Agency Information Collection Activities; Proposals, Submissions, and Approvals

SUPPLEMENTARY INFORMATION:

Overview of ICR: This notice pertains to an ICR the Commission intends to submit to OMB for approval of a form that a participating nonprofit agency (NPA) employer will fill out to document relevant information for each of its blind or significantly disabled employees whose work on a requirement on the Procurement List contract is counted by the NPA as direct labor hours. These individuals are called “Participating Employees.”

This ICR is consistent with OMB regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). These regulations require the Commission to provide an opportunity to interested members of the public and affected agencies to comment on information collection and recordkeeping activities ( see5 CFR 1320.8(d)) such as those proposed to be implemented through this form. The Commission may not require completion of this form without receiving approval from OMB and is required to display a valid control number.

The Commission is responsible for implementing the Javits-Wagner-O'Day (JWOD) Act, 41 U.S.C. 8501-8506. In doing so, the Commission oversees the AbilityOne Program (Program), an employment program in which individuals who are blind or have significant disabilities provide products and services to Federal agencies, thereby creating employment opportunities for such individuals. The Commission maintains a Procurement List of mandatory source products and services provided by more than 400 qualified NPAs.

Consistent with the Commission's Strategic Plan, the Agency is working to ensure that Participating Employees in the AbilityOne program are afforded high quality employment opportunities with the possibility for lateral, upward, and outward, mobility. Measuring the Commission's success in this regard requires the Commission to gather data as to the matters covered by this form and the other forms on which the Commission is seeking public comment.

This PEI form will collect data from qualified NPAs regarding Participating Employees to ensure the integrity and further the mission of the AbilityOne Program. This form will provide data on matters such as employee wages, the nature of Participating Employees' disabilities, what job supports and accommodations the Participating Employees are receiving, and a description of employee career development activities that are available to Participating Employees, if an NPA is currently providing such activities.

The form described in this ICR is the second of three forms designed to modernize the Commission's information gathering efforts and align it with the Commission's Strategic Plan for FY 2022-2026, as well as with Commission regulations, including, inter alia, 41 CFR 51-4.3.

The Commission is also developing a new Policy 51.405 which will set forth an NPA's responsibility to provide Participating Employees with employee career development activities such as job individualization and employee career plans. Although the requirements of Policy 51.405 will be implemented over time, this form will allow those NPAs that are already providing such employee career development activities to provide data on what they offer.

The PEI form will be filled out and submitted annually for each Participating Employee through an electronic system that will be established by the Central Nonprofit Agency(ies) (CNAs) for the use of the NPAs.

The Commission published a 60-day notice for this form on May 3, 2024, (89 FR 36774). In that notice, the Commission called this form the “Individual Employee Information” form, but it is now called the Participating Employee Information form. The Commission received 48 comments in response.

A few commenters stated their support for the Commission's purposes of helping ensure the integrity of and furthering the mission of the Program. A commenter noted that some aspects of the information collection are simplified, while promoting the growth and development of Participating Employees. One commenter stated that the forms present a good opportunity to collect data to measure Program accountability and increase transparency.

The Commission also received comments questioning the necessity of collecting the proposed information and asserting that the information to be collected was too extensive or excessive. Some comments noted that the proposed data collection is not required by law. Some also stated that the rationale for collecting the information was too general to substantiate the collection. Finally, some commenters requested information about the Commission's planned use for the information.

In addition, the Commission received comments expressing concerns over the potential collection of personally identifiable information (PII) covered by the Privacy Act. Some suggested that personal identifiers could raise concerns for NPAs under the Americans with Disabilities Act (ADA), and still others were concerned that the Health Insurance Portability and Accountability Act (HIPAA) may be implicated. However, no commenter offered a legal analysis as to why HIPAA would be implicated.

Other commenters suggested revisions to the disabilities and job supports listed on the form. Commenters also noted that some employees might object to listing additional disabilities beyond those qualifying them for the program.

A number of commenters questioned why the wage data was required and stated that the wage data requested on the form would require significant work by different employees to complete.

Commenters expressed concerns about providing data regarding employees' career mobility and requested clarification as to how to fill out the form for an employee who did not desire career mobility.

One commenter requested clarification as to why the form requested both the date of hire and the date of eligibility for an employee.

As to the burden of completion, commenters opined that the Commission's estimated time for completing the form was too short, though only a few offered an alternative estimate. Similarly, one commenter questioned the Commission's assessment of the salary for someone completing the form, but here again, the Commission received little feedback as to an alternative amount. Some commenters contrasted the proposed form to the Commission's prior requirements for information, which required record keeping but not data reporting. Commenters noted that the CNAs presently collect some of the information collected in this form.

In response to the comments received, the Commission has significantly updated the form. First, to address the privacy concerns, the form will no longer require the name of any employee. Instead, the form will have only a form reference number. The NPA will maintain the information required to associate the form with the specific employee, and the NPA will make that information available for certain employees during qualification assessments. In order to share this information with CNA staff during such qualification assessments (also known as compliance inspections), the NPA will have been required to collect any consent forms that might be required under law from the individual at the onset of employment, or the NPA will be required to meet an exemption under the law.

With respect to the Privacy Act, the law does not apply because the forms will not be retrievable by the Commission via a search of any personally identifiable information. Moreover, searches of the forms will be limited to the broad category of an NPA and any form references numbers that may appear in that search will not be able to be correlated to any personally identifiable information. Therefore, the Commission is confident that the Privacy Act is not implicated in the collection of this information.

With regard to HIPAA, the Commission believes that, even to the extent some NPAs are covered entities under that law, submitting the form would constitute an exception for disclosures required for “[e]ntities subject to government regulatory programs for which health information is necessary for determining compliance with program standards[.]” 45 CFR 164.512(d)(1)(III). Moreover, the Commission has removed personal identifiers from the form, creating another built-in layer of privacy.

If the NPA believes that submitting the form would constitute a transaction under 45 CFR part 162, the NPA should consult with its HIPAA compliance officer for any updates to its existing HIPAA release form(s).

With regard to the Americans with Disabilities Act (ADA) and the inclusion of information on the form about an employee's disability and the reasonable accommodations the employee is receiving, it is true that the ADA requires that such information be kept confidential, subject to only limited exceptions. However, an exception exists where release of the information is required or necessitated by another Federal law. Since disability is a statutory prerequisite to be able to count an individual's direct labor hours toward an NPA's ratio under the JWOD Act, proof of disability is necessary for complying with the law. To the extent NPAs have any additional concerns, they may also obtain the authority to release this information for these very limited purposes upon hire.

This form does not change an NPA's record keeping requirements except insofar as the NPA is required to maintain a record of which employee is associated with which Form Reference Number. That duty is a natural consequence of NPAs' regulatory requirements to maintain a file on each employee as required to participate in the AbilityOne Program. See 51.4.3(b) and (c).

With regard to comments about the difficulty of providing information on wages, the Commission has deleted the questions regarding the average hours worked per week and median wages. Instead, the form asks only about the employee's W-2 wages in the past calendar year and the employee's hourly wage as reflected on the most recent pay stub for the employee.

The listed disabilities were reorganized, as were the significant job supports, and supports were added in response to specific suggestions.

The form makes clear that only the disability(ies) that qualifies the individual for the program must be recorded on the form, although employees may choose to provide information on other disabilities (particularly those for which they are receiving job supports).

With regard to career mobility, collecting and analyzing data in this area is necessary to identify the career opportunities available in this program. The Commission has also added an option permitting the NPA to note an employee's desire not to participate in career mobility and, in addition, to record whether the employee's desire not to move to a job with higher pay was due to the employee's concern with losing government-funded health care or other benefits.

With respect to burden, the Commission agrees with commenters that some of the information requested in this form is already being collected by one of the CNAs. Once this form is approved, the CNAs will be required to have an electronic data system that can collect this information, and the Commission will ensure the CNAs will not be collecting information that duplicates the information in this form. Moreover, the Commission believes that making the form available in electronic format will significantly ease the burden of compliance. Nevertheless, based on all of the comments received, the Commission has revised its estimate for completing the form upward to two hours.

A draft version of the PEI form is available at www.abilityone.gov.

To calculate the burden for completion of the form in units of hours, the Commission multiplied the estimated total number of annual responses by 2, the number of hours the Commission estimates will be needed to complete the form. NPAs can assess the burden to their particular organization by multiplying the time by their total number of Participating Employees.

The cost burden is based upon national average pay data from the U.S. Bureau of Labor Statistics, using the May 2022 National Occupational Employment and Wage Estimate of $30.88 as the median hourly wage for a Human Resources Specialist (OC 13-1070). ( https://www.bls.gov/oes/current/oes_nat.htm#11-0000 ) The table below represents the time and cost burden the Commission estimates this form will necessitate. The Commission believes that collecting this critical data will further the Program's mission and ultimately result in an expansion in opportunities for the individuals employed through the AbilityOne Program.