[Federal Register Volume 71, Number 152 (Tuesday, August 8, 2006)]
[Proposed Rules]
[Pages 44945-44955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6759]


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DEPARTMENT OF LABOR

Veterans' Employment and Training Service

41 CFR Part 61-300

RIN 1293-AA12


Annual Report From Federal Contractors

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposed rule would create a new part, 41 CFR part 61-
300, to implement certain provisions of the Jobs for Veterans Act 
(``JVA'') (Pub. L. 107-288) which amended the Vietnam Era Veterans'' 
Readjustment Assistance Act of 1974, as amended (``VEVRAA''). Prior to 
amendment by the JVA, VEVRAA and its implementing regulations required 
all contractors and subcontractors with Federal contracts in excess of 
$25,000 to use the Federal Contractor Veterans' Employment Report VETS-
100 form (``VETS-100 Report'') to report their efforts toward hiring 
veterans in four specified categories. The JVA raised the VETS-100 
reporting threshold from $25,000 to $100,000, and modified the 
categories of veterans to be tracked in the reports, for contracts 
entered on or after December 1, 2003.
    Prior to amendment by the JVA, VEVRAA required all covered 
contractors to report on incumbents who fall within the following 
veteran status categories: Veterans of the Vietnam era; special 
disabled veterans; other protected veterans; and recently separated 
veterans. The Jobs for Veterans Act changed the reporting categories 
to: disabled veterans; other protected veterans; Armed Forces service 
medal veterans; and recently separated veterans. Additionally, the JVA 
requires Federal contractors and subcontractors to report the total 
number of all current employees in each job category and at each hiring 
location. The JVA made these changes for all contracts entered into on 
or after December 1, 2003. The Veterans' Employment and Training 
Service (``VETS'') proposes that the reporting requirements for this 
rule become effective for the calendar year 2007, which is reported on 
September 30, 2008. This rule would implement those changes, along with 
other changes to the VETS-100 Report that either are required by the 
JVA or will improve the administration of the related veterans' 
programs.

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

ADDRESSES: You may submit comments, identified by RIN number 1293-AA12, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include ``RIN number 
1293-AA12'' in the subject line of the message.
     Fax: (202) 693-4755 (for comments of 10 pages or less).
     Mail: Robert Wilson, Chief, Division of Investigation and 
Compliance, VETS, U.S. Department of Labor, Room S-1316, 200 
Constitution Avenue, NW., Washington, DC 20210.
    All submissions received must include the agency name and 
Regulatory Information Number (RIN) for this

[[Page 44946]]

rulemaking. Receipt of submissions, whether by U.S. Mail, e-mail or FAX 
transmittal, will not be acknowledged; however, the sender may request 
confirmation that a submission has been received, by telephoning VETS 
at (202) 693-4726 (VOICE) (this is not a toll-free number) or (877) 
670-7008 (TTY/TDD).
    All comments received, including any personal information provided, 
will be available for public inspection during normal business hours at 
the above address. People needing assistance to review comments will be 
provided with appropriate aids such as readers or print magnifiers. 
Copies of this Notice of Proposed Rulemaking will be made available in 
the following formats: large print; electronic file on computer disk; 
and audiotape. To schedule an appointment to review the comments and/or 
to obtain the Notice of Proposed Rulemaking in an alternate format, 
contact VETS at the telephone numbers or address listed above.

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

SUPPLEMENTARY INFORMATION: The preamble to this NPRM is organized as 
follows:

I. Background--provides a brief description of the development of 
these proposed regulations.
II. Section-by-Section Review of the Rule--summarizes pertinent 
aspects of the proposed regulatory text and describes its purposes 
and application.
III. Regulatory Procedure--sets forth the applicable regulatory 
requirements.

I. Background

    The Vietnam Era Veterans' Readjustment Assistance Act of 1974 
(``VEVRAA'') requires at 38 U.S.C. 4212(d) that Federal contractors 
report annually to the Secretary of Labor about their employment of 
certain categories of veterans. The Department of Labor has established 
the VETS-100 Report as the means of reporting the required information. 
On November 7, 2002, the President signed the Jobs for Veterans Act 
(JVA), which amended VEVRAA to make two changes to reporting 
requirements applicable to contracts entered into on or after December 
1, 2003: (1) It raised from $25,000 to $100,000, the size of the 
contract required before an employer is covered by VEVRAA and is 
required to submit the VETS-100 Report; and (2) it modified the 
categories of veterans to be tracked in the reports. The part 61-300 
rule proposed today is modeled upon the current regulation implementing 
the VEVRAA Annual Report From Federal Contractors, found in part 61-
250. Today's proposal differs from the part 61-250 rule in two ways: it 
implements the changes made by the JVA to reporting requirements, and 
it makes changes designed to improve the readability of the rule. This 
rule is not intended to create other substantive differences from the 
part 61-250 rule.
    Because the JVA amendments apply only to contracts entered on or 
after December 1, 2003, it will be necessary for VETS to maintain two 
sets of Federal contractor regulations. The regulations implementing 
the reporting requirements as amended by the JVA will be located in the 
new 41 CFR part 61-300 and will apply to contracts entered on or after 
December 1, 2003. The pre-JVA operating requirements will continue to 
be located at 41 CFR part 61-250 and will apply to contracts entered 
before December 1, 2003. Contractors with contracts entered both 
before, and on or after December 1, 2003, will be subject to both the 
requirements found in part 61-250 and the requirements proposed for 
this part 61-300.
    To differentiate the VETS-100 Report required for contracts entered 
before December 1, 2003, from the VETS-100A Report required for 
contracts entered on or after December 1, 2003, we propose a slightly 
different name for the new Report form. The report required for 
contracts entered before December 1, 2003, would continue to be the 
VETS-100 Report. The report required for contracts entered on or after 
December 1, 2003, would be the VETS-100A Report.
    VETS understands that contractors will need time to update their 
recordkeeping systems to collect the data required by the VETS-100A 
Report. Consequently, to give contractors time to update their 
recordkeeping systems and to collect the data required to complete the 
VETS-100A Report, the VETS-100A reporting requirement will become 
effective for the calendar year 2007, which will be reported in the 
VETS-100A Report to be filed by September 30, 2008.
    The JVA changes the categories of qualified covered veterans under 
VEVRAA. Prior to the JVA, VEVRAA protected veterans of the Vietnam era, 
special disabled veterans, other protected veterans, and recently 
separated veterans. The JVA eliminated the coverage category of 
veterans of the Vietnam era. However, many individuals previously 
categorized under this category will continue to be covered under the 
categories of campaign badge veterans and disabled veterans. The JVA 
added a new category of Armed Forces service medal veterans and 
expanded the coverage of veterans with disabilities to include all 
veterans with service-connected disabilities. It also expanded the 
coverage of recently separated veterans from one year after discharge 
or release from active duty, to three years. The category of ``disabled 
veterans'' is broader than the ``special disabled veterans'' category 
it replaces. The category of ``disabled veterans'' includes all 
veterans who are entitled to compensation (or who but for the receipt 
of military retired pay would be entitled to compensation) under laws 
administered by the Secretary of Veterans Affairs or who were 
discharged or released from active duty because of a service-connected 
disability.
    The proposed rule differs from the pre-JVA VEVRAA implementing 
regulation by eliminating redundant definitions, references, and 
instructions, such as the twice-repeated definition of ``job 
category.'' This streamlining is designed to make the part 300 rule 
more ``reader friendly'' and is not intended to create other 
substantive differences from the part 61-250 rule. Finally, the 
proposed rule would clarify that only veterans of the U.S. Armed Forces 
are covered by the JVA.

II. Section-by-Section Review of the Rule

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

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

    This section would raise the threshold contract amount for filing 
reports from $25,000 to $100,000 for contracts

[[Page 44947]]

entered on or after December 1, 2003, and would substitute the term 
``qualified covered veterans'' for ``protected veterans'' to implement 
the new statutory requirement in the JVA. Paragraph (a) also is 
proposed to state that these VEVRAA regulations apply only to contracts 
that were entered on or after December 1, 2003. Contracts that were 
entered before December 1, 2003, continue to be governed by the VEVRAA 
requirements located in part 61-250.
    Paragraph (a) would make the point that any contractor covered by 
the affirmative action provision of VEVRAA (38 U.S.C. 4212(a)) would be 
required to file a VETS-100A Report under the part 61-300 regulations 
implementing the reporting provisions of VEVRAA (38 U.S.C. 4212(d)). 
Paragraph (a) of the parallel provision at 41 CFR 61-250.1(a) expresses 
the same point by stating that contractors subject to the regulations 
implementing the affirmative action provision of VEVRAA (41 CFR part 
60-250) are required to file a VETS-100 Report. Section 61-300.1(a) 
would reference the affirmative action requirements of the statute, 
rather than the affirmative action implementing regulations, because 
those regulations have not yet been updated to reflect changes required 
by the JVA.
    Paragraph (c) of this section would differ from 41 CFR 61-250.1 in 
that it corrects the citation to the ``separate facility'' exemption 
contained in 41 CFR 60-250.4(b)(3).
    Paragraph (d) of this section would be identical to 41 CFR 61-
250.1(d) but for the addition of a new footnote. The proposed footnote 
discusses the affirmative action obligation guidance contained in the 
OFCCP VEVRAA regulations located at 41 CFR part 60-250. The footnote 
would state that, although the categories of protected veterans have 
changed, the guidance in the OFCCP regulation is still valid.

Section 61-300.2 What definitions apply to this part?

    Section 61-300.2 is nearly identical to section 61-250.2 but for 
the changes necessary to implement the JVA and one change to clarify 
the definition of ``job category.'' The JVA defines several new or 
revised categories of protected veterans. The proposal incorporates the 
JVA definitions of these categories of protected veterans into this 
definition section. Paragraph (b)(4) would define ``disabled veteran,'' 
paragraph (b)(5) would define ``other protected veteran,'' paragraph 
(b)(6) would define ``Armed Forces service medal veteran,'' paragraph 
(b)(7) would define ``recently separated veteran,'' paragraph (b)(8) 
would define ``covered veteran,'' and paragraph (b)(9) would define the 
term ``qualified,'' as required by the JVA.
    The JVA defines the term ``recently separated veteran'' as ``any 
veteran during the three-year period beginning on the date of such 
veteran's discharge or release from active duty.'' See 38 U.S.C. 
4211(6).
    We propose to clarify the definitions of Armed Forces service medal 
veteran, other protected veteran, and recently separated veteran to 
state that only veterans of the U.S. Armed Forces are protected under 
these regulations.
    The definition of ``eligibility period'' would not be carried over 
from the part 61-250 rule because it is not used in this regulation. 
Paragraph (b)(14) would add a definition for the phrase ``covered 
incumbent veteran,'' as it is defined in the JVA, to use as a shorthand 
phrase for collectively referring to all categories of protected 
veterans. Lastly, paragraph (b)(15) would define ``covered contract'' 
to explain the meaning of the term as used in part 61-300, 
incorporating by reference the definitions pertinent to contract 
coverage contained in the regulations implementing the affirmative 
action provisions of VEVRAA at 41 CFR 60-250.2.

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

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

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

    In part 61-250 some instructions for completing the VETS-100 Report 
are located in the regulations (section 61-250.11) and additional 
instructions are located in the VETS-100 Report form (Appendix A.) In 
part 61-300 we propose to consolidate the instructions for completing 
the VETS-100A Report onto the report form located in Appendix A 
(discussed below) without discussion of the instructions in the 
regulations. The proposed consolidation of instructions, as well as 
changes required by the JVA, are discussed below.
    Paragraph (a) would provide that a copy of the VETS-100A Report and 
instructions may be found in Appendix A.
    Additionally, in paragraph (a), VETS proposes to state that the 
report is ``provided'' annually to contractors who are included in the 
VETS-100 database. Part 61-250.11(a) states that the VETS-100 Report is 
``mailed'' annually to contractors who are included in the VETS-100 
database. The use of the term ``provided'' would allow VETS greater 
flexibility in distribution format of the VETS-100A Report. Paragraph 
(a) also states that VETS' failure to provide a contractor with a VETS-
100A Report does not excuse a contractor from the requirement of 
submitting a VETS-100A Report.
    Paragraph (b) is identical to paragraph (b) in 41 CFR 61-250.11.
    Paragraph (c) would contain the same information as 41 CFR 61-
250.11(c). However, the proposed section 61-300.11(c) language, in 
accordance with plain language principles, is simplified. The 
requirement that a contractor or subcontractor must submit a VETS-

[[Page 44948]]

100A Report on September 30 of each year following a calendar year in 
which a contractor or subcontractor held a covered contract or 
subcontract is unchanged.
    Paragraph (d) is identical to paragraph (d) in 41 CFR 61-250.11.
    Paragraph (e) is identical to paragraph (e) in 41 CFR 61-250.11, 
except that the Internet address where requests for the VETS-100A 
Report may be made is updated.

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

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

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

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

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

    The proposed part 61-300 VETS-100A Report and instructions 
contained in the proposed Appendix A are different in two ways from the 
VETS-100 Report form and instructions found in the part 61-250 
regulation's Appendix A. First, this proposal consolidates all 
information necessary to the completion of a VETS-100A Report into the 
proposed instructions. Second, the proposed VETS-100A Report and 
instructions would incorporate changes required by the JVA. A section-
by-section description of differences between the part 61-250 and 
proposed part 61-300 instructions follows.
    Report Title: The report's title is proposed to read, ``VETS-100A 
Report'' to conform with the new naming convention used in the VETS-100 
Reporting program. Also, directly under the Report title, we propose to 
add the instruction that the VETS-100A Report is for contracts entered 
on or after December 1, 2003.
    Who Must File: This paragraph describes who must file a VETS-100A 
Report. The proposed paragraph sets forth a reporting threshold amount 
of $100,000 or more for contracts entered on or after December 1, 2003, 
as required by the JVA. Additionally, this paragraph would state that 
nonexempt Federal contractors and subcontractors whose contracts were 
entered before December 1, 2003 are required to complete a VETS-100 
Report. Finally, this paragraph would reference the report as the 
``VETS-100A Report.''
    When/Where To File: This paragraph describes when and where the 
VETS-100A Report must be filed. This proposed paragraph is identical to 
the corresponding paragraph in the part 61-250 VETS-100 Report form 
instructions. However, the title of the paragraph reads ``When/Where To 
File'' instead of ``When To File'' to more accurately reflect the 
instructions provided in the paragraph.
    Legal Basis for Reporting Requirements: This paragraph describes 
the statutory basis for requiring the VETS-100A Report. This proposed 
paragraph is different from the corresponding paragraph in the part 61-
250 VETS-100 Report form instructions in that the individual categories 
of qualified covered veterans protected under VEVRAA would no longer be 
listed and a United States Code citation rather than a Public Law 
citation would be provided.
    How To Submit the VETS-100A Report: This proposed paragraph 
describes how the VETS-100A Report must be submitted. This paragraph 
differs from the parallel paragraph of Appendix A in part 61-250 in 
that instructions from sections 61-250.11(b) and 61-250.11(c) are 
incorporated into this paragraph. Also, this paragraph would reference 
the report as the ``VETS-100A Report.''
    Recordkeeping: This proposed paragraph conforms to the paperwork 
package approved for the Federal Contractor Veterans' Employment Report 
(VETS-100A), and references the report as the ``VETS-100A Report.''
    How To Prepare Forms: This proposed paragraph describes how to 
prepare the VETS-100A Report. This paragraph differs from the 
corresponding paragraph in the part 61-250 VETS-100 Report form 
instructions by moving an instruction that was on the VETS-100 Report 
form in Appendix A to the VETS-100A Report instructions in Appendix A. 
Additionally, an instruction is added discussing when to use the VETS-
100 Report, when to use the VETS-100A Report, and when to use both the 
VETS-100 and VETS-100A Report forms. Finally, this paragraph would 
reference the report as the ``VETS-100A Report.''
    Company Identification Information: This proposed paragraph 
describes how to receive information if there are questions regarding a 
company's identification number. This paragraph differs from the 
corresponding paragraph in the part 61-250 VETS-100 Report form 
instructions by including an updated telephone number for contractors 
to call for information.
    Information on Employees: This proposed paragraph describes how to 
count the number of veterans, employees, new hires, and the maximum and 
minimum number of employees in a contractor's or subcontractor's labor 
force. It differs from the corresponding paragraph in the part 61-250 
VETS-100 Report form instructions by incorporating the new categories 
of protected veterans into the instructions and describing the 
renumbering of the VETS-100A Report. Additionally, in the subparagraph 
titled ``maximum/minimum employees'' we propose to update the 
regulatory citation.
    Definitions: This proposed paragraph presents the definitions of 
the categories of veterans protected under the JVA: ``disabled 
veteran;'' ``other protected veteran;'' ``Armed Forces service medal 
veteran;'' and ``recently separated veteran;'' as well as a definition 
for ``covered veteran'' and ``job categories.'' The reference to 
``hiring location'' would contain an updated regulatory citation. 
Additionally, this paragraph would include a website link where 
individuals can find the VETS-100 Report and the VETS-100A Report 
regulations in their entirety.

III. Regulatory Procedures

Paperwork Reduction Act

    This proposed rule contains information collections that are 
subject to review by the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995. The proposed rule would create a 
new part, 41 CFR part 61-300, to implement the new JVA reporting 
requirements. The VETS-100 reporting requirements applicable to 
contracts entered before December 1, 2003, are currently approved under 
OMB No. 1293-2005 and will be revised to reflect provisions of this 
regulation. We estimate the collection burden that would be imposed 
under the proposed rule to be 60 minutes per respondent. A description 
of the information to be collected is shown below.
    Contractors and subcontractors will be required to collect data on 
modified categories of covered veterans, which is to include disabled 
veterans, other protected veterans, Armed Forces service medal 
veterans, and recently separated veterans. These changes are required 
by the JVA. VETS invites the public to comment on whether the proposed 
collection of information: (1) Ensures that the collection of

[[Page 44949]]

information is necessary to the proper performance of the agency, 
including whether the information will have practical utility; (2) 
estimates the projected burden, including the validity of the 
methodology and assumptions used, accurately; (3) enhances the quality, 
utility, and clarity of the information to be collected; and (4) 
minimizes the burden of the collection of information on those who are 
to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology (e.g., permitting electronic 
submission of responses).

Executive Order 12866

    Executive Order (E.O.) 12866 requires that regulatory agencies 
assess both the costs and benefits of intended regulations. Under 
Executive Order 12866, the Department must determine whether the 
regulatory action is ``significant'' and therefore subject to the 
requirements of the Executive Order and subject to review by the Office 
of Management and Budget (OMB). Under section 3(f), the order defines a 
``significant regulatory action'' as an action that is likely to result 
in a rule (1) having an annual effect on the economy of $100 million or 
more, or adversely and materially affecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local or tribal governments or communities (also 
referred to as ``economically significant''); (2) creating serious 
inconsistency or otherwise interfering with an action taken or planned 
by another agency; (3) materially altering the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raising novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    The Department has determined that this proposed rule is a 
``significant regulatory action'' within the meaning of E.O. 12866 
because of the public interest and policy issues raised by the 
rulemaking. This rule is not an ``economically significant regulatory 
action,'' however, because it will not have an economic effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities.

Unfunded Mandates

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

Executive Order 13132, Federalism

    This notice of proposed rulemaking will not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, the 
requirements of section 6 of Executive Order 13132 do not apply to this 
rule.

Regulatory Flexibility Act

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

Clarity of This Regulation

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

List of Subjects in 41 CFR Part 61-300

    Government contracts, Reporting and recordkeeping requirements, 
Veterans.

    Signed at Washington, DC, this 1st day of August, 2006.
Charles S. Ciccolella,
Assistant Secretary of Labor for Veterans' Employment and Training 
Service.

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

PART 61-300--ANNUAL REPORT FROM FEDERAL CONTRACTORS

Sec.
61-300.1 What are the purpose and scope of this part?
61-300.2 What definitions apply to this part?
61-300.10 What reporting requirements apply to Federal contractors 
and subcontractors, and what specific wording must the reporting 
requirements contract clause contain?
61-300.11 On what form must the data required by this part be 
submitted?
61-300.20 How will DOL determine whether a contractor or 
subcontractor is complying with the requirements of this part?
61-300.99 What is the OMB control number for this part?
Appendix A--Federal Contractor Veterans' Employment Report VETS-100A

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


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

    (a) This part 61-300 implements 38 U.S.C. 4212(d) as amended by the 
Jobs for Veterans Act. Each contractor or subcontractor who enters into 
a contract on or after December 1, 2003, in the amount of $100,000 or 
more with any department or agency of the United States for the 
procurement of personal property and non-personal services (including 
construction), and who is subject to 38 U.S.C. 4212(a), must submit a 
report according to the requirements of part 61-300. Any contractor or 
subcontractor whose only contract with any department or agency of the 
United States for the procurement of personal property and non-personal 
services (including construction) was entered into before December 1, 
2003, must follow part 61-250 implementing 38 U.S.C. 4212(d). Any 
contractor or subcontractor who has a contract of $25,000 or more 
entered before December 1, 2003, and has a contract of $100,000 or more 
entered on or after December 1, 2003, is required to file both the 
VETS-100 Report and the VETS-100A Report as instructed in parts 61-250 
and 61-300.
    (b) Notwithstanding the regulations in this part, the regulations 
at 41 CFR part 60-250, administered by OFCCP continue to apply to 
contractors' and subcontractors' affirmative action obligations 
regarding veterans.
    (c) Reporting requirements of this part regarding veterans will be 
deemed waived in those instances in which the Deputy Assistant 
Secretary, OFCCP, has granted a waiver under 41 CFR 60-250.4(b)(1), or 
has concurred in the granting of a waiver under 41 CFR 60-250.4(b)(3), 
from compliance with all the terms of the equal opportunity clause for 
those establishments not involved in government contract work. Where 
OFCCP grants only a partial waiver, compliance with these reporting 
requirements regarding veterans will be required.
    (d) 41 CFR 60-250.42 and Appendix B to part 60-250 provide guidance 
concerning the affirmative action

[[Page 44950]]

obligations of Federal contractors and subcontractors toward applicants 
for employment who are qualified covered veterans.\1\
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    \1\ 41 CFR 60-250.42 and Appendix B to part 60-250 refer to the 
protected categories of special disabled veterans and Vietnam era 
veterans. VEVRRA, as amended by the Jobs for Veterans Act, no longer 
contains these categories of veterans. However, with the exception 
of the specific categories of protected veterans contained in the 
above-cited regulations, the guidance on affirmative action 
obligations of covered contractors is still valid.
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Sec.  61-300.2  What definitions apply to this part?

    (a) For the purposes of this part, and unless otherwise indicated 
in paragraph (b) of this section, the terms set forth in this part have 
the same meaning as those set forth in 41 CFR part 60-250.
    (b) For purposes of this part:
    (1) Hiring location (this definition is identical to establishment 
as defined by the instructions for completing Employer Information 
Report EEO-1, Standard Form 100 (EEO-1 Report)) means an economic unit 
which produces goods or services, such as a factory, office, store, or 
mine. In most instances the establishment is at a single physical 
location and is engaged in one, or predominantly one, type of economic 
activity. Units at different locations, even though engaged in the same 
kind of business operation, should be reported as separate 
establishments. For locations involving construction, transportation, 
communications, electric, gas, and sanitary services, oil and gas 
fields, and similar types of physically dispersed industrial 
activities, however, it is not necessary to list separately each 
individual site, project, field, line, etc., unless it is treated by 
the contractor as a separate legal entity with a separate Employer 
Identification Number (EIN). For these physically dispersed activities, 
list as establishments only those relatively permanent main or branch 
offices, terminals, stations, etc., which are either:
    (i) Directly responsible for supervising such dispersed activities; 
or
    (ii) The base from which personnel and equipment operate to carry 
out these activities. (Where these dispersed activities cross State 
lines, at least one such establishment should be listed for each State 
involved.)
    (2) Employee means any individual on the payroll of an employer who 
is an employee for purposes of the employer's withholding of Social 
Security taxes, except insurance salespersons, who are considered to be 
employees for such purposes solely because of the provisions of section 
3121(d)(3)(B) of the Internal Revenue Code (26 U.S.C.). The term 
employee does not include persons who are hired on a casual basis for a 
specified time, or for the duration of a specified job, and who work on 
remote or scattered sites or locations where it is not practical or 
feasible for the employer to make a visual survey of the work force 
within the report period; for example, persons at a construction site 
whose employment relationship is expected to terminate with the end of 
the employees' work at the site; persons temporarily employed in any 
industry other than construction, such as mariners, stevedores, 
waiters/waitresses, movie extras, agricultural laborers, lumber yard 
workers, etc., who are obtained through a hiring hall or other referral 
arrangement, through an employee contractor or agent, or by some 
individual hiring arrangement; or persons on the payroll of a temporary 
service agency who are referred by such agency for work to be performed 
on the premises of another employer under that employer's direction and 
control.
    (3) Job category means any of the following: Officials and 
managers, professionals, technicians, sales workers, office and 
clerical, craft workers (skilled), operatives (semiskilled), laborers 
(unskilled), and service workers, as required by the Employer 
Information Report EEO-1, Standard Form 100 (EEO-1 Report), as follows:
    (i) Officials and managers means occupations requiring 
administrative and managerial personnel who set broad policies, 
exercise overall responsibility for execution of these policies, and 
direct individual departments or special phases of a firm's operation. 
Includes: Officials, executives, middle management, plant managers, 
department managers and superintendents, salaried supervisors who are 
members of management, purchasing agents and buyers, railroad 
conductors and yard masters, ship captains and mates (except fishing 
boats), farm operators and managers, and kindred workers.
    (ii) Professionals means occupations requiring either college 
graduation or experience of such kind and amount as to provide a 
background comparable to a college education. Includes: Accountants and 
auditors, airplane pilots and navigators, architects, artists, 
chemists, designers, dietitians, editors, engineers, lawyers, 
librarians, mathematicians, natural scientists, registered professional 
nurses, personnel and labor relations specialists, physical scientists, 
physicians, social scientists, surveyors, teachers, and kindred 
workers.
    (iii) Technicians means occupations requiring a combination of 
basic scientific knowledge and manual skill which can be obtained 
through about 2 years of post-high school education, such as is offered 
in many technical institutes and junior colleges, or through equivalent 
on-the-job training. Includes: Computer programmers and operators, 
drafters, engineering aides, junior engineers, mathematical aides, 
licensed, practical or vocational nurses, photographers, radio 
operators, scientific assistants, technical illustrators, technicians 
(medical, dental, electronic, physical science), and kindred workers.
    (iv) Sales means occupations engaging wholly or primarily in direct 
selling. Includes: Advertising agents and sales workers, insurance 
agents and brokers, real estate agents and brokers, stock and bond 
sales workers, demonstrators, sales workers and sales clerks, grocery 
clerks and cashier-checkers, and kindred workers.
    (v) Office and clerical includes all clerical-type work regardless 
of level of difficulty, where the activities are predominantly non-
manual though some manual work not directly involved with altering or 
transporting the products is included. Includes bookkeepers, cashiers, 
collectors (bills and accounts), messengers and office helpers, office 
machine operators, shipping and receiving clerks, stenographers, 
typists and secretaries, telegraph and telephone operators, legal 
assistants, and kindred workers.
    (vi) Craft Workers (skilled) means manual workers of a relatively 
high skill level having a thorough and comprehensive knowledge of the 
processes involved in their work. These workers exercise considerable 
independent judgment and usually receive an extensive period of 
training. Includes: The building trades, hourly paid supervisors and 
lead operators who are not members of management, mechanics and 
repairers, skilled machining occupations, compositors and typesetters, 
electricians, engravers, job setters (metal), motion picture 
projectionists, pattern and model makers, stationary engineers, 
tailors, arts occupations, hand painters, coaters, decorative workers, 
and kindred workers.
    (vii) Operatives (semiskilled) means workers who operate machine or 
processing equipment or perform other factory-type duties of 
intermediate skill level which can be mastered in a few weeks and 
require only limited training. Includes: Apprentices (auto mechanics, 
plumbers, bricklayers, carpenters, electricians, machinists, mechanics,

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building trades, metalworking trades, printing trades, etc.), 
attendants (auto service and parking), blasters, chauffeurs, delivery 
workers, dressmakers and sewers (except factory), dryers, furnace 
workers, heaters (metal), laundry and dry cleaning operatives, 
milliners, mine operatives and laborers, motor operators, oilers and 
greasers (except auto), painters (except construction and maintenance), 
photographic process workers, stationary firefighters, truck and 
tractor drivers, weavers (textile), welders and flamecutters, 
electrical and electronic equipment assemblers, butchers and meat 
cutters, inspectors, testers and graders, handpackers and packagers, 
and kindred workers.
    (viii) Laborers (unskilled) means workers in manual occupations 
which generally require no special training to perform elementary 
duties that may be learned in a few days and require the application of 
little or no independent judgment. Includes: garage laborers, car 
washers and greasers, gardeners (except farm) and grounds keepers, 
stevedores, wood choppers, laborers performing lifting, digging, 
mixing, loading and pulling operations, and kindred workers.
    (ix) Service Workers means workers in both protective and non-
protective service occupations. Includes: Attendants (hospital and 
other institutions, professional and personal service, including nurses 
aides and orderlies), barbers, charworkers and cleaners, cooks (except 
household), counter and fountain workers, elevator operators, 
firefighters and fire protection workers, guards, doorkeepers, 
stewards, janitors, police officers and detectives, porters, servers, 
amusement and recreation facilities attendants, guides, ushers, public 
transportation attendants, and kindred workers.
    (4) Disabled veteran means a veteran who:
    (i) Is entitled to compensation (or who but for the receipt of 
military retired pay would be entitled to compensation) under laws 
administered by the Secretary of Veterans Affairs, or
    (ii) Was discharged or released from active duty because of a 
service-connected disability.
    (5) Other protected veteran means a veteran who served on active 
duty in the U.S. military, ground, naval, or air service during a war 
or in a campaign or expedition for which a campaign badge has been 
authorized.
    (6) Armed forces service medal veteran means a veteran who, while 
serving on active duty in the U.S. military, ground, naval or air 
service, participated in a United States military operation for which 
an Armed Forces service medal was awarded pursuant to Executive Order 
12985 (61 Fed. Reg. 1209).
    (7) Recently separated veteran means a veteran, who served on 
active duty in the U.S. military, ground, naval or air service, during 
the three-year period beginning on the date of such veteran's discharge 
or release from active duty.
    (8) Covered veteran means a veteran as defined in paragraphs (b)(4) 
through (b)(7) of this section.
    (9) Qualified means, with respect to an employment position, having 
the ability to perform the essential functions of the position with or 
without reasonable accommodation for an individual with a disability.
    (10) OFCCP means the Office of Federal Contract Compliance 
Programs, Employment Standards Administration, U.S. Department of 
Labor.
    (11) VETS means the Office of the Assistant Secretary for Veterans' 
Employment and Training Service, U.S. Department of Labor.
    (12) States means each of the several States of the United States, 
the District of Columbia, the Virgin Islands, the Commonwealth of 
Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern 
Mariana Islands, Wake Island, and the Trust Territories of the Pacific 
Islands.
    (13) NAICS means the North American Industrial Classification 
System.
    (14) Covered incumbent veteran means a veteran as defined in 
paragraphs (b)(4) through (b)(7) of this section who is employed by a 
covered contractor.
    (15) Covered contract means a contract as defined by 41 CFR 60-
250.2 for at least $100,000 entered on or after December 1, 2003.


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

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

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

    (a) The contractor or subcontractor agrees to report at least 
annually, as required by the Secretary of Labor, on:
    (1) The total number of employees in the workforce of such 
contractor or subcontractor, by job category and hiring location, and 
the number of such employees by job category and hiring location, who 
are disabled veterans, other protected veterans, Armed Forces service 
medal veterans, and recently separated veterans;
    (2) The total number of new employees hired by the contractor or 
subcontractor during the period covered by the report, and of such 
employees, the number who are disabled veterans, other protected 
veterans, Armed Forces service medal veterans, and recently separated 
veterans; and
    (3) The maximum number and minimum number of employees of such 
contractor or subcontractor at each hiring location during the period 
covered by the report.
    (b) The above items must be reported by completing the form 
entitled ``Federal Contractor Veterans'' Employment Report VETS-100A.''
    (c) VETS-100A Reports must be submitted no later than September 30 
of each year following a calendar year in which a contractor or 
subcontractor held a covered contract or subcontract.
    (d) The employment activity report required by paragraphs (a)(2) 
and (a)(3) of this clause must reflect total new hires and maximum and 
minimum number of employees during the 12-month period preceding the 
ending date that the contractor selects for the current employment 
report required by paragraph (a)(1) of this clause. Contractors may 
select an ending date:
    (1) As of the end of any pay period during the period July 1 
through August 31 of the year the report is due; or
    (2) As of December 31, if the contractor has previous written 
approval from the Equal Employment Opportunity Commission to do so for 
purposes of submitting the Employer Information Report EEO-1, Standard 
Form 100 (EEO-1 Report).
    (e) The number of veterans reported according to paragraph (a) 
above must be based on data known to contractors and subcontractors 
when completing their VETS-100A Reports. Contractors' and 
subcontractors' knowledge of veterans status may be obtained in a 
variety of ways, including, in response to an invitation to applicants 
to self-identify in accordance with 41 CFR 60-

[[Page 44952]]

250.42, voluntary self-disclosures by covered incumbent veterans, or 
actual knowledge of an employee's veteran status by a contractor or 
subcontractor. Nothing in this paragraph (e) relieves a contractor from 
liability for discrimination under 38 U.S.C. 4212.


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

    (a) Data items required in paragraph (a) of the contract clause set 
forth in Sec.  61-300.10 must be reported for each hiring location on 
the VETS-100A Report. This form is provided annually to those 
contractors who are included in the VETS-100 database. VETS failure to 
provide a contractor with a VETS-100A Report does not excuse the 
contractor from the requirement to submit a VETS-100A Report. The form, 
and instructions for preparing it, are set forth in Appendix A to 41 
CFR part 61-300--Federal Contractor Veterans' Employment Report VETS-
100A and Instructions.
    (b) Contractors and subcontractors that submit computer-generated 
output for more than 10 hiring locations to satisfy their VETS-100A 
reporting obligations must submit the output in the form of an 
electronic file. This file must comply with current Department of Labor 
specifications for the layout of these records, along with any other 
specifications established by the Department for the applicable 
reporting year. Contractors and subcontractors that submit VETS-100A 
Reports for 10 locations or less are exempt from this requirement, but 
are strongly encouraged to submit an electronic file. In these cases, 
state consolidated reports count as one location each.
    (c) VETS-100A Reports must be submitted no later than September 30 
of each year following a calendar year in which a contractor or 
subcontractor held a covered contract or subcontract.
    (d) VETS or its designee will use all available information to 
distribute the required forms to contractors identified as subject to 
the requirements of this part.
    (e) It is the responsibility of each contractor or subcontractor to 
obtain necessary supplies of the VETS-100A Report before the annual 
September 30 filing deadline. Contractors and subcontractors who do not 
receive forms should request them in time to meet the deadline. 
Requests for the VETS-100A Report may be made by mail by contacting: 
Office of the Assistant Secretary for Veterans' Employment and 
Training, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210, Attn: VETS-100A Report Form Request; or on the 
Internet at the Internet address http://www.vets100.cudenver.edu and 
select on the ``VETS-100'' reporting form link.


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

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


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

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