NILG Comments to OMB

February 8,
VIA EMAIL
Office of Information and Regulatory Affairs
Attn: OMB Desk Officer for DOL-OFCCP
Office of Management and Budget, Room 10235
725 17th Street, N.W., Washington, DC 20503
Re:

National Industry Liaison Group’s Comment on
OFCCP’s Proposed Renewal of Information
Collection Requirements
Control Number 1250-0006

The National Industry Liaison Group (“NILG”) welcomes the opportunity to comment on
the Office of Federal Contract Compliance Programs’ Proposed Revision to the Agreement
Approval Process for Use of Functional Affirmative Action Programs, published in the Federal
Register on January 8, 2016.
By way of background, federal contractors began forming local Industry Liaison Groups
(“ILGs”) over thirty years ago as a unique partnership of public and private sector cooperation to
advance workplace equal employment opportunity and affirmative action. To further enhance the
partnership, the NILG was developed as a forum for the Office of Federal Contract Compliance
Programs (“OFCCP” or “Agency”) and federal contractors to proactively advance workplace
equal employment opportunity. The NILG Board is comprised of elected members representing
the local ILGs from across the country. Over the years, the NILG and the ILGs, which are
comprised of thousands of small, mid-size, and large employers, have reached out to OFCCP and
other agencies, such as the Equal Employment Opportunity Commission, with mutual goals of
fostering a non-discriminatory workplace. In response to the proposal, the NILG seeks to present
the views of its constituency and has gathered their input and guidance in preparing these
comments.
We commend OFCCP for, and share its ongoing commitment to, promoting equal
employment opportunity and fair pay – particularly in regard to the functional affirmative action
program (“FAAP”). FAAPs have enabled our members to continue to run their organizations as
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they see fit while also meeting the compliance requirements of OFCCP, leading to efficient data
collection and analysis, as well as effectuation of equal opportunity in the workplace. We further
commend OFCCP’s commitment to providing contractors the time- and cost-saving option to
prepare and submit compliance materials electronically wherever possible, and to recognize that
such flexibility is a benefit to OFCCP as well. In our comments below, we offer observations
and suggestions designed to ensure all individuals are provided equal employment opportunity
while, at the same time, balancing the contractor community’s legitimate interest in ensuring that
information collected by the Agency is necessary and based upon valid assumptions and minimal
administrative burdens.
I.

General Response to OFCCP’s Proposed Revision to the Agreement Approval Process
for Use of Functional Affirmative Action Programs

As noted above, the NILG shares OFCCP’s commitment to equal opportunity in all terms
of employment. NILG recognizes OFCCP’s need and right to collect information for purposes
of the pursuit of equal opportunity. NILG does not take issue with the Agency’s ability to collect
information, but encourages OFCCP to limit such requests to necessary and relevant information.
The most meaningful change proposed in OFCCP’s revision to the Agreement Approval
Process for Use of Functional Affirmative Action Programs would appear to be the transition
from FAAP renewal to FAAP certification. The effect of certification is essentially the same as
renewal: once approved by OFCCP, contractors are entitled to another three years of FAAP
classification. The process of certification, however, is materially different and significantly
more burdensome to contractors.
OFCCP also updated and increased the number of hours it estimates it will take
contractors to comply with the information requests – without explanation as to what utility the
additional information will provide.
As discussed below, the NILG respectively questions the scope of OFCCP’s additional
information requests and related FAAP-specific compliance procedures.
II.

Responses to Specific Sections in the ICR
A. Attachment B Should Require Only Specific Materials Necessary to Determine
Whether the Proposed FAAP Structure is Appropriate.

The information requested in Item 6 in the new Attachment B is irrelevant to OFCCP’s
evaluation of an FAAP agreement application. Item 6, for example, calls for the submission of:
The names of all subsidiaries in the company’s family tree and an explanation of
whether these companies are included in the contactor’s AAP structure. If these
companies are included in any of the proposed functional units, they must be
clearly identified on the employee location listing referenced in item 6 above. If
they are not included in the proposed functional units, provide information
concerning these companies consistent with Item 9 below.

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This request is overbroad and beyond the purpose of Attachment B documents, which are
submitted in support of a contractor’s request for a FAAP agreement. Consideration of these
documents may be appropriate in the course of evaluating a subsidiary’s affirmative action
obligations; however, they are premature at the FAAP request stage. Forcing a contractor to
prepare these documents before the FAAP agreement is even approved is burdensome and
excessive. NILG recommends eliminating Item 6 as a required element of the FAAP request
process.
Similarly, a draft of OFCCP’s FAAP Directive suggests OFCCP may seek to collect
unspecified information beyond what is set forth in the current Information Collection Request
(“ICR”). At paragraph 7.E.1(e), the draft Directive states:
Every effort will be made to gather sufficient information regarding the
contractor's corporate structure to process the FAAP agreement request. This
information enables OFCCP to make informed decisions when evaluating
requests for FAAP agreements. Nonetheless, additional information may be
necessary for OFCCP to make a final determination on the contractor's request.
Contrary to the ICR, this paragraph suggests OFCCP has open-ended authority to request
unspecified, additional information at its discretion – beyond what is set forth in Attachment B.
This type of open-ended request does not appear to be addressed in the ICR Supporting
Statement. To the contrary, the Supporting Statement under the heading “Reporting Burden” on
page 11 states:
In addition to this explanation [of what FAAPs are appropriate], OFCCP needs
specific documents and information from the contractor in order to determine
whether FAAPs are appropriate for the contractor’s organization. Thus, the
reporting burden assessed below accounts for the written submission requesting
approval for an agreement and the retrieval and copying of information needed by
OFCCP to make its determination.
See also page 5: “specific items of information.”
This paragraph is potentially significant because, under the prior Directive, a contractor
seeking FAAP approval need only make a written request and provide the documents listed in
Attachment B. Under the proposed Directive, a contractor would apparently need to make the
written request but would also be required to respond to unspecified, additional requests for
information beyond what is set forth Attachment B or the ICR.
The NILG also requests clarification of another inconsistency. In the ICR Supporting
Statement at page 6, OFCCP suggests that Attachment B would require contractors to provide
information regarding equal employment opportunity violations. This proposed requirement is
not set forth in Attachment B and would be an inconsistent new requirement adding to contractor
burdens.

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B. The Proposed Certification Process Creates Unnecessary Administrative Burdens
and Costs for Contractors.
Pursuant to OFCCP Directive 305, FAAP agreements automatically expire after three
years unless the contractor completed the renewal process. While the three-year renewal process
has always presented an administrative burden – creating uncertainty for future AAP
development and internal employer planning – that burden was mitigated by as-needed
submission requirements. Directive 305 provided that “[d]uring the renewal process, the FAAP
Unit will confirm information regarding the structure of the functional units and may request
updated information where changes have been made.” That is to say, only in the event of change
might OFCCP request additional information, and even then only as needed.
The proposed certification process would eliminate this qualifying language and make
mandatory additional and burdensome procedural requirements:
The contractor must certify in writing every three years (at least 120 calendar days
prior to the expiration of the existing agreement) that there have been no changed
circumstances in its business structure affecting the existing FAAP agreement.
The certification must include updated information regarding employee counts,
facility names, and facility addresses included in each functional unit.
Every contractor, therefore, would be automatically required to submit additional
information every three years, whether its circumstances have changed or not, simply to maintain
the status quo of their already-approved FAAP. This requirement is unnecessary and would only
increase the pressure on human resources.1 Indeed, OFCCP estimates that that the certification
process will require 300 hours of contractor time – nearly the same amount of time previously
required by the modification, update, and renewal steps combined. Contractors will also be
forced to absorb the cost of these additional administrative tasks. By OFCCP’s own calculations,
contractors will incur an additional $12,137 attributable to the certification process. 2 These time
and cost expenditures are in addition to and very likely redundant of the efforts associated with
the mandatory compliance reviews.
NILG recommends OFCCP eliminate the mandate for updated information, particularly
because that same information will already have been provided in the ordinary course of the
AAP process and the mandatory compliance evaluations.
C. OFCCP Underestimates the Burden of the Information Collection Request on
Contractors.
The NILG has concerns with OFCCP’s revised burden estimates associated with the new
certification process. OFCCP’s Notes to Reviewer explains that OFCCP is requesting approval
for an increase from 926 contractor hours to 1,427 contractor hours, primarily attributable to the
1

The certification process will be equally inefficient for OFCCP. In its Note to Review, OFCCP acknowledges that
the request for approval of additional burden hours – increased from 926 hours to 1,427 hours – is “primarily
attributed to the addition of a certification requirement.”
2
Likewise, the additional cost to the federal government arising from the proposed certification process is estimated
by OFCCP to be $22,699.44.

$