By: Evan Szarenski and Cassie Alfheim
On November 20, 2022, the Office of Federal Contract Compliance Programs (OFCCP) published proposed changes to its Supply & Service scheduling letter and itemized listing. Over the next few weeks, DCI will provide a series of blog posts providing insight on the most notable of these proposed changes. Before breaking down the substantive proposed changes this post will first explain the scheduling letter proposal process and recent approval timelines.
Information Collection Approval Process
The Paperwork Reduction Act of 1995 (PRA) puts limits on federal agencies’ ability to request information from or put record-keeping requirements on to the public. Specifically, before a federal agency can request information from the public, it must give the public an opportunity to comment on the proposal and it also must get approval from the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA).
If an agency wishes to request information from the public, it first must publish a notice in the Federal Register giving the public 60 days to comment on the proposal. This is called the “60-day notice.” The 60-day notice frequently acts as a “wish list” for the agency. After the end of the comment period, the agency must consider the comments received and will potentially revise the proposal. The agency must then submit the revised proposal to OIRA for approval. At the same time, the agency will publish another notice in the Federal Register notifying the public of the revised proposal. The public has 30 days to comment before OIRA will start reviewing the proposal. This is called the “30-day notice.” After the 30-day notice period expires, OIRA can begin its review. OIRA can approve the request for up to three years or disapprove the request.
The agency may make amendments to the request during the review process.
OFCCP Scheduling Letters—Recent Timelines for Approval
OIRA’s review can take a long time. For example, OFCCP began the process for renewing the current scheduling letter by publishing the 60-day notice on April 12, 2019. The 30-day notice was published 77 days later on June 28, 2019. It then took OIRA over nine months to approve the letter. The entire process took over a year.
The 2019 scheduling letter made only minor changes to the prior scheduling letter. The last time OFCCP proposed major changes to the scheduling letter was in 2011. OFCCP published the 60-day notice in May 2011, but OIRA did not approve the letter until September 2014, over 3 years later. During this time, OFCCP made several modifications to the itemized listing, including removing the VETS-100 (now VETS-4212), copies of employment leave policies, and “actual pools of candidates” for promotions and terminations as items required to be submitted with a contractor’s AAP.
Finally, you may have noticed that the authorization for the current scheduling letter expires April 30, 2023. If the OIRA review process extends past that point, the expiration date will be extended one month at a time until the new scheduling letter is approved.
While it probably will not take three years for the proposed scheduling letter to receive approval, there will be some time before we have a new scheduling letter. Additionally, the final scheduling letter will likely look different than what was proposed in November 2022.
Keep an eye on the DCI Blog for our OFCCP Proposed Scheduling Letter Series, evaluating the proposed changes regarding campus-like settings, selection procedures, additional promotions and terminations requirements, compensation data, and much more.
