[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Rules and Regulations]
[Pages 6116-6118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3425]



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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Part 60-250

RIN 1215-AA62


Affirmative Action Obligations of Contractors and Subcontractors 
for Disabled Veterans and Veterans of the Vietnam Era; Correction

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Correcting amendments.

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SUMMARY: This document contains corrections to the Office of Federal 
Contract Compliance Programs (OFCCP) final regulations implementing the 
affirmative action provisions of the Vietnam Era Veterans' Readjustment 
Assistance Act of 1974, as amended (38 U.S.C. 4212), which were 
published January 5, 1995 (60 FR 1986). Those final regulations 
incorporated, among other things, statutory changes in the mandatory 
job listing obligations of Federal contractors and subcontractors. The 
statutory changes eliminated the $25,000 per year salary ceiling and 
otherwise broadened the scope of job openings that Federal contractors 
and subcontractors must list with the State employment service.

EFFECTIVE DATE: February 16, 1996.

FOR FURTHER INFORMATION CONTACT:
Joe N. Kennedy, Deputy Director, Office of Federal Contract Compliance 
Programs, Room C-3325, 200 Constitution Avenue, N.W., Washington, D.C. 
20210. Telephone (202) 219-9475 (voice) and 1-800-326-2577 (TDD). 
Copies of this correction document are available in the following 
alternate formats at the above office: electronic file on computer 
disk, large print and audio tape.

SUPPLEMENTARY INFORMATION:

Background

    Prior to amendment in 1994, the affirmative action provisions of 
the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as 
amended (38 U.S.C. 4212) (``VEVRAA'' or ``Section 4212''), required 
that Federal contractors and subcontractors covered by VEVRAA must list 
``all * * * suitable employment openings'' with the appropriate local 
employment service office. VEVRAA required those offices, in turn, to 
give priority referrals to veterans for such openings. This obligation 
to list job openings with the local employment service office is often 
referred to as the ``mandatory listing'' requirement. Although Section 
4212 did not define the term ``all * * * suitable employment 
openings,'' this term was defined in OFCCP implementing regulations at 
41 CFR 60-250.4(h).
    Section 702(a) of the Veterans' Benefits Improvements Act of 1994 
(Pub. L. 103-446, 108 Stat. 4645, 4674 (1994)), expanded the scope of 
the employment openings to be listed with the State employment service 
office by dropping the word ``suitable'' from the statutory phrase 
``all * * * suitable employment openings,'' broadly defining the term 
``all * * * employment openings,'' and limiting the exceptions to the 
mandatory listing requirement.
    The statutory amendment to the mandatory listing requirement does 
not list all of the exceptions to mandatory listing permitted 
previously by OFCCP regulations. The amendment eliminated the salary 
ceiling of $25,000 per year which was in the OFCCP regulations, and now 
requires the listing of all employment openings except executive and 
top management positions, positions that will be filled from within the 
contractor's organization, and positions lasting three days or less. 
The final regulation published on January 5, 1995, amended OFCCP's 
regulation at 

[[Page 6117]]
41 CFR 60-250.4, which contains the affirmative action clause for 
disabled veterans and veterans of the Vietnam era. Specifically, OFCCP 
intended to amend the paragraphs prescribing the employment openings to 
be listed with the State employment service in order to make the VEVRAA 
affirmative action clause consistent with the 1994 statutory amendment.

Need for Correction

    A few inadvertent errors were made in the January 5, 1995, rule 
amending the VEVRAA affirmative action clause. First, two sentences at 
the end of paragraph (b) relating to contractors' reporting 
obligations, which were not changed by the statutory amendment, were 
inadvertently left out of the published final rule. Second, part of 
paragraph (g) refers to an exemption no longer permitted under the 
statutory amendment, that is, openings to be filled pursuant to a 
``customary and traditional employer-union hiring arrangement,'' and 
such reference should have been deleted. Third, minor errors of 
punctuation were made in the authority citation for 41 CFR Part 60-250. 
As described below, these errors were inadvertent, clerical mistakes 
that need correction.
    The two sentences at the end of paragraph (b) that were 
inadvertently left out of the final rules read as follows:

    The contractor further agrees to provide such reports to such 
local office regarding employment openings and hires as may be 
required.
    State and local government agencies holding Federal contracts of 
$10,000 or more shall also list all their employment openings with 
the appropriate office of the State employment service, but are not 
required to provide those reports set forth in paragraphs (d) and 
(e).

    These two sentences involve VEVRAA-related reporting 
responsibilities, and it must be highlighted that the 1994 statutory 
amendments did not amend the VEVRAA reporting requirements. OFCCP only 
intended to make regulatory revisions on January 5, 1995, that were 
nondiscretionary changes mandated by the 1994 statutory amendments. 
Indeed, the final rule evoked the good cause exemption under the 
Administrative Procedure Act, 5 U.S.C. 553(b)(B), for dispensing with 
the issuance of a proposal and the provision of public notice and 
comment procedures because it was a ``nondiscretionary, ministerial 
action which merely incorporates, without change, two statutory 
amendments into pre-existing regulations.'' 60 FR 1986. Making 
substantive changes to the reporting requirements, including what 
amounts to eliminating an exemption from certain reporting for State 
and local government agencies holding covered Federal contracts, was 
beyond OFCCP's statutory authority without providing the public with 
notice and an opportunity to comment. The agency's intent to retain the 
reporting provisions in paragraph (b) is also evidenced by the fact 
that other reporting provisions were left in the affirmative action 
clause in paragraph (d), which explicitly reference the provisions in 
(b) that were mistakingly left out of the January 5 Federal Register 
publication.
    Regarding paragraph (g), as noted above, the statutory amendments 
expressly limited the number of exemptions from the mandatory listing 
requirement and did not provide for the exemption in paragraph (g) for 
openings to be filled pursuant to a ``customary and traditional 
employer-union hiring arrangement.'' In accordance with the 1994 
Congressional mandate, the January 5, 1995, final rule removed the 
reference to the employer-union exemption in paragraph (h)(1) and 
deleted the definition of the term that had appeared in paragraph 
(h)(4). The language in paragraph (g) referring to exemptions for 
openings which the contractor proposes ``to fill pursuant to a 
customary and traditional employer-union hiring arrangement'' is also 
contrary to the 1994 statutory amendments, and the agency intended to 
eliminate it. Accordingly, paragraph (g) is revised by deleting all 
references to exemptions for employer-union arrangements.
    In addition, this publication makes minor technical corrections 
involving the punctuation of the authority citation for 41 CFR Part 60-
250.
    All of the above errors were inadvertent, clerical mistakes that 
are within OFCCP authority to correct.

Waiver of Proposed Rulemaking

    These amendments correct inadvertent errors in the January 5, 1995, 
final regulations that were a nondiscretionary, ministerial action 
which merely sought to incorporate, without change, statutory 
amendments into pre-existing regulations. Publication of these 
technical corrections in proposed form serves no useful purpose, and 
therefore is unnecessary and contrary to the public interest within the 
meaning of the Administrative Procedure Act (5 U.S.C. 553(b)(B)). Thus, 
good cause exists to dispense with notice of proposed rulemaking.

Effective Date

    Pursuant to 5 U.S.C. 553(d) the undersigned have determined that 
good cause exists for making these correcting amendments effective upon 
publication. This determination is based upon the fact that these 
correcting amendments are nondiscretionary, ministerial actions which 
merely incorporate, without change, a statutory amendment into 
preexisting regulations. Moreover, the rules that are being corrected 
were made effective upon their publication on January 5, 1995. 
Accordingly, it is unnecessary and contrary to the public interest to 
delay the effective date of these corrections and, therefore, this 
regulation will be effective upon publication.

List of Subjects in 41 CFR Part 60-250

    Administrative practice and procedure, Civil Rights, Employment, 
Equal employment opportunity, Government contracts, Government 
procurement, Investigations, Veterans.

    Signed at Washington, D.C. this 9th day of February 1996.
Bernard E. Anderson,
Assistant Secretary for Employment Standards.
Shirley J. Wilcher,
Deputy Assistant Secretary for Federal Contract Compliance.

PART 60-250--AFFIRMATIVE ACTION OBLIGATIONS OF CONTRACTORS AND 
SUBCONTRACTORS FOR DISABLED VETERANS AND VETERANS OF THE VIETNAM 
ERA

    For the reasons set forth above, 41 CFR Part 60-250 is corrected by 
making the following correcting amendments:
    1. The authority citation for Part 60-250 is revised to read as 
follows:

    Authority: 38 U.S.C. 4211 and 4212; 29 U.S.C. 793; Executive 
Order 11758 (3 CFR 1971-1975 Comp. p. 841).

    2. Section 60-250.4 is corrected by adding two sentences to the end 
of paragraph (b) and by revising paragraph (g) to read as follows:


Sec. 60-250.4  Affirmative action clause.

* * * * *
    (b) * * * The contractor further agrees to provide such reports 
to such local office regarding employment openings and hires as may 
be required. State and local government agencies holding Federal 
contracts of $10,000 or more shall also list all their employment 
openings with the appropriate office of the State employment 
service, but are not required to provide those reports set forth in 
paragraphs (d) and (e).
* * * * *
    (g) The provisions of paragraphs (b), (c), (d), and (e) of this 
clause do not apply to 

[[Page 6118]]
openings which the contractor proposes to fill from within his own 
organization. This exclusion does not apply to a particular opening 
once an employer decides to consider applicants outside his own 
organization for that opening.
* * * * *
[FR Doc. 96-3425 Filed 2-15-96; 8:45 am]
BILLING CODE 4510-27-M