[Federal Register Volume 76, Number 18 (Thursday, January 27, 2011)]
[Notices]
[Pages 4901-4904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1752]


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GENERAL SERVICES ADMINISTRATION

[OMB Control No. 3090-0292; Docket No. 2010-0002; Sequence 18]


Submission for OMB Review; OMB Control No. 3090-0292; FFATA 
Subaward and Executive Compensation Reporting Requirements

AGENCY: Office of Technology Strategy/Office of Governmentwide Policy, 
General Services Administration (GSA).

ACTION: Notice of request for public comments regarding a new OMB 
information clearance.

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SUMMARY: Under the provisions of the Paperwork Reduction Act of 1995 
(44 U.S.C. chapter 35), the Regulatory Secretariat will be submitting 
to the Office of Management and Budget (OMB) a request to review and 
approve an emergency new information collection requirement regarding 
FFATA Subaward and Executive Compensation Reporting Requirements.
    Public comments are particularly invited on: Whether this 
collection of information is necessary for the proper performance of 
functions of the FFATA Subaward and Executive Compensation Reporting 
Requirements, whether it will have practical utility; whether our 
estimate of the public burden of this collection of information is 
accurate, and based on valid assumptions and methodology; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways in which we can minimize the burden of the 
collection of information on those who are to respond, through the use 
of appropriate technological collection techniques or other forms of 
information technology.

DATES: Submit comments on or before February 28, 2011.

ADDRESSES: Submit comments identified by Information Collection 3090-
0292, FFATA Subaward and Executive Compensation Reporting Requirements 
by any of the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by inputting ``Information 
Collection 3090-0292, FFATA Subaward and Executive Compensation 
Reporting Requirements'' under the heading ``Enter Keyword or ID'' and 
selecting ``Search''. Select the link ``Submit a Comment'' that 
corresponds with ``Information Collection 3090-0292, FFATA Subaward and 
Executive Compensation Reporting Requirements''. Follow the 
instructions provided at the ``Submit a Comment'' screen. Please 
include your name, company name (if any), and ``Information Collection 
3090-0292, FFATA Subaward and Executive Compensation Reporting 
Requirements'' on your attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), 1275 First Street, NE., Washington, DC 20417. ATTN: 
Hada Flowers/IC 3090-0292.
    Instructions: Please submit comments only and cite Information 
Collection 3090-0292, FFATA Subaward and Executive Compensation 
Reporting Requirements, in all correspondence related to this 
collection. All comments received will be posted without change to 
http://www.regulations.gov, including any personal and/or business 
confidential information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Janice Miller, Program Analyst, 
Office of Technology Strategy/Office of Governmentwide Policy, GSA, at 
[email protected].

SUPPLEMENTARY INFORMATION:

A. Purpose

    The Federal Funding Accountability and Transparency Act of 2006, 
Public Law 109-282 (Transparency Act) requires information disclosure 
of entities receiving Federal financial assistance through Federal 
awards such as Federal contracts, sub-contracts, grants and sub-grants, 
FFATA Sec.  2(a), (2), (i), (ii). Beginning October 1, 2010, this 
Paperwork Reduction Act submission directs compliance with the 
Transparency Act to report prime and first-tier subaward data. 
Specifically, Federal agencies and prime awardees of grants will ensure 
disclosure of executive compensation of both prime and subawardees and 
subaward data. This information collection requires reporting of only 
the information enumerated under the Transparency Act.

B. Discussion of Public Comments

    Reporting of Executive Compensation for All State Employees. One 
State agency commented that the request for comments implies that FFATA 
requires the reporting of executive compensation for all State 
employees and sub-contractors and awardees, but the notice did not 
define what ``executive compensation'' means. The respondent asked if 
this is the salary and benefits that the chief executives of these 
entities make, or does this apply to all employees of these entities. 
The respondent also stated that this would be a very time-consuming and 
difficult task and that they could encounter privacy concerns with some 
of the private firms.
    Response: Entity has the meaning given in 2 CFR part 25. Executive 
means officers, managing partners, or any other employees in management 
positions. Total Compensation means the cash and noncash dollar value 
earned by the executive during the recipient's or subrecipient's 
preceding fiscal year and includes the following (for more information 
see Part 170 Appendix A):
    i. Salary and bonus.
    ii. Awards of stock, stock options, and stock appreciation rights. 
Use the dollar amount recognized for financial statement reporting 
purposes with respect to the fiscal year in accordance with the 
Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 
123R), Shared Based Payments.
    iii. Earnings for services under non-equity incentive plans. This 
does not include group life, health, hospitalization or medical 
reimbursement plans that do not discriminate in favor of executives, 
and are available generally to all salaried employees.
    iv. Change in pension value. This is the change in present value of 
defined benefit and actuarial pension plans.
    v. Above-market earnings on deferred compensation which is not tax-
qualified.
    vi. Other compensation, if the aggregate value of all such other 
compensation (e.g., severance, termination payments, value of life 
insurance paid on behalf of the employee, perquisites or property) for 
the executive exceeds $10,000.

Under the Act, a prime entity will be required to report executive 
compensation about its own or its subawardee's top five highly 
compensated officials if: The entity in the preceding fiscal year 
received 80 percent or more of its annual gross revenues in Federal 
awards; and $25,000,000 or more in annual gross revenues from Federal 
awards; and the public does not have access to the information about 
the compensation of the senior executives of the entity through 
periodic reports filed under

[[Page 4902]]

section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 
U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 
1986. (To determine if the public has access to the compensation 
information, see the U.S. Securities and Exchange Commission total 
compensation filings at http://www.sec.gov/answers/execomp.htm.)
    Duplicate Collection Requirement. Four respondents commented that 
the requirement for information on executive compensation duplicates 
the requirement currently imposed by the Internal Revenue Service for 
U.S. nonprofit tax exempt organizations when they submit their returns 
on Form 990. The respondents suggest that a means be created to allow 
respondents to identify in their submissions when such data has 
previously been or will be submitted on behalf of any U.S.-based 
subrecipients, and the timing of those other submissions.
    Response: Internal Revenue Service Form 990 is required for non-
profits, charities and other tax-exempt organizations to maintain their 
tax-exempt status. The Transparency Act does not exempt organizations 
which file the IRS Form 990 from the requirements of the Transparency 
Act.
    Practicality and Utility of Collecting the Information for Foreign 
(non U.S.-based) Subrecipients. Five respondents provided comments. 
Four respondents commented that this comprehensive requirement was 
enacted without considering the practicality and utility of collecting 
the information for foreign (non U.S.-based) subrecipients, and that 
the imposition of this requirement is impractical, counterproductive 
and even damaging to other important U.S. Government objectives. This 
is particularly the case in countries where issues of security, 
sovereignty, independence and custom are prevalent. Respondents 
recommended that OMB exempt primary recipients from having to collect 
and submit such data on non U.S.-based entities. One respondent 
commented that collecting additional information on executive 
compensation of both prime and subawardees will neither enhance the 
utility of the information collected nor meet the purpose of FFATA. The 
respondent maintains that using summary or aggregate budget data will 
not endanger the safety of nongovernmental organizations' (NGOs) 
employees in the field, or violate privacy rights, and is a more 
accurate reflection of the U.S. Government's expenditure of taxpayer 
dollars. One respondent also questioned the value and utility of 
reporting individual subaward data on such groups to the American 
public and recommended that the proposed rule be revised with a blanket 
waiver for individual reporting on foreign subrecipients to an 
aggregate reporting of the number of subawards issued and total value. 
One respondent suggested that avenues should be explored to harness 
existing documentation on grants and cooperative agreements to meet the 
need for greater transparency.
    Response: Using summary budget data will not meet the requirements 
of the Transparency Act; the Act specifically requires the collection 
of executive compensation if the threshold requirements for such 
reporting are met. GSA and OMB recognize the safety and security 
concerns regarding some types of foreign recipients and will provide 
additional guidance regarding the reporting of sensitive information. 
Any revisions to the requirements based on this guidance will be 
incorporated in a subsequent Paperwork Reduction Act submission for 
this information collection.
    Burden Imposed. Seven comments were received concerning the burden 
that will be imposed by this information collection. Two respondents 
commented on the burden number of 49,308 (number of respondents) and 
that it appears GSA is relying on a specific source rather than 
estimating a number, that the source of the information is not 
identified, and that it is impossible to assess whether the number of 
respondents is accurate or based on valid assumptions and 
methodologies. The respondents requested that GSA and OMB publish 
additional information about the sources of data in this request so 
they may be assessed in accordance with the letter and spirit of the 
Paperwork Reduction Act. Two respondents added that the estimate of the 
time required to compile the executive compensation data on behalf of 
subrecipients is grossly understated. Those who have large portfolios 
of subgrants (in some cases in the hundreds) indicate that since this 
data is not routinely gathered because of the likelihood that such 
personnel are not being paid in whole or in part directly from the 
subaward, they would be required to initiate an entirely new 
information collection at considerable effort and cost. They also state 
that the simple round number of 2 hours per response identified in the 
estimate belies the effort that they and other similarly situated 
organizations would be required to undertake. Two respondents commented 
on the estimate of 10 responses per respondent. Based on their 
collective experiences, they each typically issue between 20-50 
subawards per year. Another respondent commented that they typically 
award between 1,000-1,200 subawards per year, and that this effort 
would require, at a minimum, an additional full-time position based on 
current estimates. One respondent commented that the estimate of 49,308 
respondents, ten responses per respondent and 2 hours per response 
appears only to reflect a one-time estimation of the reporting burden 
on the prime without considering the subsequent efforts that would need 
to be made over the lifetime of an award by both prime and subawardees 
to maintain the accuracy of the information. They also add that the 
notice does not offer an estimate of the direct or indirect costs 
associated with collection, entry and maintenance of prime and 
subawardees' records. Given the time and funding required to meet the 
requirement in full, it will be difficult for U.S.-based international 
nongovernmental organizations (NGOs) with hundreds of subawards and 
limited budgets to meet the reporting deadline for each subrecipient 
without dedicating a substantial number of new, additional 
administrative personnel. One respondent also commented that the burden 
of the information collection requirements proposed in the notice will 
increase costs and strain the relationship between the U.S. Government 
and its recipients, and have a chilling effect on the partnerships 
between recipients and competent local subawardees who for security 
reasons will not want to be openly identified with the U.S. Government. 
One respondent requested that the burden estimate be re-evaluated.
    Response: The number of respondents (49,308) is based on the total 
reported prime grant awardees reporting into USAspending.gov in FY 2009 
(see Supporting Statement for Paperwork Reduction Act Submission, FFATA 
Subaward and Executive Compensation Reporting Requirements, footnote 
1, p. 9, at http://www.reginfo.gov). Because these are new 
statutory requirements, the estimate of 10 responses per respondent and 
2 hours per response were provided as GSA's best estimate based on 
available information. GSA will continue to review and revise these 
burden estimates as more information becomes available. GSA encourages 
the public to provide specific estimates with a supporting statement of 
how those estimates were calculated to further refine the burden 
estimates associated with this collection.
    Executive Compensation and Foreign Assistance Programs. Four 
respondents commented that as foreign assistance programs are sometimes 
funded by a combination of multiple public and

[[Page 4903]]

privately generated resources and, therefore, executive salaries may 
not be fully supported by U.S. Federal funds, disclosure of executive 
compensation for prime awardees or subrecipients (U.S. and non-U.S. 
entities) may not be accurate in terms of relating to Federal 
expenditure of taxpayer dollars. It was noted that publication of such 
information could lead to confusion, mistrust and misunderstanding both 
here in the U.S. and in the subrecipient's home country. Furthermore, 
the provision and/or disclosure of such information from overseas 
subrecipients may violate applicable local privacy laws. One respondent 
added that the collection of sensitive personal information from 
subawardees in Federal databases undermines critical working 
relationships built on trust over decades with local communities, 
especially in unstable security environments. One respondent added that 
due to the possibility that executive compensation is not necessarily 
related in any manner to U.S. Government-funded activities, there is a 
likelihood that the executives' salaries will be incorrectly perceived 
as ``funded'' by the U.S. Government, creating a false association and 
resulting in unnecessary and possible physical harm, and jeopardizing 
the impartiality and safety of recipient staff working in the field. 
One respondent commented that the lack of a direct correlation between 
Federal expenditures and reporting executive compensation into a 
Federal database, together with the potential violation of privacy 
rights of foreign citizens, and the administrative burden imposed on 
recipients responsible for data input as both a recipient and an issuer 
of subawards is contrary to the stated purpose of the legislation--
FFATA requires that data collection be in a manner that ``minimizes the 
burdens imposed on Federal award recipients.'' One respondent strongly 
urged that GSA and OMB withdraw this notice until consultations can be 
had on less burdensome and more appropriate accountability procedures 
for international development and humanitarian relief nongovernmental 
organizations (NGOs) implementing Federal funding that will not 
increase the security risks for organizations and staff in the field. 
One respondent strongly urged OMB to delay the subaward and executive 
compensation reporting requirement until the rule-making process is 
completed; to complete all pilot program pre-requisites required by 
Public Law 109-282, report to the public and take all public comments 
into consideration; and not approve this emergency request until the 
completion of the rule-making process. Further, the respondent added 
that Public Law 109-282 requires the Director of OMB to commence a 
pilot program vis-[agrave]-vis the collection of subaward data. To 
their knowledge, this pilot program did not include organizations whose 
principal place of performance is outside the U.S. One respondent 
requested that further discussion be held with international 
organizations receiving Federal awards for overseas programs to ensure 
public disclosure does not result in unintended consequences. One 
respondent requested that OMB facilitate a community-wide discussion 
forum prior to implementation of these requirements.
    Response: With some limited exceptions, the reporting requirements 
apply to all prime awardees of Federal grants including foreign prime 
recipients and foreign subawardees. Each action that obligates $25,000 
or more in Federal funding would need to be separately reported. For 
new Federal grants or cooperative agreements as of October 1, 2010, if 
the initial award is $25,000 or more, reporting of subaward information 
is required. If the initial award is below $25,000 but subsequent award 
modifications result in a total award of $25,000 or more, the award is 
subject to the reporting requirements, as of the date the award exceeds 
$25,000. If the initial award exceeds $25,000 but funding is 
subsequently de-obligated such that the total award amount falls below 
$25,000, the award continues to be subject to the reporting 
requirements of the Transparency Act. If a single action obligates 
funding from multiple programs, the data submitted for that action 
would include the Catalog of Federal Domestic Assistance (CFDA) number 
for the program that is the predominant source of the Federal funding. 
If a program's funding is obligated by a separate amendment to the same 
subaward agreement that provides other programs' funding, however, then 
the data reported for each amendment to the agreement would include the 
CFDA number of the program that provided the funding for that 
amendment.
    Nevertheless, GSA and OMB recognize the safety and security 
concerns regarding some types of foreign recipients and will provide 
additional guidance regarding the reporting of sensitive information. 
Any revisions to the requirements based on this guidance will be 
incorporated in a subsequent Paperwork Reduction Act submission for 
this information collection.
    Regarding commencement of a pilot, an Assistance pilot was 
conducted in the fall of 2008. However, this pilot did not generate 
sufficient information on which to base (1) an operational model or 
project plan for how subaward information should be collected; or (2) 
an accurate assessment of the burden placed on award recipients.
    Exemption for Primary Recipients from Collecting and Submitting 
Data on non U.S.-based Entities. Five comments were received. Two 
respondents commented that with respect to the collection of 
information on subrecipients and the need to ensure that this effort is 
not seen as an intelligence gathering, they recommended that OMB exempt 
primary recipients from having to collect and submit data on non U.S.-
based entities. The principle of not applying policies designed for 
U.S. organizations on entities in other countries is longstanding with 
the Federal Government. Precedent for such exemption exists. For 
example, a class deviation was issued to USAID to exempt non-U.S. 
organizations from OMB A-110, and OMB exempted non-U.S. entities from 
the requirements in the Single Audit Act Amendments of 1996. One 
respondent added that this exemption was instituted whether these non-
U.S. entities expend ``Federal awards received either directly or 
indirectly as a subrecipient.'' The respondent requested that OMB 
review the U.S. District Court for the District of Columbia, Civil 
Action Case No. 06-0635 (PLF) that involved USAID's decision not to 
release the names of overseas partner organizations. Another respondent 
commented that in certain environments the public posting of data on 
overseas programs--even something as simple as listing the country in 
which the funds are being spent or the name of a local subrecipient 
partner--may further endanger those whom they are seeking to assist in 
their struggle for freedom and democracy, and would hinder the 
achievement of U.S. foreign and development assistance objectives. One 
respondent commented that requiring recipients to collect and input 
names and compensation of the executives of partner entities in a 
Federal database (even if not publicly accessible) will further blur 
the line of independence between development professionals, threatening 
those individuals employed by NGOs working in hostile environments by 
associating them with the information gathering activities of the U.S. 
Government.

[[Page 4904]]

    Response: GSA and OMB recognize the safety and security concerns 
regarding some types of foreign recipients and will provide additional 
guidance regarding the reporting of sensitive information. Any 
revisions to the requirements based on this guidance will be 
incorporated in a subsequent Paperwork Reduction Act submission for 
this information collection.
    Federal Agency Interaction. One comment was received. The 
respondent inquired with their cognizant Federal agency on the proposed 
new reporting requirements and received the following response: ``At 
the present time we have not received any guidance from OMB. As such we 
are unable to inform the community on the new reporting requirements 
until we have final information/instruction/procedures identified by 
OMB. Our plans to inform the community will be based on the guidance we 
receive from OMB.'' The respondent stated that since their cognizant 
agency has not yet received guidance from OMB, it is premature to 
expect the recipient community to design processes and systems to be 
compliant with FFATA by October 1, 2010, and that OMB needs to provide 
Federal agencies and recipients with time to educate their respective 
communities on this new requirement. The respondent feels that 
providing emergency approval for this information collection will be 
doing disservice to the intent of FFATA and create additional burden on 
recipients and subrecipients.
    Response: On August 27, 2010, OMB issued a memorandum and guidance 
regarding subaward reporting under the Transparency Act, Memorandum to 
Senior Accountable Officials, and is available at http://www.whitehouse.gov/omb/open. Specific guidance is also found in Federal 
Register Vol. 75, No. 177, September 14, 2010.
    Purpose of the Information Collection Request. One respondent asked 
what this ICR really does and why was it an emergency new information 
collection requirement.
    Response: Beginning October 1, 2010, this Paperwork Reduction Act 
submission directs compliance with FFATA to report prime and first-tier 
subaward data. Specifically, Federal agencies and prime awardees of 
grants will ensure disclosure of executive compensation of both prime 
and subawardees and subaward data. This is a new collection. The 
information collected will be used to make transparent the information 
about executive compensation (if applicable) for grants prime and 
subawardees and subaward information. While some information is 
currently publicly available on prime awardees, executive compensation 
of prime awardees and subawardees, as applicable, is not. In addition, 
this information collection will provide public access to information 
on grant subaward information, pursuant to the Transparency Act.
    Data in USAspending.gov. One respondent stated there are 
inconsistencies in how Federal agencies are currently reporting data in 
USAspending.gov and that OMB needs to ensure that Federal agencies are 
correctly populating data.
    Response: This comment is not related to this information 
collection and has been referred to the appropriate organization within 
GSA to respond.
    OMB Guidance and the Regulations Issued by the FAR Councils for 
Contracts. One respondent expressed concern regarding a key difference 
in the OMB guidance for financial assistance awards and the regulations 
issued by the FAR Councils for contracts.
    Response: This comment is not related to this information 
collection. The FAR Technology Team is considering the respondent's 
comments; appropriate responses will be included in the resulting 
second interim or final rule to FAR case 2008-039.

C. Annual Reporting Burden

    Respondents: 49,308.
    Responses per Respondent: 10.
    Hours per Response: 2.
    Total Burden Hours: 986,160.
    Obtaining Copies of Proposals: Requesters may obtain a copy of the 
information collection documents from the General Services 
Administration, Regulatory Secretariat (MVCB), 1275 First Street, NE., 
Washington, DC 20417, telephone (202) 501-4755. Please cite OMB Control 
No. 3090-0292, FFATA Subaward and Executive Compensation Reporting 
Requirements, in all correspondence.

    Dated: January 21, 2011.
Casey Coleman,
Chief Information Officer.
[FR Doc. 2011-1752 Filed 1-26-11; 8:45 am]
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