evaluation
of contractors' compliance with Executive Order 11246.
Detailed instructions for the development of a Section 503 AAP are
in Subpart C of 41 CFR Part 60-741.
2. Use of Materials
EEO-1 Report Data \17\
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\17\ 41 CFR 60-1.7--Reports and other required information.
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The Joint Reporting Committee, comprised of OFCCP and EEOC,
promulgates the EEO-1 Report. Employers use the EEO-1 Report ``Question
3'' to self-identify as contractors and subcontractors and indicate
whether they meet the 50 employees and $50,000 contract value threshold
for AAP coverage. In construction evaluations, OFCCP uses the report to
assess contractors' equal employment opportunity trends.
Should EEO-1 Report data become unavailable or become inadequate
for the agency's purpose, OFCCP would identify and obtain alternative
sources of information.
Notice of Requirement for Affirmative Action to Ensure Equal Employment
Opportunity--41 CFR 60-4.2
This requirement ensures that all construction contractors and
subcontractors are aware of the affirmative action requirements and
obligations in the solicitation for offers and bids on all Federal and
federally assisted construction projects. Without this notification,
construction contractors and subcontractors may not be fully aware of
their obligations before they develop their bids and proposals.
Further, the required notice of subcontract awards provides OFCCP with
accurate and current information regarding which employers are working
on Federal contracts. This information serves two purposes: first, to
identify those construction employers that would benefit from technical
assistance; and second, to contribute to the formulation of OFCCP's
pool for selecting construction contractors for compliance evaluations.
Standard Federal Equal Employment Opportunity Construction Contract
Specifications--41 CFR 60-4.3
The 16 affirmative action specifications are contractors' plan for
ensuring nondiscrimination and equal employment opportunity. The
required activities relate to monitoring the work environment, outreach
and recruitment, training, equal employment opportunity policies,
selection and testing procedures, promotion practices, nonsegregated
facilities, supervisor performance, and subcontracting. The
recordkeeping requirements associated with executing the specifications
are critical to the final evaluation and assessment of a contractor's
compliance.
During a compliance evaluation, OFCCP examines contractors'
compliance with the 16 specifications, supporting documentation,
compensation data, and documents related to personnel actions,
employment policies and practices to determine whether the contractor
is complying with its obligations not to discriminate in employment and
to take affirmative action to ensure equal employment opportunity.
Section 503 and VEVRAA AAPs \18\
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\18\ Contractors with 50 or more employees and a contract of
$50,000 or more are required to develop Section 503 AAP. Contractors
with more than 50 employees and a contract of $100,000 or more are
required to develop VEVRAA AAPs. This requirement does not apply to
federally assisted construction contractors or subcontractors.
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Sections 60-741.44 and 60-300.44 describe the required contents of
each
[[Page 52050]]
contractor's written AAPs under Section 503 and VEVRAA, respectively.
During a compliance evaluation, OFCCP reviews contractors' AAPs to
determine whether each contractor is complying with its obligations of
nondiscrimination and affirmative action to ensure equal employment
opportunity. This evaluation entails examination of various support
documentation including:
Assessments of personal processes under 41 CFR 60-
741.44(b) and 60-300.44(b);
assessments of physical and mental job qualification
standards under 41 CFR 60-741.44(c) and 60-300.44(c);
results of evaluation of the effectiveness of outreach and
recruitment efforts under 41 CFR 741.44(f) and 60-300.44(f);
records of activities to comply with audit and reporting
system requirements under 41 CFR 60-741.44(h) and 60-300.44(h);
details of computations and calculations contained in the
data collection analysis under 41 CFR 60-741.44(k) and 60-300.44(k);
utilization analysis evaluating the representation of
individuals with disabilities in each job group or, if appropriate,
evaluating the representation of individuals with disabilities in the
workforce as a whole, as provided in 41 CFR 60-741.45; and
documentation of the hiring benchmark adopted, including
the methodology used to establish it if using the five factor approach,
as described in 41 CFR 60-300.45.
3. Improved Information Technology
In general, under OFCCP regulations each contractor develops its
own methods for collecting support data, developing and maintaining
information. Contractors are free to use whatever methods best suit
their needs as long as they can retrieve and provide OFCCP with the
data required by the agency's regulations.
The vast majority of Federal contractors and subcontractors are
repeat contractors. Since they are subject to OFCCP's regulatory
requirements year after year, most have developed their information
technology systems to generate the data required by OFCCP regulations.
Information technology systems used to comply with data
requirements under OFCCP's regulations should be capable of:
Monitoring hours worked on construction projects,
facilitating calculation of utilization,
collecting employment activity data (for example:
applicants, hires, promotions, and terminations) related to EO 11246,
and if applicable, Section 503 and VEVRAA,
conducting Section 503 utilization analysis,
analyzing outreach and recruitment,
tracking self-identification,
disseminating EO policies,
providing notice to subcontractors and vendors, and
facilitating calculation of the annual VEVRAA hiring
benchmark.
In addition, OFCCP provides compliance assistance to all
contractors, including smaller contractors, by leveraging information
technology. For example, OFCCP's Web site provides wider access to
compliance resources and information, including:
Webinar trainings on a variety of compliance related
topics found at www.dol.gov/ofccp
Small Business Guide at http://www.dol.gov/ofccp/TAguides/sbguide.htm
New Contractors' Guide at http://www.dol.gov/ofccp/TAguides/new_contractors_guide.htm
2006-2010 EEO Tabulation available at http://www.census.gov/people/eeotabulation/data/eeotables20062010.html
Contractors' VEVRAA Hiring Benchmark Database projected in
Q2 of FY2014
Employment Resource Referral Directory at http://www.dol-esa.gov/errd/index.html
OFCCP believes that advances in technology make contractor
compliance with the recordkeeping and reporting requirements easier and
less burdensome. However, in the absence of empirical data, OFCCP is
unable to quantify the impact of improved information technology.
Accordingly, OFCCP does not include it in the calculation of burden
hours.
Pursuant to the Government Paperwork Elimination Act (GPEA, P.L.
105-277, 1998), by October 2003, Government agencies must generally
provide the option of using and accepting electronic documents and
signatures, and electronic recordkeeping, where practicable. OFCCP
fulfills its GPEA requirements by permitting electronic transmission,
via email or computer disk, of contractors' documentation.
4. Description of Efforts To Identify Duplication
The reporting and recordkeeping requirements in this request result
exclusively from the implementation of EO 11246, Section 503, and
VEVRAA. These authorities uniquely empower the Secretary of Labor, and
by a Secretary's Order, the OFCCP, to require the collection, analysis,
and reporting of data and other information in connection with the
enforcement of the laws and regulations requiring Government
contractors to take affirmative action to ensure equal employment
opportunity. No duplication of effort exists because no other
Government agencies have these specific data collection requirements.
Where possible, OFCCP participates in information sharing and
standardized requirements. Examples are OFCCP's joint collaboration on
and use of EEOC's EEO-1 Report, and OFCCP's use of UGESP created with
EEOC, OPM, DOJ and DOL. See Part 60-3.
While contractors maintain other employment data as a normal course
of business, the 16 construction affirmative action specifications are
unique in that contractors engage in specific activity to comply with
the requirements of OFCCP regulations. This documentation is not
available from any other source.
5. Collection by Small Organizations
OFCCP believes that its information collection does not have a
significant economic impact on a substantial number of small entities.
Generally for the purposes of identifying small business entities,
OFCCP has determined that entities with fewer than 500 employees are
small entities. Thus in making this determination, OFCCP compared the
number of small business entities involved in construction to its
construction contractor universe. Based on U.S. Census data there are
657,364 small construction firms that employ fewer than 500 people.
Based on the May 2014 SAM data, there are 49,385 Federal construction
contractors with fewer than 500 employees. Thus, comparing the number
of small Federal contractors to the number of small construction
contractor firms, OFCCP estimates that this ICR impacts approximately
7.5 percent of small construction firms.
OFCCP then examined the economic impact of the ICR. The estimated
cost of the ICR is $499 per contractor.\19\ OFCCP compared the cost of
the ICR to the receipts from the U.S. Census Bureau's Statistics of
U.S. Businesses for the North American Industry Classification System
Code 23, disaggregated by firm size. In comparing the average annual
[[Page 52051]]
receipts ($50,246) of the smallest construction firms, those firms with
receipts below $100,000, OFCCP determined that this ICR would account
for less than one percent of the average annual receipts. Thus OFCCP
believes that this ICR will not have a significant impact on small
construction firms.\20\
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\19\ This estimate of $499 includes the costs of recordkeeping,
reporting, and operations and maintenance.
\20\ The average annual receipts for firms with sales/receipts/
revenues below $100,000 is $50,246. Therefore, comparing the cost of
the ICR, $499 to the average annual receipts equals 0.0993 ($499/
$50,246 = 0.0993).
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6. Consequences for Federal Programs if This Information Is Collected
Less Frequently
Less frequent collection could negatively affect civil rights
enforcement activities because the data should reflect the contractor's
existing workforce. Current information is imperative if OFCCP's
compliance officers are to accurately assess contractors' good faith
efforts to employ a diverse workforce relative to the demographics of
the local population. Likewise, less frequent collection could
undermine the success of a Federal contractor's affirmative action
activities because the demographics of their workforce would not be
reported. As a result, contractors' efforts to recruit, hire, and
retain minority and female employees may be inadequate or misdirected.
More current data therefore allows contractors to make more efficient
use of the resources it employs to satisfy outreach and recruitment
obligations.
For construction contractors that file EEO-1 Reports annually, less
frequent collection could negatively affect OFCCP's civil rights
enforcement activities because the agency would no longer have access
to the most current data. As mentioned previously, EEO-1 data underpins
our analyses of employment trends and patterns. Presently, data
resulting from annual filing of the EEO-1 Report is one year old by the
time OFCCP receives it; it can be 2 years old by the time OFCCP obtains
new or updated data. If OFCCP allows contractors to file EEO-1 Reports
in alternate years, the agency would receive and use data that is
between two to four years old. The older the data the greater the
chances are that more qualified workers may be victims of
discrimination and that the discrimination continues for a longer
period. A consequence may be that make whole remedies and the overall
burden of contractor compliance are greater.\21\
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\21\ A victim of employment discrimination may be entitled to a
remedy that places him or her in the position he or she would have
been in if the discrimination had not occurred. This may mean that
the victim may be entitled to hiring, promotion, reinstatement, back
pay, a pay raise, or reasonable accommodation, including
reassignment. OFCCP does not recover punitive damages.
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7. Special Circumstances for the Collection of Information
Section 41 CFR 60-4.3(a)7.d requires contractors to immediately
notify OFCCP's Director in writing when the union or unions with which
a specific contractor has a collective bargaining agreement has not
referred a woman or minority individual that was sent by that
contractor. Similarly, contractors must notify OFCCP when they have
information that the union referral process has impeded contractors'
efforts to meet the obligations under these regulations.
This requirement is necessitated by Section 207 of EO 11246.
Pursuant to this section, OFCCP is required to take action to ensure
that any union or other agency referring workers on Federal contracts
cooperates with the implementation of the Order. Further, when
appropriate, OFCCP must notify the EEOC, DOJ, or other appropriate
Federal agencies whenever it has reason to believe that the practices
of any such labor organization or agency violate Title VI or Title VII
of the Civil Rights Act of 1964 or other provision of Federal law.
In order to comply with the requirements of EO 11246, OFCCP must
receive timely notice when unions are not referring women or minority
individuals sent by contractors.
8. Consultation Outside the Agency
All OFCCP ICRs containing recordkeeping or reporting requirements
are published in the Federal Register for public comment before agency
adoption. This ICR is being published for comment and all comments
received will be addressed in this section.
9. Gift Giving
OFCCP provides neither payments nor gifts to respondents.
10. Assurance of Confidentiality
Contractors who submit the required information during a compliance
evaluation may view it as extremely sensitive information. OFCCP will
evaluate all information pursuant to the public inspection and
disclosure provisions of the Freedom of Information Act (FOIA), 5
U.S.C. 552, and the Department of Labor's implementing regulations at
29 CFR Part 70. OFCCP requires that contractors whose records are the
subject of FOIA disclosure requests be notified in writing and that
OFCCP make no decision to disclose information until contractors
affected by the FOIA request have an opportunity to submit objections
to the release of the information.
Furthermore, it is OFCCP's position that it does not release any
data obtained during the course of compliance evaluations until the
matters are completed.
11. Sensitive Questions
Generally, OFCCP does not collect information of a personal nature,
such as marital status, religious beliefs, or other matters commonly
considered private during the course of its compliance evaluations.
Where allegations of employment discrimination are present, such
evidence may become relevant. Under such circumstances, OFCCP may seek
evidence concerning the attitudes or biases of selecting officials
regarding race, sex, color, religion, national origin, disability or
veteran status, as appropriate. OFCCP has no set of standardized
questions and the gathering of such data is unique to each
investigation.
OFCCP regulations require contractors to list employees and
applicants by sex and by race or ethnicity in their employment activity
data (see 41 CFR 60-1.12(c), 60-3.4, and 60-3.15). Contractors and the
government require race, sex, and ethnicity data to evaluate the
results of contractors' affirmative action efforts. Data are also
required to investigate for indicators of potential employment
discrimination. No equal employment opportunity program could operate
without such data. Generally, contractors inform their employees that
they collect and maintain race, sex, and ethnicity data strictly for
purposes of meeting their nondiscrimination and affirmative action
obligations.
A separate ICR covers employee complaint investigations approved by
the OMB under OMB No. 1250-0002--``Complaint of Discrimination in
Employment Under Federal Government Contracts'' (Form CC-4). Form CC-4
requires a description of an individual's disability, if disability
discrimination is alleged. Consequently, OFCCP considers this a
sensitive question. The disability information is necessary to
establish jurisdiction under Section 503 of the Rehabilitation Act of
1973, as amended. As noted in number 10 above, OFCCP assures compliance
with the Privacy Act of 1974.
[[Page 52052]]
12. Estimate of Information Collection Burden
The following is a summary of the methodology used by OFCCP for the
calculation of the recordkeeping, reporting, and third party disclosure
burden requirements for OFCCP's construction ICR.
a. Recordkeeping Burden
OFCCP's regulations impose a recordkeeping burden for developing,
updating, and maintaining documentation and records related to
contractors' efforts to comply with OFCCP's regulations. The below
calculations of hours for each requirement is based on information
provided by OFCCP field staff.
(1) Equal Opportunity Clause
Section 60-1.4(a)(7) requires all covered construction contractors
to include the equal opportunity (EO) clause in all nonexempt
subcontracts. The EO clause may be incorporated by reference or
operation \22\ into subcontracts, thus there is no burden associated
with this requirement.
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\22\ 41 CFR 60-1.4(d) and 1.4(e).
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(2) Uniform Guidelines on Employee Selection Procedures
Four Federal agencies, in addition to OFCCP, use UGESP. However,
nearly all of the burden hours are associated with the EEOC, OFCCP, and
DOJ; the fourth agency, OPM, assumes little if any burden related to
the collection and retrieval of employment data required under UGESP.
The EEOC, under OMB Number 3046-0017, accounts for all employers
with 15 or more employees. Federal construction contractors with 1-14
employees are subject to OFCCP's recordkeeping requirements. Based on
information in the SAM, OFCCP estimates that there are 29,642
construction contractors that employ between 1 and 14 employees; OFCCP
estimates that, on average, contractors expend 2.18 hours meeting this
obligation. Therefore, OFCCP believes that the burden for this
provision is 64,620 hours (29,642 contractors x 2.18 hours = 64,620
hours)
(3) Solicitations
Section 60-4.2 requires all contracting officers, applicants for
construction contracts, and covered nonconstruction contractors to
include the ``Notice of Requirement for Affirmative Action to Ensure
Equal Employment Opportunity'' set forth in section 4.2 in all
solicitations for offers and bids on all Federal and federally assisted
construction contracts or subcontracts. This clause is incorporated by
operation of the order, thus there is no burden associated with its
incorporation.\23\
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\23\ 41 CFR 60-4.9.
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(4) Maintenance of Documentation
Section 60-4.3(a)7 requires contractors to maintain records and
documentation demonstrating efforts to comply with the 16 affirmative
action specifications. The requirements and estimated hours of burden
are detailed in numbers (5) through (19) below.
(5) Ensure Work Environment Free of Harassment
Section 4.3(a)7.a requires contractors to maintain a work
environment free of harassment, intimidation, and coercion. In doing
this, contractors are required to ensure that supervisory staff are
aware of and carry out contractors' obligations. Burden hours
associated with supervisor training and evaluation are included in
numbers (11) and (20) below. Thus, there is no burden associated with
this requirement.
(6) Develop, Maintain and Use a List of Recruitment Resources
Section 4.3(a)7.b requires contractors to develop and maintain
current lists of minority and female recruitment sources, provide
written notification to these sources when a contractor or its unions
have employment opportunities, and maintain records of the
notification. OFCCP estimates that for first-time contractors it takes
0.33 hours (20 minutes) to identify and establish a list of sources.
OFCCP also estimates that it takes 0.17 hours (10 minutes) for existing
contractors to maintain their list. Based on its experience, OFCCP
assumes that 1 percent of its universe is first-time contractors and 99
percent are existing contractors. Thus, the burden for developing and
maintaining a current list of sources is estimated as 8,997 hours ((.33
hours x 524 first time contractors = 173 hours) + (.17 hours x 51,905
existing contractors = 8,824)).
In addition, OFCCP estimates it takes 0.25 hours (15 minutes) to
notify the sources on the list when opportunities occur and 0.08 hours
(5 minutes) to maintain records of the notifications. Thus, OFCCP
estimates the burden for notification and maintaining documentation is
17,302 hours (.33 hours x 52,429 contractors).
In sum, OFCCP estimates the total burden hours for complying with
this requirement (including developing and maintaining the list of
sources, contacting the sources, and maintaining copies of the notices
sent) at 26,299 hours (8,997 hours + 17,302 hours).
(7) Maintain Current Files of Minority and Female Applicants
Section 4.3(a)7.c requires contractors to maintain a current file
of minority and female applicants and referrals from all sources and to
document in the file the actions taken with respect to each individual.
OFCCP estimates it takes 0.25 hours (15 minutes) to maintain the file.
Therefore, OFCCP estimates the burden for this requirement is 13,107
hours (0.25 hours x 52,429 contractors).
Additionally, OFCCP estimates that, on average, contractors take no
more than 0.17 hours (10 minutes) for each applicant and make no more
than 10 decisions annually. Therefore, OFCCP estimates 89,129 hours
(.17 hours x 10 decisions x 52,429 contractors) to comply with this
requirement.
OFCCP estimates the total burden hours for complying with this
requirement is 102,236 hours (13,107 hours + 89,129 hours).
(8) Notify OFCCP's Director
Section 4.3(a)7.d requires contractors to notify OFCCP's Director
in writing when the union or unions with which any contractor has a
collective bargaining agreement has not referred a minority or female
applicant that was sent by the contractor. Similarly, contractors must
notify OFCCP's Director if any contractor has information that the
union is impeding its efforts to meet the obligations of these
requirements. OFCCP receives very few such requests, thus it estimates
the total burden for such a request to as 10 hours, which includes both
the recordkeeping and the reporting.
(9) Develop On the Job Training
Section 4.3(a)7.e requires contractors to develop on the job
training opportunities or participate in training programs for the job
areas which expressly include minorities and women. In addition,
contractors must provide notice of these opportunities and job programs
to its recruitment sources, state employment offices, and other
referral sources that have been compiled under 41 CFR 60-4.3(a)7.b.
OFCCP estimates the burden hours associated with documenting the
development of training programs or enrolling minorities and women in
existing training programs is 0.75 hours (45 minutes). OFCCP estimates
the burden associated with maintaining records of employees'
participation in training is 0.25 hours (15 minutes). Additionally,
OFCCP estimates that maintaining records of contributions to
[[Page 52053]]
training programs takes 0.25 hours (15 minutes). Therefore, OFCCP
estimates the hours associated with this burden as 65,536 hours (1.25
hours x 52,429 contractors).
(10) Disseminate EEO Policy Statement to Unions and Training Programs
Section 4.3(a)7.f requires contractors to broadly disseminate its
EEO policy statement, including, but not limited to: Sending it to
unions and training programs; publishing it in policy manuals; and
including it in collective bargaining agreements. It also requires
contractors to review the EEO policy with all management and minority
and female employees, and to post it for all employees.
In estimating the burden, OFCCP believes that first-time
contractors make up 1 percent of the construction contractor universe
(524 contractors). OFCCP estimates it would take 0.33 hours (20
minutes) for a first time contractor to develop an EEO policy
statement. OFCCP believes existing contractors require 0.17 hours (10
minutes) to review and update their existing EEO policy statement.
Thus, OFCCP estimates 8997 hours ((.33 hours x 524 first time
contractors = 173 hours) + (.17 hours x 51,905 existing contractors =
8,824 hours)) for contractors to either update or develop an EEO policy
statement.
OFCCP estimates it will take 0.25 hours (15 minutes) for first-time
contractors to incorporate the policy statement into employee handbooks
and policy manuals. Therefore it estimates the burden of this
requirement as 131 hours (0.25 hours x 524 first-time contractors). In
addition, OFCCP estimates it will take 0.25 hours for all contractors
to provide notification to unions and other recruitment sources. Thus
the burden of notification is 13,107 hours (0.25 hours x 52,429
contractors).
OFCCP estimates it will take 0.5 hours (30 minutes) for all
contractors to document the discussion of the policy with employees and
its internal posting. Thus OFCCP estimates the burden of this
requirement to be 26,215 hours (0.5 hours x 52,429 contractors).
In sum, OFCCP estimates the total burden for this provision to be
48,450 hours (8,997 + 131 + 13,107 + 26,215).
(11) Review EEO Policy Annually with Employees Having Hiring
Responsibilities
Section 4.3(a)7.g requires contractors annually to review the EEO
policy with all employees having hiring responsibilities for personnel
activities (e.g., hiring, promotion, termination, lay-off, etc.). OFCCP
estimates it will take an average of 2 hours to develop, deliver and
document the annual training. Thus, OFCCP estimates the burden to be
104,858 hours (2 hours x 52,429 contractors).
(12) Disseminate EEO Policy Externally
Section 4.3(a)7.h requires contractors to disseminate EEO policy
statements in advertisements in the news media and to other contractor
and subcontractors. OFCCP estimates it will take all contractors 0.5
hours to develop correspondence and send it. Thus, OFCCP estimates the
burden for this requirement to be 26,215 hours (0.5 hours x 52,429
contractors).
(13) Direct Recruitment Efforts to Community Organizations and Schools
Section 4.3(a)7.i requires contractors to direct its recruitment
efforts to community organizations and schools with minority and female
participants and students. Actions associated with this requirement are
accounted for in the burden assessment for section 41 CFR 60-4.3(a)7.b.
Therefore, OFCCP estimates no additional burden for this requirement.
(14) Encourage Employee Referrals
Section 4.3(a)7.j requires contractors to encourage current
minority and female employees to recruit other minority and female
employees. It also requires contractors, where reasonable, to provide
summer and afterschool employment to minority and females. OFCCP
estimates that it takes contractors 0.25 hours to comply with this
requirement. Thus, the burden estimate is 13,107 hours (0.25 hours x
52,429 contractors).
(15) Validate Tests
Section 4.3(a)7.k requires contractors to comply with the UGESP
requirements. As explained above, the burden associated with complying
with the UGESP burden is assumed under OMB Number 3046-0017 for
contractors with 15 or more employees. Further, OFCCP accounts for
employers with 1 to 14 employees it its calculation of UGESP burden
found in this ICR at Item number 12a(2). Thus there is no additional
assessment of burden for this requirement.
(16) Conduct an Annual Inventory of Employees
Section 4.3(a)7.l requires contractors to conduct an annual
inventory of minority and female employees for promotional and
developmental opportunities. OFCCP estimates it takes 0.5 hours to
conduct the assessment and maintain documentation. Thus, the burden
estimate for this requirement is 26,215 hours (0.5 hours x 52,429
contractors).
(17) Ensure Personnel Practices Do Not Have a Discriminatory Effect
Section 4.3(a)7.m requires contractors to ensure that its personnel
practices (e.g., seniority, job classifications, work assignments,
etc.) do not have a discriminatory effect. OFCCP estimates that on
average contractors spend 0.5 hours (30 minutes) documenting its
activities that comply with this requirement. Thus, the burden estimate
for this requirement is 26,215 hours (0.5 hours x 52,429 contractors).
(18) Ensure Facilities Are Not Segregated
Section 4.3(a)7.n requires contractors to ensure that its
facilities are non-segregated. The exception is the provision for
separate or single user toilet and changing facilities to provide
privacy between the sexes. OFCCP estimates it takes contractors 0.25
hours (15 minutes) to maintain material evidence of compliance with
this requirement. Thus OFCCP estimates the burden as 13,107 hours (0.25
hours x 52,429 contractors).
(19) Document and Maintain a Record of All Solicitations of Offers for
Subcontractors
Section 4.3(a)7.o requires contractors to maintain documentation of
all solicitations and offers from minority and female construction
contractors or suppliers. OFCCP estimates that it takes 0.5 hours (30
minutes) to maintain a file of documentation that includes all
solicitation and offers as required. Thus OFCCP estimates the burden as
26,215 hours (0.5 hours x 52,429 contractors).
(20) Evaluate Supervisor Performance
Section 4.3(a)7.p requires contractors to evaluate annually the
performance of its supervisory personnel on their performance under the
EEO and affirmative action requirements of these specifications. OFCCP
estimates that, on average, it takes contractors 0.75 hours (45
minutes) to compile written evidence that supervisory personnel have
been notified regarding their performance with regard to each
contractor's EEO and affirmative action obligations. Thus, OFCCP
estimates the burden as 39,322 hours (.75 hours x 52,429 contractors).
(21) Hometown Plans
Sections 4.4 and 4.5 detail the requirements of contractors that
participate in approved Hometown
[[Page 52054]]
Plans. OFCCP no longer approves Hometown Plans, thus no burden is
assessed for this provision.
Recordkeeping Total
The table below summarizes the recordkeeping burden hours.
------------------------------------------------------------------------
Hours Item
------------------------------------------------------------------------
0 EO Clause
64,620 UGESP Recordkeeping
0 Solicitation
554,099 16 Affirmative Action Provisions
0 Hometown Plans
----------
618,719 Total Recordkeeping Burden
------------------------------------------------------------------------
OFCCP estimates the combined recordkeeping burden for compliance
with the construction requirements of EO 11246 as 618,719 hours, or
approximately 12 hours per contractor.\24\
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\24\ Per contractor burden is determined by dividing the total
hours (631,826) by the construction contractor universe of 52,429.
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b. Reporting Burden
OFCCP's reporting burden for construction contractors, as detailed
below, includes providing notification of subcontract awards, filing
EEO-1 Reports, providing documentation during compliance evaluations,
notifying the OFCCP Director as prescribed at 41 CFR 60-4.3(a)7.d, and
a third party reporting provision.
(1) Notification of Subcontract Awards
Subsection 60-4.2(d)3 requires contracting officers, applicants for
construction contracts, covered nonconstruction contractors, and
Federal construction contractors to notify OFCCP within 10 working days
of awards of covered contracts and subcontract awards in excess of
$10,000. OFCCP estimates it would take 0.5 hours (or 30 minutes) to
identify the needed information, develop it, and send the notification
to OFCCP. Using data from USASpending.gov to further inform OFCCP's
estimate of burden, OFCCP determined that there are 63,411 Federal
construction contracts and 8,309 federally assisted grants awarded
annually on average.\25\ Thus, there are approximately 71,720 prime
construction contract awards. There is no reliable source of data for
subcontract awards; absent hard data, OFCCP estimates there are
approximately 4 subcontracts for each prime contract award, and thus
OFCCP estimates that there are 286,880 notifications (71,720
construction contracts x 4 notifications) sent annually. To determine
the average number of notifications sent by each contractor, OFCCP
divided 286,880 notifications by the contractor universe of 52,429,
which results in an average of roughly five notifications sent to OFCCP
annually. Thus, the estimated burden associated with this requirement
is 131,073 hours (0.5 hours x 5 notifications annually x 52,429
contractors).
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\25\ OMB established USA Spending as a single searchable Web
site of Federal spending activities accessible to the public. The
Web site details information on individual awards of federal monies
including contracts and grants. The average construction contracts
are based on fiscal years 2010 through 2012 (65,964 + 65,136 +
59,134) divided by 3. The average federal assistance was based on an
examination of each agencies individual list of grants for the same
period of time (7,612 + 8,189 + 9,127), identifying the number of
grants that are described as construction, repair, and remediation.
Thus the number is approximated as not all agencies provide complete
descriptions of the funded work.
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(2) EEO-1 Reports
Construction contractors with 50 or more employees and a contract
of $50,000 or more are required to file EEO-1 Reports with the Joint
Reporting Committee. The burden associated with this Information
Collection, submitted by EEOC, is approved under OMB No. 3046-0007.
Therefore, OFCCP does not assess burden for this requirement as a part
of this ICR.
(3) Compliance Evaluations
Section 60-1.20 describes OFCCP's compliance evaluation process.
During compliance evaluations of construction contractors, OFCCP does
not request documentation when scheduling the evaluation. Rather, the
evaluation is scheduled and documents and information are gathered
during the onsite investigation. Although OFCCP believes that this
request for documentation would be considered exempt from the
requirements of the Paperwork Reduction Act of 1995 (see 44 U.S.C.
3518), it estimates burden for contractors analyzing requests for
information (1 hour) and retrieving documents (2 hours).\26\ Thus,
OFCCP estimates the reporting burden during a compliance evaluation as
3 hours. OFCCP further asserts that it has conducted, on average, 498
compliance evaluations annually.\27\ Therefore, OFCCP estimates the
burden associated with this reporting requirement as 1,494 hours (3
hours x 498 compliance evaluations).
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\26\ The two hours includes retrieval of Section 503 and VEVRAA
AAPs if the contractor scheduled has more than 50 employees and a
direct contract of $50,000 or more for the Section 503 AAP and a
direct contract of $100,000 or more for the VEVRAA AAP.
\27\ OFCCP averaged the number of construction compliance
evaluations during fiscal years 2010 through 2013 (515,550,511, and
414) to determine the number of construction compliance evaluations.
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(4) Notifying OFCCP's Director
Section 4.3(a)7.d requires contractors to notify OFCCP's Director
in writing if the union or unions with which any contractor has a
collective bargaining agreement are impeding a contractor's efforts to
comply with the requirements. Based on OFCCP's experiences with this
provision, it estimates a total of an additional 10 hours burden for
compliance.
c. Third Party Disclosure
OFCCP's third party disclosure burden hours are based on 41 CFR 60-
1.4(a)(3), 60-300.5(a)10, and 60-741.5(a)5, which require contractors
to notify its labor organizations that it must comply with EO 11246,
VEVRAA, and Section 503, respectively. Contractors may notify the
organizations by mail, telephone, facsimile, or email. Assuming it
takes 30 minutes to compose and 30 minutes to distribute written
notification by mail to its labor organizations, OFCCP estimates an
average of 1 hour per contractor, or 52,429 hours for notifying labor
organizations. This is almost certainly an overestimation because it
assumes that all contractors are a party to a collective bargaining
agreement and further assumes they would use mail distribution, which
takes longer than electronic distribution.
Reporting and Third Party Disclosure Total
------------------------------------------------------------------------
Hours Item
------------------------------------------------------------------------
131,073 Notification of Subcontract Award
0 EEO-1 Reporting
1,494 Compliance Evaluations
10 Notifying OFCCP's Director
52,429 Third Party Disclosure
----------
185,006 Total Reporting Burden
------------------------------------------------------------------------
OFCCP estimates that the combined reporting and third party
disclosure provisions of the construction ICR are 185,006 hours, or
approximately 4 hours per contractor.
Summary of Recordkeeping, Reporting and Third Party Disclosure
The table below shows the sum of OFCCP's estimate of recordkeeping,
reporting and third party disclosure burden for its construction ICR.
------------------------------------------------------------------------
Total
618,719 Recordkeeping
Burden Hours
---------------------------------------------------- ------------------------
618, 719 Total Recordkeeping Burden Hours
132,577 Total Reporting Burden Hours
----------
[[Page 52055]]
52,429 Total Third Party Disclosure Burden Hours
803,725 Total Recordkeeping, Reporting, and Third
Party Disclosure Burden Hours
------------------------------------------------------------------------
d. Annualized Cost of Burden Hours to Contractors
The contractors' estimated annualized cost is based on Bureau of
Labor Statistics data in the publication, ``Employer Costs for Employee
Compensation''--December 2013, which lists total compensation
(including wages and benefits) for management, professional, and
related occupations as $51.58 per hour and administrative support as
$24.23 per hour. Based on OFCCP's experience conducting compliance
evaluations, OFCCP estimates that 30 percent of the burden hours will
be management, professional, and related occupations (Mgmt. Prof.) and
70 percent will be administrative support (Adm. Supp.).\28\ OFCCP has
calculated the total estimated annualized cost as follows:
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\28\ Generally construction companies are small and the
recordkeeping activities are performed by administrative support
staff. Management involvement occurs as oversight to recordkeeping
activities and during compliance evaluations (reporting). Thus, 30
percent of the total hour calculation (performed by management level
employees) is 245,050 hours, and 70 percent is 571,782 hours.
Mgmt. Prof.: 803,725 hours x .30 x $51.58 = $12,436,841
Adm. Supp.: 803,725 hours x .70 x $24.23 = $13,631,980
Total annualized cost estimate = $26,068,820
Estimated average cost per contractor is: $26,068,820/52,429, or
$497.
13. Annual Operations and Maintenance Cost Burden to Respondents
OFCCP estimates that contractors will have operations and
maintenance costs associated with this collection. Those costs are
associated with the notification of subcontract awards, notifying
OFCCP's Director, and the third party disclosure.
OFCCP estimates that the notifications will be sent by United
States Postal Service (USPS) and email. Based on its experience, OFCCP
receives approximately 50 percent of its notices by email and 50
percent by USPS. There are no mailing costs associated with email
transmissions. The table below shows the operations and maintenance
cost for those contractors that use USPS to send their notifications.
----------------------------------------------------------------------------------------------------------------
Number of
Activity transmissions Postage
----------------------------------------------------------------------------------------------------------------
Notice of Subcontract Awards........................... 143,440 0.49 $70,286
(286,880 x .50)
Notice to OFCCP Director............................... 1 0.49 $0.49
(1 x .50)
Third party Disclosure................................. 26,215 0.49 $12,845
(52,429 x .50)
--------------------------------------------------------
Total.............................................. ................. ................. $83,131
----------------------------------------------------------------------------------------------------------------
The total estimated costs would be $83,131, or approximately $2 per
contractor.
14. Estimate of Cost to the Federal Government
OFCCP has estimated the cost to the Government as follows:
30 Hours per compliance evaluation... x 498 Compliance = 14,940 Hours
Evaluations
-------------------------------
TOTAL HOURS 14,940
OFCCP estimates the hourly rate at $33.30 (GS-12, step 1), annual
salary of $69,497, based on the Office of Personnel Management's 2014
Salary Table for the Rest of the U.S. consisting of the portions of the
lower 48 United States not located within another locality pay area as
defined by the Office of Personnel Management. The total cost would be
$33.30 per hour x 14,940 hours = $497,502. This dollar amount is part
of the normal cost of OFCCP's enforcement work at the field level.
15. Changes in Burden Hours
a. Recordkeeping Burden Hours
The previous submission in 2011 included 1,324,660 hours for
recordkeeping. The current request is for 618,719 hours. This decrease
of 705,941 hours in the recordkeeping burden is due to a decrease in
the number of covered contractors in the universe. Specifically, OFCCP
estimates that its universe decreased by 23,267 Federal construction
contractor respondents.
b. Reporting Burden Hours
The previous submission in 2011 included 1,660 hours for reporting.
The current request is for 132,577 hours, an increase of 130,917 hours.
This increase is related to OFCCP revising its calculation related to
the burden hours associated with contractors complying with the
notification of subcontract awards found at 41 CFR 60-4.2(c).
c. Third Party Disclosure Burden Hours
The previous submission in 2011 included no hours for third party
disclosure. The current request is for 52,429 hours. This increase of
52,429 hours in the third party disclosure hours is due to recognition
that the third party disclosure is not the same notification as found
in 41 CFR 60-4.3(a)7.f.
16. Statistical Uses and Publication of Data
OFCCP does not publish the data collected by way of the items
contained in this request as statistical tables.
17. Approval Not To Display the Expiration Date
OFCCP is not seeking such approval.
[[Page 52056]]
18. Exceptions to the Certification Statement
OFCCP is able to certify compliance with all provisions.
B. Collections of Information Employing Statistical Methods
This information collection does not employ statistical methods.
[FR Doc. 2014-20711 Filed 8-29-14; 8:45 am]
BILLING CODE 4510-45-P