Notice of Request Under the Freedom of Information Act for Federal Contractors' Type 2 Consolidated EEO-1 Report Data, 51145-51147 [2022-17882]

Download as PDF lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 87, No. 160 / Friday, August 19, 2022 / Notices Submitted comments will also be a matter of public record for this ICR and posted on the internet, without redaction. DOL encourages commenters not to include personally identifiable information, confidential business data, or other sensitive statements/ information in any comments. DOL is particularly interested in comments that: • Evaluate whether the proposed collection of information is necessary for the proper performance of the 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 submission of responses). Agency: DOL–ETA. Type of Review: Revision. Title of Collection: Required Elements for Submission of the Unified or Combined State Plan and Plan Modifications under the Workforce Innovation and Opportunity Act. Form: N/A. OMB Control Number: 1205–0522. Affected Public: State, Local, and Tribal Governments. Estimated Number of Respondents: 38. Frequency: Once. Total Estimated Annual Responses: 38. Estimated Average Time per Response: 215 hours. Estimated Total Annual Burden Hours: 8170 hours. Total Estimated Annual Other Cost Burden: $0. Authority: 44 U.S.C. 3506(c)(2)(A). Brent Parton, Acting Assistant Secretary for Employment and Training, Labor. [FR Doc. 2022–17903 Filed 8–18–22; 8:45 am] BILLING CODE 4510–FN–P VerDate Sep<11>2014 18:26 Aug 18, 2022 Jkt 256001 DEPARTMENT OF LABOR Office of Federal Contract Compliance Programs Notice of Request Under the Freedom of Information Act for Federal Contractors’ Type 2 Consolidated EEO–1 Report Data Office of Federal Contract Compliance Programs, Labor. ACTION: Notice. AGENCY: The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has received a request under the Freedom of Information Act (FOIA) from Will Evans of the Center for Investigative Reporting (CIR) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO–1 Report), filed by federal contractors from 2016–2020. OFCCP has reason to believe that the information requested may be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial information, but has not yet determined whether the requested information is protected from disclosure under that exemption. OFCCP is requesting that entities that filed Type 2 Consolidated EEO–1 Reports as federal contractors at any time from 2016–2020, and object to the disclosure of this information, submit those objections to OFCCP within 30 days of the date of this Notice. DATES: Written objections to the FOIA request discussed herein are due September 19, 2022. FOR FURTHER INFORMATION CONTACT: Candice Spalding, Deputy Director, Division of Management and Administrative Programs, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW, Room C– 3325, Washington, DC 20210. Telephone: 1–855–680–0971 (voice) or 1–877 –889–5627 (TTY). SUPPLEMENTARY INFORMATION: SUMMARY: Background A. Background on the CIR FOIA Request and EEO–1 Reports The FOIA request precipitating this Notice originated in January 2019, when Will Evans of CIR submitted a request for ‘‘[a] spreadsheet of all consolidated (Type 2) EEO–1 reports for all federal contractors for 2016.’’ CIR subsequently amended this request multiple times, most recently on June 2, 2022, to include Type 2 EEO–1 reports for all federal contractors, including first-tier subcontractors, from 2016–2020 (hereinafter ‘‘Covered Contractors’’). The Type 2 EEO–1 report is one of PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 51145 several different types of reports that multi-establishment employers must file annually, which consists of a consolidated report of demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category. Title VII of the Civil Rights Act of 1964 provides statutory authority for the EEO–1 Reports. The Equal Employment Opportunity Commission (EEOC) enforces this employment nondiscrimination law. 42 U.S.C. 2000e8(c). The EEOC’s regulations require employers with 100 or more employees to file the EEO–1 Report with the EEOC. 29 CFR 1602.7. In addition, OFCCP’s regulations require federal contractors 1 and first-tier subcontractors that are covered by Executive Order 11246 and that have 50 or more employees to file the EEO–1 Report. 41 CFR 60–1.7(a). The EEO–1 Report ‘‘is administered as a single data collection to meet the statistical needs of both agencies [EEOC and OFCCP].’’ See EEOC, Agency Information Collection Activities: Revision of the Employer Information Report (EEO–1) and Comment Request, 81 FR 5113, 5114 (Feb. 1, 2016) (hereinafter First PRA Comment Request). OFCCP’s regulations describe the EEO–1 Report as being ‘‘promulgated jointly . . . [with] the Equal Employment Opportunity Commission.’’ 41 CFR 60–1.7(a)(1); see also EEO–1 Joint Reporting Committee, EEO–1 Instruction Booklet 1, https:// www.eeoc.gov/employers/eeo1survey/ upload/instructions_form.pdf (describing the EEO–1 Report as ‘‘jointly developed by the EEOC and OFCCP’’). The EEO–1 Report is administered by the EEO–1 Joint Reporting Committee (JRC), which is composed of the EEOC and OFCCP and housed at the EEOC. EEOC, Agency Information Collection Activities: Notice of Submission for OMB Review, Final Comment Request: Revision of the Employer Information Report (EEO–1), 81 FR 45479, 45481 (July 14, 2016); First PRA Comment Request, 81 FR at 5113–14. Although the EEOC and OFCCP jointly collect the EEO–1 data through the JRC, as a practical matter, because the JRC is housed at the EEOC, employers submit their data to the EEOC.2 See First 1 Hereinafter, all references to ‘‘contractors’’ or ‘‘federal contractors’’ includes first-tier subcontractors as well, unless specified otherwise. 2 The EEOC maintains a web-based portal for employers’ submission of the EEO–1 Report at https://www.eeoc.gov/employers/eeo1survey/ index.cfm. At present, employers submit their Component 1 data through the existing EEOC portal but submit their Component 2 data through a separate filing system at https:// eeoccomp2.norc.org/. E:\FR\FM\19AUN1.SGM 19AUN1 51146 Federal Register / Vol. 87, No. 160 / Friday, August 19, 2022 / Notices lotter on DSK11XQN23PROD with NOTICES1 Comment Request, 81 FR at 5118. After the JRC at the EEOC has collected and reconciled the EEO–1 data, the JRC provides the EEO–1 data of federal contractors to OFCCP. Section 709(e) of Title VII of the Civil Rights Act of 1964 imposes criminal penalties and makes it unlawful for any officer or employee of EEOC from making public the employment data derived from any of its compliance surveys prior to the institution of any proceeding under EEOC’s authority involving such information. However, this Title VII prohibition against disclosure applies by its terms only to officers and employees of EEOC, and reviewing courts have held that the provision does not apply to OFCCP. See 42 U.S.C. 2000e–8(e); Sears, Roebuck & Co. v. General Services Admin., 509 F.2d 527, 529 (D.C. Cir. 1974). Accordingly, the EEO-1 data of federal contractors received by OFCCP are subject to the provisions of FOIA, meaning that members of the public may file FOIA requests asking OFCCP to disclose such records in its possession. B. Legal Authorities Governing FOIA Requests for Potentially Commercial Confidential Information Executive Order 12600 (E.O. 12600), published on June 23, 1987, established a formal process for notifying persons who submit confidential commercial information to the United States when that information becomes the subject of a FOIA request. 3 CFR 235 (1988), reprinted in 5 U.S.C. 552 note (2012 & supp. V 2017). Exemption 4 to the FOIA protects against the disclosure of ‘‘trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.’’ 5 U.S.C. 552(b)(4). E.O. 12600 is based on the principle that companies are entitled to notification and an opportunity to object to disclosure of this category of information before an agency makes a possible disclosure determination. The Department’s regulations implementing E.O. 12600 can be found at 29 CFR 70.26. These regulations require the agency to notify submitters of a FOIA request when it has reason to believe that the information requested may be protected from disclosure under Exemption 4, but has not yet made a determination. 29 CFR 70.26(d)(2). Further, the Department’s regulations provide that when notification of a voluminous number of submitters is required, notice can be effectuated by posting and publishing it ‘‘in a place reasonably calculated to accomplish notification.’’ Id. at 70.26(j). Given OFCCP’s best estimate that the CIR VerDate Sep<11>2014 18:26 Aug 18, 2022 Jkt 256001 FOIA request covers approximately 15,000 unique Covered Contractors, OFCCP is fulfilling its notification obligation through this Federal Register notice, a contemporaneous posting on the OFCCP website [INSERT LINK], and notification to all federal contractors and federal contractor representatives that have registered and provided electronic mail contact information through the agency’s Contractor Portal and/or have subscribed to OFCCP’s GovDelivery electronic mail listserv. Once notified, the Department’s regulations state that submitters will be provided a reasonable time to respond to the notice. Id. at 70.26(e). If a submitter has any objection to disclosure, it is ‘‘required to submit a detailed written statement as to why the information is a trade secret or commercial or financial information that is privileged or confidential.’’ Id. If the agency receives a timely written objection, it will give careful consideration to the objection prior to making a decision whether the requested information should be disclosed or withheld under FOIA Exemption 4. Exec. Order No. 12,600, § 5. If the agency determines that disclosure is appropriate notwithstanding the submitter’s objection, the agency will provide the submitter written notice of the reason for the decision, and a specified disclosure date that is a reasonable time subsequent to the notice. 29 CFR 70.26(f). Two recent court decisions may be helpful for Covered Contractors to consider in determining whether information may be withheld under Exemption 4. In Food Marketing Institute v. Argus Leader Media, 139 S.Ct. 2356 (2019), the Supreme Court addressed the meaning of the word ‘‘confidential’’ in the context of FOIA Exemption 4. The Supreme Court held that the term ‘‘confidential,’’ which is undefined in the FOIA statute, should follow the term’s ‘‘ordinary, contemporary, common meaning’’ at the time Congress enacted FOIA in 1966. The Court went on to state that ‘‘[t]he term ‘confidential’ meant then, as it does now, ‘private’ or ‘secret.’ ’’ Id. at 2363. Following the Court’s decision, the U.S. Department of Justice issued step-by-step guidance for Federal agencies to determine whether commercial or financial information provided by a person is ‘‘confidential’’ under Exemption 4. U.S. Department of Justice, Step-By-Step Guide for Determining if Commercial or Financial Information Obtained from a Person is Confidential Under Exemption 4 of the FOIA, last updated Oct. 7, 2019 PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 (available at https://www.justice.gov/ oip/step-step-guide-determining-ifcommercial-or-financial-informationobtained-person-confidential). The other relevant court decision arose in the course of previous litigation between the Department and CIR. In Center for Investigative Reporting v. U.S. Dep’t of Labor, 424 F. Supp. 3d 771 (N.D. Cal. 2019), the district court addressed whether Type 2 Consolidated EEO–1 Reports of 10 federal contractors could be withheld under FOIA Exemption 4. After reviewing the evidence before it, including an extended discussion of declarations from several of the objecting submitters, many of which the court described as ‘‘conclusory’’ and containing ‘‘verbatim rationale,’’ the district court held that the evidence did not support a finding that the EEO–1 reports were commercial, and thus the 10 Type 2 EEO–1 Reports at issue could not be withheld under FOIA Exemption 4. Id. at 778–79.3 Process for Submitting Objections to the CIR FOIA Request Consistent with Executive Order 12600 and the Department’s regulations, OFCCP is hereby notifying Covered Contractors of the CIR FOIA request. Covered Contractors have 30 days from the date of this Notice, or September 19, 2022, to submit to OFCCP a written objection to the disclosure of its Type 2 EEO–1 data. Written objections must be received by OFCCP no later than this date. To facilitate this process, OFCCP has created a web form through which Covered Contractors may submit written objections, which can be found at https://www.dol.gov/agencies/ofccp/ submitter-notice-response-portal. OFCCP strongly encourages Covered Contractors that wish to submit written objections to utilize this web form to facilitate processing. Contractors may also submit written objections via email at OFCCPSubmitterResponse@dol.gov, or by mail to the contact provided in this notice. Regardless of the delivery system used, any objections filed by Covered Contractors must include the contractor’s name, address, contact 3 Following the district court’s decision, one of the submitters attempted to intervene in the matter and appeal the decision to the Court of Appeals for the Ninth Circuit. However, the Ninth Circuit explicitly did not reach the merits of the district court decision regarding FOIA Exemption 4, ultimately dismissing the appeal because the attempted intervenor ‘‘did not file a timely notice of appeal of the judgment in favor of CIR’’ and thus concluding that ‘‘[w]e therefore lack jurisdiction to hear the merits of that appeal.’’ Evans v. Synopsis, 34 F.4th 762 (9th Cir. 2022). Accordingly, the district court decision remains the only case explicitly addressing the ‘‘commerciality’’ of EEO– 1 Report data. E:\FR\FM\19AUN1.SGM 19AUN1 Federal Register / Vol. 87, No. 160 / Friday, August 19, 2022 / Notices lotter on DSK11XQN23PROD with NOTICES1 information for the contractor (or its representative), and should, at minimum, address the following questions in detail so that OFCCP may evaluate the objection to determine whether the information should be withheld or disclosed pursuant to FOIA Exemption 4: 1. What specific information from the EEO–1 Report does the contractor consider to be a trade secret or commercial or financial information? 2. What facts support the contractor’s belief that this information is commercial or financial in nature? 3. Does the contractor customarily keep the requested information private or closely-held? What steps have been taken by the contractor to protect the confidentiality of the requested data, and to whom has it been disclosed? 4. Does the contractor contend that the government provided an express or implied assurance of confidentiality? If no, were there express or implied indications at the time the information was submitted that the government would publicly disclose the information? 5. How would disclosure of this information harm an interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor’s economic or business interests)? In the event that a Covered Contractor fails to respond to the notice within the time specified, it will be considered to have no objection to disclosure of the information. See 29 CFR 70.26(e). For Covered Contractors that do submit timely objections, OFCCP will independently evaluate the objection(s) submitted consistent with the agency’s regulations described herein and other relevant legal authority. If OFCCP determines to disclose the information over the objection of the Covered Contractor, OFCCP will provide written notice to the Covered Contractor of the reasons the disclosure objections were not sustained, a description of the information that will be disclosed, and a specified disclosure date that is a reasonable time subsequent to the notice. Id. at 70.26(f). Jenny R. Yang, Director, Office of Federal Contract Compliance Programs. [FR Doc. 2022–17882 Filed 8–18–22; 8:45 am] BILLING CODE 4510–CM–P VerDate Sep<11>2014 18:26 Aug 18, 2022 Jkt 256001 DEPARTMENT OF LABOR Agency Information Collection Activities; Submission for OMB Review; Comment Request; Prohibited Transaction Exemption for Securities Lending by Employee Benefit Plans Notice of availability; request for comments. ACTION: The Department of Labor (DOL) is submitting this Employee Benefits Security Administration (EBSA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited. DATES: The OMB will consider all written comments that the agency receives on or before September 19, 2022. SUMMARY: Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to www.reginfo.gov/public/do/ PRAMain. Find this particular information collection by selecting ‘‘Currently under 30-day Review—Open for Public Comments’’ or by using the search function. Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) if the information will be processed and used in a timely manner; (3) the accuracy of the agency’s estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology. FOR FURTHER INFORMATION CONTACT: Mara Blumenthal by telephone at 202– 693–8538, or by email at DOL_PRA_ PUBLIC@dol.gov. SUPPLEMENTARY INFORMATION: In 1981 and 1982, the Department issued two related prohibited transaction class exemptions that permit employee benefit plans to lend securities owned by the plans as investments to banks and broker-dealers and to make compensation arrangements for lending services provided by a plan fiduciary in connection with securities loans. In ADDRESSES: PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 51147 2006, the Department promulgated a final class exemption, PTE 2006–16, which amended and replaced the exemptions previously provided under PTE 81–6 and PTE 82–63. The final exemption incorporated the exemptions into one renumbered exemption and expanded the categories of exempted transactions to include securities lending to foreign banks and foreign broker-dealers that are domiciled in specified countries and to allow the use of additional forms of collateral, all subject to specified conditions outlined in the exemption. Among other conditions, the exemption requires a bank or broker-dealer that borrows securities from a plan to comply with certain recordkeeping and disclosure requirements. For additional substantive information about this ICR, see the related notice published in the Federal Register on March 17, 2022 (87 FR 15267). This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number. See 5 CFR 1320.5(a) and 1320.6. DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review. Agency: DOL–EBSA. Title of Collection: Prohibited Transaction Exemption for Securities Lending by Employee Benefit Plans. OMB Control Number: 1210–0065. Affected Public: Private Sector— Businesses or other for-profits and notfor-profit institutions. Total Estimated Number of Respondents: 182. Total Estimated Number of Responses: 1,820. Total Estimated Annual Time Burden: 349 hours. Total Estimated Annual Other Costs Burden: $18,191. (Authority: 44 U.S.C. 3507(a)(1)(D)) E:\FR\FM\19AUN1.SGM 19AUN1

Agencies

[Federal Register Volume 87, Number 160 (Friday, August 19, 2022)]
[Notices]
[Pages 51145-51147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17882]


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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs


Notice of Request Under the Freedom of Information Act for 
Federal Contractors' Type 2 Consolidated EEO-1 Report Data

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Notice.

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SUMMARY: The U.S. Department of Labor's Office of Federal Contract 
Compliance Programs (OFCCP) has received a request under the Freedom of 
Information Act (FOIA) from Will Evans of the Center for Investigative 
Reporting (CIR) for all Type 2 Consolidated Employer Information 
Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors 
from 2016-2020. OFCCP has reason to believe that the information 
requested may be protected from disclosure under FOIA Exemption 4, 
which protects disclosure of confidential commercial information, but 
has not yet determined whether the requested information is protected 
from disclosure under that exemption. OFCCP is requesting that entities 
that filed Type 2 Consolidated EEO-1 Reports as federal contractors at 
any time from 2016-2020, and object to the disclosure of this 
information, submit those objections to OFCCP within 30 days of the 
date of this Notice.

DATES: Written objections to the FOIA request discussed herein are due 
September 19, 2022.

FOR FURTHER INFORMATION CONTACT: Candice Spalding, Deputy Director, 
Division of Management and Administrative Programs, Office of Federal 
Contract Compliance Programs, 200 Constitution Avenue NW, Room C-3325, 
Washington, DC 20210. Telephone: 1-855-680-0971 (voice) or 1-877 -889-
5627 (TTY).

SUPPLEMENTARY INFORMATION: 

Background

A. Background on the CIR FOIA Request and EEO-1 Reports

    The FOIA request precipitating this Notice originated in January 
2019, when Will Evans of CIR submitted a request for ``[a] spreadsheet 
of all consolidated (Type 2) EEO-1 reports for all federal contractors 
for 2016.'' CIR subsequently amended this request multiple times, most 
recently on June 2, 2022, to include Type 2 EEO-1 reports for all 
federal contractors, including first-tier subcontractors, from 2016-
2020 (hereinafter ``Covered Contractors''). The Type 2 EEO-1 report is 
one of several different types of reports that multi-establishment 
employers must file annually, which consists of a consolidated report 
of demographic data for all employees at headquarters as well as all 
establishments, categorized by race/ethnicity, sex, and job category.
    Title VII of the Civil Rights Act of 1964 provides statutory 
authority for the EEO-1 Reports. The Equal Employment Opportunity 
Commission (EEOC) enforces this employment nondiscrimination law. 42 
U.S.C. 2000e-8(c). The EEOC's regulations require employers with 100 or 
more employees to file the EEO-1 Report with the EEOC. 29 CFR 1602.7. 
In addition, OFCCP's regulations require federal contractors \1\ and 
first-tier subcontractors that are covered by Executive Order 11246 and 
that have 50 or more employees to file the EEO-1 Report. 41 CFR 60-
1.7(a).
---------------------------------------------------------------------------

    \1\ Hereinafter, all references to ``contractors'' or ``federal 
contractors'' includes first-tier subcontractors as well, unless 
specified otherwise.
---------------------------------------------------------------------------

    The EEO-1 Report ``is administered as a single data collection to 
meet the statistical needs of both agencies [EEOC and OFCCP].'' See 
EEOC, Agency Information Collection Activities: Revision of the 
Employer Information Report (EEO-1) and Comment Request, 81 FR 5113, 
5114 (Feb. 1, 2016) (hereinafter First PRA Comment Request). OFCCP's 
regulations describe the EEO-1 Report as being ``promulgated jointly . 
. . [with] the Equal Employment Opportunity Commission.'' 41 CFR 60-
1.7(a)(1); see also EEO-1 Joint Reporting Committee, EEO-1 Instruction 
Booklet 1, https://www.eeoc.gov/employers/eeo1survey/upload/instructions_form.pdf (describing the EEO-1 Report as ``jointly 
developed by the EEOC and OFCCP''). The EEO-1 Report is administered by 
the EEO-1 Joint Reporting Committee (JRC), which is composed of the 
EEOC and OFCCP and housed at the EEOC. EEOC, Agency Information 
Collection Activities: Notice of Submission for OMB Review, Final 
Comment Request: Revision of the Employer Information Report (EEO-1), 
81 FR 45479, 45481 (July 14, 2016); First PRA Comment Request, 81 FR at 
5113-14. Although the EEOC and OFCCP jointly collect the EEO-1 data 
through the JRC, as a practical matter, because the JRC is housed at 
the EEOC, employers submit their data to the EEOC.\2\ See First

[[Page 51146]]

Comment Request, 81 FR at 5118. After the JRC at the EEOC has collected 
and reconciled the EEO-1 data, the JRC provides the EEO-1 data of 
federal contractors to OFCCP.
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    \2\ The EEOC maintains a web-based portal for employers' 
submission of the EEO-1 Report at https://www.eeoc.gov/employers/eeo1survey/index.cfm. At present, employers submit their Component 1 
data through the existing EEOC portal but submit their Component 2 
data through a separate filing system at https://eeoccomp2.norc.org/.
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    Section 709(e) of Title VII of the Civil Rights Act of 1964 imposes 
criminal penalties and makes it unlawful for any officer or employee of 
EEOC from making public the employment data derived from any of its 
compliance surveys prior to the institution of any proceeding under 
EEOC's authority involving such information. However, this Title VII 
prohibition against disclosure applies by its terms only to officers 
and employees of EEOC, and reviewing courts have held that the 
provision does not apply to OFCCP. See 42 U.S.C. 2000e-8(e); Sears, 
Roebuck & Co. v. General Services Admin., 509 F.2d 527, 529 (D.C. Cir. 
1974). Accordingly, the EEO[hyphen]1 data of federal contractors 
received by OFCCP are subject to the provisions of FOIA, meaning that 
members of the public may file FOIA requests asking OFCCP to disclose 
such records in its possession.

B. Legal Authorities Governing FOIA Requests for Potentially Commercial 
Confidential Information

    Executive Order 12600 (E.O. 12600), published on June 23, 1987, 
established a formal process for notifying persons who submit 
confidential commercial information to the United States when that 
information becomes the subject of a FOIA request. 3 CFR 235 (1988), 
reprinted in 5 U.S.C. 552 note (2012 & supp. V 2017). Exemption 4 to 
the FOIA protects against the disclosure of ``trade secrets and 
commercial or financial information obtained from a person [that is] 
privileged or confidential.'' 5 U.S.C. 552(b)(4). E.O. 12600 is based 
on the principle that companies are entitled to notification and an 
opportunity to object to disclosure of this category of information 
before an agency makes a possible disclosure determination.
    The Department's regulations implementing E.O. 12600 can be found 
at 29 CFR 70.26. These regulations require the agency to notify 
submitters of a FOIA request when it has reason to believe that the 
information requested may be protected from disclosure under Exemption 
4, but has not yet made a determination. 29 CFR 70.26(d)(2). Further, 
the Department's regulations provide that when notification of a 
voluminous number of submitters is required, notice can be effectuated 
by posting and publishing it ``in a place reasonably calculated to 
accomplish notification.'' Id. at 70.26(j). Given OFCCP's best estimate 
that the CIR FOIA request covers approximately 15,000 unique Covered 
Contractors, OFCCP is fulfilling its notification obligation through 
this Federal Register notice, a contemporaneous posting on the OFCCP 
website [INSERT LINK], and notification to all federal contractors and 
federal contractor representatives that have registered and provided 
electronic mail contact information through the agency's Contractor 
Portal and/or have subscribed to OFCCP's GovDelivery electronic mail 
listserv.
    Once notified, the Department's regulations state that submitters 
will be provided a reasonable time to respond to the notice. Id. at 
70.26(e). If a submitter has any objection to disclosure, it is 
``required to submit a detailed written statement as to why the 
information is a trade secret or commercial or financial information 
that is privileged or confidential.'' Id. If the agency receives a 
timely written objection, it will give careful consideration to the 
objection prior to making a decision whether the requested information 
should be disclosed or withheld under FOIA Exemption 4. Exec. Order No. 
12,600, Sec.  5. If the agency determines that disclosure is 
appropriate notwithstanding the submitter's objection, the agency will 
provide the submitter written notice of the reason for the decision, 
and a specified disclosure date that is a reasonable time subsequent to 
the notice. 29 CFR 70.26(f).
    Two recent court decisions may be helpful for Covered Contractors 
to consider in determining whether information may be withheld under 
Exemption 4. In Food Marketing Institute v. Argus Leader Media, 139 
S.Ct. 2356 (2019), the Supreme Court addressed the meaning of the word 
``confidential'' in the context of FOIA Exemption 4. The Supreme Court 
held that the term ``confidential,'' which is undefined in the FOIA 
statute, should follow the term's ``ordinary, contemporary, common 
meaning'' at the time Congress enacted FOIA in 1966. The Court went on 
to state that ``[t]he term `confidential' meant then, as it does now, 
`private' or `secret.' '' Id. at 2363. Following the Court's decision, 
the U.S. Department of Justice issued step-by-step guidance for Federal 
agencies to determine whether commercial or financial information 
provided by a person is ``confidential'' under Exemption 4. U.S. 
Department of Justice, Step-By-Step Guide for Determining if Commercial 
or Financial Information Obtained from a Person is Confidential Under 
Exemption 4 of the FOIA, last updated Oct. 7, 2019 (available at 
https://www.justice.gov/oip/step-step-guide-determining-if-commercial-or-financial-information-obtained-person-confidential).
    The other relevant court decision arose in the course of previous 
litigation between the Department and CIR. In Center for Investigative 
Reporting v. U.S. Dep't of Labor, 424 F. Supp. 3d 771 (N.D. Cal. 2019), 
the district court addressed whether Type 2 Consolidated EEO-1 Reports 
of 10 federal contractors could be withheld under FOIA Exemption 4. 
After reviewing the evidence before it, including an extended 
discussion of declarations from several of the objecting submitters, 
many of which the court described as ``conclusory'' and containing 
``verbatim rationale,'' the district court held that the evidence did 
not support a finding that the EEO-1 reports were commercial, and thus 
the 10 Type 2 EEO-1 Reports at issue could not be withheld under FOIA 
Exemption 4. Id. at 778-79.\3\
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    \3\ Following the district court's decision, one of the 
submitters attempted to intervene in the matter and appeal the 
decision to the Court of Appeals for the Ninth Circuit. However, the 
Ninth Circuit explicitly did not reach the merits of the district 
court decision regarding FOIA Exemption 4, ultimately dismissing the 
appeal because the attempted intervenor ``did not file a timely 
notice of appeal of the judgment in favor of CIR'' and thus 
concluding that ``[w]e therefore lack jurisdiction to hear the 
merits of that appeal.'' Evans v. Synopsis, 34 F.4th 762 (9th Cir. 
2022). Accordingly, the district court decision remains the only 
case explicitly addressing the ``commerciality'' of EEO-1 Report 
data.
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Process for Submitting Objections to the CIR FOIA Request

    Consistent with Executive Order 12600 and the Department's 
regulations, OFCCP is hereby notifying Covered Contractors of the CIR 
FOIA request. Covered Contractors have 30 days from the date of this 
Notice, or September 19, 2022, to submit to OFCCP a written objection 
to the disclosure of its Type 2 EEO-1 data. Written objections must be 
received by OFCCP no later than this date. To facilitate this process, 
OFCCP has created a web form through which Covered Contractors may 
submit written objections, which can be found at https://www.dol.gov/agencies/ofccp/submitter-notice-response-portal. OFCCP strongly 
encourages Covered Contractors that wish to submit written objections 
to utilize this web form to facilitate processing. Contractors may also 
submit written objections via email at [email protected], 
or by mail to the contact provided in this notice. Regardless of the 
delivery system used, any objections filed by Covered Contractors must 
include the contractor's name, address, contact

[[Page 51147]]

information for the contractor (or its representative), and should, at 
minimum, address the following questions in detail so that OFCCP may 
evaluate the objection to determine whether the information should be 
withheld or disclosed pursuant to FOIA Exemption 4:
    1. What specific information from the EEO-1 Report does the 
contractor consider to be a trade secret or commercial or financial 
information?
    2. What facts support the contractor's belief that this information 
is commercial or financial in nature?
    3. Does the contractor customarily keep the requested information 
private or closely-held? What steps have been taken by the contractor 
to protect the confidentiality of the requested data, and to whom has 
it been disclosed?
    4. Does the contractor contend that the government provided an 
express or implied assurance of confidentiality? If no, were there 
express or implied indications at the time the information was 
submitted that the government would publicly disclose the information?
    5. How would disclosure of this information harm an interest of the 
contractor protected by Exemption 4 (such as by causing foreseeable 
harm to the contractor's economic or business interests)?
    In the event that a Covered Contractor fails to respond to the 
notice within the time specified, it will be considered to have no 
objection to disclosure of the information. See 29 CFR 70.26(e). For 
Covered Contractors that do submit timely objections, OFCCP will 
independently evaluate the objection(s) submitted consistent with the 
agency's regulations described herein and other relevant legal 
authority. If OFCCP determines to disclose the information over the 
objection of the Covered Contractor, OFCCP will provide written notice 
to the Covered Contractor of the reasons the disclosure objections were 
not sustained, a description of the information that will be disclosed, 
and a specified disclosure date that is a reasonable time subsequent to 
the notice. Id. at 70.26(f).

Jenny R. Yang,
Director, Office of Federal Contract Compliance Programs.
[FR Doc. 2022-17882 Filed 8-18-22; 8:45 am]
BILLING CODE 4510-CM-P

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