DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Part 60-250
RIN 1215-AA62
Affirmative Action Obligations of Contractors and Subcontractors
for Disabled Veterans and Veterans of the Vietnam Era; Correction
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Correcting amendments.
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SUMMARY: This document contains corrections to the Office of Federal
Contract Compliance Programs (OFCCP) final <strong>regulations</strong> implementing the
affirmative action provisions of the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended (38 U.S.C. 4212), which were
published January 5, 1995 (60 FR 1986). Those final <strong>regulations</strong>
incorporated, among other things, statutory changes in the mandatory
job listing obligations of Federal contractors and subcontractors. The
statutory changes eliminated the $25,000 per year salary ceiling and
otherwise broadened the scope of job openings that Federal contractors
and subcontractors must list with the State employment service.
EFFECTIVE DATE: February 16, 1996.
FOR FURTHER INFORMATION CONTACT:
Joe N. Kennedy, Deputy Director, Office of Federal Contract Compliance
Programs, Room C-3325, 200 Constitution Avenue, N.W., Washington, D.C.
20210. Telephone (202) 219-9475 (voice) and 1-800-326-2577 (TDD).
Copies of this correction document are available in the following
alternate formats at the above office: electronic file on computer
disk, large print and audio tape.
SUPPLEMENTARY INFORMATION:
Background
Prior to amendment in 1994, the affirmative action provisions of
the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as
amended (38 U.S.C. 4212) (``VEVRAA'' or ``Section 4212''), required
that Federal contractors and subcontractors covered by VEVRAA must list
``all * * * suitable employment openings'' with the appropriate local
employment service office. VEVRAA required those offices, in turn, to
give priority referrals to veterans for such openings. This obligation
to list job openings with the local employment service office is often
referred to as the ``mandatory listing'' requirement. Although Section
4212 did not define the term ``all * * * suitable employment
openings,'' this term was defined in OFCCP implementing <strong>regulations</strong> at
41 CFR 60-250.4(h).
Section 702(a) of the Veterans' Benefits Improvements Act of 1994
(Pub. L. 103-446, 108 Stat. 4645, 4674 (1994)), expanded the scope of
the employment openings to be listed with the State employment service
office by dropping the word ``suitable'' from the statutory phrase
``all * * * suitable employment openings,'' broadly defining the term
``all * * * employment openings,'' and limiting the exceptions to the
mandatory listing requirement.
The statutory amendment to the mandatory listing requirement does
not list all of the exceptions to mandatory listing permitted
previously by OFCCP <strong>regulations</strong>. The amendment eliminated the salary
ceiling of $25,000 per year which was in the OFCCP <strong>regulations</strong>, and now
requires the listing of all employment openings except executive and
top management positions, positions that will be filled from within the
contractor's organization, and positions lasting three days or less.
The final regulation published on January 5, 1995, amended OFCCP's
regulation at
[[Page 6117]]
41 CFR 60-250.4, which contains the affirmative action clause for
disabled veterans and veterans of the Vietnam era. Specifically, OFCCP
intended to amend the paragraphs prescribing the employment openings to
be listed with the State employment service in order to make the VEVRAA
affirmative action clause consistent with the 1994 statutory amendment.
Need for Correction
A few inadvertent errors were made in the January 5, 1995, rule
amending the VEVRAA affirmative action clause. First, two sentences at
the end of paragraph (b) relating to contractors' reporting
obligations, which were not changed by the statutory amendment, were
inadvertently left out of the published final rule. Second, part of
paragraph (g) refers to an exemption no longer permitted under the
statutory amendment, that is, openings to be filled pursuant to a
``customary and traditional employer-union hiring arrangement,'' and
such reference should have been deleted. Third, minor errors of
punctuation were made in the authority citation for 41 CFR Part 60-250.
As described below, these errors were inadvertent, clerical mistakes
that need correction.
The two sentences at the end of paragraph (b) that were
inadvertently left out of the final rules read as follows:
The contractor further agrees to provide such reports to such
local office regarding employment openings and hires as may be
required.
State and local government agencies holding Federal contracts of
$10,000 or more shall also list all their employment openings with
the appropriate office of the State employment service, but are not
required to provide those reports set forth in paragraphs (d) and
(e).
These two sentences involve VEVRAA-related reporting
responsibilities, and it must be highlighted that the 1994 statutory
amendments did not amend the VEVRAA reporting requirements. OFCCP only
intended to make regulatory revisions on January 5, 1995, that were
nondiscretionary changes mandated by the 1994 statutory amendments.
Indeed, the final rule evoked the good cause exemption under the
Administrative Procedure Act, 5 U.S.C. 553(b)(B), for dispensing with
the issuance of a proposal and the provision of public notice and
comment procedures because it was a ``nondiscretionary, ministerial
action which merely incorporates, without change, two statutory
amendments into pre-existing <strong>regulations</strong>.'' 60 FR 1986. Making
substantive changes to the reporting requirements, including what
amounts to eliminating an exemption from certain reporting for State
and local government agencies holding covered Federal contracts, was
beyond OFCCP's statutory authority without providing the public with
notice and an opportunity to comment. The agency's intent to retain the
reporting provisions in paragraph (b) is also evidenced by the fact
that other reporting provisions were left in the affirmative action
clause in paragraph (d), which explicitly reference the provisions in
(b) that were mistakingly left out of the January 5 Federal Register
publication.
Regarding paragraph (g), as noted above, the statutory amendments
expressly limited the number of exemptions from the mandatory listing
requirement and did not provide for the exemption in paragraph (g) for
openings to be filled pursuant to a ``customary and traditional
employer-union hiring arrangement.'' In accordance with the 1994
Congressional mandate, the January 5, 1995, final rule removed the
reference to the employer-union exemption in paragraph (h)(1) and
deleted the definition of the term that had appeared in paragraph
(h)(4). The language in paragraph (g) referring to exemptions for
openings which the contractor proposes ``to fill pursuant to a
customary and traditional employer-union hiring arrangement'' is also
contrary to the 1994 statutory amendments, and the agency intended to
eliminate it. Accordingly, paragraph (g) is revised by deleting all
references to exemptions for employer-union arrangements.
In addition, this publication makes minor technical corrections
involving the punctuation of the authority citation for 41 CFR Part 60-
250.
All of the above errors were inadvertent, clerical mistakes that
are within OFCCP authority to correct.
Waiver of Proposed Rulemaking
These amendments correct inadvertent errors in the January 5, 1995,
final <strong>regulations</strong> that were a nondiscretionary, ministerial action
which merely sought to incorporate, without change, statutory
amendments into pre-existing <strong>regulations</strong>. Publication of these
technical corrections in proposed form serves no useful purpose, and
therefore is unnecessary and contrary to the public interest within the
meaning of the Administrative Procedure Act (5 U.S.C. 553(b)(B)). Thus,
good cause exists to dispense with notice of proposed rulemaking.
Effective Date
Pursuant to 5 U.S.C. 553(d) the undersigned have determined that
good cause exists for making these correcting amendments effective upon
publication. This determination is based upon the fact that these
correcting amendments are nondiscretionary, ministerial actions which
merely incorporate, without change, a statutory amendment into
preexisting <strong>regulations</strong>. Moreover, the rules that are being corrected
were made effective upon their publication on January 5, 1995.
Accordingly, it is unnecessary and contrary to the public interest to
delay the effective date of these corrections and, therefore, this
regulation will be effective upon publication.
List of Subjects in 41 CFR Part 60-250
Administrative practice and procedure, Civil Rights, Employment,
Equal employment opportunity, Government contracts, Government
procurement, Investigations, Veterans.
Signed at Washington, D.C. this 9th day of February 1996.
Bernard E. Anderson,
Assistant Secretary for Employment Standards.
Shirley J. Wilcher,
Deputy Assistant Secretary for Federal Contract Compliance.
PART 60-250--AFFIRMATIVE ACTION OBLIGATIONS OF CONTRACTORS AND
SUBCONTRACTORS FOR DISABLED VETERANS AND VETERANS OF THE VIETNAM
ERA
For the reasons set forth above, 41 CFR Part 60-250 is corrected by
making the following correcting amendments:
1. The authority citation for Part 60-250 is revised to read as
follows:
Authority: 38 U.S.C. 4211 and 4212; 29 U.S.C. 793; Executive
Order 11758 (3 CFR 1971-1975 Comp. p. 841).
2. Section 60-250.4 is corrected by adding two sentences to the end
of paragraph (b) and by revising paragraph (g) to read as follows:
Sec. 60-250.4 Affirmative action clause.
* * * * *
(b) * * * The contractor further agrees to provide such reports
to such local office regarding employment openings and hires as may
be required. State and local government agencies holding Federal
contracts of $10,000 or more shall also list all their employment
openings with the appropriate office of the State employment
service, but are not required to provide those reports set forth in
paragraphs (d) and (e).
* * * * *
(g) The provisions of paragraphs (b), (c), (d), and (e) of this
clause do not apply to
[[Page 6118]]
openings which the contractor proposes to fill from within his own
organization. This exclusion does not apply to a particular opening
once an employer decides to consider applicants outside his own
organization for that opening.
* * * * *
[FR Doc. 96-3425 Filed 2-15-96; 8:45 am]
BILLING CODE 4510-27-M
