Proposed Collection; Comment Request, 31777-31780 [2020-11259]

Agencies

• FEDERAL HOUSING FINANCE AGENCY

[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: https://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 
https://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