Federal Acquisition Regulation; Updating Federal Contractor Reporting of Veterans' Employment, 75908-75911 [2015-30458]

Download as PDF 75908 Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations prohibit discrimination in Federal Government procurement by adding sexual orientation and gender identity to the prohibited bases of discrimination established by E.O. 11246. No public comments were submitted in response to the initial regulatory flexibility analysis. Therefore, there were no issues to assess and no changes were made to the interim rule. The rule will apply to all contracts and subcontracts subject to the Equal Opportunity FAR clause 52.222–26, which is prescribed for all contracts over $10,000 that are not completely exempted. Using Fiscal Year 2013 Federal Procurement Data System and Federal Subcontract Reporting System data it is estimated that awards were made to 168,758 unique small businesses and that subcontracts were awarded to 61,816 unique small businesses. It is noted that there is likely a good measure of overlap between the unique small businesses that receive Federal awards and those that receive subcontract awards resulting in a likely overestimated total of 230,574. Recordkeeping and reporting requirements involve regulatory familiarization and administrative costs associated with incorporating revised language into policies, instructions, notices to employees, and subcontracts. Other changes made by the rule, such as the prohibition of segregation of facilities are expected to have only minimal cost impacts as they do not require modification or construction of additional facilities, but rather to provide equal access to existing facilities. An analysis of estimated costs of the regulatory changes was prepared for the DOL final rule, which published in the Federal Register at 79 FR 72985 on December 09, 2014. No significant alternatives to the rule were identified that would accomplish the stated objectives of the E.O. and the DOL implementing regulations. Every effort has been made to minimize the burdens imposed. Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat. The Regulatory Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration. wgreen on DSK2VPTVN1PROD with RULES2 V. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply; however, the information collection authorization is under the DOL regulations and is assigned OMB Control Number 1250– 0009, entitled, ‘‘Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors.’’ This collection under 1250–0009 will be incorporated into 1250–0001 and 1250– 0003. List of Subjects in 48 CFR Parts 1, 22, and 52 Government procurement. VerDate Sep<11>2014 15:22 Dec 03, 2015 Jkt 238001 Dated: November 20, 2015. William Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. Interim Rule Adopted as Final Without Change Accordingly, the interim rule amending 48 CFR parts 1, 22, and 52, which was published in the Federal Register at 80 FR 19504 on April 10, 2015, is adopted as final without change. [FR Doc. 2015–30457 Filed 12–3–15; 8:45 am] BILLING CODE 6820–EP–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1, 22, and 52 [FAC 2005–85; FAR Case 2015–036; Item III; Docket No. 2015–0036, Sequence No. 1] RIN 9000–AN14 Federal Acquisition Regulation; Updating Federal Contractor Reporting of Veterans’ Employment Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Interim rule. AGENCY: DoD, GSA, and NASA are issuing an interim rule amending the Federal Acquisition Regulation (FAR) to implement a final rule issued by the Department of Labor’s (DOL) Veterans’ Employment and Training Service (VETS), which replaced the VETS–100 and VETS–100A Federal Contractor Veterans’ Employment Report forms with the new VETS–4212, Federal Contractor Veterans’ Employment Report form. DATES: Effective: February 26, 2016. Applicability: This rule applies to (1) solicitations and contracts awarded on or after the effective date; and (2) modifications on or after the effective date to existing contracts, if the contracts are otherwise being modified. Comment date: Interested parties should submit written comments to the Regulatory Secretariat on or before February 2, 2016 to be considered in the formation of the final rule. ADDRESSES: Submit comments identified by FAC 2005–85, FAR Case SUMMARY: PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 2015–036, by any of the following methods: • Regulations.gov: https:// www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for ‘‘FAR Case 2015–036’’ Select the link ‘‘Comment Now’’ that corresponds with ‘‘FAR Case 2015– 036’’. Follow the instructions provided at the ‘‘Comment Now’’ screen. Please include your name, company name (if any), and ‘‘FAR Case 2015–036’’ on your attached document. • Mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd floor, Washington, DC 20405. Instructions: Please submit comments only and cite FAC 2005–85, FAR Case 2015–036, in all correspondence related to this case. All comments received will be posted without change to https:// www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). FOR FURTHER INFORMATION CONTACT: Mr. Edward Loeb, Procurement Analyst, at 202–501–0650 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501– 4755. Please cite FAC 2005–85, FAR Case 2015–036. SUPPLEMENTARY INFORMATION: I. Background DoD, GSA, and NASA are issuing an interim rule amending the FAR to implement a final rule issued by VETS of the DOL that was published in the Federal Register at 79 FR 57463 on September 25, 2014, which rescinded the regulations at 41 CFR part 61–250 and revised the regulations at 41 CFR part 61–300, which implemented the reporting requirements under the Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA) and the Jobs for Veterans Act (JVA) (Pub. L. 107–288). VEVRAA requires Federal contractors and subcontractors to annually report on the total number of their employees who belong to the categories of veterans protected under VEVRAA, as amended by the JVA, and the total number of those protected veterans who were hired during the period covered by the report. One of the main purposes of the DOL’s rule was to revise the reporting requirement applicable to Government and E:\FR\FM\04DER2.SGM 04DER2 Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations wgreen on DSK2VPTVN1PROD with RULES2 subcontracts over the simplified acquisition threshold by changing the manner in which Federal contractors report on their employment of veterans. DOL’s final rule changed the name of the annual report required under those regulations to the Federal Contractor Veterans’ Employment Report VETS– 4212. Additionally, the FAR rule incorporates the revisions to certain definitions, the text of the reporting requirements clause included in Government contracts and subcontracts, and the methods of filing the annual report on veterans’ employment covered by the new form. The VETS rule requires contractors and subcontractors to comply with its revised reporting requirements beginning with the annual report filed in 2015. II. Discussion and Analysis A. The VETS rule accomplished a number of revisions to the VEVRAA implementing regulations including the following: 1. Rescinded the regulations at 41 CFR part 61–250 that prescribed the reporting requirements applicable to Government contracts and subcontracts entered into before December 1, 2003 because those regulations were obsolete. 2. Changed the manner in which Federal contractors report on their employment of veterans. The previous VETS–100 and VETS–100A Reports did not ask contractors to provide the total number of protected veterans in their workforces nor who were hired during the reporting period. VETS found it would be preferable for contractors to report the total number of protected veterans employed and hired rather than the total number of veterans protected under each job category. Such data better assists contractors in complying with their affirmative action obligations under VEVRAA and in monitoring the success of their recruitment and outreach efforts to attract protected veterans. Accordingly, VETS revised the manner in which employment and hiring of protected veterans is reported. 3. Updated definitions. A previous rulemaking by DOL’s Office of Federal Contract Compliance Programs (OFCCP) that was published in the Federal Register at 78 FR 58614 on September 24, 2013, updated the requirements pertaining to affirmative action and nondiscrimination obligations of contractors and subcontractors regarding special disabled veterans, veterans of the Vietnam Era, disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans, and armed forces service medal veterans. The OFCCP rule VerDate Sep<11>2014 15:22 Dec 03, 2015 Jkt 238001 updated appropriate terms for protected categories of veterans by defining ‘‘active duty wartime or campaign badge veteran’’ and ‘‘protected veteran’’ and rendering obsolete the term ‘‘other protected veteran’’. A prior FAR rule that implemented the OFCCP rule that was published in the Federal Register at 79 FR 43575 on July 25, 2014, adopted these updated terms at FAR 22.1301, Definitions, and in the FAR subpart 22.13 prescribed clauses at 52.222–35, Equal Opportunity for Veterans, and 52.222–37, Employment Reports on Veterans. The VETS rule has adopted the updated terms from the OFCCP rule and has made conforming revisions. 4. Renamed the required annual report the ‘‘Federal Contractor Veterans’ Employment Report VETS–4212’’ and updated methods of filing the report. B. Following are the revisions required to the FAR text that implements the VEVRAA reporting requirements, as amended, in FAR subpart 22.13, the clause at 52.222–37, Employment Reports on Veterans, and related clauses: 1. FAR 22.1300, Scope of subpart. Removes the reference to the rescinded regulation at 41 CFR part 61–250. 2. FAR 22.1302, Policy; 22.1303, Applicability; 22.1304, Procedures; and 22.1306, Department of Labor notices and reports. Updates the title of the report from VETS–100 or VETS–100A to VETS–4212 in FAR 22.1302 through FAR 22.1304. Additionally, updates terms, instructional language, and internet links in FAR 22.1304 and 22.1306. 3. FAR 52.212–5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders— Commercial Items. Updates the currency of clause dates. 4. FAR 52.213–4, Terms and Conditions—Simplified Acquisitions (Other Than Commercial Items). Updates the currency of clause dates. 5. FAR 52.222–37, Employment Reports on Veterans. Revises language in the clause to alphabetically order terms and conform to terms defined in FAR 22.1301, and provides updated instructional language and internet links. 6. FAR 52.222–38, Compliance with Veterans’ Employment Reporting Requirements. Updates language and the VETS–4212 form number. 7. FAR 52.244–6, Subcontracts for Commercial Items. Updates the currency of clause dates. C. This interim rule updates the OMB Control Numbers in FAR 1.106, OMB approval under the Paperwork Reduction Act. The information collections imposed by VEVRAA as PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 75909 amended, and the VEVRAA reporting requirements are managed by Department of Labor’s Office of Federal Contract Compliance Programs and VETS and are cited in the FAR. III. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. IV. Regulatory Flexibility Act The change is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act 5 U.S.C. 601, et seq. The Initial Regulatory Flexibility Analysis (IRFA) is summarized as follows: This interim rule is being issued to implement changes to 41 CFR parts 61–250 and 61–300 that were published in the Federal Register at 79 FR 57463 on September 25, 2014, by the Veterans’ Employment and Training Service (VETS) of the Department of Labor (DOL). The VETS rule revises the current regulations implementing 38 U.S.C. 4212. The VETS rule rescinded obsolete regulations at 41 CFR part 61–250, changed the manner in which Federal contractors report veterans’ employment data, updated terminology, and revised the annual report, the report name, and methods of filing the report. VETS used data in the VETS–100/100A Reporting System regarding reports on veterans’ employment filed in 2012 to estimate the number of small entities that would be subject to its rule. The VETS rule applies to any industry represented by a Federal contractor with a contract of $100,000 or more. Therefore, VETS used the Small Business Administration’s ‘‘fewer than 500 employees’’ limit when making an across-the-board size standard classification for estimating purposes. VETS estimated that 15,000 Federal contractors will be subject to the reporting requirements of the rule and of that, VETS approximated that the number of small entities that would be subject to the rule would be 8,000 (approximately 53 percent of the total Federal contractors impacted by the rule). This FAR rule does not add any new reporting, recordkeeping, or other E:\FR\FM\04DER2.SGM 04DER2 75910 Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations compliance burdens. The FAR rule makes contracting officers and contractors aware of the VETS reporting requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules. DoD, GSA, and NASA are not aware of any significant alternatives to the rule which would accomplish the stated objectives of implementing the VETS final rule, while minimizing impact on small entities. DoD, GSA, and NASA do not have the flexibility of making any changes to the VETS rule, which has already been published for public comment and has taken effect as a final rule. There is no significant impact on small entities imposed by the FAR rule. The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2015–036), in correspondence. wgreen on DSK2VPTVN1PROD with RULES2 IV. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The rule contains information collection requirements that are subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq. However, the applicable information collections are derived from the requirements of the 41 CFR part 61–300 regulations implementing the reporting requirements under VEVRAA; see detailed discussion in DOL’s rule under the Paperwork Reduction Act section which was published in the Federal Register at 79 FR 57463 on September 25, 2014. OMB assigned OMB Control Numbers 1250–0004, OFCCP Recordkeeping and Reporting Requirements, 38 U.S.C. 4212, Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, and 1293– 0005, Federal Contractor Veterans’ Employment Report. V. Determination To Issue an Interim Rule A determination has been made under the authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space VerDate Sep<11>2014 15:22 Dec 03, 2015 Jkt 238001 Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary as the effective date of the VETS final rule was October 27, 2014. Contractors and subcontractors are required to comply with the new reporting requirements beginning with their annual report filed in 2015, which for some contractors and subcontractors is after September 30, 2015. Any further delays in implementing this rule may impact contractors’ and subcontractors’ ability to comply with the new reporting requirements. The effective date is set as February 26, 2016, to allow the Government to conform its procurement database. However, pursuant to 41 U.S.C. 1707 and FAR 1.501–3(b), DoD, GSA, and NASA will consider public comments received in response to this interim rule in the formation of the final rule. List of Subjects in 48 CFR Parts 1, 22, and 52 Government procurement. Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 22, and 52 as set forth below: ■ 1. The authority citation for 48 CFR parts 1, 22, and 52 continues to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. PART 1—FEDERAL ACQUISITION REGULATIONS SYSTEM [Amended] 2. Amend section 1.106 in the table following the introductory text, by— ■ a. Removing FAR Segment ‘‘22.13’’ and its corresponding OMB Control Number ‘‘1293–0005 and 1250–0004’’; ■ b. Removing FAR Segment ‘‘52.222– 37’’ and its corresponding OMB Control Number ‘‘1293–0005’’; and ■ c. Adding, in numerical sequence, FAR segments ‘‘52.222–37’’ and ‘‘52.222–38’’ and their corresponding OMB Control Numbers ‘‘1250–0004 and 1293–0005’’ in their places, respectively. ■ PART 22—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS 3. Amend section 22.1300 by revising paragraph (e) to read as follows: ■ PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 Scope of subpart. * * * * * (e) The regulations of the Secretary of Labor (41 CFR parts 60–300 and 61– 300). ■ 4. Amend section 22.1302 by revising paragraph (b) to read as follows. 22.1302 Policy. * * * * * (b) Except for contracts for commercial items or contracts that do not exceed the simplified acquisition threshold, contracting officers must not obligate or expend funds appropriated for the agency for a fiscal year to enter into a contract for the procurement of personal property and nonpersonal services (including construction) with a contractor that has not submitted the required annual VETS–4212, Federal Contractor Veterans’ Employment Report (VETS–4212 Report), with respect to the preceding fiscal year if the contractor was subject to the reporting requirements of 38 U.S.C. 4212(d) for that fiscal year. 22.1303 Dated: November 20, 2015. William Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. 1.106 22.1300 [Amended] 5. Amend section 22.1303 by removing from paragraph (c) ‘‘VETS– 100A’’ and adding ‘‘VETS–4212’’ in its place. ■ 6. Revise section 22.1304 to read as follows. ■ 22.1304 Procedures. To verify if a proposed contractor is current with its submission of the VETS–4212 Report, the contracting officer may— (a) Query the Department of Labor’s VETS–4212 Database via the Internet at https://www.dol.gov/vets/vets4212.htm under ‘‘Filing Verification’’; and (b) Contact the VETS–4212 customer support via email at VETS-4212customersupport@dol.gov for confirmation, if the proposed contractor represents that it has submitted the VETS–4212 Report and is not listed on the verification file. ■ 7. Amend section 22.1306 by revising paragraph (b) to read as follows. 22.1306 Department of Labor notices and reports. * * * * * (b) The Act requires contractors and subcontractors to submit a report at least annually to the Secretary of Labor regarding employment of protected veterans (i.e., active duty wartime or campaign badge veterans, Armed Forces service medal veterans, disabled veterans, and recently separated veterans, unless all of the terms of the clause at 52.222–35, Equal Opportunity for Veterans, have been waived see E:\FR\FM\04DER2.SGM 04DER2 Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations 22.1305). The contractor and subcontractor must file VETS–4212, Federal Contractor Veterans’ Employment Report (see ‘‘VETS–4212 Federal Contractor Reporting’’ and ‘‘Filing Your VETS–4212 Report’’ at https://www.dol.gov/vets/vets4212.htm). PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 8. Amend section 52.212–5 by revising the date of the clause and paragraphs (b)(31) and (e)(1)(viii) to read as follows: ■ 52.212–5 Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Items. * * * * * Contract Terms and Conditions Required To Implement Statutes or Executive Orders— Commercial Items (FEB 2016) * * * * * Employment Reports on Veterans (FEB 2016) (a) Definitions. As used in this clause, ‘‘active duty wartime or campaign badge veteran,’’ ‘‘Armed Forces service medal veteran,’’ ‘‘disabled veteran,’’ ‘‘protected veteran,’’ and ‘‘recently separated veteran,’’ have the meanings given in FAR 22.1301. (b) * * * (1) The total number of employees in the contractor’s workforce, by job category and hiring location, who are protected veterans (i.e., active duty wartime or campaign badge veterans, Armed Forces service medal veterans, disabled veterans, and recently separated veterans); (2) The total number of new employees hired during the period covered by the report, and of the total, the number of protected veterans (i.e., active duty wartime or campaign badge veterans, Armed Forces service medal veterans, disabled veterans, and recently separated veterans); and * * * * * (e)(1) * * * (viii) 52.222–37, Employment Reports on Veterans (FEB 2016) (38 U.S.C. 4212). (c) The Contractor shall report the above items by filing the VETS–4212 ‘‘Federal Contractor Veterans’ Employment Report’’ (see ‘‘VETS–4212 Federal Contractor Reporting’’ and ‘‘Filing Your VETS–4212 Report’’ at https://www.dol.gov/vets/ vets4212.htm). * * (b) * * * (31) 52.222–37, Employment Reports on Veterans (FEB 2016) (38 U.S.C. 4212). 75911 DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 3 and 52 [FAC 2005–85; FAR Case 2013–015; Item IV; Docket 2013–0015, Sequence 1] RIN 9000–AM56 Federal Acquisition Regulation; Pilot Program for Enhancement of Contractor Employee Whistleblower Protections Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. AGENCY: Terms and Conditions—Simplified Acquisitions (Other Than Commercial Items) (FEB 2016) (a) * * * (2) * * * (viii) 52.244–6, Subcontracts for Commercial Items (FEB 2016). 52.222–38 Compliance With Veterans’ Employment Reporting Requirements. DoD, GSA, and NASA have adopted as final, with changes, an interim rule amending the Federal Acquisition Regulation (FAR) to implement a statutory pilot program enhancing whistleblower protections for contractor employees. DATES: Effective: December 4, 2015. FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement Analyst, at 202–219–0202, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501– 4755. Please cite FAC 2005–85, FAR Case 2013–015. SUPPLEMENTARY INFORMATION: * I. Background * ■ * * * * * * * * * 9. Amend section 52.213–4 by revising the date of clause and paragraphs (a)(2)(viii) and (b)(1)(vi) to read as follows: ■ * * * * * * * * * * * 10. Amend section 52.222–37 by— a. Revising the date of the clause; b. Revising paragraphs (a), (b)(1), (b)(2), and (c); ■ c. Removing from paragraph (d) ‘‘submit VETS–100A’’ and adding ‘‘file VETS–4212’’ in its place; and ■ d. Removing from paragraph (f) ‘‘VETS–100A’’ and adding ‘‘VETS– 4212’’ in its place. The revisions read as follows. wgreen on DSK2VPTVN1PROD with RULES2 52.222–37 Veterans. * * * * * Compliance With Veterans’ Employment Reporting Requirements (FEB 2016) * * * * * 52.244–6 Items. * * Subcontracts for Commercial * * * Subcontracts for Commercial Items (FEB 2016) * * * * * (c)(1) * * * (viii) 52.222–37, Employment Reports on Veterans (FEB 2016) (38 U.S.C. 4212). * * * * * [FR Doc. 2015–30458 Filed 12–3–15; 8:45 am] BILLING CODE 6820–EP–P Employment Reports on * * 12. Amend section 52.244–6 by revising the date of the clause and paragraph (c)(1)(viii) to read as follows. (b) * * * (1) * * * (vi) 52.222–37, Employment Reports on Veterans (FEB 2016) (38 U.S.C. 4212) (Applies to contracts of $150,000 or more). ■ ■ ■ * 11. Amend section 52.222–38 by revising the date of the provision and removing from the last sentence ‘‘submitted the most recent VETS– 100A’’ and adding ‘‘filed the most recent VETS–4212’’ in its place. The revision reads as follows. * * * ■ 52.213–4 Terms and Conditions— Simplified Acquisitions (Other Than Commercial Items). * * * VerDate Sep<11>2014 * * 15:22 Dec 03, 2015 Jkt 238001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 SUMMARY: DoD, GSA, and NASA published an interim rule in the Federal Register at 78 FR 60169 on September 30, 2013, to implement a four-year pilot program to enhance the existing whistleblower protections for contractor employees at FAR subpart 3.9. The pilot program is mandated by section 828, entitled ‘‘Pilot Program for Enhancement of Contractor Employee Whistleblower Protections,’’ of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L. 112–239, enacted January 2, 2013). Paragraph (a) of section 828 adds to title 41 a new section 4712 that contains the elements of the pilot program, which took effect by operation of law on July 1, 2013, and is effective through January 1, 2017. Paragraph (c) of section 828 suspends the pre-existing whistleblower protections in 41 U.S.C. 4705 ‘‘(w)hile section 4712 of this title is in effect . . .’’ (i.e., from July 1, 2013 through January 1, 2017). Accordingly, E:\FR\FM\04DER2.SGM 04DER2

Agencies

[Federal Register Volume 80, Number 233 (Friday, December 4, 2015)]
[Rules and Regulations]
[Pages 75908-75911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30458]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 22, and 52

[FAC 2005-85; FAR Case 2015-036; Item III; Docket No. 2015-0036,
Sequence No. 1]
RIN 9000-AN14

Federal Acquisition Regulation; Updating Federal Contractor
Reporting of Veterans' Employment

AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rule.

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

SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement a final rule issued
by the Department of Labor's (DOL) Veterans' Employment and Training
Service (VETS), which replaced the VETS-100 and VETS-100A Federal
Contractor Veterans' Employment Report forms with the new VETS-4212,
Federal Contractor Veterans' Employment Report form.

DATES: Effective: February 26, 2016.
Applicability: This rule applies to (1) solicitations and contracts
awarded on or after the effective date; and (2) modifications on or
after the effective date to existing contracts, if the contracts are
otherwise being modified.
Comment date: Interested parties should submit written comments to
the Regulatory Secretariat on or before February 2, 2016 to be
considered in the formation of the final rule.

ADDRESSES: Submit comments identified by FAC 2005-85, FAR Case 2015-
036, by any of the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2015-036'' Select the link ``Comment Now'' that corresponds with ``FAR
Case 2015-036''. Follow the instructions provided at the ``Comment
Now'' screen. Please include your name, company name (if any), and
``FAR Case 2015-036'' on your attached document.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd floor,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-85, FAR
Case 2015-036, in all correspondence related to this case. All comments
received will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided. To confirm receipt of your comment(s), please check
www.regulations.gov, approximately two to three days after submission
to verify posting (except allow 30 days for posting of comments
submitted by mail).

FOR FURTHER INFORMATION CONTACT: Mr. Edward Loeb, Procurement Analyst,
at 202-501-0650 for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAC 2005-85, FAR Case 2015-
036.

SUPPLEMENTARY INFORMATION:

I. Background

DoD, GSA, and NASA are issuing an interim rule amending the FAR to
implement a final rule issued by VETS of the DOL that was published in
the Federal Register at 79 FR 57463 on September 25, 2014, which
rescinded the regulations at 41 CFR part 61-250 and revised the
regulations at 41 CFR part 61-300, which implemented the reporting
requirements under the Vietnam Era Veterans' Readjustment Assistance
Act, as amended (VEVRAA) and the Jobs for Veterans Act (JVA) (Pub. L.
107-288). VEVRAA requires Federal contractors and subcontractors to
annually report on the total number of their employees who belong to
the categories of veterans protected under VEVRAA, as amended by the
JVA, and the total number of those protected veterans who were hired
during the period covered by the report. One of the main purposes of
the DOL's rule was to revise the reporting requirement applicable to
Government and

[[Page 75909]]

subcontracts over the simplified acquisition threshold by changing the
manner in which Federal contractors report on their employment of
veterans. DOL's final rule changed the name of the annual report
required under those regulations to the Federal Contractor Veterans'
Employment Report VETS-4212. Additionally, the FAR rule incorporates
the revisions to certain definitions, the text of the reporting
requirements clause included in Government contracts and subcontracts,
and the methods of filing the annual report on veterans' employment
covered by the new form. The VETS rule requires contractors and
subcontractors to comply with its revised reporting requirements
beginning with the annual report filed in 2015.

II. Discussion and Analysis

A. The VETS rule accomplished a number of revisions to the VEVRAA
implementing regulations including the following:
1. Rescinded the regulations at 41 CFR part 61-250 that prescribed
the reporting requirements applicable to Government contracts and
subcontracts entered into before December 1, 2003 because those
regulations were obsolete.
2. Changed the manner in which Federal contractors report on their
employment of veterans. The previous VETS-100 and VETS-100A Reports did
not ask contractors to provide the total number of protected veterans
in their workforces nor who were hired during the reporting period.
VETS found it would be preferable for contractors to report the total
number of protected veterans employed and hired rather than the total
number of veterans protected under each job category. Such data better
assists contractors in complying with their affirmative action
obligations under VEVRAA and in monitoring the success of their
recruitment and outreach efforts to attract protected veterans.
Accordingly, VETS revised the manner in which employment and hiring of
protected veterans is reported.
3. Updated definitions. A previous rulemaking by DOL's Office of
Federal Contract Compliance Programs (OFCCP) that was published in the
Federal Register at 78 FR 58614 on September 24, 2013, updated the
requirements pertaining to affirmative action and nondiscrimination
obligations of contractors and subcontractors regarding special
disabled veterans, veterans of the Vietnam Era, disabled veterans,
recently separated veterans, active duty wartime or campaign badge
veterans, and armed forces service medal veterans. The OFCCP rule
updated appropriate terms for protected categories of veterans by
defining ``active duty wartime or campaign badge veteran'' and
``protected veteran'' and rendering obsolete the term ``other protected
veteran''. A prior FAR rule that implemented the OFCCP rule that was
published in the Federal Register at 79 FR 43575 on July 25, 2014,
adopted these updated terms at FAR 22.1301, Definitions, and in the FAR
subpart 22.13 prescribed clauses at 52.222-35, Equal Opportunity for
Veterans, and 52.222-37, Employment Reports on Veterans. The VETS rule
has adopted the updated terms from the OFCCP rule and has made
conforming revisions.
4. Renamed the required annual report the ``Federal Contractor
Veterans' Employment Report VETS-4212'' and updated methods of filing
the report.
B. Following are the revisions required to the FAR text that
implements the VEVRAA reporting requirements, as amended, in FAR
subpart 22.13, the clause at 52.222-37, Employment Reports on Veterans,
and related clauses:
1. FAR 22.1300, Scope of subpart. Removes the reference to the
rescinded regulation at 41 CFR part 61-250.
2. FAR 22.1302, Policy; 22.1303, Applicability; 22.1304,
Procedures; and 22.1306, Department of Labor notices and reports.
Updates the title of the report from VETS-100 or VETS-100A to VETS-4212
in FAR 22.1302 through FAR 22.1304. Additionally, updates terms,
instructional language, and internet links in FAR 22.1304 and 22.1306.
3. FAR 52.212-5, Contract Terms and Conditions Required to
Implement Statutes or Executive Orders--Commercial Items. Updates the
currency of clause dates.
4. FAR 52.213-4, Terms and Conditions--Simplified Acquisitions
(Other Than Commercial Items). Updates the currency of clause dates.
5. FAR 52.222-37, Employment Reports on Veterans. Revises language
in the clause to alphabetically order terms and conform to terms
defined in FAR 22.1301, and provides updated instructional language and
internet links.
6. FAR 52.222-38, Compliance with Veterans' Employment Reporting
Requirements. Updates language and the VETS-4212 form number.
7. FAR 52.244-6, Subcontracts for Commercial Items. Updates the
currency of clause dates.
C. This interim rule updates the OMB Control Numbers in FAR 1.106,
OMB approval under the Paperwork Reduction Act. The information
collections imposed by VEVRAA as amended, and the VEVRAA reporting
requirements are managed by Department of Labor's Office of Federal
Contract Compliance Programs and VETS and are cited in the FAR.

III. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

The change is not expected to have a significant economic impact on
a substantial number of small entities within the meaning of the
Regulatory Flexibility Act 5 U.S.C. 601, et seq. The Initial Regulatory
Flexibility Analysis (IRFA) is summarized as follows:

This interim rule is being issued to implement changes to 41 CFR
parts 61-250 and 61-300 that were published in the Federal Register
at 79 FR 57463 on September 25, 2014, by the Veterans' Employment
and Training Service (VETS) of the Department of Labor (DOL).
The VETS rule revises the current regulations implementing 38
U.S.C. 4212. The VETS rule rescinded obsolete regulations at 41 CFR
part 61-250, changed the manner in which Federal contractors report
veterans' employment data, updated terminology, and revised the
annual report, the report name, and methods of filing the report.
VETS used data in the VETS-100/100A Reporting System regarding
reports on veterans' employment filed in 2012 to estimate the number
of small entities that would be subject to its rule. The VETS rule
applies to any industry represented by a Federal contractor with a
contract of $100,000 or more. Therefore, VETS used the Small
Business Administration's ``fewer than 500 employees'' limit when
making an across-the-board size standard classification for
estimating purposes. VETS estimated that 15,000 Federal contractors
will be subject to the reporting requirements of the rule and of
that, VETS approximated that the number of small entities that would
be subject to the rule would be 8,000 (approximately 53 percent of
the total Federal contractors impacted by the rule).
This FAR rule does not add any new reporting, recordkeeping, or
other

[[Page 75910]]

compliance burdens. The FAR rule makes contracting officers and
contractors aware of the VETS reporting requirements.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
DoD, GSA, and NASA are not aware of any significant alternatives
to the rule which would accomplish the stated objectives of
implementing the VETS final rule, while minimizing impact on small
entities. DoD, GSA, and NASA do not have the flexibility of making
any changes to the VETS rule, which has already been published for
public comment and has taken effect as a final rule. There is no
significant impact on small entities imposed by the FAR rule.

The Regulatory Secretariat has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small Business Administration. A copy
of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA,
and NASA invite comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2015-036),
in correspondence.

IV. Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The
rule contains information collection requirements that are subject to
review and approval by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.
However, the applicable information collections are derived from the
requirements of the 41 CFR part 61-300 regulations implementing the
reporting requirements under VEVRAA; see detailed discussion in DOL's
rule under the Paperwork Reduction Act section which was published in
the Federal Register at 79 FR 57463 on September 25, 2014. OMB assigned
OMB Control Numbers 1250-0004, OFCCP Recordkeeping and Reporting
Requirements, 38 U.S.C. 4212, Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended, and 1293-0005, Federal Contractor
Veterans' Employment Report.

V. Determination To Issue an Interim Rule

A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary as the effective date of the VETS final rule was October
27, 2014. Contractors and subcontractors are required to comply with
the new reporting requirements beginning with their annual report filed
in 2015, which for some contractors and subcontractors is after
September 30, 2015. Any further delays in implementing this rule may
impact contractors' and subcontractors' ability to comply with the new
reporting requirements. The effective date is set as February 26, 2016,
to allow the Government to conform its procurement database. However,
pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD, GSA, and NASA will
consider public comments received in response to this interim rule in
the formation of the final rule.

List of Subjects in 48 CFR Parts 1, 22, and 52

Government procurement.

Dated: November 20, 2015.
William Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.

Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 22, and 52 as
set forth below:

0
1. The authority citation for 48 CFR parts 1, 22, and 52 continues to
read as follows:

Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

1.106 [Amended]

0
2. Amend section 1.106 in the table following the introductory text,
by--
0
a. Removing FAR Segment ``22.13'' and its corresponding OMB Control
Number ``1293-0005 and 1250-0004'';
0
b. Removing FAR Segment ``52.222-37'' and its corresponding OMB Control
Number ``1293-0005''; and
0
c. Adding, in numerical sequence, FAR segments ``52.222-37'' and
``52.222-38'' and their corresponding OMB Control Numbers ``1250-0004
and 1293-0005'' in their places, respectively.

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

0
3. Amend section 22.1300 by revising paragraph (e) to read as follows:

22.1300 Scope of subpart.

* * * * *
(e) The regulations of the Secretary of Labor (41 CFR parts 60-300
and 61-300).

0
4. Amend section 22.1302 by revising paragraph (b) to read as follows.

22.1302 Policy.

* * * * *
(b) Except for contracts for commercial items or contracts that do
not exceed the simplified acquisition threshold, contracting officers
must not obligate or expend funds appropriated for the agency for a
fiscal year to enter into a contract for the procurement of personal
property and nonpersonal services (including construction) with a
contractor that has not submitted the required annual VETS-4212,
Federal Contractor Veterans' Employment Report (VETS-4212 Report), with
respect to the preceding fiscal year if the contractor was subject to
the reporting requirements of 38 U.S.C. 4212(d) for that fiscal year.

22.1303 [Amended]

0
5. Amend section 22.1303 by removing from paragraph (c) ``VETS-100A''
and adding ``VETS-4212'' in its place.

0
6. Revise section 22.1304 to read as follows.

22.1304 Procedures.

To verify if a proposed contractor is current with its submission
of the VETS-4212 Report, the contracting officer may--
(a) Query the Department of Labor's VETS-4212 Database via the
Internet at https://www.dol.gov/vets/vets4212.htm under ``Filing
Verification''; and
(b) Contact the VETS-4212 customer support via email at VETS-4212-customersupport@dol.gov for confirmation, if the proposed contractor
represents that it has submitted the VETS-4212 Report and is not listed
on the verification file.

0
7. Amend section 22.1306 by revising paragraph (b) to read as follows.

22.1306 Department of Labor notices and reports.

* * * * *
(b) The Act requires contractors and subcontractors to submit a
report at least annually to the Secretary of Labor regarding employment
of protected veterans (i.e., active duty wartime or campaign badge
veterans, Armed Forces service medal veterans, disabled veterans, and
recently separated veterans, unless all of the terms of the clause at
52.222-35, Equal Opportunity for Veterans, have been waived see

[[Page 75911]]

22.1305). The contractor and subcontractor must file VETS-4212, Federal
Contractor Veterans' Employment Report (see ``VETS-4212 Federal
Contractor Reporting'' and ``Filing Your VETS-4212 Report'' at https://www.dol.gov/vets/vets4212.htm).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
8. Amend section 52.212-5 by revising the date of the clause and
paragraphs (b)(31) and (e)(1)(viii) to read as follows:

52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Items.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (FEB 2016)

* * * * *
(b) * * *
(31) 52.222-37, Employment Reports on Veterans (FEB 2016) (38
U.S.C. 4212).
* * * * *
(e)(1) * * *
(viii) 52.222-37, Employment Reports on Veterans (FEB 2016) (38
U.S.C. 4212).
* * * * *

0
9. Amend section 52.213-4 by revising the date of clause and paragraphs
(a)(2)(viii) and (b)(1)(vi) to read as follows:

52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Items) (FEB 2016)

(a) * * *
(2) * * *
(viii) 52.244-6, Subcontracts for Commercial Items (FEB 2016).
* * * * *
(b) * * *
(1) * * *
(vi) 52.222-37, Employment Reports on Veterans (FEB 2016) (38
U.S.C. 4212) (Applies to contracts of $150,000 or more).
* * * * *

0
10. Amend section 52.222-37 by--
0
a. Revising the date of the clause;
0
b. Revising paragraphs (a), (b)(1), (b)(2), and (c);
0
c. Removing from paragraph (d) ``submit VETS-100A'' and adding ``file
VETS-4212'' in its place; and
0
d. Removing from paragraph (f) ``VETS-100A'' and adding ``VETS-4212''
in its place.
The revisions read as follows.

52.222-37 Employment Reports on Veterans.

* * * * *

Employment Reports on Veterans (FEB 2016)

(a) Definitions. As used in this clause, ``active duty wartime
or campaign badge veteran,'' ``Armed Forces service medal veteran,''
``disabled veteran,'' ``protected veteran,'' and ``recently
separated veteran,'' have the meanings given in FAR 22.1301.
(b) * * *
(1) The total number of employees in the contractor's workforce,
by job category and hiring location, who are protected veterans
(i.e., active duty wartime or campaign badge veterans, Armed Forces
service medal veterans, disabled veterans, and recently separated
veterans);
(2) The total number of new employees hired during the period
covered by the report, and of the total, the number of protected
veterans (i.e., active duty wartime or campaign badge veterans,
Armed Forces service medal veterans, disabled veterans, and recently
separated veterans); and
* * * * *
(c) The Contractor shall report the above items by filing the
VETS-4212 ``Federal Contractor Veterans' Employment Report'' (see
``VETS-4212 Federal Contractor Reporting'' and ``Filing Your VETS-
4212 Report'' at https://www.dol.gov/vets/vets4212.htm).
* * * * *

0
11. Amend section 52.222-38 by revising the date of the provision and
removing from the last sentence ``submitted the most recent VETS-100A''
and adding ``filed the most recent VETS-4212'' in its place.
The revision reads as follows.

52.222-38 Compliance With Veterans' Employment Reporting Requirements.

* * * * *

Compliance With Veterans' Employment Reporting Requirements (FEB 2016)

* * * * *

0
12. Amend section 52.244-6 by revising the date of the clause and
paragraph (c)(1)(viii) to read as follows.

52.244-6 Subcontracts for Commercial Items.

* * * * *

Subcontracts for Commercial Items (FEB 2016)

* * * * *
(c)(1) * * *
(viii) 52.222-37, Employment Reports on Veterans (FEB 2016) (38
U.S.C. 4212).
* * * * *
[FR Doc. 2015-30458 Filed 12-3-15; 8:45 am]
BILLING CODE 6820-EP-P

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