[Federal Register Volume 88, Number 220 (Thursday, November 16, 2023)]
[Notices]
[Pages 78751-78754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25333]


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FEDERAL HOUSING FINANCE AGENCY

[No. 2023-N-13]


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 the renewal of 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 collection to OMB for review and approval of a three-year 
extension of the control number, which is due to expire on January 31, 
2024.

DATES: Interested persons may submit comments on or before January 16, 
2024.

ADDRESSES: Submit comments to FHFA, identified by ``Proposed 
Collection; Comment Request: `Contractor Workforce Inclusion Good Faith 
Efforts, (No. 2023-N-13)' '' 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, Office 
of General Counsel, 400 Seventh Street SW, Washington, DC 20219, 
Attention: Proposed Collection; Comment Request: ``Contractor Workforce 
Inclusion Good Faith Efforts, (No. 2023-N-13).''
    We will post all public comments we receive without change, 
including any

[[Page 78752]]

personal information you provide, such as your name and address, email 
address, and telephone number, on the FHFA website at https://www.fhfa.gov.
    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: Takisha Koonce, Office of Minority and 
Women Inclusion, [email protected], (202) 649-3740; Brent Burris, 
Associate General Counsel, [email protected], (202) 731-1083; or 
Angela Supervielle, Senior Counsel, [email protected], (202) 
649-3973 (these are not toll-free numbers); Federal Housing Finance 
Agency, 400 Seventh Street SW, Washington, DC 20219. For TTY/TRS users 
with hearing and speech disabilities, dial 711 and ask to be connected 
to any of the contact numbers above.

SUPPLEMENTARY INFORMATION:

A. Paperwork Reduction Act

    Under the PRA (44 U.S.C. 3501- 3520), Federal agencies must obtain 
approval from OMB for each collection of information they conduct or 
sponsor. Section 3506(c)(2)(A) of title 44 requires Federal agencies to 
provide a 60-day notice \1\ in the Federal Register concerning each 
proposed collection of information, including each proposed extension 
of an existing collection of information, before submitting the 
collection of information to OMB for approval. FHFA's collection of 
information set forth in this document is titled ``Contractor Workforce 
Inclusion Good Faith Efforts'' (assigned control number 2590-0016 by 
OMB). To comply with the PRA requirement, FHFA is publishing notice of 
a proposed three-year extension of this collection of information, 
which is due to expire on January 31, 2024.
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    \1\ Following the close of this notice's 60-day comment period, 
FHFA will publish a second notice with a 30-day comment period as 
required by 44 U.S.C. 3507(b) and 5 CFR 1320.10(a).
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B. 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.\2\ 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 
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 laws. 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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    \2\ 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 $150,000. 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.)
    Finally, the MWI Clause requires a contractor to provide, when 
requested by FHFA, documentation demonstrating that the covered 
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 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 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.''

C. 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

[[Page 78753]]

applicable law, the fair inclusion of minorities and women in their 
respective workforces.

D. Burden Estimate

    FHFA estimates that the average annual burden imposed on all 
respondents by this information collection over the next three years 
will be 725 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 (30 hours); and (2) another for contractors and 
subcontractors with fewer than 50 employees (695 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 2020 through fiscal year 2023 shows 
that 165 contractors were subject to the MWI Clause. FHFA believes that 
85 of those contractors have 50 or more employees, while 80 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 167 contractors and subcontractors were subject 
to the MWI Clause--87 of which have 50 or more employees and 80 of 
which have fewer than 50 employees.
    Based on these figures, FHFA estimates that, on average over the 
next three years, 87 contractors and subcontractors with 50 or more 
employees and 80 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 30 hours (0 recordkeeping hours + 30 
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\ E.O. 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 87 hours (87 respondents x 1 hour per respondent) and the 
annual burden is 30 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 695 hours (667 
recordkeeping hours + 28 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 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 1 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,

[[Page 78754]]

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 2,000 hours 
(80 respondents x 25 hours per respondent), with an annual burden of 
667 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 80 hours (80 respondents x 1 hour per respondent), 
with an annual burden of 28 hours.

E. 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.

Shawn Bucholtz,
Chief Data Officer, Federal Housing Finance Agency.
[FR Doc. 2023-25333 Filed 11-15-23; 8:45 am]
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