1601-NEW_Supporting Statement A 12-16-2016

SUPPORTING STATEMENT FOR

DHS Civil Rights Compliance Form

OMB Control No.: 1601-NEW

COLLECTION INSTRUMENT(S): DHS Form 3095

A. Justification

1. Explain the circumstances that make the collection of information necessary. Identify any legal or administrative requirements that necessitate the collection. Attach a copy of the appropriate section of each statute and regulation mandating or authorizing the collection of information.

Recipients of federal financial assistance from the Department of Homeland Security (DHS) are required to meet certain legal requirements relating to nondiscrimination and nondiscriminatory use of federal funds. Those requirements include ensuring that entities receiving Federal financial assistance from the Department of Homeland Security do not deny benefits or services, or otherwise discriminate on the basis of race, color, national origin, disability, age, or sex, in accordance with the following authorities:

• Title VI of the Civil Rights Act of 1964 (Title VI) Pub.L. 88-352, 42 U.S.C. 2000d-1 et seq., and the Department’s implementing regulation, 6 C.F.R. Part 21 and 44 C.F.R Part 7, which prohibit discrimination on the grounds of race, color, or national origin by recipients of Federal financial assistance. Title VI, through its prohibition against discrimination on the basis of national origin, requires recipients to take reasonable steps to provide meaningful access to persons who are limited English proficient (LEP). See Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 76 Fed. Reg. 21755-21768 (April 18, 2011).

• Section 504 of the Rehabilitation Act of 1973 (Section 504), Pub.L. 93-112, as amended by Pub. L. 93-516, 29 U.S.C. 794, which prohibits discrimination on the basis of disability by recipients of Federal financial assistance.

• Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. 1681 et seq., and the Department’s implementing regulations, 6 C.F.R. Part 17, and 44 C.F.R. Part 19, which prohibits discrimination on the basis of sex in education program and activities received Federal financial assistance.

• Age Discrimination Act of 1975, Pub. L. 94-135, 42 U.S.C. Section 6101 et seq., and the Department implementing regulation at 44 C.F.R. Part 7, which prohibits discrimination on the basis of age by recipients of Federal financial assistance.

The aforementioned civil rights authorities also prohibit retaliatory acts against individuals for participating or opposing discrimination in a complaint, investigation, or other proceeding related to prohibited discrimination.  

DHS has an obligation to enforce nondiscrimination requirements to ensure that its federally assisted programs and activities are administered in a nondiscriminatory manner. In order to carry out its enforcement responsibilities, DHS must obtain a signed assurance of compliance and collect and review information from recipients to ascertain their compliance with applicable requirements. DHS implementing regulations and the Department of Justice (DOJ) regulation Coordination of Non-discrimination in Federally Assisted Program, 28 C.F.R. Part 42, provide for the collection of data and information from recipients (see 28 C.F.R. 42.406).

DHS has developed the DHS Civil Rights Compliance Form as the primary tool to implement this information collection.

2. Indicate how, by whom, and for what purpose the information is to be used. Except for a new collection, indicate the actual use the agency has made of the information received from the current collection.

The purpose of the information collection is to advise recipients of their civil rights obligation; obtain an assurance of compliance from each recipient, and collect pertinent civil rights information to ascertain if the recipient has in place adequate policies and procedures to achieve compliance, and to determine what, if any, further action may be needed (technical assistance, training, compliance review, etc.) to ensure the recipient is in compliance and will carry out its programs and activities in a nondiscriminatory manner.

DHS will use the DHS Civil Rights Compliance Form to collect civil rights related information from all primary recipients of federal financial assistance from the Department. Primary recipients are non-federal entities that receive federal financial assistance in the form of a grant, cooperative agreement, or other type of financial assistance directly from the Department and not through another recipient or “pass-through” entity. This information collection does not apply to subrecipients, federal contractors (unless the contract includes the provision of financial assistance), nor the ultimate beneficiaries of services, financial aid, or other benefits from the Department.

Recipients will be required to provide the information once every two years, not every time a grant is awarded. Entities whose award does not run a full two years are required to provide the information again if they receive a subsequent award more than two (2) years after the prior award. In responding to Section 4: Required Information, which contains the bulk of the information collection, if the recipient’s responses have not changed in the two year period since their initial submission, the recipient does not need to resubmit the information. Instead, the recipient will indicate “no change” for each applicable item.

3. Describe whether, and to what extent, the collection of information involves the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses, and the basis for the decision for adopting this means of collection. Also describe any consideration of using information technology to reduce burden.

DHS will require recipients to submit their completed forms and supporting information electronically, via email, to the Department, in an effort to minimize administrative burden on the recipient and the Department. DHS anticipates that records or files that will be used to respond to the information collection are already maintained in electronic format by the recipient, so providing the information electronically will further minimize administrative burden. DHS will allow recipients to scan and submit documents that are not already maintained electronically.

If the recipient is unable to submit their information electronically, alternative arrangements will be made to submit responses in hard copy.

4. Describe efforts to identify duplication. Show specifically why any similar information already available cannot be used or modified for use for the purposes described in Item 2 above.

DHS is taking steps to ensure that the information collected will not be duplicated through coordination with the U.S. Department of Justice, Civil Rights Division, Federal Coordination and Compliance Section, which has responsibility for ensuring that all federal agencies consistently and effectively enforce civil rights statutes and Executive Orders that prohibit discrimination in federally conducted and assisted programs and activities.

To the extent that DHS shares recipients in common with other federal agencies, and those federal agencies require similar information from their recipients, DHS will contact those recipients prior to the information collection to discuss modifications to their submission and coordinate with the appropriate federal agencies to obtain the applicable information. DHS estimates that only a small percentage (less than 5%) of its recipients provide similar information to other federal agencies.

5. If the collection of information impacts small businesses or other small entities (Item 5 of OMB Form 83-I), describe any methods used to minimize burden.

The information collection will impact some small entities (e.g., non-profit service providers, local fire departments, etc.), however as described in response to Question 2, recipients will only be required to provide this information once every two years, not every time a grant is awarded. Additionally, in responding to Section 4: Required Information, if the recipient’s responses have not changed in the two year period since their initial submission, the recipient does not need to resubmit the information. This will dramatically reduce the administrative burden on recipients after the initial submission. Additionally, DHS will further minimize burden on recipients by making available sample policies and procedures to assist recipients in completing Section 4 of the Form, and providing technical assistance directly to the recipient as needed.

6. Describe the consequence to Federal program or policy activities if the collection is not conducted or is conducted less frequently, as well as any technical or legal obstacles to reducing burden.

In accordance with the authorities identified in Question 1, the Department is required to obtain a signed assurance of compliance from recipients and to ensure that its federally assisted programs and activities are administered in a nondiscriminatory manner. If the information collection is not conducted or is conducted less frequently, the Department will not be able to fulfill its obligations to ascertain recipient compliance and enforce nondiscrimination in recipient programs. This could lead to the award of federal financial assistance to recipients that are not complying with federal civil rights law, and the perpetuation of discrimination in the provision of benefits and services to members of the public.

7. Explain any special circumstances that would cause an information collection to be conducted in a manner:

• Requiring respondents to report information to the agency more often than quarterly;

By signing the DHS Civil Rights Compliance Form, the recipient agrees to notify DHS, within sixty (60) days of receipt, of any such lawsuits against the recipient or any findings of discrimination against the recipient that occur throughout the duration of Federal financial assistance. This is required to ensure that the Department is apprised of any new lawsuits or findings of discrimination made against the recipient after the submission of the DHS Civil Rights Compliance Form that may impact the recipient’s continuing compliance with applicable nondiscrimination requirements.

• requiring respondents to prepare a written response to a collection of information in fewer than 30 days after receipt of it;

Not applicable.

• requiring respondents to submit more than an original and two copies of any document;

Not applicable.

• requiring respondents to retain records, other than health, medical, government contract, grant-in-aid, or tax records for more than three years;

DHS requires recipients to provide a brief description of any complaints or lawsuits against the recipient during the past five years alleging discrimination on the basis of race, color or national origin (including limited English proficiency), sex, age, or disability. Additionally, if a court or administrative agency made a finding of discrimination against the recipient during the past five years, the recipient must forward a copy of the complaint and findings to DHS.

DOJ Civil Right Division, Federal Coordination and Compliance Section has advised the Department to require five years of data from recipients in order to provide sufficient basis for ascertaining recipient compliance with nondiscrimination requirements.

• In connection with a statistical survey, that is not designed to produce valid and reliable results that can be generalized to the universe of study;

Not applicable.

• requiring the use of a statistical data classification that has not been reviewed and approved by OMB;

Not applicable.

• that includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or

Not applicable.

• requiring respondents to submit proprietary trade secret, or other confidential information unless the agency can demonstrate that it has instituted procedures to protect the information's confidentiality to the extent permitted by law.

Not applicable.

8. If applicable, provide a copy and identify the data and page number of publication in the Federal Register of the agency's notice, required by 5 CFR 1320.8(d), soliciting comments on the information collection prior to submission to OMB. Summarize public comments received in response to that notice and describe actions taken by the agency in response to these comments. Specifically address comments received on cost and hour burden.

Describe efforts to consult with persons outside the agency to obtain their views on the availability of data, frequency of collection, the clarity of instructions and recordkeeping, disclosure, or reporting format (if any), and on the data elements to be recorded, disclosed, or reported.

Consultation with representatives of those from whom information is to be obtained or those who must compile records should occur at least once every 3 years -- even if the collection of information activity is the same as in prior periods. There may be circumstances that may preclude consultation in a specific situation. These circumstances should be explained.

A 60-day Federal Register Notice inviting public comments was published on September 22, 2016, 81 FR 65390. Five public comments were received.

Two comments requested copies of the draft forms and associated documents. The requested documents were provided to the commenters.

One comment recommended that “retaliation” be added to the list of protected bases on the form. After reviewing the comment, the form was updated to include the recommended update.

One comment stated that Nondiscrimination should be kept in place. DHS agrees and thanks the commenter for their feedback.

One comment provided feedback on the immigration process. The comment was not germane to the substance of this collection. DHS thanks the commenter for their feedback.

A 30-day Federal Register Notice inviting public comments was published on December 14, 2016, 81 FR 90372. No public comments were received.

9. Explain any decision to provide any payment or gift to respondents, other than remuneration of contractors or grantees.

There is no payment/gift to respondents.

10. Describe any assurance of confidentiality provided to respondents and the basis for the assurance in statute, regulation, or agency policy.

There are no confidentiality assurances associated with this collection. No PII is collected, therefore, the collection is not impacted by the Privacy Act.

11. Provide additional justification for any questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private. This justification should include the reasons why the agency considers the questions necessary, the specific uses to be made of the information, the explanation to be given to person’s form whom the information is requested, and any steps to be taken to obtain their consent.

The information collection requires recipients of federal financial assistance (state administering agencies, educational institutions, non-profit organizations, etc.) to disclose allegations, complaints and findings of discrimination made against their organizations.

These disclosures may contain detailed information on the complainant’s basis(es) for the discrimination complaint (e.g., discrimination based on race, color, national origin, sex, age, or disability). Per the authorities listed in Question 1, DHS is authorized to collect this information in order ascertain recipient compliance with nondiscrimination requirements and identify potential patterns and practices of discrimination in recipient programs that may lead to noncompliance.

12. Provide estimates of the hour burden of the collection of information. The statement should:

• Indicate the number of respondents, frequency of response, annual hour burden, and an explanation of how the burden was estimated. Unless directed to do so, agencies should not conduct special surveys to obtain information on which to base hour burden estimates. Consultation with a sample (fewer than 10) of potential respondents is desirable. If the hour burden on respondents is expected to vary widely because of differences in activity, size, or complexity, show the range of estimated hour burden, and explain the reasons for the variance. Generally, estimates should not include burden hours for customary and usual business practices.

• If this request for approval covers more than one form, provide separate hour burden estimates for each form and aggregate the hour burdens in Item 13 of OMB Form 83-I.

• Provide estimates of annualized cost to respondents for the hour burdens for collections of information, identifying and using appropriate wage rate categories. The cost of contracting out or paying outside parties for information collection activities should not be included here. Instead, this cost should be included in Item 14

Initial Data Collection – Year 1

Type of Respondent	Form Name / Form Number	No. of Respondents	No. of Responses per Respondent	Total No. of Responses (Initial Response)	Avg. Burden per Response (in hours)	Total Burden (in hours) for Initial Response	Avg. Hourly Wage Rate	Total Respondent Cost (Initial Response)
State or Tribal Administering Agencies	DHS Civil Rights Compliance Form	83	1	83	8	664	$37.09	$24,627.76
Direct Service Providers	DHS Civil Rights Compliance Form	3140	1	3140	8	25,120	$48.20	$1,210,784
Educational Institutions	DHS Civil Rights Compliance Form	108	1	108	8	864	$48.20	$ 41,644.8
Total	DHS Civil Rights Compliance Form	3331	1	3331	8	26,648		$ 1,277,056.56

DHS estimates that there are 3,331 entities that will be subject to the DHS Civil Rights Compliance Form. This estimate is based on data provided by the DHS funding components on the number of organizations that receive an award of federal financial assistance from the Department in a given year. Respondents that will vary in size and scope of covered programs, and DHS estimates it will take an average of 8 hours per respondent to complete the initial data request. This estimate is based on data from other federal agencies with similar compliance forms and types of recipients, including the U.S Department of Health and Human Services, and the National Aeronautics and Space Administration.

The average hourly wage rate for State or Tribal Administering Agency respondents was calculated based on mean hourly wage data from the Bureau of Labor Statistics (BLS) May 2015 National Occupational Employment and Wage Estimates for three categories of workers: lawyers (state government) at $41.71 hourly mean wage, human resources assistants (except payroll and timekeeping) at $18.84 mean hourly wage, and secretaries and administrative assistants at $18.93 mean hourly wage, for an average wage rate of $26.49, multiplied by 1.4 for a loaded wage rate of $37.09

The average hourly wage rate for Direct Service Provider respondents was calculated based on mean hourly wage data from the Bureau of Labor Statistics (BLS) May 2015 National Occupational Employment and Wage Estimates for three categories of workers: lawyers at $65.51 hourly mean wage, human resources assistants (except payroll and timekeeping) at $18.84 mean hourly wage, and secretaries and administrative assistants at $18.93 mean hourly wage, for an average wage rate of $34.43, multiplied by 1.4 for a loaded wage rate of $48.20.

The average hourly wage rate for Educational Institution respondents was calculated based on mean hourly wage data from the Bureau of Labor Statistics (BLS) May 2015 National Occupational Employment and Wage Estimates for three categories of workers: lawyers at $65.61 hourly mean wage, human resources assistants (except payroll and timekeeping) at $18.84 mean hourly wage, and secretaries and administrative assistants at $18.93 mean hourly wage, for an average wage rate of $34.43, multiplied by 1.4 for a loaded wage rate of $48.20.

Based on the total burden hours and average hourly wage rate for each respondent category, DHS estimates that the total cost to respondents to respond to the initial collection will be $1,277,056.56.

It is important to note that recipients will provide the information only once every two years. Furthermore, if the recipient’s responses have not changed in the two year period since their initial submission, the recipient does not need to resubmit the information. Given that the majority of DHS recipients do not change from year to year, and that DHS anticipates that only a minority of recipients will have significant updates to the required information after the initial submission, DHS estimates that the cost to respondents will decrease by half for the second submission (occurring two years after the after the initial submission) for a total cost of $638,528.28. See table below.

Second Collection – Year 3

Type of Respondent	Form Name / Form Number	No. of Respondents	No. of Responses per Respondent	Total No. of Responses (Second Response)	Avg. Burden per Response (in hours)	Total Burden (in hours) for Second Response	Avg. Hourly Wage Rate	Total Respondent Cost (Second Response)
State or Tribal Administering Agencies	DHS Civil Rights Compliance Form	83	1	83	4	332	$37.09	$12,313.88
Direct Service Providers	DHS Civil Rights Compliance Form	3140	1	3140	4	12,560	$48.20	$605,392
Educational Institutions	DHS Civil Rights Compliance Form	108	1	108	4	432	$48.20	20,822.4
Total	DHS Civil Rights Compliance Form	3331	1	3331	4	13,324		$638,528.28

Based on the costs estimates for the initial response and second response that will occur over the 3 year period for which DHS is seeking approval for this data collection, DHS estimates that the total annualized cost to respondents will be $425,571.8.

Total Annualized Cost over 3 Year Period

Type of Respondent	Form Name / Form Number	AnnualizedNo. of Respondents	No. of Responses per Respondent	Total Annualized No. of Responses	Avg. Burden per Response (in hours)	Total Annualized Burden (in hours)	Avg. Hourly Wage Rate	Total Annualized Respondent Cost
State or Tribal Administering Agencies	DHS Civil Rights Compliance Form	55	1	55	4	220	$37.09	$8,159.8
Direct Service Providers	DHS Civil Rights Compliance Form	2093	1	2093	4	8372	$48.20	$403,530.4
Educational Institutions	DHS Civil Rights Compliance Form	72	1	72	4	288	$48.20	$13,881.6
Total	DHS Civil Rights Compliance Form	2220	1	2220	4	8,880		$425,571.8

13. Provide an estimate of the total annual cost burden to respondents or record keepers resulting from the collection of information. (Do not include the cost of any hour burden shown in Items 12 and 14).

• The cost estimate should be split into two components: (a) a total capital and start-up cost component (annualized over its expected useful life); and (b) a total operation and maintenance and purchase of services component. The estimates should take into account costs associated with generating, maintaining, and disclosing or providing the information. Include descriptions of methods used to estimate major cost factors including system and technology acquisition, expected useful life of capital equipment, the discount rate(s), and the time period over which costs will be incurred. Capital and start-up costs include, among other items, preparations for collecting information such as purchasing computers and software; monitoring, sampling, drilling and testing equipment; and record storage facilities.

• If cost estimates are expected to vary widely, agencies should present ranges of cost burdens and explain the reasons for the variance. The cost of purchasing or contracting out information collection services should be a part of this cost burden estimate. In developing cost burden estimates, agencies may consult with a sample of respondents (fewer than 10), utilize the 60-day pre-OMB submission public comment process and use existing economic or regulatory impact analysis associated with the rulemaking containing the information collection, as appropriate.

• Generally, estimates should not include purchases of equipment or services, or portions thereof, made: (1) prior to October 1, 1995, (2) to achieve regulatory compliance with requirements not associated with the information collection, (3) for reasons other than to provide information or keep records for the government or (4) as part of customary and usual business or private practices.

There are no record keeping, capital, start-up or maintenance costs associated with this information collection.

14. Provide estimates of annualized cost to the Federal government. Also, provide a description of the method used to estimate cost, which should include quantification of hours, operational expenses (such as equipment, overhead, printing, and support staff), and any other expense that would not have been incurred without this collection of information. Agencies also may aggregate cost estimates from Items 12, 13, and 14 in a single table.

Initial Data Collection – Year 1

Type of Respondent	Form Name / Form Number	No. of Respondents	No. of Responses per Respondent	Total No. of Responses (Initial Response)	Avg. Burden per Response to Fed. Gov’t (in hours)	Total Burden to Fed. Gov’t (in hours) for Initial Response	Avg. Hourly Wage Rate	Total Cost to Fed Gov.t (Initial Response)
State or Tribal Administering Agencies	DHS Civil Rights Compliance Form	83	1	83	4	332	$68.32	$22,682.24
Direct Service Providers	DHS Civil Rights Compliance Form	3140	1	3140	2	6280	$68.32	$429,049.6
Educational Institutions	DHS Civil Rights Compliance Form	108	1	108	2	216	$68.32	$14,757.12
Total	DHS Civil Rights Compliance Form	3331	1	3331		6828	$68.32	$466,488.96

DHS estimates that the total cost to the Department during the first year of implementation of the DHS Civil Rights Compliance Form will be $466,488.96. This cost is based on an estimate of 4 hours to review responses from State or Tribal Administering Agencies, and 2 hours to review responses from Direct Service Providers or Educational Institutions, at an average hourly loaded wage rate of $68.32 ($48.8 hourly rate (average of hourly rates for staff at GS13, GS14, and GS15 levels) X 1.4 (wage rate multiplier)).

It is important to note that recipients will provide the information only once every two years. Furthermore, if the recipient’s responses have not changed in the two year period since their initial submission, the recipient does not need to resubmit the information. Given that the majority of DHS recipients do not change from year to year, and that DHS anticipates that only a minority of recipients will have significant updates to the required information after the initial submission, DHS estimates that the cost to the Department will decrease by half for the second submission (occurring two years after the after the initial submission) for a total cost of $233,244.48. See table below.

Second Collection – Year 3

Type of Respondent	Form Name / Form Number	No. of Respondents	No. of Responses per Respondent	Total No. of Responses (Second Response)	Avg. Burden per Response to Fed. Gov’t (in hours)	Total Burden to Fed. Gov’t (in hours) for Second Response	Avg. Hourly Wage Rate	Total Cost to Fed Gov.t (Second Response)
State or Tribal Administering Agencies	DHS Civil Rights Compliance Form	83	1	83	2	166	$68.32	$11,341.12
Direct Service Providers	DHS Civil Rights Compliance Form	3140	1	3140	1	3140	$68.32	$214,524.8
Educational Institutions	DHS Civil Rights Compliance Form	108	1	108	1	108	$68.32	$7,378.56
Total	DHS Civil Rights Compliance Form	3331	1	3331			$68.32	$233,244.48

Based on the costs estimates for the initial response and second response that will occur over the 3 year period for which DHS is seeking approval for this data collection, DHS estimates that the total annualized cost to the Department will be $155,428.

Total Annualized Cost over 3 Year Period

Type of Respondent	Form Name / Form Number	Annualized No. of Respondents	No. of Responses per Respondent	Total Annualized No. of Responses	Avg. Burden per Response to Fed. Gov’t (in hours)	Total Annualized Burden to Fed. Gov’t (in hours)	Avg. Hourly Wage Rate	Total Annualized Cost to Fed Gov.t
State or Tribal Administering Agencies	DHS Civil Rights Compliance Form	55	1	55	2	110	$68.32	$7,515.2
Direct Service Providers	DHS Civil Rights Compliance Form	2093	1	2093	1	2093	$68.32	$142,993.76
Educational Institutions	DHS Civil Rights Compliance Form	72	1	72	1	72	$68.32	$4,919.04
Total	DHS Civil Rights Compliance Form	2220	1	2220		2,275	$68.32	$155,428

15. Explain the reasons for any program changes or adjustments reporting in Items 13 or 14 of the OMB Form 83-I.

This is a new information collection and therefore there are no changes.

16. For collections of information whose results will be published, outline plans for tabulation, and publication. Address any complex analytical techniques that will be used. Provide the time schedule for the entire project, including beginning and ending dates of the collection of information, completion of report, publication dates, and other actions.

This information collection will not be published for statistical purposes.

17. If seeking approval to not display the expiration date for OMB approval of the information collection, explain the reasons that display would be inappropriate.

DHS will display the expiration date for OMB approval of this information collection.

18. Explain each exception to the certification statement identified in Item 19, "Certification for Paperwork Reduction Act Submission," of OMB 83-I.

DHS does not request an exception to the certification of this information collection.

12