Purported Information Collection Burden (Supporting Statement pages 14-16)
OFCCP based its reporting burden calculations on the 9,982 construction contractors it says are subject to its regulatory requirements. The agency asserts that these almost 10,000 contractors would have no additional recordkeeping burden requirements associated with this CC-257 Information Collection proposal since the CC-257 Report is already covered in OFCCP’s November 2022 construction Information Collection proposal known as OMB 1250-0001. See page 15, second sentence from the top, of OFCCP’s Supporting Statement.
Editor’s Note: OMB Information Request Control Number 1250-0001 does not, however, require (or even speak to) construction contractor collection of construction employee work hours by race, sex, and national origin, or by trade (journeyman, etc.), or contractor reporting of same to OFCCP or any other federal agency, or to a CC-257 Report. To discover the OFCCP Federal Register Notice supporting and explaining OFCCP’s request to OMB in OMB Control Number 1250-0001(the OFCCP Information Collection Request OFCCP believes ALSO authorized—in 2022—the agency’s currently proposed use of the CC-257 file):
- click on the above link (to OMB Control Number 1250-0001) which will take you to what OMB calls an “Abstract” (which is a summary dashboard chart in electronic form which houses “check boxes” you may click on to activate links to many other documents in the OMB file);
- then click on the box allowing the link to expand and further report “FR Notices/Comments;”
- then review the bottom of the page reporting both of OFCCP’s Federal Register Notices explaining its 2022 request for OMB approval of OMB Control Number 1250-0001;
- then copy and paste the latest Federal Register Notice page number (85 FR 68933: the so-called “60-day” Notice) into your Internet browser to connect to the 2022 two-page Federal Register Notice of interest. (Or you may just click on the link we provide below in the next paragraph for convenience).
Rather than for OFCCP to have already obtained OMB approval to seek hours-worked reports parsed by race/sex/national origin and trades classifications, as OFCCP asserts, OMB 1250-0001 merely approved an OFCCP request to continue to be allowed to impose burdens on covered federal Government construction contractors to report what OFCCP described in its October 30, 2020 Federal Register “Notice” at 85 FR 68933-34 as follows:
“OFCCP seeks to renew its existing Construction Contract Award Notification Form (Form CC–314) and introduce a new batch upload feature that would enable the submission of multiple notifications at once. Additionally, the instruments associated with Collection 1250–0011 (Construction Compliance Check Letters) have been moved to this collection to centralize the recordkeeping and reporting burden of the two ICRs.”
As a result, OFCCP does not project ANY additional burden hours for covered federal Government construction contractors to comply with OFCCP’s CC-257 reporting requirement, if approved, other than the time (OFCCP estimates to be 1.5 hours) to submit the monthly reports.
Specifically, the OFCCP estimates it would take 1.5 hours to identify the needed information and send the notification to OFCCP. Therefore, OFCCP estimates this reporting burden (collectively, across almost 10,000 covered federal Government construction contractors and “subcontractors”) at 179,676 hours (9,982 contractors x 1.5 hours x 12 monthly reports). It estimates a total annual cost to covered federal Government construction contractors of $13,675,140 (over $13 Million Dollars) (179,676 hours x $76.11) associated with these requirements.
OFCCP’s Supporting Statement (pages 15 – 17) estimates a total annual operating cost of $24,914 ($16,769 (to copy and print @20 cents/page) + $8,145 (annual mailing costs)).
Editor’s Note: What OFCCP has confused is its Rules at 41 CFR Section 60-1.12(c)(1) which require contractors, including construction contractors, to keep records by “gender, race, and ethnicity of each employee” on the one hand and the burden to respond to OFCCP’s demand that contractors submit CC-257 Reports containing information taken from those records and arrayed in a unique format OFCCP has prescribed in its revised CC-257 reporting form.
So, here is a unique case in which OFCCP has the ostensible legal authority pursuant to its Rules to require a report like a CC-257 report, but ALSO must obtain permission from OMB pursuant to its authority to deny regulatory burdens pursuant to the Paperwork Reduction Act (“PRA”). A critical element of an OMB PRA review, however, is the projected cost burdens for the regulated community to comply with the agency’s proposal. And, by submitting cost burden estimates only to mail in copies, e-mail in PDFs, or fax in PDFs, or electronically submit the proposed information OFCCP seeks to collect, the agency has completely ignored the ADDITIONAL costs for the contractor (beyond just transmitting the data) to:
- design a monthly data collection system based on the data parameters OFCCP’s CC-257 report will require, including division of and reporting of the data by “trade” and sorted and collectively reported by race, sex, and national origin;
- collect the responsive data via either or both electronic and/or paper reporting systems;
- array each month the responsive data in the precise format of OFCCP’s CC-257 Report;
- report forward the responsive data from all job sites in the company to a central reporting point within the company; and
- quality control check the responsive data to ensure that the company’s CC-257 reports are complete and accurate.
OFCCP’s proposal to OMB is written as though contractors have data lying in their paper and electronic files formatted to the coming CC-257 Report and ready just to scoop up and shovel into a box to be mailed to OFCCP or put into high-speed imaging equipment for fax or e-mail delivery to OFCCP, or collected via computer programming code which does not exist for electronic transmission each month to OFCCP.
Here is what 41 CFR Section 60-1.12(c)(1) says exactly:
“(c) Contractor identification of record.
- For any record the contractor maintains pursuant to this section, the contractor must be able to identify:
- The gender, race, and ethnicity of each employee; and….”
This Rule merely says that the contractor must be able to “identify” gender, race, and “ethnicity” for each of its employees but does not prescribe how, let alone prescribe a report to be prepared, let alone monthly, in the format of the CC-257 report. That is where OMB’s PRA and burden authority comes in. So, OFCCP’s burden hour projections are woefully incomplete to allow OMB to properly assess the costs and measure them against the benefit to OFCCP using a further burdened report that four prior Administrations (including two Democrat Administrations: Clinton & Obama) deemed unnecessary and too expensive. OFCCP’s proposal will be a subject of great concern to the construction contractor community.