06-6759. Annual Report From Federal Contractors

AGENCY:

Veterans' Employment and Training Service (VETS), Labor.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

This proposed rule would create a new part, 41 CFR part 61-300, to implement certain provisions of the Jobs for Veterans Act (“JVA”) (Pub. L. 107-288) which amended the Vietnam Era Veterans” Readjustment Assistance Act of 1974, as amended (“VEVRAA”). Prior to amendment by the JVA, VEVRAA and its implementing regulations required all contractors and subcontractors with Federal contracts in excess of $25,000 to use the Federal Contractor Veterans' Employment Report VETS-100 form (“VETS-100 Report”) to report their efforts toward hiring veterans in four specified categories. The JVA raised the VETS-100 reporting threshold from $25,000 to $100,000, and modified the categories of veterans to be tracked in the reports, for contracts entered on or after December 1, 2003.

Prior to amendment by the JVA, VEVRAA required all covered contractors to report on incumbents who fall within the following veteran status categories: Veterans of the Vietnam era; special disabled veterans; other protected veterans; and recently separated veterans. The Jobs for Veterans Act changed the reporting categories to: disabled veterans; other protected veterans; Armed Forces service medal veterans; and recently separated veterans. Additionally, the JVA requires Federal contractors and subcontractors to report the total number of all current employees in each job category and at each hiring location. The JVA made these changes for all contracts entered into on or after December 1, 2003. The Veterans' Employment and Training Service (“VETS”) proposes that the reporting requirements for this rule become effective for the calendar year 2007, which is reported on September 30, 2008. This rule would implement those changes, along with other changes to the VETS-100 Report that either are required by the JVA or will improve the administration of the related veterans' programs.

DATES:

To be assured of consideration, comments must be received on or before October 10, 2006.

ADDRESSES:

You may submit comments, identified by RIN number 1293-AA12, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• E-mail: [e-mail]. Include “RIN number 1293-AA12” in the subject line of the message.
• Fax: [phone] (for comments of 10 pages or less).
• Mail: Robert Wilson, Chief, Division of Investigation and Compliance, VETS, U.S. Department of Labor, Room S-1316, 200 Constitution Avenue, NW., Washington, DC 20210.

All submissions received must include the agency name and Regulatory Information Number (RIN) for this rulemaking. Receipt of submissions, whether by U.S. Mail, e-mail or FAX transmittal, will not be acknowledged; however, the sender may request confirmation that a submission has been received, by telephoning VETS at [phone] (VOICE) (this is not a toll-free number) or [phone] (TTY/TDD).

All comments received, including any personal information provided, will be available for public inspection during normal business hours at the above address. People needing assistance to review comments will be provided with appropriate aids such as readers or print magnifiers. Copies of this Notice of Proposed Rulemaking will be made available in the following formats: large print; electronic file on computer disk; and audiotape. To schedule an appointment to review the comments and/or to obtain the Notice of Proposed Rulemaking in an alternate format, contact VETS at the telephone numbers or address listed above.

FOR FURTHER INFORMATION CONTACT:

Robert Wilson, Chief, Division of Investigation and Compliance, VETS, at the U.S. Department of Labor, Room S-1316, 200 Constitution Avenue, NW., Washington, DC 20210, or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

The preamble to this NPRM is organized as follows:

I. Background—provides a brief description of the development of these proposed regulations.

II. Section-by-Section Review of the Rule—summarizes pertinent aspects of the proposed regulatory text and describes its purposes and application.

III. Regulatory Procedure—sets forth the applicable regulatory requirements.

I. Background

The Vietnam Era Veterans' Readjustment Assistance Act of 1974 (“VEVRAA”) requires at 38 U.S.C. 4212(d) that Federal contractors report annually to the Secretary of Labor about their employment of certain categories of veterans. The Department of Labor has established the VETS-100 Report as the means of reporting the required information. On November 7, 2002, the President signed the Jobs for Veterans Act (JVA), which amended VEVRAA to make two changes to reporting requirements applicable to contracts entered into on or after December 1, 2003: (1) It raised from $25,000 to $100,000, the size of the contract required before an employer is covered by VEVRAA and is required to submit the VETS-100 Report; and (2) it modified the categories of veterans to be tracked in the reports. The part 61-300 rule proposed today is modeled upon the current regulation implementing the VEVRAA Annual Report From Federal Contractors, found in part 61-250. Today's proposal differs from the part 61-250 rule in two ways: it implements the changes made by the JVA to reporting requirements, and it makes changes designed to improve the readability of the rule. This rule is not intended to create other substantive differences from the part 61-250 rule.

Because the JVA amendments apply only to contracts entered on or after December 1, 2003, it will be necessary for VETS to maintain two sets of Federal contractor regulations. The regulations implementing the reporting requirements as amended by the JVA will be located in the new 41 CFR part 61-300 and will apply to contracts entered on or after December 1, 2003. The pre-JVA operating requirements will continue to be located at 41 CFR part 61-250 and will apply to contracts entered before December 1, 2003. Contractors with contracts entered both before, and on or after December 1, 2003, will be subject to both the requirements found in part 61-250 and the requirements proposed for this part 61-300.

To differentiate the VETS-100 Report required for contracts entered before December 1, 2003, from the VETS-100A Report required for contracts entered on or after December 1, 2003, we propose a slightly different name for the new Report form. The report required for contracts entered before December 1, 2003, would continue to be the VETS-100 Report. The report required for contracts entered on or after December 1, 2003, would be the VETS-100A Report.

VETS understands that contractors will need time to update their recordkeeping systems to collect the data required by the VETS-100A Report. Consequently, to give contractors time to update their recordkeeping systems and to collect the data required to complete the VETS-100A Report, the VETS-100A reporting requirement will become effective for the calendar year 2007, which will be reported in the VETS-100A Report to be filed by September 30, 2008.

The JVA changes the categories of qualified covered veterans under VEVRAA. Prior to the JVA, VEVRAA protected veterans of the Vietnam era, special disabled veterans, other protected veterans, and recently separated veterans. The JVA eliminated the coverage category of veterans of the Vietnam era. However, many individuals previously categorized under this category will continue to be covered under the categories of campaign badge veterans and disabled veterans. The JVA added a new category of Armed Forces service medal veterans and expanded the coverage of veterans with disabilities to include all veterans with service-connected disabilities. It also expanded the coverage of recently separated veterans from one year after discharge or release from active duty, to three years. The category of “disabled veterans” is broader than the “special disabled veterans” category it replaces. The category of “disabled veterans” includes all veterans who are entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs or who were discharged or released from active duty because of a service-connected disability.

The proposed rule differs from the pre-JVA VEVRAA implementing regulation by eliminating redundant definitions, references, and instructions, such as the twice-repeated definition of “job category.” This streamlining is designed to make the part 300 rule more “reader friendly” and is not intended to create other substantive differences from the part 61-250 rule. Finally, the proposed rule would clarify that only veterans of the U.S. Armed Forces are covered by the JVA.

II. Section-by-Section Review of the Rule

This proposed rule is modeled on the pre-JVA VEVRAA regulations at 41 CFR part 61-250. The section-by-section review focuses on the differences between the proposed rule and the part 61-250 regulations. The proposed rule differs from part 61-250 in two respects: (1) it incorporates the requirements of the JVA, and (2) it contains several minor language differences designed to streamline and improve the readability of this version of the VEVRAA regulations. Unless specified below, none of these minor language differences are intended to create a difference in substantive meaning between the proposed rule and parallel provisions of part 61-250. For a discussion of provisions of the proposal that are the same as those found in part 61-250, see 65 FR 59684 (October 5, 2000) (Federal Register Notice of Propose Rulemaking for current part 61-250 rule) and 66 FR 51998 (October 11, 2001) (Federal Register Final Rule for current part 61-250 rule).

Section 61-300.1 What are the purpose and scope of this part?

This section would raise the threshold contract amount for filing reports from $25,000 to $100,000 for contracts entered on or after December 1, 2003, and would substitute the term “qualified covered veterans” for “protected veterans” to implement the new statutory requirement in the JVA. Paragraph (a) also is proposed to state that these VEVRAA regulations apply only to contracts that were entered on or after December 1, 2003. Contracts that were entered before December 1, 2003, continue to be governed by the VEVRAA requirements located in part 61-250.

Paragraph (a) would make the point that any contractor covered by the affirmative action provision of VEVRAA (38 U.S.C. 4212(a)) would be required to file a VETS-100A Report under the part 61-300 regulations implementing the reporting provisions of VEVRAA (38 U.S.C. 4212(d)). Paragraph (a) of the parallel provision at 41 CFR 61-250.1(a) expresses the same point by stating that contractors subject to the regulations implementing the affirmative action provision of VEVRAA (41 CFR part 60-250) are required to file a VETS-100 Report. Section 61-300.1(a) would reference the affirmative action requirements of the statute, rather than the affirmative action implementing regulations, because those regulations have not yet been updated to reflect changes required by the JVA.

Paragraph (c) of this section would differ from 41 CFR 61-250.1 in that it corrects the citation to the “separate facility” exemption contained in 41 CFR 60-250.4(b)(3).

Paragraph (d) of this section would be identical to 41 CFR 61-250.1(d) but for the addition of a new footnote. The proposed footnote discusses the affirmative action obligation guidance contained in the OFCCP VEVRAA regulations located at 41 CFR part 60-250. The footnote would state that, although the categories of protected veterans have changed, the guidance in the OFCCP regulation is still valid.

Section 61-300.2 What definitions apply to this part?

Section 61-300.2 is nearly identical to section 61-250.2 but for the changes necessary to implement the JVA and one change to clarify the definition of “job category.” The JVA defines several new or revised categories of protected veterans. The proposal incorporates the JVA definitions of these categories of protected veterans into this definition section. Paragraph (b)(4) would define “disabled veteran,” paragraph (b)(5) would define “other protected veteran,” paragraph (b)(6) would define “Armed Forces service medal veteran,” paragraph (b)(7) would define “recently separated veteran,” paragraph (b)(8) would define “covered veteran,” and paragraph (b)(9) would define the term “qualified,” as required by the JVA.

The JVA defines the term “recently separated veteran” as “any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty.” See 38 U.S.C. 4211(6).

We propose to clarify the definitions of Armed Forces service medal veteran, other protected veteran, and recently separated veteran to state that only veterans of the U.S. Armed Forces are protected under these regulations.

The definition of “eligibility period” would not be carried over from the part 61-250 rule because it is not used in this regulation. Paragraph (b)(14) would add a definition for the phrase “covered incumbent veteran,” as it is defined in the JVA, to use as a shorthand phrase for collectively referring to all categories of protected veterans. Lastly, paragraph (b)(15) would define “covered contract” to explain the meaning of the term as used in part 61-300, incorporating by reference the definitions pertinent to contract coverage contained in the regulations implementing the affirmative action provisions of VEVRAA at 41 CFR 60-250.2.

Section 61-300.10 What reporting requirements apply to Federal contractors and subcontractors, and what specific wording must the reporting requirements contract clause contain?

This section is parallel to the requirement in 41 CFR part 61-250.10 that covered Federal contractors and subcontractors submit reports annually regarding their hiring and employment of qualified covered veterans in accordance with the VETS-100 reporting clause. The VETS-100A reporting clause proposed in section 61-300.10 would be the same as the clause at 61-250.10, except for updates to reflect changes required by the JVA. The categories would be those prescribed by the JVA and defined in section 61-300.2: (1) Disabled veterans; (2) other protected veterans; (3) Armed Forces service medal veterans, and (4) recently separated veterans. Section 61-300.10 would include the JVA requirement that covered Federal contractors and subcontractors include in the VETS-100A Report the total number of their employees, by job category and hiring location. Section 61-250.10 also includes required language for the reporting clause that must be included in each covered Federal contract and subcontract. Paragraph (a)(1) of the clause would add the requirement that contractors and subcontractors report on their total employment. Paragraphs (a)(1) and (a)(2) of the clause would change the reporting categories of covered veterans (as defined in § 300.2). These changes are required by the JVA. Paragraph (a)(1) also differs from the parallel provision of part 61-250 in that the word “total” has been added to clarify that the report must reflect the total number of employees in the workforce of the contractor.

Paragraph (c), which prescribes the date for filing a VETS-100A Report, is the same as the parallel provision in 41 CFR 61-250.10 except for editing to improve readability and designating the name of the report as “VETS-100A Report.”

Paragraphs (b) and (e) also would differ in that the name of the report would be the “VETS-100A Report.”

Section 61-300.11 On what form must the data required by this part be submitted?

In part 61-250 some instructions for completing the VETS-100 Report are located in the regulations (section 61-250.11) and additional instructions are located in the VETS-100 Report form (Appendix A.) In part 61-300 we propose to consolidate the instructions for completing the VETS-100A Report onto the report form located in Appendix A (discussed below) without discussion of the instructions in the regulations. The proposed consolidation of instructions, as well as changes required by the JVA, are discussed below.

Paragraph (a) would provide that a copy of the VETS-100A Report and instructions may be found in Appendix A.

Additionally, in paragraph (a), VETS proposes to state that the report is “provided” annually to contractors who are included in the VETS-100 database. Part 61-250.11(a) states that the VETS-100 Report is “mailed” annually to contractors who are included in the VETS-100 database. The use of the term “provided” would allow VETS greater flexibility in distribution format of the VETS-100A Report. Paragraph (a) also states that VETS' failure to provide a contractor with a VETS-100A Report does not excuse a contractor from the requirement of submitting a VETS-100A Report.

Paragraph (b) is identical to paragraph (b) in 41 CFR 61-250.11.

Paragraph (c) would contain the same information as 41 CFR 61-250.11(c). However, the proposed section 61-300.11(c) language, in accordance with plain language principles, is simplified. The requirement that a contractor or subcontractor must submit a VETS-100A Report on September 30 of each year following a calendar year in which a contractor or subcontractor held a covered contract or subcontract is unchanged.

Paragraph (d) is identical to paragraph (d) in 41 CFR 61-250.11.

Paragraph (e) is identical to paragraph (e) in 41 CFR 61-250.11, except that the Internet address where requests for the VETS-100A Report may be made is updated.

Section 61-300.20 How will DOL determine whether a contractor or subcontractor is complying with the requirements of this part?

The proposed section 61-300.20 is identical to section 61-250.20.

Section 61-300.99 What is the OMB control number for this part?

This section is the same as section 61-250.99, except that the section title would read, “What is the OMB control number for this part?” instead of “What are the OMB control numbers for this part?” to reflect the single OMB control number assigned to this information collection.

Appendix A to Part 61-300—Federal Contractor Veterans' Employment Report VETS-100A

The proposed part 61-300 VETS-100A Report and instructions contained in the proposed Appendix A are different in two ways from the VETS-100 Report form and instructions found in the part 61-250 regulation's Appendix A. First, this proposal consolidates all information necessary to the completion of a VETS-100A Report into the proposed instructions. Second, the proposed VETS-100A Report and instructions would incorporate changes required by the JVA. A section-by-section description of differences between the part 61-250 and proposed part 61-300 instructions follows.

Report Title: The report's title is proposed to read, “VETS-100A Report” to conform with the new naming convention used in the VETS-100 Reporting program. Also, directly under the Report title, we propose to add the instruction that the VETS-100A Report is for contracts entered on or after December 1, 2003.

Who Must File: This paragraph describes who must file a VETS-100A Report. The proposed paragraph sets forth a reporting threshold amount of $100,000 or more for contracts entered on or after December 1, 2003, as required by the JVA. Additionally, this paragraph would state that nonexempt Federal contractors and subcontractors whose contracts were entered before December 1, 2003 are required to complete a VETS-100 Report. Finally, this paragraph would reference the report as the “VETS-100A Report.”

When/Where To File: This paragraph describes when and where the VETS-100A Report must be filed. This proposed paragraph is identical to the corresponding paragraph in the part 61-250 VETS-100 Report form instructions. However, the title of the paragraph reads “When/Where To File” instead of “When To File” to more accurately reflect the instructions provided in the paragraph.

Legal Basis for Reporting Requirements: This paragraph describes the statutory basis for requiring the VETS-100A Report. This proposed paragraph is different from the corresponding paragraph in the part 61-250 VETS-100 Report form instructions in that the individual categories of qualified covered veterans protected under VEVRAA would no longer be listed and a United States Code citation rather than a Public Law citation would be provided.

How To Submit the VETS-100A Report: This proposed paragraph describes how the VETS-100A Report must be submitted. This paragraph differs from the parallel paragraph of Appendix A in part 61-250 in that instructions from sections 61-250.11(b) and 61-250.11(c) are incorporated into this paragraph. Also, this paragraph would reference the report as the “VETS-100A Report.”

Recordkeeping: This proposed paragraph conforms to the paperwork package approved for the Federal Contractor Veterans' Employment Report (VETS-100A), and references the report as the “VETS-100A Report.”

How To Prepare Forms: This proposed paragraph describes how to prepare the VETS-100A Report. This paragraph differs from the corresponding paragraph in the part 61-250 VETS-100 Report form instructions by moving an instruction that was on the VETS-100 Report form in Appendix A to the VETS-100A Report instructions in Appendix A. Additionally, an instruction is added discussing when to use the VETS-100 Report, when to use the VETS-100A Report, and when to use both the VETS-100 and VETS-100A Report forms. Finally, this paragraph would reference the report as the “VETS-100A Report.”

Company Identification Information: This proposed paragraph describes how to receive information if there are questions regarding a company's identification number. This paragraph differs from the corresponding paragraph in the part 61-250 VETS-100 Report form instructions by including an updated telephone number for contractors to call for information.

Information on Employees: This proposed paragraph describes how to count the number of veterans, employees, new hires, and the maximum and minimum number of employees in a contractor's or subcontractor's labor force. It differs from the corresponding paragraph in the part 61-250 VETS-100 Report form instructions by incorporating the new categories of protected veterans into the instructions and describing the renumbering of the VETS-100A Report. Additionally, in the subparagraph titled “maximum/minimum employees” we propose to update the regulatory citation.

Definitions: This proposed paragraph presents the definitions of the categories of veterans protected under the JVA: “disabled veteran;” “other protected veteran;” “Armed Forces service medal veteran;” and “recently separated veteran;” as well as a definition for “covered veteran” and “job categories.” The reference to “hiring location” would contain an updated regulatory citation. Additionally, this paragraph would include a website link where individuals can find the VETS-100 Report and the VETS-100A Report regulations in their entirety.

III. Regulatory Procedures

Paperwork Reduction Act

This proposed rule contains information collections that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. The proposed rule would create a new part, 41 CFR part 61-300, to implement the new JVA reporting requirements. The VETS-100 reporting requirements applicable to contracts entered before December 1, 2003, are currently approved under OMB No. 1293-2005 and will be revised to reflect provisions of this regulation. We estimate the collection burden that would be imposed under the proposed rule to be 60 minutes per respondent. A description of the information to be collected is shown below.

Contractors and subcontractors will be required to collect data on modified categories of covered veterans, which is to include disabled veterans, other protected veterans, Armed Forces service medal veterans, and recently separated veterans. These changes are required by the JVA. VETS invites the public to comment on whether the proposed collection of information: (1) Ensures that the collection of information is necessary to the proper performance of the agency, including whether the information will have practical utility; (2) estimates the projected burden, including the validity of the methodology and assumptions used, accurately; (3) enhances the quality, utility, and clarity of the information to be collected; and (4) minimizes 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 submission of responses).

Executive Order 12866

Executive Order (E.O.) 12866 requires that regulatory agencies assess both the costs and benefits of intended regulations. Under Executive Order 12866, the Department must determine whether the regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Under section 3(f), the order defines a “significant regulatory action” as an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The Department has determined that this proposed rule is a “significant regulatory action” within the meaning of E.O. 12866 because of the public interest and policy issues raised by the rulemaking. This rule is not an “economically significant regulatory action,” however, because it will not have an economic effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

Unfunded Mandates

Executive Order 12875—The proposed rule will not create an unfunded Federal Mandate upon any State, local, or tribal government.

Unfunded Mandate Reform Act of 1995—The proposed rule will 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.

Executive Order 13132, Federalism

This notice of proposed rulemaking 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. Therefore, the requirements of section 6 of Executive Order 13132 do not apply to this rule.

Regulatory Flexibility Act

This notice of proposed rulemaking does not substantially change the existing obligation of Federal contractors or subcontractors. The Department of Labor certifies that the proposed rule will not have a significant economic impact on a substantial number of small business entities. Therefore, no regulatory flexibility analysis is required.

Clarity of This Regulation

Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. The Department invites comments on how to make this proposed rule easier to understand.

List of Subjects in 41 CFR Part 61-300

• Government contracts
• Reporting and recordkeeping requirements
• Veterans

Signed at Washington, DC, this 1st day of August, 2006.

Charles S. Ciccolella,

Assistant Secretary of Labor for Veterans' Employment and Training Service.

For the reasons set forth in the preamble, 41 CFR part 61-300 is proposed to be added to read as follows:

PART 61-300—ANNUAL REPORT FROM FEDERAL CONTRACTORS

61-300.1

What are the purpose and scope of this part?

61-300.2

What definitions apply to this part?

61-300.10

What reporting requirements apply to Federal contractors and subcontractors, and what specific wording must the reporting requirements contract clause contain?

61-300.11

On what form must the data required by this part be submitted?

61-300.20

How will DOL determine whether a contractor or subcontractor is complying with the requirements of this part?

61-300.99

What is the OMB control number for this part?

Appendix A—Federal Contractor Veterans' Employment Report VETS-100A

Authority: 38 U.S.C. 4211 and 4212, VEVRAA as amended.

§ 61-300.1

What are the purpose and scope of this part?

(a) This part 61-300 implements 38 U.S.C. 4212(d) as amended by the Jobs for Veterans Act. Each contractor or subcontractor who enters into a contract on or after December 1, 2003, in the amount of $100,000 or more with any department or agency of the United States for the procurement of personal property and non-personal services (including construction), and who is subject to 38 U.S.C. 4212(a), must submit a report according to the requirements of part 61-300. Any contractor or subcontractor whose only contract with any department or agency of the United States for the procurement of personal property and non-personal services (including construction) was entered into before December 1, 2003, must follow part 61-250 implementing 38 U.S.C. 4212(d). Any contractor or subcontractor who has a contract of $25,000 or more entered before December 1, 2003, and has a contract of $100,000 or more entered on or after December 1, 2003, is required to file both the VETS-100 Report and the VETS-100A Report as instructed in parts 61-250 and 61-300.

(b) Notwithstanding the regulations in this part, the regulations at 41 CFR part 60-250, administered by OFCCP continue to apply to contractors' and subcontractors' affirmative action obligations regarding veterans.

(c) Reporting requirements of this part regarding veterans will be deemed waived in those instances in which the Deputy Assistant Secretary, OFCCP, has granted a waiver under 41 CFR 60-250.4(b)(1), or has concurred in the granting of a waiver under 41 CFR 60-250.4(b)(3), from compliance with all the terms of the equal opportunity clause for those establishments not involved in government contract work. Where OFCCP grants only a partial waiver, compliance with these reporting requirements regarding veterans will be required.

(d) 41 CFR 60-250.42 and Appendix B to part 60-250 provide guidance concerning the affirmative action obligations of Federal contractors and subcontractors toward applicants for employment who are qualified covered veterans.^[1]

§ 61-300.2

What definitions apply to this part?

(a) For the purposes of this part, and unless otherwise indicated in paragraph (b) of this section, the terms set forth in this part have the same meaning as those set forth in 41 CFR part 60-250.

(b) For purposes of this part:

(1) Hiring location (this definition is identical to establishment as defined by the instructions for completing Employer Information Report EEO-1, Standard Form 100 (EEO-1 Report)) means an economic unit which produces goods or services, such as a factory, office, store, or mine. In most instances the establishment is at a single physical location and is engaged in one, or predominantly one, type of economic activity. Units at different locations, even though engaged in the same kind of business operation, should be reported as separate establishments. For locations involving construction, transportation, communications, electric, gas, and sanitary services, oil and gas fields, and similar types of physically dispersed industrial activities, however, it is not necessary to list separately each individual site, project, field, line, etc., unless it is treated by the contractor as a separate legal entity with a separate Employer Identification Number (EIN). For these physically dispersed activities, list as establishments only those relatively permanent main or branch offices, terminals, stations, etc., which are either:

(i) Directly responsible for supervising such dispersed activities; or

(ii) The base from which personnel and equipment operate to carry out these activities. (Where these dispersed activities cross State lines, at least one such establishment should be listed for each State involved.)

(2) Employee means any individual on the payroll of an employer who is an employee for purposes of the employer's withholding of Social Security taxes, except insurance salespersons, who are considered to be employees for such purposes solely because of the provisions of section 3121(d)(3)(B) of the Internal Revenue Code (26 U.S.C.). The term employee does not include persons who are hired on a casual basis for a specified time, or for the duration of a specified job, and who work on remote or scattered sites or locations where it is not practical or feasible for the employer to make a visual survey of the work force within the report period; for example, persons at a construction site whose employment relationship is expected to terminate with the end of the employees' work at the site; persons temporarily employed in any industry other than construction, such as mariners, stevedores, waiters/waitresses, movie extras, agricultural laborers, lumber yard workers, etc., who are obtained through a hiring hall or other referral arrangement, through an employee contractor or agent, or by some individual hiring arrangement; or persons on the payroll of a temporary service agency who are referred by such agency for work to be performed on the premises of another employer under that employer's direction and control.

(3) Job category means any of the following: Officials and managers, professionals, technicians, sales workers, office and clerical, craft workers (skilled), operatives (semiskilled), laborers (unskilled), and service workers, as required by the Employer Information Report EEO-1, Standard Form 100 (EEO-1 Report), as follows:

(i) Officials and managers means occupations requiring administrative and managerial personnel who set broad policies, exercise overall responsibility for execution of these policies, and direct individual departments or special phases of a firm's operation. Includes: Officials, executives, middle management, plant managers, department managers and superintendents, salaried supervisors who are members of management, purchasing agents and buyers, railroad conductors and yard masters, ship captains and mates (except fishing boats), farm operators and managers, and kindred workers.

(ii) Professionals means occupations requiring either college graduation or experience of such kind and amount as to provide a background comparable to a college education. Includes: Accountants and auditors, airplane pilots and navigators, architects, artists, chemists, designers, dietitians, editors, engineers, lawyers, librarians, mathematicians, natural scientists, registered professional nurses, personnel and labor relations specialists, physical scientists, physicians, social scientists, surveyors, teachers, and kindred workers.

(iii) Technicians means occupations requiring a combination of basic scientific knowledge and manual skill which can be obtained through about 2 years of post-high school education, such as is offered in many technical institutes and junior colleges, or through equivalent on-the-job training. Includes: Computer programmers and operators, drafters, engineering aides, junior engineers, mathematical aides, licensed, practical or vocational nurses, photographers, radio operators, scientific assistants, technical illustrators, technicians (medical, dental, electronic, physical science), and kindred workers.

(iv) Sales means occupations engaging wholly or primarily in direct selling. Includes: Advertising agents and sales workers, insurance agents and brokers, real estate agents and brokers, stock and bond sales workers, demonstrators, sales workers and sales clerks, grocery clerks and cashier-checkers, and kindred workers.

(v) Office and clerical includes all clerical-type work regardless of level of difficulty, where the activities are predominantly non-manual though some manual work not directly involved with altering or transporting the products is included. Includes bookkeepers, cashiers, collectors (bills and accounts), messengers and office helpers, office machine operators, shipping and receiving clerks, stenographers, typists and secretaries, telegraph and telephone operators, legal assistants, and kindred workers.

(vi) Craft Workers (skilled) means manual workers of a relatively high skill level having a thorough and comprehensive knowledge of the processes involved in their work. These workers exercise considerable independent judgment and usually receive an extensive period of training. Includes: The building trades, hourly paid supervisors and lead operators who are not members of management, mechanics and repairers, skilled machining occupations, compositors and typesetters, electricians, engravers, job setters (metal), motion picture projectionists, pattern and model makers, stationary engineers, tailors, arts occupations, hand painters, coaters, decorative workers, and kindred workers.

(vii) Operatives (semiskilled) means workers who operate machine or processing equipment or perform other factory-type duties of intermediate skill level which can be mastered in a few weeks and require only limited training. Includes: Apprentices (auto mechanics, plumbers, bricklayers, carpenters, electricians, machinists, mechanics, building trades, metalworking trades, printing trades, etc.), attendants (auto service and parking), blasters, chauffeurs, delivery workers, dressmakers and sewers (except factory), dryers, furnace workers, heaters (metal), laundry and dry cleaning operatives, milliners, mine operatives and laborers, motor operators, oilers and greasers (except auto), painters (except construction and maintenance), photographic process workers, stationary firefighters, truck and tractor drivers, weavers (textile), welders and flamecutters, electrical and electronic equipment assemblers, butchers and meat cutters, inspectors, testers and graders, handpackers and packagers, and kindred workers.

(viii) Laborers (unskilled) means workers in manual occupations which generally require no special training to perform elementary duties that may be learned in a few days and require the application of little or no independent judgment. Includes: garage laborers, car washers and greasers, gardeners (except farm) and grounds keepers, stevedores, wood choppers, laborers performing lifting, digging, mixing, loading and pulling operations, and kindred workers.

(ix) Service Workers means workers in both protective and non-protective service occupations. Includes: Attendants (hospital and other institutions, professional and personal service, including nurses aides and orderlies), barbers, charworkers and cleaners, cooks (except household), counter and fountain workers, elevator operators, firefighters and fire protection workers, guards, doorkeepers, stewards, janitors, police officers and detectives, porters, servers, amusement and recreation facilities attendants, guides, ushers, public transportation attendants, and kindred workers.

(4) Disabled veteran means a veteran who:

(i) Is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs, or

(ii) Was discharged or released from active duty because of a service-connected disability.

(5) Other protected veteran means a veteran who served on active duty in the U.S. military, ground, naval, or air service during a war or in a campaign or expedition for which a campaign badge has been authorized.

(6) Armed forces service medal veteran means a veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (61 Fed. Reg. 1209).

(7) Recently separated veteran means a veteran, who served on active duty in the U.S. military, ground, naval or air service, during the three-year period beginning on the date of such veteran's discharge or release from active duty.

(8) Covered veteran means a veteran as defined in paragraphs (b)(4) through (b)(7) of this section.

(9) Qualified means, with respect to an employment position, having the ability to perform the essential functions of the position with or without reasonable accommodation for an individual with a disability.

(10) OFCCP means the Office of Federal Contract Compliance Programs, Employment Standards Administration, U.S. Department of Labor.

(11) VETS means the Office of the Assistant Secretary for Veterans' Employment and Training Service, U.S. Department of Labor.

(12) States means each of the several States of the United States, the District of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, Wake Island, and the Trust Territories of the Pacific Islands.

(13) NAICS means the North American Industrial Classification System.

(14) Covered incumbent veteran means a veteran as defined in paragraphs (b)(4) through (b)(7) of this section who is employed by a covered contractor.

(15) Covered contract means a contract as defined by 41 CFR 60-250.2 for at least $100,000 entered on or after December 1, 2003.

§ 61-300.10

What reporting requirements apply to Federal contractors and subcontractors, and what specific wording must the reporting requirements contract clause contain?

Each contractor or subcontractor described in § 61-300.1 must submit reports in accordance with the following reporting clause, which must be included in each of its covered government contracts or subcontracts (and modifications, renewals, or extensions thereof if not included in the original contract). Such clause is considered as an addition to the equal opportunity action clause required by 41 CFR 60-250.5. The reporting requirements clause is as follows:

Employment Reports on Disabled Veterans, Other Protected Veterans, Armed Forces Service Medal Veterans, and Recently Separated Veterans

(a) The contractor or subcontractor agrees to report at least annually, as required by the Secretary of Labor, on:

(1) The total number of employees in the workforce of such contractor or subcontractor, by job category and hiring location, and the number of such employees by job category and hiring location, who are disabled veterans, other protected veterans, Armed Forces service medal veterans, and recently separated veterans;

(2) The total number of new employees hired by the contractor or subcontractor during the period covered by the report, and of such employees, the number who are disabled veterans, other protected veterans, Armed Forces service medal veterans, and recently separated veterans; and

(3) The maximum number and minimum number of employees of such contractor or subcontractor at each hiring location during the period covered by the report.

(b) The above items must be reported by completing the form entitled “Federal Contractor Veterans” Employment Report VETS-100A.”

(c) VETS-100A Reports must be submitted no later than September 30 of each year following a calendar year in which a contractor or subcontractor held a covered contract or subcontract.

(d) The employment activity report required by paragraphs (a)(2) and (a)(3) of this clause must reflect total new hires and maximum and minimum number of employees during the 12-month period preceding the ending date that the contractor selects for the current employment report required by paragraph (a)(1) of this clause. Contractors may select an ending date:

(1) As of the end of any pay period during the period July 1 through August 31 of the year the report is due; or

(2) As of December 31, if the contractor has previous written approval from the Equal Employment Opportunity Commission to do so for purposes of submitting the Employer Information Report EEO-1, Standard Form 100 (EEO-1 Report).

(e) The number of veterans reported according to paragraph (a) above must be based on data known to contractors and subcontractors when completing their VETS-100A Reports. Contractors' and subcontractors' knowledge of veterans status may be obtained in a variety of ways, including, in response to an invitation to applicants to self-identify in accordance with 41 CFR 60-250.42, voluntary self-disclosures by covered incumbent veterans, or actual knowledge of an employee's veteran status by a contractor or subcontractor. Nothing in this paragraph (e) relieves a contractor from liability for discrimination under 38 U.S.C. 4212.

§ 61-300.11

On what form must the data required by this part be submitted?

(a) Data items required in paragraph (a) of the contract clause set forth in § 61-300.10 must be reported for each hiring location on the VETS-100A Report. This form is provided annually to those contractors who are included in the VETS-100 database. VETS failure to provide a contractor with a VETS-100A Report does not excuse the contractor from the requirement to submit a VETS-100A Report. The form, and instructions for preparing it, are set forth in Appendix A to 41 CFR part 61-300—Federal Contractor Veterans' Employment Report VETS-100A and Instructions.

(b) Contractors and subcontractors that submit computer-generated output for more than 10 hiring locations to satisfy their VETS-100A reporting obligations must submit the output in the form of an electronic file. This file must comply with current Department of Labor specifications for the layout of these records, along with any other specifications established by the Department for the applicable reporting year. Contractors and subcontractors that submit VETS-100A Reports for 10 locations or less are exempt from this requirement, but are strongly encouraged to submit an electronic file. In these cases, state consolidated reports count as one location each.

(c) VETS-100A Reports must be submitted no later than September 30 of each year following a calendar year in which a contractor or subcontractor held a covered contract or subcontract.

(d) VETS or its designee will use all available information to distribute the required forms to contractors identified as subject to the requirements of this part.

(e) It is the responsibility of each contractor or subcontractor to obtain necessary supplies of the VETS-100A Report before the annual September 30 filing deadline. Contractors and subcontractors who do not receive forms should request them in time to meet the deadline. Requests for the VETS-100A Report may be made by mail by contacting: Office of the Assistant Secretary for Veterans' Employment and Training, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, Attn: VETS-100A Report Form Request; or on the Internet at the Internet address http://www.vets100.cudenver.edu and select on the “VETS-100” reporting form link.

§ 61-300.20

How will DOL determine whether a contractor or subcontractor is complying with the requirements of this part?

During the course of a compliance evaluation, OFCCP may determine whether a contractor or subcontractor has submitted its report as required by this part.

§ 61-300.99

What is the OMB control number for this part?

Pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and its implementing regulations at 5 CFR part 1320, the Office of Management and Budget has assigned Control No. 1293-NEW to the information collection requirements of this part.

Footnotes

1.  41 CFR 60-250.42 and Appendix B to part 60-250 refer to the protected categories of special disabled veterans and Vietnam era veterans. VEVRRA, as amended by the Jobs for Veterans Act, no longer contains these categories of veterans. However, with the exception of the specific categories of protected veterans contained in the above-cited regulations, the guidance on affirmative action obligations of covered contractors is still valid.