Nondiscrimination and Affirmative Action Obligations of Contractors and Subcontractors Regarding Protected Veterans, 18712-18715 [E8-7123]

Download as PDF 18712 Federal Register / Vol. 73, No. 67 / Monday, April 7, 2008 / Rules and Regulations priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. A Section 810 analysis was completed as part of the FEIS process. The final Section 810 analysis determination appeared in the April 6, 1992, ROD, which concluded that the Federal Subsistence Management Program, under Alternative IV with an annual process for setting hunting and fishing regulations, may have some local impacts on subsistence uses, but the program is not likely to significantly restrict subsistence uses. rfrederick on PROD1PC67 with RULES Paperwork Reduction Act The adjustment does not contain information collection requirements subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Federal Agencies may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Other Requirements The adjustment has been exempted from OMB review under Executive Order 12866. The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires preparation of flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. The exact number of businesses and the amount of trade that will result from this Federal land-related activity is unknown. The aggregate effect is an insignificant economic effect (both positive and negative) on a small number of small entities supporting subsistence activities, such as sporting goods dealers. The number of small entities affected is unknown; however, the effects will be seasonally and geographically limited in nature and will likely not be significant. The Departments certify that this adjustment will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.), this action is not a major rule. It does not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and does not have significant adverse effects on competition, employment, investment, VerDate Aug<31>2005 15:06 Apr 04, 2008 Jkt 214001 productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Title VIII of ANILCA requires the Secretaries to administer a subsistence preference on public lands. The scope of this program is limited by definition to certain public lands. Likewise, this adjustment has no potential takings of private property implications as defined by Executive Order 12630. The Secretaries have determined and certify under the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that the adjustment will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation is by Federal agencies, and no cost is involved to any State or local entities or Tribal governments. The Secretaries have determined that the adjustment meets the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform. In accordance with Executive Order 13132, the adjustment does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands. Cooperative salmon run assessment efforts with ADF&G will continue. In accordance with the President’s memorandum of April 29, 1994, ‘‘Government-to-Government Relations with Native American Tribal Governments’’ (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on Federally recognized Indian tribes and have determined that there are no substantial direct effects. The Bureau of Indian Affairs is a participating agency in this action. On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, or use. This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As this action is not expected to significantly affect energy supply, distribution, or use, it is not a significant energy action and no Statement of Energy Effects is required. Drafting Information Theo Matuskowitz drafted this document under the guidance of Peter J. Probasco of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Charles Ardizzone, PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 Alaska State Office, Bureau of Land Management; Sandy Rabinowitch and Nancy Swanton, Alaska Regional Office, National Park Service; Drs. Warren Eastland and Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs; Jerry Berg and Carl Jack, Alaska Regional Office, U.S. Fish and Wildlife Service; and Steve Kessler, Alaska Regional Office, USDA, Forest Service, provided additional assistance. Authority: 16 U.S.C. 3, 472, 551, 668dd, 3101–3126; 18 U.S.C. 3551–3586; 43 U.S.C. 1733. Dated: February 22, 2008. Peter J. Probasco, Acting Chair, Federal Subsistence Board. Dated: February 22, 2008. Steve Kessler, Subsistence Program Leader, USDA-Forest Service. [FR Doc. E8–7180 Filed 4–4–08; 8:45 am] BILLING CODE 3410–11–P (50%); 4310–55–P (50%) DEPARTMENT OF LABOR Office of Federal Contract Compliance Programs 41 CFR Part 60–250 RIN 1215–AB65 Nondiscrimination and Affirmative Action Obligations of Contractors and Subcontractors Regarding Protected Veterans Office of Federal Contract Compliance Programs, Labor. ACTION: Final rule. AGENCY: SUMMARY: This final rule revises the regulations in 41 CFR part 60–250 implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (‘‘Section 4212’’ or ‘‘VEVRAA’’). The regulations in part 60–250 implement the nondiscrimination and affirmative action provisions of VEVRAA prior to their amendment in 2002 by the Jobs for Veterans Act (‘‘JVA’’), and apply to contracts entered into before December 1, 2003. Today’s final rule revises the mandatory job listing provision in the part 60–250 regulations to provide that listing employment openings with the state workforce agency job bank or with the local employment service delivery system where the opening occurs will satisfy the mandatory job listing requirements under the part 60–250 regulations. The effect of this final rule is to conform the mandatory job listing provision in the part 60–250 regulations to the parallel provision in the E:\FR\FM\07APR1.SGM 07APR1 rfrederick on PROD1PC67 with RULES Federal Register / Vol. 73, No. 67 / Monday, April 7, 2008 / Rules and Regulations regulations of the Office of Federal Contract Compliance Programs (‘‘OFCCP’’) implementing the JVA amendments to VEVRAA in 41 CFR part 60–300. Today’s final rule also clarifies that the regulations in part 60–250 apply to any contract or subcontract of at least $25,000 entered into before December 1, 2003, and that the regulations in part 60–300, not the part 60–250 regulations, apply to such a contract or subcontract if it is modified on or after December 1, 2003 and the contract or subcontract as modified is for $100,000 or more. DATES: Effective Date: These regulations are effective April 7, 2008. FOR FURTHER INFORMATION CONTACT: Sandra Dillon, Acting Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue, NW, Room N3422, Washington, DC 20210. Telephone: (202) 693–0102 (voice) or (202) 693– 1337 (TTY). SUPPLEMENTARY INFORMATION: The nondiscrimination and affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act, 38 U.S.C. 4212, (‘‘VEVRAA’’ or ‘‘Section 4212’’) require Federal contractors and subcontractors to provide equal employment opportunity to and take affirmative action to employ and advance in employment the categories of veterans protected under the law. Prior to the amendments made in 2002 by the Jobs for Veterans Act (Pub. L. 107–288, 116 Stat. 2033)(‘‘JVA’’), VEVRAA required, in part, that the President implement the nondiscrimination and affirmative action provisions by promulgating regulations requiring contractors to list immediately with the appropriate local employment service office all of its employment openings, except that the contractor may exclude openings for executive and top management positions, positions which are to be filled from within the contractor’s organization, and positions lasting three days or less. OFCCP’s regulations implementing the pre-JVA nondiscrimination and affirmative action provisions of VEVRAA are published in 41 CFR part 60–250. The pre-JVA nondiscrimination and affirmative provisions of VEVRAA and the regulations in part 60–250 continue to apply to contractors with contracts entered into before December 1, 2003. The mandatory job listing requirement is addressed in the regulation containing the equal opportunity clause at 41 CFR 60–250.5. OFCCP clarified in § 60–250.5(a)2 that VerDate Aug<31>2005 15:06 Apr 04, 2008 Jkt 214001 ‘‘the appropriate local employment service office’’ is ‘‘an appropriate local employment service office of the state employment security agency wherein the opening occurs.’’ In addition, OFCCP interpreted the language in the pre-JVA affirmative action provisions of VEVRAA to authorize the use of alternative methods for complying with the mandatory job listing requirement. Thus, § 60–250.5(a)2 currently provides that ‘‘[l]isting employment openings with the U.S. Department of Labor’s America’s Job Bank shall satisfy the requirement to list jobs with the local employment service office.’’ Today’s final rule revising the mandatory job listing provision in § 60– 250.5(a)2 was made necessary by two events. First, the JVA amended the nondiscrimination and affirmative action provisions of VEVRAA and made those amendments applicable only to contracts entered into on or after December 1, 2003. Among the changes made by the JVA amendments was a change to the manner in which the mandatory job listing provision is to be implemented. Section 2(b)(1) of the JVA requires the Secretary to promulgate regulations that obligate each covered contractor to list all of its employment openings with ‘‘the appropriate employment service delivery system.’’ Section 5(c)(1) of the JVA defines the term ‘‘employment service delivery system’’ as ‘‘a service delivery system at which or through which labor exchange services, including employment, training, and placement services, are offered in accordance with the WagnerPeyser Act.’’ See 38 U.S.C. 4101(7). In addition to listing with an appropriate employment service delivery system, the JVA permits contractors to list their employment openings with ‘‘one-stop career centers under the Workforce Investment Act of 1998, other appropriate service delivery points, or America’s Job Bank (or any additional or subsequent national electronic job bank established by the Department of Labor).’’ Under the JVA amendments, listing jobs solely with America’s Job Bank (‘‘AJB’’) no longer complies with the requirements of VEVRAA. In addition, AJB ceased operations on July 1, 2007. OFCCP recently published final regulations to implement the JVA amendments to the nondiscrimination and affirmative action provisions of VEVRAA (72 FR 44393, August 8, 2007). The regulation at 41 CFR 60–300.5(a)2 implementing the mandatory job listing requirement provides that ‘‘listing employment openings with the state workforce agency job bank or with the local employment service delivery PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 18713 system where the opening occurs will satisfy the requirement to list jobs with the appropriate employment service delivery system.’’ Contractors that are covered by both the regulations in part 60–250 and part 60–300 have asked whether they may use the same methods to satisfy their mandatory job listing obligations under both sets of regulations. In addition, with the elimination of one of the permissible methods under § 60–250.5(a)2 for satisfying their job listing obligations, contractors have inquired about other methods that might be used to comply with the mandatory job listing requirements in the part 60–250 regulations. OFCCP has interpreted the language of the pre-JVA nondiscrimination and affirmative action provisions of VEVRAA and the current § 60–250.5(a)2 to authorize alternative methods for listing job openings with the local employment service office. Thus, OFCCP has interpreted the current § 60– 250.5(a)2 to permit contractors to list job openings in the same manner that is permitted under the regulation at 41 CFR 60–300.5(a)2. In a Frequently Asked Question (‘‘FAQ’’) published on the OFCCP Web site, OFCCP advised contractors that ‘‘listing with the state workforce agency job bank in the state where the job opening occurs also will satisfy the listing requirement under the part 60–250 regulations.’’ In another FAQ published on the Web site, OFCCP further explained that ‘‘contractors subject to both sets of regulations also may satisfy the listing requirement by listing openings with an appropriate local employment service delivery system.’’ See http://www.dol.gov/esa/ regs/compliance/ofccp/faqs/ jvafaqs.htm. Today’s final rule makes two changes to the mandatory job listing provision in § 60–250.5(a)2. First, the final rule removes the reference to AJB since it no longer exists. Second, today’s final rule conforms the mandatory job listing provision in the part 60–250 regulations to the interpretation of current § 60– 250.5(a)2 that is set forth in the FAQs. Thus, the final rule revises § 60– 250.5(a)2 to state that ‘‘listing employment openings with the state workforce agency job bank where the opening occurs or with the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the appropriate employment service office.’’ As a result of the changes made by this final rule, the VEVRAA regulations at part 60–250 and part 60–300 will identify the same methods for satisfying the mandatory listing requirement. E:\FR\FM\07APR1.SGM 07APR1 18714 Federal Register / Vol. 73, No. 67 / Monday, April 7, 2008 / Rules and Regulations In addition, this final rule revises § 60–250.1(b) to clarify that the regulations in part 60–250 apply to any contract or subcontract of at least $25,000 entered into before December 1, 2003, and that the regulations in part 60–300, not the part 60–250 regulations, apply to such a contract or subcontract if it is modified on or after December 1, 2003, and the contract or subcontract as modified is for $100,000 or more. This change will assist contractors in determining whether the regulations in part 60–250 and/or the regulations in part 60–300 apply to their contracts. rfrederick on PROD1PC67 with RULES Regulatory Procedures Publication in Final OFCCP has determined that this rulemaking need not be published as a proposed rule, as generally required by the Administrative Procedure Act, 5 U.S.C. 553 (‘‘APA’’). Notice-andcomment requirements do not apply to ‘‘interpretive rules.’’ 5 U.S.C. 553(b)(A). The amendment to 41 CFR 60–250.5(a)2 is not being published as a proposed rule because it is an interpretive rule and therefore exempt from APA notice and comment procedures. Consistent with OFCCP’s interpretation that under the pre-JVA affirmative action provisions of VEVRAA and existing 41 CFR 60–250.5(a)2 more than one method may be used to list openings with the appropriate local employment service office, the final rule amends 41 CFR 60–250.5(a)2 to include additional means of listing jobs. The current rule allowed contractors to post jobs on AJB, while this final rule permits contractors to satisfy the mandatory job listing requirement by posting employment openings with the state workforce agency job bank or with the local employment service delivery system where the employment opening occurs. For these reasons, the exemption for interpretive rules permits OFCCP to publish this final rule to codify OFCCP’s interpretation that listing job openings with the state workforce agency job banks or with the local employment service delivery system where the job opening occurs are permissible methods for complying with the mandatory listing requirement at 41 CFR 60– 250.5(a)2. In addition, notice-and-comment rulemaking is not required for the amendment to 41 CFR 60–250.1(b), which clarifies the scope and applicability of the regulations in 41 CFR part 60–250 and the regulations in 41 CFR part 60–300. The JVA made the amendments to the nondiscrimination and affirmative action provisions of VEVRAA applicable only to VerDate Aug<31>2005 15:06 Apr 04, 2008 Jkt 214001 Government contracts entered into on or after December 1, 2003. The term ‘‘Government contract’’ is defined in existing 41 CFR 60–250.2(i) and 41 CFR 60–300.2(i) as ‘‘any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services (including construction).’’ Because a contract modification is a ‘‘Government contract,’’ the JVA amendments apply to modifications of otherwise covered contracts made on or after December 1, 2003. Consequently, the regulation at 41 CFR 60–300.1(b) provides that part 60– 300 applies to any contract of $100,000 or more, entered into or modified on or after December 1, 2003. The amendment to 41 CFR 60–250.1(b) essentially incorporates the effective date of the JVA amendments, which was determined by statute, and tracks the regulation in 41 CFR 60–300.1(b). The Department of Labor may not, in response to public comment, change or decline to implement the effective dates of the JVA amendments. Consequently, there is good cause for finding that applying the notice-and-comment procedure to the amendment to 41 CFR 60–250.1 is unnecessary and contrary to the public interest, pursuant to Section 553(b)(B) of the APA. Executive Order 12866 This final rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. OFCCP has determined that this rule is not ‘‘a significant regulatory action’’ under Executive Order 12866, section 3(f). Accordingly, it does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. Executive Order 13132 OFCCP has reviewed the rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have ‘‘federalism implications.’’ The rule will not ‘‘have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ Regulatory Flexibility Act The rule clarifies existing requirements for Federal contractors. In view of this fact and because the rule does not substantively change existing obligations for Federal contractors, we certify that the rule will not have a significant economic impact on a substantial number of small business PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 entities. Therefore, a regulatory flexibility analysis under the Regulatory Flexibility Act is not required. Small Business Regulatory Enforcement Fairness Act OFCCP has concluded that the rule is not a ‘‘major’’ rule under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.). In reaching this conclusion, the OFCCP has determined that the rule will not likely result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreignbased enterprises in domestic or export markets. Unfunded Mandates Reform Executive Order 12875—This rule does not create an unfunded Federal mandate upon any State, local, or tribal government. Unfunded Mandates Reform Act of 1995—This rule does not include any Federal mandate that may result in increased expenditures by State, local, and tribal governments, in the aggregate, of $100 million or more, or increased expenditures by the private sector of $100 million or more. Congressional Review Act This regulation is not a major rule for purposes of the Congressional Review Act. Paperwork Reduction Act The information collection requirements contained in the existing VEVRAA regulations, with the exception of those related to complaint procedures, are currently approved under OMB Control No. 1215–0072 (Recordkeeping and Reporting Requirements—Supply and Service) and OMB Control No. 1215–0163 (Construction Recordkeeping and Reporting). The information collection requirements contained in the existing complaint procedures regulation are currently approved under OMB Control No. 1215–0131. This final rule amends the regulations implementing VEVRAA to allow contractors to list with the state workforce agency job bank where the opening occurs or the local employment service delivery system where the opening occurs to comply with the obligation to list jobs with an appropriate local employment service E:\FR\FM\07APR1.SGM 07APR1 Federal Register / Vol. 73, No. 67 / Monday, April 7, 2008 / Rules and Regulations office. However, this final rule does not make any changes to the currently approved information collections. Consequently, this final rule need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. List of Subjects in 41 CFR Part 60–250 Administrative practice and procedure, Civil rights, Employment, Equal employment opportunity, Government contracts, Government procurement, Individuals with disabilities, Investigations, Reporting and recordkeeping requirements, and Veterans. Compliance by the contractor with the provisions of this part will not necessarily determine its compliance with other statutes, and compliance with other statutes will not necessarily determine its compliance with this part. * * * * * 3. Section 60–250.5 is amended by revising paragraph (a)2 to read as follows. I § 60–250.5 Signed at Washington, DC, this 1st day of April, 2008. Victoria A. Lipnic, Assistant Secretary for Employment Standards. Charles E. James, Sr., Deputy Assistant Secretary for Federal Contract Compliance. Accordingly, under authority of 38 U.S.C. 4212, Title 41 of the Code of Federal Regulations, Chapter 60, Part 60–250, is amended as follows: I PART 60–250—AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS OF CONTRACTORS AND SUBCONTRACTORS REGARDING SPECIAL DISABLED VETERANS, VETERANS OF THE VIETNAM ERA, RECENTLY SEPARATED VETERANS, AND OTHER PROTECTED VETERANS 1. The authority citation for part 60– 250 continues to read as follows: Equal opportunity clause. (a) * * * 2. The contractor agrees to immediately list all employment openings which exist at the time of the execution of this contract and those which occur during the performance of this contract, including those not generated by this contract and including those occurring at an establishment of the contractor other than the one wherein the contract is being performed, but excluding those of independently operated corporate affiliates, at an appropriate local employment service office of the state employment security agency wherein the opening occurs. Further, listing employment openings with the state workforce agency job bank where the opening occurs or with the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the appropriate employment service office. * * * * * [FR Doc. E8–7123 Filed 4–4–08; 8:45 am] BILLING CODE 4510–CM–P I Authority: 29 U.S.C. 793; 38 U.S.C. 4211 (2001) (amended 2002); 38 U.S.C. 4212 (2001) (amended 2002) and 4212; E.O. 11758 (3 CFR, 1971–1975 Comp., p. 841). 2. Section 60–250.1 is amended by revising paragraph (b) to read as follows. I rfrederick on PROD1PC67 with RULES * * * * (b) Applicability. This part applies to any Government contract or subcontract of $25,000 or more entered into before December 1, 2003, for the purchase, sale or use of personal property or nonpersonal services (including construction), except that the regulations in 41 CFR part 60–300, and not this part, apply to such a contract or subcontract that is modified on or after December 1, 2003 and the contract or subcontract as modified is in the amount of $100,000 or more: Provided, That subpart C of this part applies only as described in § 60–250.40(a). VerDate Aug<31>2005 15:06 Apr 04, 2008 Jkt 214001 RIN 3206–AL40 Voting Rights Program Office of Personnel Management. ACTION: Final rule. SUMMARY: The Office of Personnel Management (OPM) is removing part 801 of title 45, Code of Federal Regulations, Voting Rights Program, which prescribes the times, places, manner and procedures for the listing and removal of the names of persons on voter eligibility lists in accordance with sections 6, 7, and 9 of the Voting Rights Act of 1965. Enactment of Public Law 109–246, the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Reauthorization and Amendments Act of 2006 repealed sections 6, 7, and 9 of the Voting Rights PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 Act of 1965, which included the statutory authority for OPM’s promulgation of these regulations (Pub. L. 109–246, Section 3. Changes relating to use of examiners and observers. ‘‘(c) Repeal of Sections Relating to Examiners.—Sections 6, 7, and 9 of the Voting Rights Act of 1965 (42 U.S.C. 1973d, 1973e and 1973g) are repealed.’’). Therefore, OPM is no longer authorized to maintain these regulations. Effective date: April 7, 2008. Comment date: Submit comments on or before June 6, 2008. ADDRESSES: Send or deliver written comments to Chris Hammond, Voting Rights Program Manager, Office of Personnel Management, 1900 E Street, NW., Room 2469R, Washington, DC 20415; by FAX to (202) 606–0398; or by e-mail to Chris.Hammond@opm.gov. FOR FURTHER INFORMATION CONTACT: Chris Hammond by telephone at (202) 606–5262; by FAX at (202) 606–0398; or by e-mail at Chris.Hammond@opm.gov. SUPPLEMENTARY INFORMATION: On July 27, 2006, the President signed the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (VRARA), Public Law 109–246, into law. The VRARA reauthorized many of the temporary provisions of the Voting Rights Act of 1965, Public Law 89–110, for an additional 25 years, but repealed sections 6, 7, and 9, which had authorized the Federal examiner program. Additionally, the VRARA amended other sections of the Voting Rights Act by removing all references to Federal examiners. DATES: Purpose and Scope 45 CFR Part 801 AGENCY: § 60–250.1 Purpose, applicability and construction. * OFFICE OF PERSONNEL MANAGEMENT 18715 The Voting Rights Act, as reauthorized and amended by the VRARA, continues in full force and effect to prohibit discrimination in voting on the basis of race or color and to provide protections for designated language minority groups. The Office of Personnel Management (OPM) will continue to assign, at the request of the Attorney General, Federal observers under the authority of the Voting Rights Act, to monitor and report on election procedures in certified political subdivisions (typically counties or parishes). The sole purpose of OPM’s removal of part 801 of title 45, Code of Federal Regulations, is to implement Congress’ repeal of the Federal examiner program in the VRARA. This removal does not affect the Procedures for the Voting Rights Act promulgated by the Department of Justice (DOJ), parts 51 E:\FR\FM\07APR1.SGM 07APR1

Agencies

[Federal Register Volume 73, Number 67 (Monday, April 7, 2008)]
[Rules and Regulations]
[Pages 18712-18715]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-7123]


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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Part 60-250

RIN 1215-AB65


Nondiscrimination and Affirmative Action Obligations of 
Contractors and Subcontractors Regarding Protected Veterans

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule revises the regulations in 41 CFR part 60-250 
implementing the nondiscrimination and affirmative action provisions of 
the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as 
amended (``Section 4212'' or ``VEVRAA''). The regulations in part 60-
250 implement the nondiscrimination and affirmative action provisions 
of VEVRAA prior to their amendment in 2002 by the Jobs for Veterans Act 
(``JVA''), and apply to contracts entered into before December 1, 2003. 
Today's final rule revises the mandatory job listing provision in the 
part 60-250 regulations to provide that listing employment openings 
with the state workforce agency job bank or with the local employment 
service delivery system where the opening occurs will satisfy the 
mandatory job listing requirements under the part 60-250 regulations. 
The effect of this final rule is to conform the mandatory job listing 
provision in the part 60-250 regulations to the parallel provision in 
the

[[Page 18713]]

regulations of the Office of Federal Contract Compliance Programs 
(``OFCCP'') implementing the JVA amendments to VEVRAA in 41 CFR part 
60-300. Today's final rule also clarifies that the regulations in part 
60-250 apply to any contract or subcontract of at least $25,000 entered 
into before December 1, 2003, and that the regulations in part 60-300, 
not the part 60-250 regulations, apply to such a contract or 
subcontract if it is modified on or after December 1, 2003 and the 
contract or subcontract as modified is for $100,000 or more.

DATES: Effective Date: These regulations are effective April 7, 2008.

FOR FURTHER INFORMATION CONTACT: Sandra Dillon, Acting Director, 
Division of Policy, Planning, and Program Development, Office of 
Federal Contract Compliance Programs, 200 Constitution Avenue, NW, Room 
N3422, Washington, DC 20210. Telephone: (202) 693-0102 (voice) or (202) 
693-1337 (TTY).

SUPPLEMENTARY INFORMATION: The nondiscrimination and affirmative action 
provisions of the Vietnam Era Veterans' Readjustment Assistance Act, 38 
U.S.C. 4212, (``VEVRAA'' or ``Section 4212'') require Federal 
contractors and subcontractors to provide equal employment opportunity 
to and take affirmative action to employ and advance in employment the 
categories of veterans protected under the law. Prior to the amendments 
made in 2002 by the Jobs for Veterans Act (Pub. L. 107-288, 116 Stat. 
2033)(``JVA''), VEVRAA required, in part, that the President implement 
the nondiscrimination and affirmative action provisions by promulgating 
regulations requiring contractors to list immediately with the 
appropriate local employment service office all of its employment 
openings, except that the contractor may exclude openings for executive 
and top management positions, positions which are to be filled from 
within the contractor's organization, and positions lasting three days 
or less.
    OFCCP's regulations implementing the pre-JVA nondiscrimination and 
affirmative action provisions of VEVRAA are published in 41 CFR part 
60-250. The pre-JVA nondiscrimination and affirmative provisions of 
VEVRAA and the regulations in part 60-250 continue to apply to 
contractors with contracts entered into before December 1, 2003. The 
mandatory job listing requirement is addressed in the regulation 
containing the equal opportunity clause at 41 CFR 60-250.5. OFCCP 
clarified in Sec.  60-250.5(a)2 that ``the appropriate local employment 
service office'' is ``an appropriate local employment service office of 
the state employment security agency wherein the opening occurs.'' In 
addition, OFCCP interpreted the language in the pre-JVA affirmative 
action provisions of VEVRAA to authorize the use of alternative methods 
for complying with the mandatory job listing requirement. Thus, Sec.  
60-250.5(a)2 currently provides that ``[l]isting employment openings 
with the U.S. Department of Labor's America's Job Bank shall satisfy 
the requirement to list jobs with the local employment service 
office.''
    Today's final rule revising the mandatory job listing provision in 
Sec.  60-250.5(a)2 was made necessary by two events. First, the JVA 
amended the nondiscrimination and affirmative action provisions of 
VEVRAA and made those amendments applicable only to contracts entered 
into on or after December 1, 2003. Among the changes made by the JVA 
amendments was a change to the manner in which the mandatory job 
listing provision is to be implemented. Section 2(b)(1) of the JVA 
requires the Secretary to promulgate regulations that obligate each 
covered contractor to list all of its employment openings with ``the 
appropriate employment service delivery system.'' Section 5(c)(1) of 
the JVA defines the term ``employment service delivery system'' as ``a 
service delivery system at which or through which labor exchange 
services, including employment, training, and placement services, are 
offered in accordance with the Wagner-Peyser Act.'' See 38 U.S.C. 
4101(7). In addition to listing with an appropriate employment service 
delivery system, the JVA permits contractors to list their employment 
openings with ``one-stop career centers under the Workforce Investment 
Act of 1998, other appropriate service delivery points, or America's 
Job Bank (or any additional or subsequent national electronic job bank 
established by the Department of Labor).'' Under the JVA amendments, 
listing jobs solely with America's Job Bank (``AJB'') no longer 
complies with the requirements of VEVRAA. In addition, AJB ceased 
operations on July 1, 2007.
    OFCCP recently published final regulations to implement the JVA 
amendments to the nondiscrimination and affirmative action provisions 
of VEVRAA (72 FR 44393, August 8, 2007). The regulation at 41 CFR 60-
300.5(a)2 implementing the mandatory job listing requirement provides 
that ``listing employment openings with the state workforce agency job 
bank or with the local employment service delivery system where the 
opening occurs will satisfy the requirement to list jobs with the 
appropriate employment service delivery system.'' Contractors that are 
covered by both the regulations in part 60-250 and part 60-300 have 
asked whether they may use the same methods to satisfy their mandatory 
job listing obligations under both sets of regulations. In addition, 
with the elimination of one of the permissible methods under Sec.  60-
250.5(a)2 for satisfying their job listing obligations, contractors 
have inquired about other methods that might be used to comply with the 
mandatory job listing requirements in the part 60-250 regulations.
    OFCCP has interpreted the language of the pre-JVA nondiscrimination 
and affirmative action provisions of VEVRAA and the current Sec.  60-
250.5(a)2 to authorize alternative methods for listing job openings 
with the local employment service office. Thus, OFCCP has interpreted 
the current Sec.  60-250.5(a)2 to permit contractors to list job 
openings in the same manner that is permitted under the regulation at 
41 CFR 60-300.5(a)2. In a Frequently Asked Question (``FAQ'') published 
on the OFCCP Web site, OFCCP advised contractors that ``listing with 
the state workforce agency job bank in the state where the job opening 
occurs also will satisfy the listing requirement under the part 60-250 
regulations.'' In another FAQ published on the Web site, OFCCP further 
explained that ``contractors subject to both sets of regulations also 
may satisfy the listing requirement by listing openings with an 
appropriate local employment service delivery system.'' See http://
www.dol.gov/esa/regs/compliance/ofccp/faqs/jvafaqs.htm.
    Today's final rule makes two changes to the mandatory job listing 
provision in Sec.  60-250.5(a)2. First, the final rule removes the 
reference to AJB since it no longer exists. Second, today's final rule 
conforms the mandatory job listing provision in the part 60-250 
regulations to the interpretation of current Sec.  60-250.5(a)2 that is 
set forth in the FAQs. Thus, the final rule revises Sec.  60-250.5(a)2 
to state that ``listing employment openings with the state workforce 
agency job bank where the opening occurs or with the local employment 
service delivery system where the opening occurs will satisfy the 
requirement to list jobs with the appropriate employment service 
office.'' As a result of the changes made by this final rule, the 
VEVRAA regulations at part 60-250 and part 60-300 will identify the 
same methods for satisfying the mandatory listing requirement.

[[Page 18714]]

    In addition, this final rule revises Sec.  60-250.1(b) to clarify 
that the regulations in part 60-250 apply to any contract or 
subcontract of at least $25,000 entered into before December 1, 2003, 
and that the regulations in part 60-300, not the part 60-250 
regulations, apply to such a contract or subcontract if it is modified 
on or after December 1, 2003, and the contract or subcontract as 
modified is for $100,000 or more. This change will assist contractors 
in determining whether the regulations in part 60-250 and/or the 
regulations in part 60-300 apply to their contracts.

Regulatory Procedures

Publication in Final

    OFCCP has determined that this rulemaking need not be published as 
a proposed rule, as generally required by the Administrative Procedure 
Act, 5 U.S.C. 553 (``APA''). Notice-and-comment requirements do not 
apply to ``interpretive rules.'' 5 U.S.C. 553(b)(A). The amendment to 
41 CFR 60-250.5(a)2 is not being published as a proposed rule because 
it is an interpretive rule and therefore exempt from APA notice and 
comment procedures. Consistent with OFCCP's interpretation that under 
the pre-JVA affirmative action provisions of VEVRAA and existing 41 CFR 
60-250.5(a)2 more than one method may be used to list openings with the 
appropriate local employment service office, the final rule amends 41 
CFR 60-250.5(a)2 to include additional means of listing jobs. The 
current rule allowed contractors to post jobs on AJB, while this final 
rule permits contractors to satisfy the mandatory job listing 
requirement by posting employment openings with the state workforce 
agency job bank or with the local employment service delivery system 
where the employment opening occurs. For these reasons, the exemption 
for interpretive rules permits OFCCP to publish this final rule to 
codify OFCCP's interpretation that listing job openings with the state 
workforce agency job banks or with the local employment service 
delivery system where the job opening occurs are permissible methods 
for complying with the mandatory listing requirement at 41 CFR 60-
250.5(a)2.
    In addition, notice-and-comment rulemaking is not required for the 
amendment to 41 CFR 60-250.1(b), which clarifies the scope and 
applicability of the regulations in 41 CFR part 60-250 and the 
regulations in 41 CFR part 60-300. The JVA made the amendments to the 
nondiscrimination and affirmative action provisions of VEVRAA 
applicable only to Government contracts entered into on or after 
December 1, 2003. The term ``Government contract'' is defined in 
existing 41 CFR 60-250.2(i) and 41 CFR 60-300.2(i) as ``any agreement 
or modification thereof between any contracting agency and any person 
for the purchase, sale or use of personal property or nonpersonal 
services (including construction).'' Because a contract modification is 
a ``Government contract,'' the JVA amendments apply to modifications of 
otherwise covered contracts made on or after December 1, 2003. 
Consequently, the regulation at 41 CFR 60-300.1(b) provides that part 
60-300 applies to any contract of $100,000 or more, entered into or 
modified on or after December 1, 2003. The amendment to 41 CFR 60-
250.1(b) essentially incorporates the effective date of the JVA 
amendments, which was determined by statute, and tracks the regulation 
in 41 CFR 60-300.1(b). The Department of Labor may not, in response to 
public comment, change or decline to implement the effective dates of 
the JVA amendments. Consequently, there is good cause for finding that 
applying the notice-and-comment procedure to the amendment to 41 CFR 
60-250.1 is unnecessary and contrary to the public interest, pursuant 
to Section 553(b)(B) of the APA.

Executive Order 12866

    This final rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. OFCCP 
has determined that this rule is not ``a significant regulatory 
action'' under Executive Order 12866, section 3(f). Accordingly, it 
does not require an assessment of potential costs and benefits under 
section 6(a)(3) of that order.

Executive Order 13132

    OFCCP has reviewed the rule in accordance with Executive Order 
13132 regarding federalism, and has determined that it does not have 
``federalism implications.'' The rule will not ``have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''

Regulatory Flexibility Act

    The rule clarifies existing requirements for Federal contractors. 
In view of this fact and because the rule does not substantively change 
existing obligations for Federal contractors, we certify that the rule 
will not have a significant economic impact on a substantial number of 
small business entities. Therefore, a regulatory flexibility analysis 
under the Regulatory Flexibility Act is not required.

Small Business Regulatory Enforcement Fairness Act

    OFCCP has concluded that the rule is not a ``major'' rule under the 
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 
801 et seq.). In reaching this conclusion, the OFCCP has determined 
that the rule will not likely result in (1) an annual effect on the 
economy of $100 million or more; (2) a major increase in costs or 
prices for consumers, individual industries, Federal, State or local 
government agencies, or geographic regions; or (3) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic or export markets.

Unfunded Mandates Reform

    Executive Order 12875--This rule does not create an unfunded 
Federal mandate upon any State, local, or tribal government.
    Unfunded Mandates Reform Act of 1995--This rule does not include 
any Federal mandate that may result in increased expenditures by State, 
local, and tribal governments, in the aggregate, of $100 million or 
more, or increased expenditures by the private sector of $100 million 
or more.

Congressional Review Act

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

Paperwork Reduction Act

    The information collection requirements contained in the existing 
VEVRAA regulations, with the exception of those related to complaint 
procedures, are currently approved under OMB Control No. 1215-0072 
(Recordkeeping and Reporting Requirements--Supply and Service) and OMB 
Control No. 1215-0163 (Construction Recordkeeping and Reporting). The 
information collection requirements contained in the existing complaint 
procedures regulation are currently approved under OMB Control No. 
1215-0131. This final rule amends the regulations implementing VEVRAA 
to allow contractors to list with the state workforce agency job bank 
where the opening occurs or the local employment service delivery 
system where the opening occurs to comply with the obligation to list 
jobs with an appropriate local employment service

[[Page 18715]]

office. However, this final rule does not make any changes to the 
currently approved information collections. Consequently, this final 
rule need not be reviewed by the Office of Management and Budget under 
the authority of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et 
seq.

List of Subjects in 41 CFR Part 60-250

    Administrative practice and procedure, Civil rights, Employment, 
Equal employment opportunity, Government contracts, Government 
procurement, Individuals with disabilities, Investigations, Reporting 
and recordkeeping requirements, and Veterans.

    Signed at Washington, DC, this 1st day of April, 2008.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Charles E. James, Sr.,
Deputy Assistant Secretary for Federal Contract Compliance.

0
Accordingly, under authority of 38 U.S.C. 4212, Title 41 of the Code of 
Federal Regulations, Chapter 60, Part 60-250, is amended as follows:

PART 60-250--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS 
OF CONTRACTORS AND SUBCONTRACTORS REGARDING SPECIAL DISABLED 
VETERANS, VETERANS OF THE VIETNAM ERA, RECENTLY SEPARATED VETERANS, 
AND OTHER PROTECTED VETERANS

0
1. The authority citation for part 60-250 continues to read as follows:

    Authority: 29 U.S.C. 793; 38 U.S.C. 4211 (2001) (amended 2002); 
38 U.S.C. 4212 (2001) (amended 2002) and 4212; E.O. 11758 (3 CFR, 
1971-1975 Comp., p. 841).


0
2. Section 60-250.1 is amended by revising paragraph (b) to read as 
follows.


Sec.  60-250.1  Purpose, applicability and construction.

* * * * *
    (b) Applicability. This part applies to any Government contract or 
subcontract of $25,000 or more entered into before December 1, 2003, 
for the purchase, sale or use of personal property or nonpersonal 
services (including construction), except that the regulations in 41 
CFR part 60-300, and not this part, apply to such a contract or 
subcontract that is modified on or after December 1, 2003 and the 
contract or subcontract as modified is in the amount of $100,000 or 
more: Provided, That subpart C of this part applies only as described 
in Sec.  60-250.40(a). Compliance by the contractor with the provisions 
of this part will not necessarily determine its compliance with other 
statutes, and compliance with other statutes will not necessarily 
determine its compliance with this part.
* * * * *


0
3. Section 60-250.5 is amended by revising paragraph (a)2 to read as 
follows.


Sec.  60-250.5  Equal opportunity clause.

    (a) * * *
    2. The contractor agrees to immediately list all employment 
openings which exist at the time of the execution of this contract and 
those which occur during the performance of this contract, including 
those not generated by this contract and including those occurring at 
an establishment of the contractor other than the one wherein the 
contract is being performed, but excluding those of independently 
operated corporate affiliates, at an appropriate local employment 
service office of the state employment security agency wherein the 
opening occurs. Further, listing employment openings with the state 
workforce agency job bank where the opening occurs or with the local 
employment service delivery system where the opening occurs will 
satisfy the requirement to list jobs with the appropriate employment 
service office.
* * * * *
 [FR Doc. E8-7123 Filed 4-4-08; 8:45 am]
BILLING CODE 4510-CM-P