01-25232. Annual Report From Federal Contractors

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

The Veterans' Employment and Training Service is issuing a final rule amending regulations to conform to provisions of the Veterans Employment Opportunity Act of 1998 (“VEOA”). VEOA amended the Vietnam Era Veterans' Readjustment Act of 1974, as amended (“VEVRAA”). The current implementing regulations require all contractors and subcontractors with Federal contracts in excess of $10,000 to use the Federal Contractor Veterans' Employment Report VETS-100 form (“VETS-100 Report”) to report their efforts toward the hiring of qualified veterans in two specified categories. Section 7 of VEOA raised the reporting threshold from $10,000 to $25,000, and added a third category of veterans to the required reports. This rule implements those changes, along with other changes that either are required by VEOA or will improve the administration of the related veterans' programs.

EFFECTIVE DATE:

This regulation is effective November 13, 2001.

FOR FURTHER INFORMATION CONTACT:

Norm Lance, Chief of Investigations and Compliance Division, VETS, at [phone] or by e-mail at [e-mail]. Individuals with hearing impairments may call [phone] (TTY/TDD).

SUPPLEMENTARY INFORMATION:

The preamble to this final rule is organized as follows:

I. Background—provides a brief description of the development of this final rule.

II. Authority—cites the statutory provisions supporting this final rule.

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

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

I. Background

The Veterans Employment Opportunity Act was signed into law in October 1998. The statute extended the affirmative action and reporting responsibilities of Federal contractors and subcontractors. Prior to amendment, VEVRAA protected two classes of veterans: veterans of the Vietnam era and special disabled veterans. VEOA extended VEVRAA protections to a class of “other protected veterans,” that is, any veteran who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized. VEOA raised the reporting threshold for Federal contractors and subcontractors from $10,000 to $25,000. VEOA also added the requirement that contractors and subcontractors report the maximum number and the minimum number of persons they employed during the reporting period to the Secretary of Labor.

This rule also codifies the 1998 change in the annual deadline for submission of the VETS-100 Report from March 31 to September 30. This change aligns the VETS-100 reporting cycle to that of the Employer Information Report EEO-1, Standard Form 100 (EEO-1 Report). VETS believes this change will reduce the reporting burden on contractors and subcontractors.

The final rule incorporates the above substantive changes and additional stylistic and/or phrasing changes. The latter changes were prompted by the June 1, 1998, Presidential Memorandum on Plain Language, which instructed Federal Departments and Agencies to write regulations in language understandable to most people. Accordingly, VETS has reworded subsection topic header statements into the form of questions, replaced the term “shall” with “must” (to indicate an obligation) or “will” (to indicate a future action), as appropriate, and altered the wording of the regulations in other ways, as described below in Section III, “Section-by-Section Review of the Rule.” These changes are intended to enhance the readability and usefulness of the regulations.

On November 1, 2000, the Veterans Benefits and Health Care Improvement Act of 2000, Public Law (PL) 106-419 was signed. This act adds an additional group of protected veterans, “recently separated veterans,” to the list of veterans protected by VEVRAA. The statute defines a recently separated veteran as “any veteran during the one-year period beginning on the date of such veteran's discharge or release from active duty.” VETS is developing a Federal Register Notice proposing a rule for reporting about this newly protected group of veterans in the VETS-100 Report.

II. Authority

Statutory Authority

The statutory authority for this final rule is 38 U.S.C. 101 et seq., Pub. L. 93-508, 88 Stat. 1578, VEVRAA as amended.

III. Development of the Final Rule

On October 5, 2000, the Veterans' Employment and Training Service published a Notice of Proposed Rulemaking (NPRM) to implement changes to the existing regulations. A 60-day comment period, ending on December 5, 2000, was provided for those interested in submitting comments.

We received comments from four organizations representing employers either as employer associations or human resource associations. Generally, the comments requested clarification of issues or asserted difficulty in reporting information required by VEOA. Two comments addressed the relationship between the current Office of Federal Contract Compliance Programs (OFCCP) VEVRAA regulations and the proposed rule. All of the commentators provided recommended changes to the proposed rule.

We appreciate receiving the thoughtful comments. We have seriously considered all concerns and recommendations and have made several changes in the final rule based on the comments. The comments and changes are discussed in detail below. Briefly, however, we have:

• Provided guidance in counting minimum and maximum number of employees.
• Deleted the instructions concerning when employers may ask special disabled veterans to self-identify.
• Provided guidance on the change from the Standard Industrial Code (SIC) to the North American Industrial Classification System (NAICS).
• Clarified “computer generated output” and which employers may submit reports via the Internet.

IV. Section-by-Section Review of the Rule

Throughout the rule, minor language changes have been made to comply with the Presidential Memorandum on Plain Language by clarifying the wording of the regulations. Unless specified below, none of these changes are intended to alter the substantive meaning of the regulations.

In addition, throughout the rule, references to the United States Code have been corrected to reflect the numbering changes affected by VEOA and the Veterans' Benefit Improvement Act of 1996 (VBIA); similarly, references to the regulations promulgated by the OFCCP have been amended to reflect changes to those regulations.

Sections or paragraphs of the rule that are not discussed in this preamble have not been changed in any substantive way from the previous version of the regulations.

Section 250.1 What are the purpose and scope of this part?

This section outlines the purpose and scope of the regulations. Paragraph (a) corrects the regulations' citation to the United States Code, reflects the new reporting threshold, and indicates which contractors are required to file reports under the regulations. Paragraph (d) directs readers to the OFCCP regulations that govern the affirmative action obligations of contractors and subcontractors toward protected veterans.

Section 250.2 What definitions apply to this part?

This section provides the definitions that apply to this part. Paragraph (b)(1) of the NPRM would have updated the reference to the Standard Industrial Classification (SIC) Manual from the 1972 edition to the 1987 edition, and would have added the acronym for the Employer Identification Number (EIN). As discussed below, Standard Industrial Code has been replaced by the North American Industrial Classification System (NAICS). Accordingly, the SIC definition is deleted in the final rule. The EIN requirement is retained in the final rule.

Paragraph (b)(4), the definition of “special disabled veteran,” is amended to clarify that in order to be covered, veterans must have served in the military, ground, naval, or air service of the United States, and not of any other nation. The definition of “veteran of the Vietnam era” in paragraph (b)(5) is amended to add the same clarification, and also to conform to the statutory definition of the term at 38 U.S.C. 101(29), which was altered by the Veterans' Benefits Improvement Act of 1996. Paragraph (b)(6) is amended to define “other protected veterans,” as required by VEOA. Paragraphs (b)(9) and (b)(10) add definitions for the terms “states” and “eligibility period,” respectively.

We received several comments in relation to definitions in this part. These comments referred to “other veterans” and “hiring location.”

Comment: One commentator stated that the definition of “other veterans” was confusing. The commentator believed the term “other veterans” implied all veterans not otherwise defined by VEVRAA rather than the more limited class of veterans defined in section 61-250.2.

Response: “Other veterans” has been changed to “other protected veterans” and the paragraph will read, “Other protected veterans means any other 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, other than special disabled veterans or veterans of the Vietnam era.”

Comment: Another commentator asserted that the definition of “hiring location” is contrary to the “virtual workplace that has become a reality in today's economy.” The commentator suggested that “hiring location” be defined as where the management or business unit of the employee is located.

Response: The definition of “hiring location” in the final rule is identical to the definition of “establishment” contained in the instructions for completing the Employer Information Report, EEO-1, Standard Form 100 (EEO-1 Report). In order to avoid confusion in the regulated community, VETS believes it is important to maintain as much consistency as possible between the VETS-100 Report and the EEO-1 Report. Therefore, to maintain consistency with the EEO-1 Report definition, the definition for “hiring location” has been retained.

Comment: One commentator noted that in the definition section we had incorrectly used the acronym “OASVET” to describe the agency.

Response: We have changed that acronym to “VETS.”

Comment: One commenter recommended incorporating the category of “recently separated veterans” into the final rule, but that reporting on “recently separated veterans” be made optional for the 2001 reporting cycle. This commenter suggested several options by which this new class of protected veterans could be counted.

Response: As discussed in the Background section of this rule, the Veterans Benefits and Health Care Improvement Act of 2000 incorporated this new class of protected veterans into VEVRAA. VETS agrees with the commenter that there are multiple options for incorporating this new class of protected veterans into the rule. It is precisely for this reason that VETS believes it is not possible simply to include “recently separated veterans” in this final rule and that a new Notice of Proposed Rulemaking is required. Therefore, consistent with the commenter's concerns about changing the reporting requirement without adequate lead time, VETS will not be requiring reporting on “recently separated veterans” during the 2001 reporting cycle.

VETS considered and rejected the idea of delaying this final rule until a new NPRM could be published. A primary reason for this decision is that, due to the two-year lead time already provided, most covered contractors already have updated their VETS-100 recordkeeping databases to collect information on the new class of protected veterans created by VEOA. Therefore, withholding this final rule for the inclusion of the “recently separated veterans” would not prevent covered contractors from having to update their databases a second time. Consequently, the “recently separated veterans” category is not incorporated into this final rule.

Comment: Concerns have been raised that some covered contractors might not have sufficient time to update their record collection and keeping systems to collect data required by VEOA.

Response: Program year 2001 VETS-100 Reports are due by September 30, 2001. In response to the commenter's concerns, this regulation will take effect November 13, 2001. Therefore, contractor reporting of the VEOA required data will be optional for Program Year 2001, and reporting on the new VEOA data elements will become mandatory for the program year 2002 VETS-100 Report due September 30, 2002. The November 13, 2001 effective date will give covered contractors nearly a year to update their record collection and keeping systems.

Section 250.10 What reporting requirements apply to Federal contractors and subcontractors, and what specific wording must the reporting requirements contract clause contain?

This section continues the requirement that covered Federal contractors and subcontractors submit reports at least annually regarding their hiring and continued employment of veterans in the three categories defined in Section 250.2. This section also amends the required language for the contract clause that must be included in each covered Federal contract and subcontract. Paragraphs (a)(1) and (a)(2) of the amended clause add the requirement that contractors and subcontractors report on their employment of “other protected veterans,” as defined in Section 250.2. Paragraph (a)(3) requires contractors and subcontractors to report the maximum number and minimum number of persons employed during the reporting period. These changes are required by VEOA.

Paragraph (c) of the amended clause changes the annual deadline for submitting the VETS-100 Report from March 31 to September 30. As explained in the “Background” section above, this change synchronizes the VETS-100 and EEO-1 reporting dates. This paragraph also defines the eligibility period for the report. Paragraph (d) amends the definition of the reporting period. Contractors and subcontractors will still be able to select an ending date for the period, however, the range of permissible dates is changed. The previous version of the clause permitted ending dates between January 1 and March 1; the amended version permits ending dates between July 1 and August 31.

Paragraph (e) is revised to indicate that both contractors and subcontractors must report the numbers of protected veterans known to them during the reporting period. 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 protected incumbent veterans, or actual knowledge of an employee's veteran status by a contractor or subcontractor.

Comment: Two comments were received concerning the reporting of “minimum and maximum” number of employees. One commentator expressed concern about the added reporting burden. The second asked for clarification about how to determine the minimum and maximum number of employees. The commentator asserted that there could be continuous employment fluxing at a company and that it was unclear exactly when the minimum and maximum number of employees had to be determined.

Response: This additional reporting item is statutorily required, consequently, it must be included in the final rule. In an attempt to provide flexibility in reporting this information and to reduce the burden on employers, VETS has added clarifying language to section 61-250.10(a)(3). The new language reads:“The maximum number and minimum number of employees of such contractor at each hiring location during the period covered by the report. The minimum and maximum number of employees reportable at each hiring location during the period covered by the report must be determined as follows: Contractors must review payroll records for each of the pay periods included in the report. The minimum number of employees is the total number of employees paid in the payroll period in which the contractor had the fewest number of employees. The maximum number of employees is the total number of employees paid in the payroll period in which the contractor had the greatest number of employees.”

Section 61-250.11 On what form must the data required above be submitted?

This section amends the VETS-100 form and instructions, and provides new avenues for submission of the report.

Paragraph (a): This paragraph provides a copy of the amended VETS-100 form and the text of the amended instructions provided with the form. The introduction to the instructions is amended to clarify that a separate report must be completed for each hiring location in all States. The term “supplemental” is deleted to emphasize that the obligation to complete and submit the VETS-100 Report is separate from the obligation to complete and submit the EEO-1 Report.

Instructions: The section of the instructions entitled “How to Prepare Form” is amended to insert an explanation of the meaning of shaded areas on the form, as well as instructions for determining the reporting period by selecting an ending date for the report. The latter information is not new. Under the rule, the information is moved from a different section of the instructions in order to emphasize that the reporting period applies to the entire report.

The section of the instructions entitled “Company Identification” was originally revised to request reporting of the contractor's Standard Industrial Code (SIC) and require the Dun and Bradstreet I.D. number (DUNS), if available, in addition to the EIN that is already required. These changes were to assist VETS in identifying Federal contractors and subcontractors.

Comment: We received one comment requesting that the SIC be changed to the North American Industrial Classification System (NAICS).

Response: On October 1, 2000, the SIC was replaced by the NAICS. VETS made corresponding changes in the VETS-100 reporting form. Covered contractors and subcontractors are now requested to report their NAICS Code, if available. To learn more about the NAICS, converting SIC codes to NAICS codes, and other information relating to the implementation of NAICS, visit the U.S. Census Bureau web page dedicated to NAICS: http://www.census.gov/​epcd/​www/​naics.html. The Small Business Administration (SBA) also has an information web page for NAICS specific to SBA services at: http://www.sba.gov/​size/​NAICS-cover-page.html.

The section entitled “Information on Employees,” previously called “Information on Veterans,” is revised in several ways. The paragraph “Counting veterans” is added in response to numerous questions from contractors concerning how contractors must count veterans who fall into more than one category. The paragraph “Data on Current Employees” amends a currently untitled paragraph. This paragraph explains which payroll period may be used to provide the data, which full-time and part-time employees must be included in the data, and which data are optional. In addition, this paragraph expands the categories of veterans who must be included. The paragraph “Data on New Hires” (titled “New Hires Data” in the prior regulation) is amended to explain which data in this section are optional, and to delete the explanation of how to select the reporting period. This explanation, as noted above, is moved to the section headed “How to Prepare Form.” The new paragraph “Maximum and minimum number of employees” complies with VEOA by requiring contractors and subcontractors to report the maximum and minimum number of persons employed during the reporting period.

Comment: One comment was received concerning the proposed clarification that a veteran must be counted in all the categories in which he or she belongs. The commentator indicated appreciation for the clarification but believed this would impose a burden on those contractors who previously had tried to avoid double-counting of veterans and would require these employers to ask protected veterans to self-identify.

Response: VETS is not requiring employers to recount current employees to determine if they fall into more than one category. However, if an employer is aware that an employee meets the definitions of more than one category of protected veteran, the employee must be counted in each identified category. VETS is clarifying the language to read: “Some veterans will fall into more than one of the protected veteran categories. For example, a veteran may be both a special disabled veteran and a Vietnam era veteran. In such cases the veteran must be counted in each category.”

In the “Definitions” section, the definitions of “special disabled veteran” and “veteran of the Vietnam era” are amended, and a definition of “other protected veterans” is added, in the same ways, as these terms are defined in section 61-250.2. The section “Legal Basis for Reporting Requirements” is amended by incorporating the new class of covered veteran and the new reporting requirements required by VEOA.

Paragraph (b): This paragraph requires most contractors and subcontractors who submit computer-generated output to do so in the form of an electronic file, unless they submit reports for ten locations or less. This requirement is intended to reduce the cost to contractors and subcontractors of submitting the VETS-100 form and the cost to the Federal government of tallying the information on the form.

Comments: We received a comment concerning submitting computer-generated forms indicating that the instruction language did not clearly state that filers of more than 10 forms must do so electronically.

Response: VETS changed the language of the first sentence in 60-250.11(b) to read: “Contractors and subcontractors that submit computer-generated output for more than 10 hiring locations to satisfy their VETS-100 reporting obligations must submit the output in the form of an electronic file.”

Comment: We also received a comment expressing concern “that output using specifications from the Department of Labor, which may change from year to year, will involve an inordinate amount of programming time, not only at the outset to conform to the specification, but also on an annual basis to comply with any changes promulgated by the agency.”

Response: VETS does not intend to make changes in its electronic reporting specifications once they are specified, unless, for example, changes in technology require it to do so. However, if changes are made, VETS will ensure that the regulated community has ample time to make any necessary changes.

Paragraph (c): This paragraph provides small business the opportunity to submit their VETS-100 Report via the Internet and to obtain a company number via e-mail.

Comment: One commentator requested the language in this section be revised to state that any contractor or subcontractor that wishes to may file the VETS-100 Report via the Internet.

Response: VETS agrees with the commentator that any contractor or subcontractor should be allowed to file its VETS-100 Reports(s) via the Internet. Although the site was developed to accommodate small business, it may be utilized by any contractor or subcontractor. Accordingly, VETS changed the first sentence in Section 61-250.11(c) to read: “Contractors or subcontractors may submit the VETS-100 Report via the Internet.”

Paragraph (e): This paragraph changes the VETS-100 Report filing deadline to September 30. As explained above, this will synchronize the VETS-100 and the EEO-1 reporting cycles. The paragraph also includes an Internet address where VETS-100 information may be obtained.

Comment: One commentator wrote “The proposed rule indicates that it is the responsibility of each contractor or subcontractor to obtain the necessary supplies of the VETS-100 Report form before the annual September 30 filing date. [citation omitted] In light of the delays in the generation of both the EEO-1 and the VETS-100 forms for the 2000 reporting cycle, we propose to either strike this sentence, or modify it to read ‘* * * before the annual September 30 filing deadline, assuming that the department makes the form available to contractors and subcontractors at least 60 days prior to the filing deadline.’ ”

Response: VETS is not aware of any problems this requirement has created in the past. VETS annually mails out the VETS-100 Report to contractors in the VETS-100 database during the month of July each year. The form also is available on the VETS-100 home page on the Internet at: http://vets100.cudenver.edu. VETS is leaving this paragraph unchanged.

Section 61-250.12 What invitation to self-identify must a contractor offer to veterans?

This section is deleted in the final rule. Section 61-250.12 originally required contractors and subcontractors to invite all applicants for employment who are protected veterans, and who wish to benefit under the affirmative action program, to identify themselves to the contractor or subcontractor.

Comment: Two commentators noted that the invitation to self-identify requirement was not consistent with the analogous requirements contained in the regulations implementing the affirmative action requirements of VEVRAA at 41 CFR 60-250.42 published by OFCCP.

Response: VETS deleted Section 61-250.12 to reduce potential confusion. VEVRAA's affirmative action requirements are administered and enforced by OFCCP. The responsibility of VETS under section 4212 of VEVRAA is limited to submission of the VETS-100 Report. Accordingly, VETS believes that it is not necessary to address the issue of invitations to self-identify as a protected veteran under the regulations relating to the VETS-100 Report.

Comment: A commentator inquired as to whether contractors are required or permitted to periodically invite current employees to self-identify.

Response: Contractors and subcontractors are not required to survey their workforces to solicit information about veterans' status for the purpose of completing the VETS-100 Report. Contractors and subcontractors are permitted to solicit information about veterans' status in any lawful manner.

Section 61-250.20 How will DOL determine whether a contractor or subcontractor is complying with the requirements of this part?

The language of this section is amended to clarify that during the course of a compliance evaluation, OFCCP may determine whether a contractor or subcontractor has submitted the reports required by this part.

Section 61-250.99 What are the OMB control numbers for this part?

This section is updated to reflect the most recent regulations implementing the Paperwork Reduction Act.

IV. Regulatory Procedures

Executive Order 12866

The Department of Labor has determined that this Rule is not a “significant regulatory action” under Executive Order 12866 because this action will not: (1) Have an annual 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; (2) create a serious inconsistency, or otherwise interfere, with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. Therefore, a regulatory impact analysis is unnecessary.

Congressional Review Act

This regulation is not a major rule for purposes of the Congressional Review Act.

Unfunded Mandates

Executive Order 12875—This final rule does not create an unfunded Federal Mandate upon any State, local, or tribal government.

Unfunded Mandate Reform Act of 1995—This final 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.

Executive Order 13132

These regulations have been reviewed in accordance with Executive Order 13132 regarding Federalism. This 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. Therefore, the requirements of section 6 of Executive Order 13132 do not apply to this rule.

Regulatory Flexibility Act

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

Paperwork Reduction Act

This rule contains information collections which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. Sections 61-250.10 and 61-250.11 are revised paperwork sections that become effective after they have been approved by OMB. The rule revises regulations approved under OMB Notice of Action No. 1293-0005 for implementation of these information collection requirements. The rule codifies new reporting requirements mandated by the Veterans Employment Opportunity Act of 1998. We estimate the collection burden to be 30 minutes per respondent. The information collection requirements affected by this final rule have been identified in the NPRM. These information collection requirements and their predicted effect on recordkeeping and reporting burden hours maintained in the OMB Notice of Action file 1293-0005 are summarized below.

Contractors and subcontractors are required to collect data on a new category of veterans, “other protected veterans.” Additionally, contractors and subcontractors must report the maximum and minimum number of persons employed during the reporting period. Company identification information is revised to request the submission of a contractor's North American Industrial Classification System (NAICS) Code and require the Dun and Bradstreet I.D. number (DUNS), if available.

List of Subjects In 41 CFR Part 61-250

• Government contracts
• Reporting and recordkeeping requirements
• Veterans

Signed at Washington, DC, this 2nd day of October 2001.

Elaine L. Chao,

Secretary of Labor.

For the reasons set forth in the preamble, 41 CFR Chapter 61 is revised to read as follows:

CHAPTER 61—OFFICE OF THE ASSISTANT SECRETARY FOR VETERANS' EMPLOYMENT AND TRAINING SERVICE, DEPARTMENT OF LABOR

PART 61-250-ANNUAL REPORT FROM FEDERAL CONTRACTORS

61-250.1

What are the purpose and scope of this part?

61-250.2

What definitions apply to this part?

61-250.10

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

61-250.11

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

61-250.20

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

61-250.99

What are the OMB control numbers for this part?

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

Authority: 38 U.S.C. 101 et seq., Pub. L. 93-508, 88 Stat. 2578, VEVRAA as amended.

§ 61-250.1

What are the purpose and scope of this part?

(a) This part 61-250 implements 38 U.S.C. 4212(d). Each contractor or subcontractor who enters into a contract in the amount of $25,000 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) and the Office of Federal Contract Compliance Programs (OFCCP) regulations at 41 CFR part 60-250, must submit a report according to the requirements of § 61-250.10.

(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 granting a waiver under 41 CFR 60-250.4(b)(2), 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 protected veterans.

§ 61-250.2

What definitions apply to this part?

(a) For 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 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), service workers, as required bythe Employer Information Report EEO-1, Standard Form 100 (EEO-1 Report), as defined 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 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 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.), operatives, 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) Special disabled veteran means:

(i) A veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Department of Veterans Affairs for a disability:

(A) Rated at 30 percent or more, or

(B) Rated at 10 or 20 percent in the case of a veteran who has been determined under 38 U.S.C. 3106 to have a serious employment handicap; or

(ii) A person who was discharged or released from active duty because of a service-connected disability.

(5) Veteran of the Vietnam era means a veteran:

(i) Who served on active duty in the U.S. military, ground, naval or air service for a period of more than 180 days, and who was discharged or released therefrom with other than a dishonorable discharge, if any part of such active duty was performed:

(A) In the Republic of Vietnam between February 28, 1961, and May 7, 1975, or

(B) Between August 5, 1964 and May 7, 1975 in any other location; or

(ii) Who was discharged or released from active duty in the U.S. military, ground, naval or air service for a service-connected disability, if any part of such active duty was performed:

(A) In the Republic of Vietnam between February 28, 1961, and May 7, 1975; or

(B) Between August 5, 1964, and May 7, 1975, in any other location.

(6) Other protected veterans means any other 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, other than special disabled veterans or veterans of the Vietnam era.

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

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

(9) 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.

(10) Eligibility period means the calendar year (January 1 through December 31) preceding the year in which the report must be filed. This calendar year is the same year in which the contractor received the Federal contract.

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

§ 61-250.10

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 § 61-250.1 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 Special Disabled Veterans, Veterans of the Vietnam Era, and Other Protected Veterans

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

(1) The number of current employees in each job category and at each hiring location who are special disabled veterans, the number who are veterans of the Vietnam era, and the number who are other protected veterans;

(2) The total number of new employees hired during the period covered by the report, and of that total, the number who are special disabled veterans, the number who are veterans of the Vietnam era, and the number who are other protected veterans; and

(3) The maximum number and minimum number of employees of such contractor at each hiring location during the period covered by the report. The minimum and maximum number of employees reportable at each hiring location during the period covered by the report must be determined as follows: Contractors must review payroll records for each of the pay periods included in the report. The minimum number of employees is the total number of employees paid in the payroll period in which the contractor had the fewest number of employees. The maximum number of employees is the total number of employees paid in the payroll period in which the contractor had the greatest number of employees.

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

(c) VETS-100 reports must be submitted no later than September 30 of each year beginning September 30, 2001. The eligibility period (the period during which an employer received a Federal contract) for this report and all subsequent reports is the calendar year (January 1 through December 31) that precedes the year in which the report is submitted.

(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-100 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 protected 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. (OMB No. 1293-0005)

§ 61-250.11

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 § 61-250.10 must be reported for each hiring location on the VETS-100 form. This form is mailed annually to those contractors who are included in the VETS-100 data base. The form, and instructions for preparing it, are also set forth as follows:

The Vets-100 Report Form is Reprinted as Appendix A to 41 CFR Part 61-250

This report is to be completed by all nonexempt contractors and subcontractors with contracts (or subcontracts) for the furnishing of supplies and services or the use of real or persona1 property (including construction) for $25,000 or more. Reports must be completed for each hiring location in any State, as defined in 41 CFR 61-250.2(b).

All multi-establishment employers, i.e., those doing business at more than one hiring location, must file: (1) a report covering the principal or headquarters office; (2) a separate report for each hiring location employing 50 or more persons; and (3) either (i) a separate report for each hiring location employing fewer than 50 persons, or (ii) consolidated reports, by State, covering the hiring locations within the State that have fewer than 50 employees. Each consolidated report must also list the names and addresses of all hiring locations covered by the report.

How to Prepare Form

Shaded areas designate optional information. Answers to questions in all other areas of the form are mandatory.

Contractors should determine the period covered by the report (“the reporting period”) by selecting an ending date for the report. The ending date may fall either: (1) At the end of any pay period during the period July 1 through August 31 of the year the report is due; or (2) On December 31, if the contractor has previous written approval from the Equal Employment Opportunity Commission to use that date for purposes of submitting the Employer Information Report EEO-1, Standard Form 100 (EEO-1 Report). The report must cover the twelve consecutive months preceding the selected ending date.

Company Identification

Parent Company. Please provide the company name, address, and employer identification number (EIN) of the headquarters office of the multi-hiring location company that owns the hiring location for which this report is filed. The EIN is mandatory; the Dun and Bradstreet I.D. number (DUNS) is mandatory if available; and the North American Industrial Classification System (NAICS) also must be reported if available.

Hiring Location For Which This Report Is Filed. Please provide the name, address, and EIN for each hiring location for which this report is filed. The EIN is mandatory; the NAICS and the DUNS also must be reported if available.

Information on Employees (Veterans and non-veterans)

Counting veterans: Some veterans will fall into more than one of the protected veteran categories. For example, a veteran may be both a special disabled veteran and a Vietnam era veteran. In such cases the veteran must be counted in each category.

Data on Current Employees: The payroll period for this data is the period that ends on the date the contractor selects as the ending date for the entire report, according to the instructions above in “How to Prepare Form.” The data must include all permanent full-time and part-time employees who were employed as of the ending date of the selected payroll period, except those employees specifically excluded as indicated in 41 CFR 61-250.2(b)(2). Employees must be counted by veteran status (columns L, M, and N—special disabled veterans, Vietnam-era, or other protected veterans as defined below) for each of the nine occupational categories. Entries in the Total line of columns L, M, and N are optional.

Data on New Hires: Report on the Total line in columns O through R the number of regular full-time and part-time employees, by veteran status (columns O, P, and Q) and total employees (column R), who were included in the payroll for the first time during the reporting period. Entries in lines 1 through 9 (shaded area) of columns O through R are optional.

Maximum and minimum number of employees:

The minimum and maximum number of employees reportable at each hiring location during the period covered by the report must be determined as follows: Contractors must review payroll records for each of the pay periods included in the report. The minimum number of employees is the total number of employees paid in the payroll period in which the contractor had the fewest number of employees. The maximum number of employees is the total number of employees paid in the payroll period in which the contractor had the greatest number of employees.

Definitions

Hiring location means an establishment as defined at 41 CFR 61-250.2(b).

Special disabled veteran means:

(i) A veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Department of Veterans Affairs for a disability:

(A) Rated at 30 percent or more; or

(B) Rated at 10 or 20 percent in the case of a veteran who has been determined under 38 U.S.C. 3106 to have a serious employment handicap; or

(ii) A person who was discharged or released from active duty because of a service-connected disability.

Veteran of the Vietnam era means a veteran:

(i) who served on active duty in the U.S. military, ground, naval or air service for a period of more than 180 days, and who was discharged or released therefrom with other than a dishonorable discharge, if any part of such active duty was performed:

(A) in the Republic of Vietnam between February 28, 1961, and May 7, 1975; or

(B) between August 5, 1964 and May 7, 1975 in any other location; or

(ii) who was discharged or released from active duty in the U.S. military, ground, naval or air service for a service-connected disability, if any part of such active duty was performed:

(A) in the Republic of Vietnam between February 28, 1961, and May 7, 1975; or

(B) between August 5, 1964, and May 7, 1975, in any other location.

Other protected veterans means any other 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, other than special disabled veterans or veterans or the Vietnam era.

Legal Basis for Reporting Requirements

Title 38, United States Code, Section 4212(d), requires that Federal contractors and subcontractors report at least annually on the number of current employees in each job category and at each hiring location who are special disabled veterans, the number who are veterans of the Vietnam era, and the number who are other protected veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized, other than special disabled veterans or veterans of the Vietnam era. Also required are the total number of new hires during the reporting period, the number of new hires who fall into each of the three categories of veterans listed above, and the maximum and minimum number of persons employed during the reporting period. The regulations implementing these statutory provisions are found at 41 CFR part 61-250.

Description of Job Categories

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.

Professionals means occupations requiring either college graduation or experience of such kind and amount as to provide a background comparable to 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.

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.

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.

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.

Craft Workers (skilled) means manual workers of 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.

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.), operatives, 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.

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.

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.

(b) Contractors and subcontractors that submit computer-generated output for 10 or more hiring locations to satisfy their VETS-100 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-100 Reports for ten 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) Contractors and subcontractors may submit the VETS-100 Report via the Internet. The Internet address for the site is http://vets100.cudenver.edu/​vets100login.htm. A company number is required to access this site. The number is provided to employers on the VETS-100 Report form that is mailed annually to those employers who are included in the VETS-100 database. Other employers may obtain a company number by e-mailing their request to [e-mail], or by calling the VETS-100 Reporting System at [phone].

(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-100 Report form 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-100 Report form 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-100 Report Form Request or on the Internet at http://vets100.cudenver.edu (OMB No. 1293-0005).

§ 61-250.20

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.

§ 61-250.99

What are the OMB control numbers 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. 1293-0005 to the information collection requirements of this part.

Appendix A to Part 61-250—Federal Contractor Veterans' Employment Report VETS-100