E9-28783. Proposed Extension of the Approval of Information Collection Requirements

AGENCY:

Wage and Hour Division, Labor.

ACTION:

Notice

SUMMARY:

The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95). 44 U.S.C. 3506(c)(2)(A). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Wage and Hour Division is soliciting comments concerning its proposal to extend the Office of Management and Budget (OMB) approval of the Information Collection: Requests to Approve Conformed Wage Classifications and Unconventional Fringe Benefit Plans Under the Davis-Bacon and Related Acts and Contract Work Hours and Safety Standards Act. A copy of the proposed information collection request can be obtained by contacting the office listed below in the FOR FURTHER INFORMATION CONTACT section of this Notice.

DATES:

Written comments must be submitted to the office listed in the addresses section below on or before February 1, 2010.

ADDRESSES:

You may submit comments, identified by Control Number 1215-0140, by either one of the following methods:

E-mail: [e-mail].

Mail, Hand Delivery, Courier: Regulatory Analysis Branch, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210.

Instructions: Please submit one copy of your comments by only one method. All submissions received must include the agency name and Control Number identified above for this information collection. Because we continue to experience delays in receiving mail in the Washington, DC area, commenters are strongly encouraged to transmit their comments electronically via email or to submit them by mail early. Comments, including any personal information provided, become a matter of public record. They will also be summarized and/or included in the request for Office of Management and Budget approval of the information collection request.

FOR FURTHER INFORMATION CONTACT:

Michel Smyth, Chief, Regulatory Analysis Branch, Division of Interpretations and Regulatory Analysis, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: [phone] (this is not a toll-free number). Copies of this notice may be obtained in alternative formats (Large Print, Braille, Audio Tape or Disc), upon request, by calling [phone] (not a toll-free number). TTY/TDD callers may dial toll-free [phone] to obtain information or request materials in alternative formats.

SUPPLEMENTARY INFORMATION:

I. Background: Regulations 29 CFR part 5 prescribe labor standards for federally financed and assisted construction contracts subject to the Davis-Bacon Act (DBA), 40 U.S.C. 3141 et seq., the Davis-Bacon Related Acts (DBRA), and labor standards for all contracts subject to the Contract Work Hours and Safety Standards Act (CWHSSA), 40 U.S.C. 3701 et seq. The DBA and DBRA require payment of locally prevailing wages and fringe benefits, as determined by the Department of Labor (DOL), to laborers and mechanics on most federally financed or assisted construction projects. 40 U.S.C. 3142(a)-(b) and 29 CFR 5.5(a)(1). The CWHSSA requires the payment of one and one-half times the basic rate of pay for hours worked over forty in a week on most federal contracts involving the employment of laborers or mechanics. See 40 U.S.C. 3702(a) and 29 CFR 5.5(b)(1). The requirements of this information collection consist of reports of conformed classifications and wage rates and requests for approval of unconventional fringe benefit plans.

Conformance Reports (29 CFR 5.5(a)(1)(ii)): DBA section 1(a) provides that every contract subject to the DBA must contain a provision (i.e., a wage determination) stating the minimum wages and fringe benefits to be paid the various classes of laborers and mechanics employed on the contract. See 40 U.S.C. 3142(a) and 29 CFR 5.5(a)(1)(i). This requirement necessitates a method for establishing minimum rates for classes of employees omitted from wage determinations, primarily due to wage data being unavailable; therefore, regulations 29 CFR 5.5(a)(1)(ii) requires that any class of laborer or mechanic not listed in the wage determination that is to be employed under the contract to be classified in conformance with the wage determination. A report of the conformance action (or, where there is disagreement among the parties, the questions and views of all parties) is submitted through the contracting officer to the DOL for review and approval. 29 CFR 5.5(a)(1)(ii)(B)-(C).

The Wage and Hour Division (WHD) of the DOL reviews a proposed conformance action report to determine the appropriateness of the request. The WHD considers such factors as: (1) The work of the proposed classification, which cannot be work that is performed by a classification already listed in the wage determination; (2) whether the proposed classification is utilized in the area by the construction industry; and (3) whether the proposed wages and fringe benefits bear a reasonable relationship (i.e., appropriate comparison of skills and duties) to the rates contained in the wage determination. See 29 CFR 5.5(a)(1)(ii)(A). Upon completion of the review, the WHD approves, modifies, or disapproves the conformance request and issues a determination. See id. at 5.5(a)(1)(ii)(B)-(C).

Unconventional Fringe Benefit Plans (29 CFR 5.5(a)(1)(iv)): The DBA provides that wages may include costs to the contractor or subcontractor which may be reasonably anticipated in providing benefits to laborers or mechanics pursuant to an enforceable commitment to carry out a financially responsible plan or program. 40 U.S.C. 3141(2)(B)(ii). Where a benefit plan is not of the conventional type described in the DBA and/or common in the construction industry that is established under a customary fund or program, it is necessary to determine from the circumstances whether the benefit is bona fide, as required by the DBA; thus, regulation 29 CFR 5.5(a)(1)(iv) provides for contractors to request approval of these unconventional fringe benefit plans.

Taking credit for payments to fringe benefit plans that are not bona fide violates the DBA and DBRA. See 29 CFR 5.5(a)(iv). The WHD reviews requests for approval of unconventional fringe benefit plans to determine the propriety of the plans. Id.

II. Review Focus: The DOL is particularly interested in comments which:

* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

* Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

* Enhance the quality, utility and clarity of the information to be collected; and

* Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.

III. Current Actions: The DOL seeks the approval of the extension of this information collection in order to ensure there is a viable method for interested parties to seek approval of wage conformances and certain fringe benefit plans under the DBA and DBRA and to allow the WHD to carry out its enforcement responsibilities.

Type of Review: Extension.

Agency: Wage and Hour Division.

Titles: Requests to Approve Conformed Wage Classifications and Unconventional Fringe Benefit Plans Under the Davis-Bacon and Related Acts and Contract Work Hours and Safety Standards Act.

OMB Number: 1215-0140.

Agency Numbers: None.

Affected Public: Businesses or other for-profits.

Respondents: 2966.

Total Annual Responses: 2966.

Estimated Total Burden Hours: 746.

Estimated Time per Response: 15 to 60 minutes.

Frequency: On Occasion.

Total Burden Cost (capital/startup): $0.

Total Burden Cost (operating/maintenance): $1391.

Dated: November 24, 2009.

Michel Smyth,

Regulatory Analysis Branch Chief.