[Federal Register: April 7, 2008 (Volume 73, Number 67)]
[Rules and Regulations]
[Page 18712-18715]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap08-7]
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Part 60-250
RIN 1215-AB65
Nondiscrimination and Affirmative Action Obligations of
Contractors and Subcontractors Regarding Protected Veterans
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Final rule.
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SUMMARY: This final rule revises the regulations in 41 CFR part 60-250
implementing the nondiscrimination and affirmative action provisions of
the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as
amended (``Section 4212'' or ``VEVRAA''). The regulations in part 60-
250 implement the nondiscrimination and affirmative action provisions
of VEVRAA prior to their amendment in 2002 by the Jobs for Veterans Act
(``JVA''), and apply to contracts entered into before December 1, 2003.
Today's final rule revises the mandatory job listing provision in the
part 60-250 regulations to provide that listing employment openings
with the state workforce agency job bank or with the local employment
service delivery system where the opening occurs will satisfy the
mandatory job listing requirements under the part 60-250 regulations.
The effect of this final rule is to conform the mandatory job listing
provision in the part 60-250 regulations to the parallel provision in
the
[[Page 18713]]
regulations of the Office of Federal Contract Compliance Programs
(``OFCCP'') implementing the JVA amendments to VEVRAA in 41 CFR part
60-300. Today's final rule also clarifies that the regulations in part
60-250 apply to any contract or subcontract of at least $25,000 entered
into before December 1, 2003, and that the regulations in part 60-300,
not the part 60-250 regulations, apply to such a contract or
subcontract if it is modified on or after December 1, 2003 and the
contract or subcontract as modified is for $100,000 or more.
DATES: Effective Date: These regulations are effective April 7, 2008.
FOR FURTHER INFORMATION CONTACT: Sandra Dillon, Acting Director,
Division of Policy, Planning, and Program Development, Office of
Federal Contract Compliance Programs, 200 Constitution Avenue, NW, Room
N3422, Washington, DC 20210. Telephone: (202) 693-0102 (voice) or (202)
693-1337 (TTY).
SUPPLEMENTARY INFORMATION: The nondiscrimination and affirmative action
provisions of the Vietnam Era Veterans' Readjustment Assistance Act, 38
U.S.C. 4212, (``VEVRAA'' or ``Section 4212'') require Federal
contractors and subcontractors to provide equal employment opportunity
to and take affirmative action to employ and advance in employment the
categories of veterans protected under the law. Prior to the amendments
made in 2002 by the Jobs for Veterans Act (Pub. L. 107-288, 116 Stat.
2033)(``JVA''), VEVRAA required, in part, that the President implement
the nondiscrimination and affirmative action provisions by promulgating
regulations requiring contractors to list immediately with the
appropriate local employment service office all of its employment
openings, except that the contractor may exclude openings for executive
and top management positions, positions which are to be filled from
within the contractor's organization, and positions lasting three days
or less.
OFCCP's regulations implementing the pre-JVA nondiscrimination and
affirmative action provisions of VEVRAA are published in 41 CFR part
60-250. The pre-JVA nondiscrimination and affirmative provisions of
VEVRAA and the regulations in part 60-250 continue to apply to
contractors with contracts entered into before December 1, 2003. The
mandatory job listing requirement is addressed in the regulation
containing the equal opportunity clause at 41 CFR 60-250.5. OFCCP
clarified in Sec. 60-250.5(a)2 that ``the appropriate local employment
service office'' is ``an appropriate local employment service office of
the state employment security agency wherein the opening occurs.'' In
addition, OFCCP interpreted the language in the pre-JVA affirmative
action provisions of VEVRAA to authorize the use of alternative methods
for complying with the mandatory job listing requirement. Thus, Sec.
60-250.5(a)2 currently provides that ``[l]isting employment openings
with the U.S. Department of Labor's America's Job Bank shall satisfy
the requirement to list jobs with the local employment service
office.''
Today's final rule revising the mandatory job listing provision in
Sec. 60-250.5(a)2 was made necessary by two events. First, the JVA
amended the nondiscrimination and affirmative action provisions of
VEVRAA and made those amendments applicable only to contracts entered
into on or after December 1, 2003. Among the changes made by the JVA
amendments was a change to the manner in which the mandatory job
listing provision is to be implemented. Section 2(b)(1) of the JVA
requires the Secretary to promulgate regulations that obligate each
covered contractor to list all of its employment openings with ``the
appropriate employment service delivery system.'' Section 5(c)(1) of
the JVA defines the term ``employment service delivery system'' as ``a
service delivery system at which or through which labor exchange
services, including employment, training, and placement services, are
offered in accordance with the Wagner-Peyser Act.'' See 38 U.S.C.
4101(7). In addition to listing with an appropriate employment service
delivery system, the JVA permits contractors to list their employment
openings with ``one-stop career centers under the Workforce Investment
Act of 1998, other appropriate service delivery points, or America's
Job Bank (or any additional or subsequent national electronic job bank
established by the Department of Labor).'' Under the JVA amendments,
listing jobs solely with America's Job Bank (``AJB'') no longer
complies with the requirements of VEVRAA. In addition, AJB ceased
operations on July 1, 2007.
OFCCP recently published final regulations to implement the JVA
amendments to the nondiscrimination and affirmative action provisions
of VEVRAA (72 FR 44393, August 8, 2007). The regulation at 41 CFR 60-
300.5(a)2 implementing the mandatory job listing requirement provides
that ``listing employment openings with the state workforce agency job
bank or with the local employment service delivery system where the
opening occurs will satisfy the requirement to list jobs with the
appropriate employment service delivery system.'' Contractors that are
covered by both the regulations in part 60-250 and part 60-300 have
asked whether they may use the same methods to satisfy their mandatory
job listing obligations under both sets of regulations. In addition,
with the elimination of one of the permissible methods under Sec. 60-
250.5(a)2 for satisfying their job listing obligations, contractors
have inquired about other methods that might be used to comply with the
mandatory job listing requirements in the part 60-250 regulations.
OFCCP has interpreted the language of the pre-JVA nondiscrimination
and affirmative action provisions of VEVRAA and the current Sec. 60-
250.5(a)2 to authorize alternative methods for listing job openings
with the local employment service office. Thus, OFCCP has interpreted
the current Sec. 60-250.5(a)2 to permit contractors to list job
openings in the same manner that is permitted under the regulation at
41 CFR 60-300.5(a)2. In a Frequently Asked Question (``FAQ'') published
on the OFCCP Web site, OFCCP advised contractors that ``listing with
the state workforce agency job bank in the state where the job opening
occurs also will satisfy the listing requirement under the part 60-250
regulations.'' In another FAQ published on the Web site, OFCCP further
explained that ``contractors subject to both sets of regulations also
may satisfy the listing requirement by listing openings with an
appropriate local employment service delivery system.'' See http://
www.dol.gov/esa/regs/compliance/ofccp/faqs/jvafaqs.htm.
Today's final rule makes two changes to the mandatory job listing
provision in Sec. 60-250.5(a)2. First, the final rule removes the
reference to AJB since it no longer exists. Second, today's final rule
conforms the mandatory job listing provision in the part 60-250
regulations to the interpretation of current Sec. 60-250.5(a)2 that is
set forth in the FAQs. Thus, the final rule revises Sec. 60-250.5(a)2
to state that ``listing employment openings with the state workforce
agency job bank where the opening occurs or with the local employment
service delivery system where the opening occurs will satisfy the
requirement to list jobs with the appropriate employment service
office.'' As a result of the changes made by this final rule, the
VEVRAA regulations at part 60-250 and part 60-300 will identify the
same methods for satisfying the mandatory listing requirement.
[[Page 18714]]
In addition, this final rule revises Sec. 60-250.1(b) to clarify
that the regulations in part 60-250 apply to any contract or
subcontract of at least $25,000 entered into before December 1, 2003,
and that the regulations in part 60-300, not the part 60-250
regulations, apply to such a contract or subcontract if it is modified
on or after December 1, 2003, and the contract or subcontract as
modified is for $100,000 or more. This change will assist contractors
in determining whether the regulations in part 60-250 and/or the
regulations in part 60-300 apply to their contracts.
Regulatory Procedures
Publication in Final
OFCCP has determined that this rulemaking need not be published as
a proposed rule, as generally required by the Administrative Procedure
Act, 5 U.S.C. 553 (``APA''). Notice-and-comment requirements do not
apply to ``interpretive rules.'' 5 U.S.C. 553(b)(A). The amendment to
41 CFR 60-250.5(a)2 is not being published as a proposed rule because
it is an interpretive rule and therefore exempt from APA notice and
comment procedures. Consistent with OFCCP's interpretation that under
the pre-JVA affirmative action provisions of VEVRAA and existing 41 CFR
60-250.5(a)2 more than one method may be used to list openings with the
appropriate local employment service office, the final rule amends 41
CFR 60-250.5(a)2 to include additional means of listing jobs. The
current rule allowed contractors to post jobs on AJB, while this final
rule permits contractors to satisfy the mandatory job listing
requirement by posting employment openings with the state workforce
agency job bank or with the local employment service delivery system
where the employment opening occurs. For these reasons, the exemption
for interpretive rules permits OFCCP to publish this final rule to
codify OFCCP's interpretation that listing job openings with the state
workforce agency job banks or with the local employment service
delivery system where the job opening occurs are permissible methods
for complying with the mandatory listing requirement at 41 CFR 60-
250.5(a)2.
In addition, notice-and-comment rulemaking is not required for the
amendment to 41 CFR 60-250.1(b), which clarifies the scope and
applicability of the regulations in 41 CFR part 60-250 and the
regulations in 41 CFR part 60-300. The JVA made the amendments to the
nondiscrimination and affirmative action provisions of VEVRAA
applicable only to Government contracts entered into on or after
December 1, 2003. The term ``Government contract'' is defined in
existing 41 CFR 60-250.2(i) and 41 CFR 60-300.2(i) as ``any agreement
or modification thereof between any contracting agency and any person
for the purchase, sale or use of personal property or nonpersonal
services (including construction).'' Because a contract modification is
a ``Government contract,'' the JVA amendments apply to modifications of
otherwise covered contracts made on or after December 1, 2003.
Consequently, the regulation at 41 CFR 60-300.1(b) provides that part
60-300 applies to any contract of $100,000 or more, entered into or
modified on or after December 1, 2003. The amendment to 41 CFR 60-
250.1(b) essentially incorporates the effective date of the JVA
amendments, which was determined by statute, and tracks the regulation
in 41 CFR 60-300.1(b). The Department of Labor may not, in response to
public comment, change or decline to implement the effective dates of
the JVA amendments. Consequently, there is good cause for finding that
applying the notice-and-comment procedure to the amendment to 41 CFR
60-250.1 is unnecessary and contrary to the public interest, pursuant
to Section 553(b)(B) of the APA.
Executive Order 12866
This final rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. OFCCP
has determined that this rule is not ``a significant regulatory
action'' under Executive Order 12866, section 3(f). Accordingly, it
does not require an assessment of potential costs and benefits under
section 6(a)(3) of that order.
Executive Order 13132
OFCCP has reviewed the rule in accordance with Executive Order
13132 regarding federalism, and has determined that it does not have
``federalism implications.'' The rule will not ``have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Regulatory Flexibility Act
The rule clarifies existing requirements for Federal contractors.
In view of this fact and because the rule does not substantively change
existing obligations for Federal contractors, we certify that the rule
will not have a significant economic impact on a substantial number of
small business entities. Therefore, a regulatory flexibility analysis
under the Regulatory Flexibility Act is not required.
Small Business Regulatory Enforcement Fairness Act
OFCCP has concluded that the rule is not a ``major'' rule under the
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.
801 et seq.). In reaching this conclusion, the OFCCP has determined
that the rule will not likely result in (1) an annual effect on the
economy of $100 million or more; (2) a major increase in costs or
prices for consumers, individual industries, Federal, State or local
government agencies, or geographic regions; or (3) significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic or export markets.
Unfunded Mandates Reform
Executive Order 12875--This rule does not create an unfunded
Federal mandate upon any State, local, or tribal government.
Unfunded Mandates Reform Act of 1995--This rule does not include
any Federal mandate that may result in increased expenditures by State,
local, and tribal governments, in the aggregate, of $100 million or
more, or increased expenditures by the private sector of $100 million
or more.
Congressional Review Act
This regulation is not a major rule for purposes of the
Congressional Review Act.
Paperwork Reduction Act
The information collection requirements contained in the existing
VEVRAA regulations, with the exception of those related to complaint
procedures, are currently approved under OMB Control No. 1215-0072
(Recordkeeping and Reporting Requirements--Supply and Service) and OMB
Control No. 1215-0163 (Construction Recordkeeping and Reporting). The
information collection requirements contained in the existing complaint
procedures regulation are currently approved under OMB Control No.
1215-0131. This final rule amends the regulations implementing VEVRAA
to allow contractors to list with the state workforce agency job bank
where the opening occurs or the local employment service delivery
system where the opening occurs to comply with the obligation to list
jobs with an appropriate local employment service
[[Page 18715]]
office. However, this final rule does not make any changes to the
currently approved information collections. Consequently, this final
rule need not be reviewed by the Office of Management and Budget under
the authority of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et
seq.
List of Subjects in 41 CFR Part 60-250
Administrative practice and procedure, Civil rights, Employment,
Equal employment opportunity, Government contracts, Government
procurement, Individuals with disabilities, Investigations, Reporting
and recordkeeping requirements, and Veterans.
Signed at Washington, DC, this 1st day of April, 2008.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Charles E. James, Sr.,
Deputy Assistant Secretary for Federal Contract Compliance.
0
Accordingly, under authority of 38 U.S.C. 4212, Title 41 of the Code of
Federal Regulations, Chapter 60, Part 60-250, is amended as follows:
PART 60-250--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS
OF CONTRACTORS AND SUBCONTRACTORS REGARDING SPECIAL DISABLED
VETERANS, VETERANS OF THE VIETNAM ERA, RECENTLY SEPARATED VETERANS,
AND OTHER PROTECTED VETERANS
0
1. The authority citation for part 60-250 continues to read as follows:
Authority: 29 U.S.C. 793; 38 U.S.C. 4211 (2001) (amended 2002);
38 U.S.C. 4212 (2001) (amended 2002) and 4212; E.O. 11758 (3 CFR,
1971-1975 Comp., p. 841).
0
2. Section 60-250.1 is amended by revising paragraph (b) to read as
follows.
Sec. 60-250.1 Purpose, applicability and construction.
* * * * *
(b) Applicability. This part applies to any Government contract or
subcontract of $25,000 or more entered into before December 1, 2003,
for the purchase, sale or use of personal property or nonpersonal
services (including construction), except that the regulations in 41
CFR part 60-300, and not this part, apply to such a contract or
subcontract that is modified on or after December 1, 2003 and the
contract or subcontract as modified is in the amount of $100,000 or
more: Provided, That subpart C of this part applies only as described
in Sec. 60-250.40(a). Compliance by the contractor with the provisions
of this part will not necessarily determine its compliance with other
statutes, and compliance with other statutes will not necessarily
determine its compliance with this part.
* * * * *
0
3. Section 60-250.5 is amended by revising paragraph (a)2 to read as
follows.
Sec. 60-250.5 Equal opportunity clause.
(a) * * *
2. The contractor agrees to immediately list all employment
openings which exist at the time of the execution of this contract and
those which occur during the performance of this contract, including
those not generated by this contract and including those occurring at
an establishment of the contractor other than the one wherein the
contract is being performed, but excluding those of independently
operated corporate affiliates, at an appropriate local employment
service office of the state employment security agency wherein the
opening occurs. Further, listing employment openings with the state
workforce agency job bank where the opening occurs or with the local
employment service delivery system where the opening occurs will
satisfy the requirement to list jobs with the appropriate employment
service office.
* * * * *
[FR Doc. E8-7123 Filed 4-4-08; 8:45 am]
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