Monday, November 21, 2022: OFCCP Proposed Numerous Changes to Its Supply & Service Contractor ICRs, Including City-wide Audits and Promises to Jawbone Contractors to Use of Its Portal to Submit Scheduling Letter & Itemized Listing Responses
OFCCP published a notice in the Federal Register seeking public comments on several changes to its information collection requirements (ICRs) for Supply and Service Contractors in conjunction with its request for Office of Management and Budget’s (OMB) approval to continue the ICRs PURSUANT TO the federal Paperwork Reduction Act. OMB’s current approval for these ICRs expires on April 30, 2023. The proposal includes significant changes to OFCCP’s Scheduling Letter and Itemized Listing – including five new items. However, the notice itself only lists the substantive proposed changes. Details on the changes were revealed in the 31-page Supporting Statement that OFCCP submitted to OMB. The proposed revised Scheduling Letter is available here.
Comments on the proposed changes are due on Tuesday, January 20, 2023, and can be submitted here.
Editorial Note 1: The federal Paperwork Reduction Act is a federal statute independent of the federal Administrative Procedure Act. The Paperwork Reduction Act requires OMB (an arm of the White House) to approve all federal agency data or information collected from 10 or more members of the public to avoid duplication of effort among the federal Executive Branch agencies subject to the President’s control. OMB also undertakes cost-benefit evaluations of whether the number of “burden hours” the agency estimates will impact the public is justified by the objective of the data/information collection.
Editorial Note 2: The informal comments the OMB receives in response to OFCCP Federal Register requests for public comment DO NOT SUFFICE OR REPLACE the need for a federal Executive Branch agency like OFCCP to also publish for formal public “Notice and Comment” PURSUANT TO the federal Administrative Procedure Act (“APA”) any information collection impacting the regulated community. See, The FIRESTONE SYNTHETIC RUBBER & LATEX CO., a division of the Firestone Tire & Rubber Co., and Koppers Company, Inc., Intervenor, v. F. Ray MARSHALL, Secretary of Labor and Weldon J. Rougeau, Director, Office of Federal Contract Compliance Programs, 507 F. Supp. 1330 (1981) [OFCCP is required to publish a formal Rule pursuant to the APA regardless of whether OFCCP intends the Rule to be a “Legislative Rule” carrying the full “binding force and effect of law” as though issued in a statute by the U.S. Congress that the OFCCP intends to require of covered federal Government contractors and enforce against them, or whether the Rule is merely an “Interpretive Rule” OFCCP did not intend to enforce against covered federal Government contractors but rather intended to merely explain one or more of OFCCP’s existing Rules that would have a “substantial impact” on covered federal Government contractors.] See 507 F. Supp. 1334-1336, in particular, in the Firestone decision.
It’s a Texas Two-Step: In either case, whether OFCCP intends a Legislative Rule or…