Federal Acquisition Regulation; Special Disabled and Vietnam Era Veterans

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 22 and 52

[FAC 97-04; FAR Case 95-602; Item IX]

RIN 9000-AH86

Federal Acquisition Regulation; Special Disabled and Vietnam Era

Veterans

AGENCIES: Department of Defense (DoD), General Services Administration

(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense

Acquisition Regulations Council have agreed on a final rule amending

the Federal Acquisition Regulation (FAR) to implement revised

Department of Labor (DoL) regulations regarding affirmative action for

employment of disabled veterans and veterans of the Vietnam era. This

regulatory action was not subject to Office of Management and Budget

review under Executive Order 12866, dated September 30, 1993, and is

not a major rule under 5 U.S.C. 804.

EFFECTIVE DATE: April 24, 1998.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS

Building, Washington, DC 20405 (202) 501-4755 for information

pertaining to status or publication schedules. For clarification of

content, contact Mr. Jack O'Neill, Procurement Analyst, at (202) 501-

3856. Please cite FAC 97-04, FAR case 95-602.

SUPPLEMENTARY INFORMATION:

A. Background

As a result of 1994 amendments to the Vietnam Veteran Readjustment

Act, DoL published revisions to its regulations at 41 CFR 60-250 on

January 5, 1995 (60 FR 1985), and corrections to these revisions on

February 16, 1996 (61 FR 6116). This final rule amends the FAR to

conform to the DoL revisions.

B. Regulatory Flexibility Act

This final rule does not constitute a significant FAR revision

within the meaning of FAR 1.501 and Public Law 98-577, and publication

for public comments is not required. However, comments from small

entities concerning the affected FAR subpart will be considered in

accordance with 5 U.S.C. 610. Such comments must be submitted

separately and should cite 5 U.S.C. 601, et seq. (FAC 97-04, FAR case

95-602), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to

the FAR do not impose recordkeeping or information collection

requirements, or collections of information from offerors, contractors,

or members of the public which require the approval of the Office of

Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 22 and 52

Government procurement.

Dated: February 13, 1998.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, 48 CFR Parts 22 and 52 are amended as set forth below:

1. The authority citation for 48 CFR Parts 22 and 52 continues to

read as follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42

U.S.C. 2473(c).

[[Page 9058]]

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 22.13--Disabled Veterans and Veterans of the Vietnam Era

2. The heading of Subpart 22.13 is revised to read as set forth

above.

3. Sections 22.1300 and 22.1301 are revised to read as follows:

22.1300 Scope of subpart.

This subpart prescribes policies and procedures for implementing

the Vietnam Era Veterans Readjustment Assistance Act of 1972, as

amended (38 U.S.C. 4211 and 4212) (the Act); Executive Order 11701,

January 24, 1973 (3 CFR 1971-1975 Comp., p. 752); and the regulations

of the Secretary of Labor (41 CFR Part 60-250 and Part 61-250). In this

subpart, the terms ``contract'' and ``contractor'' include

``subcontract'' and ``subcontractor.''

22.1301 Policy.

Government contractors, when entering into contracts subject to the

Act, are required to list all employment openings, except those for

executive and top management positions, positions to be filled from

within the contractor's organization, and positions lasting 3 days or

less, with the appropriate local employment service office. Contractors

are required to take affirmative action to employ, and advance in

employment, qualified disabled veterans and veterans of the Vietnam era

without discrimination based on their disability or veteran's status.

22.1303 [Amended]

4. Section 22.1303 is amended in the last sentence of paragraph (d)

by removing the word ``calendar''.

5. Section 22.1304 is amended by revising the first sentence of

paragraph (b) to read as follows:

22.1304 Department of Labor notices and reports.

* * * * *

(b) The Act requires contractors to submit a report at least

annually to the Secretary of Labor regarding employment of Vietnam era

and disabled veterans unless all of the terms of the clause at 52.222-

35, Affirmative Action for Disabled Veterans and Veterans of the

Vietnam Era, have been waived (see 22.1303). * * *

* * * * *

6. Section 22.1308 is amended by revising paragraphs (a)(1)(i) and

(b) to read as follows:

22.1308 Contract clauses.

(a)(1) * * *

(i) Work is performed outside the United States by employees

recruited outside the United States (for the purposes of this subpart,

``United States'' includes the States, the District of Columbia, the

Virgin Islands, the Commonwealth of Puerto Rico, and Guam); or

* * * * *

(b) The contracting officer shall insert the clause at 52.222-37,

Employment Reports on Disabled Veterans and Veterans of the Vietnam

Era, in solicitations and contracts containing the clause at 52.222-35,

Affirmative Action for Disabled Veterans and Veterans of the Vietnam

Era.

22.1303, 22.1304, and 22.1306 [Amended]

7a. In the list below, for each section listed in the left column,

remove the title indicated in the middle column, and add the title

indicated in the right column:

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

Section Remove Add

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

22.1303(a) introductory text Director, Office of. Deputy Assistant

Secretary for.

22.1303(a) introductory text (Director).......... (Deputy Assistant

Secretary).

22.1303(b)(1)............... Director of OFCCP... Deputy Assistant

Secretary.

22.1303(b)(2)............... Director............ Deputy Assistant

Secretary.

22.1303(d).................. Director............ Deputy Assistant

Secretary.

22.1304(a).................. Director............ Deputy Assistant

Secretary.

22.1306, second sentence.... Director of the Deputy Assistant

Office of Federal Secretary.

Contract Compliance

Programs of the DOL.

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7b. In addition to the amendments set forth above, in Subpart

22.13 remove the phrase ``Affirmative Action for Special Disabled and

Vietnam Era Veterans'' and add ``Affirmative Action for Disabled

Veterans and Veterans of the Vietnam Era'' in the following places:

22.1302(b)

22.1303(a) introductory text

22.1305

22.1307 introductory paragraph

22.1308(a)(1) introductory text

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

8. Section 52.212-5 is amended by revising the date of the clause,

and paragraphs (b)(7), (b)(9), and (e)(2) 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 (Apr 1998)

* * * * *

(b) * * *

(7) 52.222-35, Affirmative Action for Disabled Veterans and

Veterans of the Vietnam Era (38 U.S.C. 4212).

* * * * *

(9) 52.222-37, Employment Reports on Disabled Veterans and

Veterans of the Vietnam Era (38 U.S.C. 4212).

* * * * *

(e) * * *

(2) 52.222-35, Affirmative Action for Disabled Veterans and

Veterans of the Vietnam Era (38 U.S.C. 4212);

* * * * *

9. Section 52.213-4 is amended by revising the clause date and

paragraphs (b)(1)(iii) and (b)(1)(v) 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) (Apr 1998)

* * * * *

(b)(1) * * *

* * * * *

(iii) 52.222-35, Affirmative Action for Disabled Veterans and

Veterans of the Vietnam Era (Apr 1998) (38 U.S.C. 4212) (Applies to

contracts over $10,000).

* * * * *

(v) 52.222-37, Employment Reports on Disabled Veterans and

Veterans of the Vietnam Era (APR 1998) (38 U.S.C. 4212) (Applies to

contracts over $10,000).

* * * * *

10. Section 52.222-35 is amended--

a. By revising the section heading, introductory paragraph, clause

heading and date, and paragraph (a);

b. By revising paragraph (b)(1) introductory text;

c. In the first sentence of paragraph (c)(1) by removing the word

``suitable'';

[[Page 9059]]

d. In (c)(2) by removing the words ``their suitable'' and adding

``employment'';

e. In the first sentence of paragraph (c)(3) by removing the word

``suitable'';

f. By removing paragraph (c)(5);

g. By revising paragraph (d);

h. In paragraph (e)(1)(i) by removing the word ``special''; by

revising (e)(2); and in (e)(3) by removing ``special disabled and

Vietnam Era veterans'' and adding in its place ``disabled veterans and

veterans of the Vietnam era'';

i. In the second sentence of paragraph (g) by removing the word

``Director'' and inserting in its place ``Deputy Assistant Secretary'';

and

j. By revising the introductory text of Alternate I. The revised

text reads as follows:

52.222-35 Affirmative Action for Disabled Veterans and Veterans of the

Vietnam Era.

As prescribed in 22.1308(a)(1), insert the following clause:

Affirmative Action for Disabled Veterans and Veterans of the Vietnam

ERA (Apr 1998)

(a) Definitions. As used in this clause--

All employment openings includes all positions except executive

and top management, those positions that will be filled from within

the contractor's organization, and positions lasting 3 days or less.

This term includes full-time employment, temporary employment of

more than 3 days' duration, and part-time employment.

Appropriate office of the State employment service system means

the local office of the Federal-State national system of public

employment offices with assigned responsibility to serve the area

where the employment opening is to be filled, including the District

of Columbia, Guam, the Commonwealth of Puerto Rico, and the Virgin

Islands.

Positions that will be filled from within the Contractor's

organization means employment openings for which no consideration

will be given to persons outside the Contractor's organization

(including any affiliates, subsidiaries, and parent companies) and

includes any openings that the Contractor proposes to fill from

regularly established ``recall'' lists. The exception does not apply

to a particular opening once an employer decides to consider

applicants outside of its organization.

Veteran of the Vietnam era means a person who--

(1) Served on active duty for a period of more than 180 days,

any part of which occurred between August 5, 1964, and May 7, 1975,

and was discharged or released therefrom with other than a

dishonorable discharge; or

(2) Was discharged or released from active duty for a service-

connected disability if any part of such active duty was performed

between August 5, 1964, and May 7, 1975.

(b) General. (1) Regarding any position for which the employee

or applicant for employment is qualified, the Contractor shall not

discriminate against the individual because the individual is a

disabled veteran or a veteran of the Vietnam era. The Contractor

agrees to take affirmative action to employ, advance in employment,

and otherwise treat qualified disabled veterans and veterans of the

Vietnam era without discrimination based upon their disability or

veterans' status in all employment practices such as--

* * * * *

(d) Applicability. This clause does not apply to the listing of

employment openings that occur and are filled outside the 50 States,

the District of Columbia, the Commonwealth of Puerto Rico, Guam, and

the Virgin Islands.

(e) Postings. * * *

(2) These notices shall be posted in conspicuous places that are

available to employees and applicants for employment. They shall be

in a form prescribed by the Deputy Assistant Secretary for Federal

Contract Compliance Programs, Department of Labor (Deputy Assistant

Secretary), and provided by or through the Contracting Officer.

* * * * *

Alternate I (Apr 1984). As prescribed in 22.1308(a)(2), add the

following as a preamble to the clause:

* * * * *

11. Section 52.222-37 is amended--

a. By revising the section heading, clause heading, and date of the

clause;

b. By revising the introductory text of paragraph (a);

c. In paragraphs (a)(1) and (a)(2) by removing the word

``special''; and

d. By revising paragraph (e). The revised text reads as follows:

52.222-37 Employment Reports on Disabled Veterans and Veterans of the

Vietnam Era.

* * * * *

Employment Reports on Disabled Veterans and Veterans of the Vietnam ERA

(Apr 1998)

(a) Unless the Contractor is a State or local government agency,

the Contractor shall report at least annually, as required by the

Secretary of Labor, on--

* * * * *

(e) The count of veterans reported according to paragraph (a) of

this clause shall be based on voluntary disclosure. Each Contractor

subject to the reporting requirements at 38 U.S.C. 4212 shall invite

all disabled veterans and veterans of the Vietnam era who wish to

benefit under the affirmative action program at 38 U.S.C. 4212 to

identify themselves to the Contractor. The invitation shall state

that the information is voluntarily provided; that the information

will be kept confidential; that disclosure or refusal to provide the

information will not subject the applicant or employee to any

adverse treatment; and that the information will be used only in

accordance with the regulations promulgated under 38 U.S.C. 4212.

* * * * *

12. Section 52.244-6 is amended by revising the date of the clause

and paragraph (c)(2) to read as follows:

52.244-6 Subcontracts for Commercial Items and Commercial Components.

* * * * *

Subcontracts for Commercial Items and Commercial Components (Apr 1998)

* * * * *

(c) * * *

(2) 52.222-35, Affirmative Action for Disabled Veterans and

Veterans of the Vietnam Era (38 U.S.C. 4212(a));

* * * * *

[FR Doc. 98-4300 Filed 2-20-98; 8:45 am]

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