ESA Proposed Rule

Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Special Disabled Veterans and Vietnam Era Veterans[Proposed Rules] [09/24/1996]

Office of Federal Contract Compliance Programs
41 CFR Part 60-250
RIN 1215-AA62

Affirmative Action and Nondiscrimination Obligations of
Contractors and Subcontractors Regarding Special Disabled Veterans and
Vietnam Era Veterans

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Proposed Rule.

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SUMMARY: The proposal published today would revise the current
regulations implementing the affirmative action provisions of the
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended
(VEVRAA). VEVRAA requires Government contractors and subcontractors to
take affirmative action to employ and advance in employment qualified
special disabled veterans and veterans of the Vietnam era. Today's
proposal makes two general types of revisions to the VEVRAA
regulations. First, it would generally conform the VEVRAA regulations
to the Office of Federal Contract Compliance Programs' final rule
revising the regulations implementing Section 503 of the Rehabilitation
Act of 1973, as amended (Section 503). Second, it would withdraw
portions of a final rule published by the Department of Labor on
December 30, 1980 (which was subsequently suspended) concerning VEVRAA,
Executive Order 11246, and Section 503. The withdrawal applies only to
those provisions of the rule which pertain to VEVRAA.

DATES: Comments are invited from the public and other Federal agencies
regarding both the proposal to revise the current VEVRAA regulations
and the proposal to partially withdraw the final rule of 1980. To be
assured of consideration, comments must be in writing and must be
received on or before November 25, 1996.

ADDRESSES: Comments should be sent to Joe N. Kennedy, Deputy Director,
Office of Federal Contract Compliance Programs, Room C3325, 200
Constitution Avenue, N.W., Washington, D.C. 20210.
As a convenience to commenters, the Office of Federal Contract
Compliance Programs will accept public comments transmitted by
facsimile (FAX) machine. The telephone number of the FAX receiver is
(202) 219-6195. Only public comments of six or fewer pages will be
accepted via FAX transmittal. This limitation is necessary in order to
assure access to the equipment. Comments sent by FAX in excess of six
pages will not be accepted. Receipt of FAX transmittals will not be
acknowledged, except that the sender may request confirmation of
receipt by calling the Office of Federal Contract Compliance Programs
at (202) 219-9430.
Comments received will be available for public inspection in Room
C3325, from 9 a.m. to 5 p.m., Monday through Friday, except legal
holidays, from October 8, 1996 until the Department publishes this rule
in final form. Persons who need assistance to review the comments will
be provided with appropriate aids such as readers or print magnifiers.
To schedule an appointment, call (202) 219-9430 (voice), 1-800-326-2577
(TDD).
Copies of this notice of proposed rulemaking are available in the
following alternative formats: large print, electronic file on computer
disk, and audio-tape. Copies may be obtained from the Office of Federal
Contract Compliance Programs by calling (202) 219-9430 (voice) or 1-
800-326-2577 (TDD).

FOR FURTHER INFORMATION CONTACT: Joe N. Kennedy, Deputy Director,
Office of Federal Contract Compliance Programs, 200 Constitution
Avenue, N.W., Room C3325, Washington, D.C. 20210. Telephone: (202) 219-
9475 (voice), 1-800-326-2577 (TDD).

SUPPLEMENTARY INFORMATION:

Overview of Proposed Rule

1. Revision of Current Regulations

The affirmative action provisions of the Vietnam Era Veterans'
Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212
(Section 4212 or VEVRAA) require parties holding Government contracts
and subcontracts of $10,000 or more, to ``take affirmative action to
employ and advance in employment qualified special disabled veterans
and veterans of the Vietnam era.'' (VEVRAA, which was originally
codified at 38 U.S.C. 2012, was redesignated as 38 U.S.C. 4212 by
Section 5(a) of the Department of Veterans Affairs Codification Act,
Public Law 102-83, August 6, 1991; no substantive change to VEVRAA
resulted from this legislation.) The Department of Labor's Office of
Federal Contract Compliance Programs (OFCCP), which has exclusive
authority to enforce Section 4212, has published regulations
implementing the Act at 41 CFR Part 60-250. These regulations,
consistent with the statute's mandate, establish various affirmative
action obligations for contractors (e.g., contractors are required to
use effective practices to recruit special disabled veterans and
veterans of the Vietnam era). The regulations require that contractors
refrain from discriminating against special disabled veterans and
veterans of the Vietnam era in all aspects of employment inasmuch as
this prohibition is an indispensable component of affirmative action.
Another central requirement of the current regulations is that
contractors make reasonable accommodation to the known physical or
mental limitations of a qualified special disabled veteran applicant or
employee, unless the contractor can demonstrate that the accommodation
would impose an undue hardship on the operation of its business. An
accommodation is, for example, any change in the work environment
(e.g., the modification or acquisition of equipment) or in the way a
job is customarily performed (e.g., changes in work assignments) that
enables a qualified special disabled veteran to enjoy equal employment
opportunities.
Today's proposal is precipitated, in part, by OFCCP's publication
of a final rule revising the regulations implementing Section 503 of
the Rehabilitation Act of 1973. (61 FR 19336, May 1, 1996). Section 503
requires Government contractors and subcontractors to take affirmative
action to employ and advance in employment qualified individuals with
disabilities. In turn, the revision to the Section 503 regulations was
designed, in part, to conform those regulations to those published by
the Equal Employment Opportunity Commission (EEOC) implementing Title I
of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101
et seq. See 29 CFR Part 1630. Title I of the ADA, which is enforced by
the EEOC, prohibits private and state and local governmental employers
with 15 or more employees from discriminating against qualified
individuals with disabilities in all aspects of employment. The ADA
regulations establish comprehensive, detailed prohibitions regarding
disability discrimination but do not require affirmative action. OFCCP
has modeled its regulations implementing Section 4212 on those
implementing Section 503. This reflects the close similarity between
the statutes in terms of their substantive protections and
jurisdictional requirements. For instance, Section 4212, like Section
503, protects disabled individuals, albeit a more narrow class of
disabled persons--that is, ``special disabled veterans'' (see the
discussion regarding proposed Sec. 60-250.2(n) below). The current
VEVRAA

[[Page 50081]]

regulations are identical to the former Section 503 regulations except
where differences are necessary because of the nature of the protected
class or differences in the statutes, to assure that covered
contractors were subject to consistent requirements under both laws. In
order to retain that consistency and avoid confusion and conflict,
OFCCP believes that the Section 4212 regulations should continue to
parallel the Section 503 regulations. Accordingly, OFCCP proposes to
revise the Section 4212 regulations to conform them to the Section 503
final rule. Thus, today's proposal, similar to the final Section 503
regulations, adopts the standards contained in the regulations
implementing the ADA regarding disability discrimination; but applies
these standards with respect to special disabled veterans and veterans
of the Vietnam era.
Specific changes are discussed in the Section-by-Section Analysis
below.

2. Partial Withdrawal of the 1980 Final Rule

OFCCP also proposes to partially withdraw a final rule published by
the Agency on December 30, 1980 (45 FR 86215; corrected at 46 FR 7332,
January 23, 1981), and deferred indefinitely on August 21, 1981 (46 FR
42865). That 1980 rule would have revised the regulations at 41 CFR
Chapter 60 implementing Section 4212 as well as two other laws enforced
by OFCCP--Executive Order 11246 (30 FR 12319, September 28, 1965), as
amended, and Section 503. Executive Order 11246 requires Government
contractors and subcontractors to assure equal employment opportunity
without regard to race, color, religion, sex and national origin. As
noted above, Section 503 mandates similar requirements with regard to
the employment of individuals with disabilities.
The December 30, 1980, rule was to take effect on January 29, 1981.
On January 28, 1981, the Department of Labor published a notice (at 46
FR 9084) delaying the effective date of the final rule until April 29,
1981, to allow the Department time to review the regulation fully. The
Department published three subsequent deferrals of the rule in 1981 in
order to fully review the OFCCP regulations in accordance with
Executive Order 12291, to permit consultation with interested groups,
and to comply with new intergovernmental review and coordination
procedures. The Department again postponed the rule's effective date on
August 25, 1981, until action could be taken on a proposed rule
published on the same date (46 FR 42968). The August 25, 1981, proposal
would have revised a number of provisions contained in the December 30,
1980, final rule as well as a number of provisions in 41 CFR Chapter 60
which were not amended by that final rule. Final action has not been
taken with respect to the proposed regulations issued on August 25,
1981, or, consequently with respect to the 1980 final rule.
The substance of a number of the provisions contained in the 1980
final rule pertaining to the current Section 4212 regulations has been
incorporated into today's proposal. However, OFCCP has determined not
to go forward with some of the other revisions to the regulations. For
instance, unlike today's proposal (and the current regulations), the
1980 final rule would have consolidated a number of the provisions of
the Section 4212 regulations with common provisions implementing
Executive Order 11246 and Section 503 into 41 CFR Part 60-1, which
currently sets out the general obligations under the Executive Order.
Significant differences between this proposal, the current
regulations and the 1980 final rule are discussed in detail in the
Section-by-Section Analysis below. (Provisions contained in the 1980
final rule which are substantially similar to the parallel provisions
in the current regulations are not separately discussed.) In order to
avoid conflict between today's proposal and the 1980 final rule, OFCCP
proposes to withdraw all provisions of the 1980 rule that pertain to
Section 4212.

Request for Comments

Interested parties, including public and private veterans'
organizations and employers, are invited to participate in this
proposed rulemaking by submitting written views.

Section-by-Section Analysis

This proposed rule consists of five subparts. Subpart A,
``Preliminary Matters, Equal Opportunity Clause,'' explains the
purpose, application and construction of the regulations in general and
contains an extensive definitions section. The definitions section
incorporates the definitions contained in the Section 503 final rule
which are relevant to the enforcement of Section 4212 as well as a
revision to the definition of ``special disabled veteran.'' Subpart A
also contains provisions relating to coverage under Section 4212, and
coverage exemptions and waivers, as well as the equal opportunity
clause, which delineates a covered contractor's general duties under
the Act. Subpart B is a new subpart, which specifies the employment
actions that will be deemed to constitute prohibited discrimination
under Section 4212. In general, this subpart is substantially identical
to the parallel provisions in the Section 503 final rule. Where
appropriate, references to special disabled veterans and veterans of
the Vietnam era have been substituted for the references in the Section
503 regulations to individuals with disabilities. Subpart C, which
governs the applicability of the affirmative action program
requirement, reorganizes, clarifies and strengthens the affirmative
action provisions in the current regulations. These revisions parallel
those found in the Section 503 final rule. As stated in proposed
Sec. 60-250.40(a), the requirements of Subpart C apply only to
Government contractors with 50 or more employees and a contract of
$50,000 or more. All other subparts of the regulation are applicable to
all contractors covered by Section 4212. Subpart D covers general
enforcement and complaint procedures. In order to help ensure that
OFCCP uses a consistent enforcement approach with that used under
Executive Order 11246 (which OFCCP also enforces), this subpart, again
paralleling the changes in the Section 503 final rule, incorporates a
number of provisions from the regulations implementing the Executive
Order. Further, Subpart D's provisions regarding complaint procedures,
like the counterpart provisions in the Section 503 final rule, are in
part based on the procedural regulations applicable to the ADA. These
procedures are also revised to reflect an amendment to Section 4212.
Subpart E, Ancillary Matters, incorporates revised provisions on
recordkeeping (e.g., it extends the current one-year record retention
period to two years for larger contractors and conforms the scope of
the retention obligation to that applied by the EEOC under the ADA and
by OFCCP under Section 503), adds a mandatory notice posting
requirement, and makes other revisions. Finally, the proposal contains
a new appendix which sets out guidance on the duty to provide
reasonable accommodation under the Act. The appendix is substantially
identical to the counterpart appendix contained in the Section 503
final rule. In turn, that appendix is consistent with the discussion of
the issue of reasonable accommodation contained in the Interpretative
Guidance on Title I of the Americans with Disabilities Act, which is
set out as an appendix to the EEOC's ADA regulations. Accordingly, the
EEOC appendix may be relied on for

[[Page 50082]]

guidance with respect to parallel provisions of this proposal.
The following analysis focuses on a comparison of today's proposal
with the current Section 4212 regulation and the 1980 final rule. The
analysis discusses the parallel changes in the Section 503 final rule
where necessary to place today's proposal in context. This proposal
uses a long form amending procedure in which all sections of the
regulations are republished (except for those deleted in their
entirety), including sections for which no changes are proposed and
sections for which the only proposed change would be the section
number. Use of the long form procedure ensures maximum clarity.

Subpart A--Preliminary Matters, Equal Opportunity Clause

Section 60-250.1 Purpose, Applicability and Construction

This section is derived from current Sec. 60-250.1 (``Purpose and
application'') and is generally consistent with that section. A number
of clarifying revisions are proposed. As reflected in its Purpose and
application section (Sec. 60-1.1), the 1980 final rule would have
consolidated provisions (e.g., its definitions provisions) which are
applicable to both Section 4212 and Executive Order 11246 into 41 CFR
Part 60-1. Further, Sec. 60-1.1 of the 1980 final rule would have
established some common enforcement procedures under all of the laws
enforced by OFCCP by making certain procedures (e.g., the show cause
notice), which were previously applicable only to the Executive Order,
applicable to Section 4212. Today's proposal does not consolidate any
of the Section 4212 regulations with those implementing the Executive
Order. OFCCP believes that consolidation of provisions in this way is
not practical at this time. However, like the 1980 final rule, today's
proposal incorporates some of the Executive Order enforcement
procedures, including the show cause notice procedure.
Proposed paragraph (a) states in part that Section 4212 requires
contractors to take affirmative action with respect to the employment
of qualified ``special disabled veterans.'' Section 60-250.1 of the
current regulations makes reference instead to ``disabled veterans.''
This proposed change in terminology is based on amendments to VEVRAA
which have not been previously incorporated into the Section 4212
regulations (see Sec. 60-250.2(n) defining ``special disabled
veteran'').
Paragraph (b) clarifies that contracts under which the Government
is a purchaser as well as those under which it is a seller are covered
by the Act. (See discussion regarding the definition of ``Government
contract'' contained in Sec. 60-250.2(i).) Additionally, paragraph (b)
provides that compliance by a covered contractor with Part 60-250 will
not generally determine its compliance with other statutes, and that
the reverse is also true.
The purpose and application section of the 1980 final rule
(Sec. 60-250.1) states that Part 60-250 applies to all Government
contracts, ``including Federal deposit and share insurance.'' The
preamble to the 1980 final rule (45 FR 86218) states that OFCCP
believes that Federal deposit and share insurance are contracts within
the meaning of Section 4212. In the course of preparing its 1996 final
rule implementing Section 503, OFCCP conducted a careful and detailed
reevaluation of its position in light of changes in some of the
statutes affecting the financial industry. Based upon that review,
OFCCP continues to believe in the soundness of its position.
However, today's proposal differs from the 1980 final rule in that
it does not expressly state that the regulations cover Federal deposit
and share insurance. The proposal does not otherwise make reference to
the precise subject matter of particular types of covered contracts,
and therefore OFCCP no longer considers it necessary to single out
deposit and share insurance for express mention in the regulations.
OFCCP wishes to reemphasize that it will continue to maintain its
long-standing policy of imposing sanctions other than debarment of
financial institutions from future deposit or share insurance, or
cancellation, termination or suspension of a financial institution's
deposit or share insurance for violations of Section 4212.
Paragraph (c)(1) states that the interpretative guidance set out as
an appendix to the EEOC's ADA regulations may be relied on in
interpreting the parallel provisions of this part. This provision
reflects the fact that Part 60-250, as revised, incorporates the large
majority of the EEOC's nondiscrimination regulations without
substantive change (i.e., it incorporates the standards contained in
the Section 503 final rule, which, in turn, adopted the EEOC's
standards).
The first sentence of paragraph (c)(2), relationship to other laws,
states that Part 60-250 does not invalidate or limit the protections or
procedures of other laws that provide greater or equal protection for
the rights of special disabled veterans or veterans of the Vietnam era.
This parallels a provision of the Section 503 final rule (first
sentence of Sec. 60-741.1(c)(2)), which, in turn, is based on an
analogous provision in the EEOC regulations (Sec. 1630.1(c)(2)).
The second sentence of paragraph (c)(2) is modeled on parallel
provisions of the Section 503 regulation, which parallels
Sec. 1630.15(e) of the EEOC regulations. Paragraph (c)(2) of today's
proposal provides that the contractor may take an action which would
violate Part 60-250 or refrain from taking an action required by that
part where such action or omission is required or necessitated by
another Federal law or regulation. This provision would permit, for
example, the use of medical and safety standards or inquiries that are
mandated or necessitated by other Federal laws or regulations. For
instance, under this provision, contractors would be permitted to
comply with requirements relating to the collection, analysis and
disclosure of certain medical information which are imposed by the Mine
Safety and Health Act (MSHA) and the Occupational Safety and Health Act
(OSHA) (and related state laws which have been approved by the
Occupational Safety and Health Administration). Some of these standards
necessitate the review and analysis of workers' medical information by
employers as well as by agency officials; such action by a contractor,
absent this provision, might violate proposed Sec. 60-250.23 on Medical
examinations and inquiries.

Section 60-250.2 Definitions

The proposal substantially supplements the definitions section
contained in the current Section 4212 regulations (Sec. 60-250.2) by
incorporating a number of new terms and by modifying or deleting a
number of existing terms. Most notably, the proposal incorporates into
the definitions section relevant terms and definitions from the Section
503 final rule at Sec. 60-741.2 without substantive change. This was
done to foster consistency between the two sets of regulations. A
number of these terms were adopted by the Section 503 final rule from
the ADA's regulations (``essential functions,'' ``reasonable
accommodation,'' ``undue hardship,'' ``qualification standards,'' and
``direct threat''). Accordingly, the interpretative guidance contained
in the EEOC's ADA regulations may be consulted regarding the
application of these specific terms (with the exception of
``qualification standards,'' which the guidance does not address). A
number of existing definitions also would be deleted or revised in
order to conform to the parallel provisions in the Section 503

[[Page 50083]]

final rule. Similarly, several definitions that are not in the existing
VEVRAA rule, but were included in the 1980 final rule, would not be
carried forward here. Further, the proposal incorporates amendments
that have been made to Section 4212 since the regulations were
originally issued in 1976. Moreover, in contrast to the existing rule,
which sets out the defined terms in alphabetical order, the proposal
arranges the definitions by subject matter, and sets out each defined
term as a letter-designated paragraph. This change in organization is
intended to make the terms more easily understandable and to conform to
the Section 503 final rule.

Section 60-250.2(a) ``Act''

This definition of ``Act'' is substantially identical to the
current definition.

Section 60-250.2(b) ``Equal Opportunity Clause''

OFCCP proposes to substitute the term ``equal opportunity clause''
for the term ``affirmative action and nondiscrimination clause''--which
is used in the current regulations and refers to a specific set of
obligations imposed under Section 4212 that must be set out in all
contracts and subcontracts covered by the Act (see proposed Sec. 60-
250.5). The purpose of this revision is to conform the terminology used
in the Section 4212 regulations with that used in OFCCP's regulations
implementing Executive Order 11246 (see 41 CFR Part 60-1) (which also
is adopted by the Section 503 final rule).

Section 60-250.2(c) ``Secretary''

OFCCP proposes to revise the definition of ``Secretary''--which
refers to the Secretary of Labor in the current regulations--to include
a designee of the Secretary. This revision would permit the Secretary
to delegate authority under Section 4212 to the Deputy Secretary and
other subordinates. The definition of the term ``Assistant Secretary,''
which appears in the current regulations, is therefore no longer
necessary, and thus is omitted in this proposal. Similarly, the
definition of ``rules, regulations and relevant orders of the Secretary
of Labor'' contained in the current regulations, which makes reference
to the designee of the Secretary, also is omitted as it is unnecessary.

Section 60-250.2(d) ``Deputy Assistant Secretary''

OFCCP proposes to substitute a definition of ``Deputy Assistant
Secretary'' for the definition of ``Director'' in the current
regulations to reflect a corresponding redesignation of the position
effective February 14, 1994. This substitution is made throughout the
proposal.

Section 60-250.2(e) ``Government''

The proposed definition of this term is substantially identical to
the current definition.

Section 60-250.2(f) ``United States''

OFCCP proposes to revise the current definition of ``United
States'' by deleting the references contained therein to the Panama
Canal Zone and the Trust Territory of the Pacific Islands, and by
incorporating references to the Northern Mariana Islands and Wake
Island.

Section 60-250.2(g) ``Recruiting and Training Agency''

The proposal incorporates the current definition of this term
without change.

Section 60-250.2(h) ``Contract''

The proposed definition of ``contract'' revises the current
regulatory definition--``any Government contract''--to subsume the term
``subcontract.'' This approach is consistent with that used in the 1980
final rule (Sec. 60-1.3), and is intended to obviate the need to make a
separate reference to ``subcontract'' each time ``contract'' is
referenced to demonstrate that a particular provision applies to both
contracts and subcontracts. Accordingly, the proposal generally
references the term ``subcontract'' only when necessary to the context.

Section 60-250.2(i) ``Government Contract''

The definition of ``Government contract'' is revised, consistent
with the definition of the term contained in the Section 503 final
rule, to clarify that covered contracts include those under which the
Government is a seller of goods or services as well as those under
which it is a purchaser. Hence, the proposal substitutes a reference to
contracts for the ``purchase, sale or use'' of goods or services for
the existing reference to the ``furnishing'' of goods or services. The
proposal also revises the definition to make it clear, consistent with
the language of the Act, that only contracts regarding personal
property (including those for the use of real property where such use
constitutes personal property) and ``nonpersonal'' services are
covered. Further, the proposed revision consolidates within the
definition of ``Government contract'' definitions for four terms
referenced therein which are separately defined in the current
regulations (``modification,'' ``contracting agency,'' ``person,'' and
``construction''), and establishes a subdefinition for ``personal
property,'' which is not contained in the current regulations. (The
definition of the term ``agency'' in the current regulations--``any
contracting agency of the government''--has been deleted as
unnecessary; references to ``contracting agency'' have been substituted
in this proposal for references to ``agency'' wherever appropriate to
the context.) The relevant subdefinitions are made applicable to the
definition of ``subcontract'' at Sec. 60-250.2(l) as well. Under the
1980 final rule, the definition of ``Government contract'' contains a
clarification with regard to the coverage of personal property, which
is similar to, but less precise than, the clarification contained in
today's proposal.

Section 60-250.2(j) ``Contractor''

Currently, the term is defined as a prime contractor or
subcontractor; the proposal revises the definition to refer to a prime
contractor or subcontractor ``having a contract of $10,000 or more.''
Because the term ``contractor'' encompasses the term ``subcontractor,''
references to the latter term generally have been deleted from the
regulations by the proposal.

Section 60-250.2(k) ``Prime Contractor''

The proposal revises the definition of ``prime contractor'' to
incorporate a reference to persons holding a contract ``of $10,000 or
more.''

Section 60-250.2(l) ``Subcontract''

The proposal incorporates changes which conform the current
definition of ``subcontract'' to the proposed definition of
``Government contract'' (Sec. 60-250.2(i)); that is, as revised, the
definition references agreements for the ``purchase, sale or use of
personal property or nonpersonal services (including construction).''

Section 60-250.2(m) ``Subcontractor''

The proposed definition is substantially identical to the current
regulatory definition. The 1980 final rule's definition contains a
subdefinition of ``First-tier subcontractor.'' OFCCP no longer believes
that such a subdefinition is necessary.

Section 60-250.2(n) ``Special Disabled Veteran''

The current regulations (at Sec. 60-250.2) make reference to the
term ``disabled veteran'' rather than the term ``special disabled
veteran,'' which is employed by the proposal. ``Disabled

[[Page 50084]]

veteran'' is defined under current Sec. 60-250.2 as a person entitled
to disability compensation under laws administered by the Veterans
Administration for disability rated at 30 percent or more, or a person
whose discharge or release from active duty was for a disability
incurred or aggravated in the line of duty. The proposed definition
incorporates amendments to Section 4212 and the Act's definitional
section (42 U.S.C. 4211) which resulted in a change in terminology and
an expansion of the class of veterans protected under the Act. See the
Veterans' Rehabilitation and Education Amendments of 1980 (Pub. L. 96-
466, 94 Stat. 2207); the Veterans' Compensation, Education, and
Employment Amendments of 1982 (Pub. L. 97-306, 96 Stat 441); the
Veterans' Compensation and Program Improvements Amendments of 1984
(Pub. L. 98-223, 98 Stat. 43); and the Department of Veterans Affairs
Codification Act (Pub. L. 102-83, 95 Stat. 403).
The 1980 amendments substituted the term ``special disabled
veteran'' for ``disabled veteran'' and a reference to a service-
connected disability for the reference to a disability incurred or
aggravated in the line of duty. The 1982 amendments revised the
definition of ``special disabled veteran'' so as to include veterans
who are not in receipt of compensation from the Veterans Administration
because they have elected to receive military retirement pay in lieu
thereof. The 1984 amendments expanded the term to include veterans with
disability ratings of 10 or 20 percent. Finally, in order to reflect
the redesignation of the name of the Veterans' Administration, the 1991
amendments substituted a reference to laws administered by the
Secretary of the Department of Veterans Affairs--for the reference to
laws administered by the Veterans Administration. For the sake of
clarity, the proposal incorporates a subdefinition (at subparagraph
(2)) for the term ``serious employment handicap,'' which is derived
from the definition of the term contained in 38 U.S.C. 3101).

Section 60-250.2(o) ``Qualified Special Disabled Veteran''

Currently, the regulations define the term as one who is capable of
performing a particular job with reasonable accommodation. The proposal
parallels the counterpart definition (``qualified individual with a
disability'') contained in the Section 503 final rule, which was
modeled on the counterpart ADA definition. The proposal specifies that
one is ``qualified'' if he or she satisfies the job-related
requirements of the position held or sought, and can perform the
essential functions of the position with or without reasonable
accommodation. It should be noted that, with respect to the application
process, an applicant will be deemed qualified if he or she meets
eligibility requirements applicable to that process with or without
reasonable accommodation.

Section 60-250.2(q) ``Essential Functions''

The proposal incorporates the Section 503 definition of ``essential
functions,'' which states that the term refers to the fundamental job
duties, but not marginal functions, of the position in question. The
current regulations do not contain an analogous definition.

Section 60-250.2(r) ``Reasonable Accommodation''

The proposal incorporates a definition which parallels the Section
503 final rule definition. The current Section 4212 regulations do not
contain a definition of the term. However, the adoption of the
definition does not represent a change in OFCCP policy. Appendix A
should be consulted for general guidance on a contractor's duty to
provide reasonable accommodation.

Section 60-250.2(s) ``Undue Hardship''

The proposal adopts the Section 503 final rule definition, which
provides that ``undue hardship'' means a significant difficulty or
expense related to the provision of an accommodation, as determined in
light of specific enumerated factors, including the net cost of the
accommodation (after deducting available outside funding) and the
overall financial resources of the facility providing the accommodation
and of the contractor. Although ``undue hardship'' is not defined in
the current regulations, there is a reference to the concept in current
Sec. 60-250.6(d). That section, similar to the proposal, states that a
contractor must make a reasonable accommodation for a special disabled
veteran, unless such accommodation would impose an undue hardship, and
that the extent of the accommodation duty is determined based on such
factors as business necessity and financial cost. Thus, the proposed
definition is consistent with current OFCCP requirements.

Section 60-250.2(t) ``Qualification Standards''

The proposal adopts the definition set forth in the Section 503
final rule. The current regulations do not contain an analogous
definition, but the proposed definition does not represent a change in
current OFCCP policy.

Section 60-250.2(u) ``Direct Threat''

The definition found in the Section 503 final rule has been
incorporated. The definition states that a ``direct threat'' is a
significant safety or health risk--as determined based on an
individualized assessment in light of specified factors--that cannot be
eliminated or reduced by reasonable accommodation. The factors
considered include the duration of the risk, the nature and severity of
the potential harm, the likelihood that the potential harm will occur
and the imminence of the potential harm. OFCCP's current regulations do
not contain a parallel definition. However, OFCCP has relied on
essentially the same concept when applying its current regulations.
Section 60-250.6(c)(2) of the current regulations requires that when a
contractor uses a job qualification requirement which tends to screen
out special disabled veterans, the contractor shall demonstrate that
such requirement is consistent with business necessity and safe
performance of the job in question. In determining whether a particular
health or safety risk is sufficient to justify, consistent with the
requirements of that section, the exclusion of a special disabled
veteran from an employment opportunity, OFCCP currently considers
essentially the same factors (the likelihood, seriousness and imminence
of potential injury associated with the disability) as are set out by
the proposal.

Section 60-250.3 Exceptions to the Definitions of ``Special Disabled
Veteran'' and ``Qualified Special Disabled Veteran''

Paragraph (a)(1) establishes an exclusion from the Act's protection
with respect to alcoholics whose current use of alcohol prevents
performance of the essential functions of the job in question or which
would pose a direct threat to property or to health or safety. A
parallel exclusionary proviso is contained in the Section 503 final
rule at Sec. 60-741.3(a). This Section 503 provision was derived from
an amendment to the Rehabilitation Act by Section 512(a) of the ADA
providing that the terms ``individual with a disability'' and
``qualified individual with a disability'' do not include alcoholics
whose current alcohol use poses such a threat. The revision does not
represent a substantive change in the scope of protection for special
disabled veterans under Section 4212 or a change in OFCCP policy.
Rather, the proposal merely clarifies that when a special disabled
veteran's current

[[Page 50085]]

alcohol use would prevent performance of the essential functions of the
job in question or would pose a direct threat to property or to health
or safety, he or she is not protected under the statute. It is
axiomatic that such individuals would not be otherwise protected under
this proposal (and under the current regulations) because their alcohol
use either prevents performance of essential job functions, and thus
renders them ``unqualified'' (see definition of ``Qualified special
disabled veteran'' at Sec. 60-250.2(o)), or constitutes a direct threat
(see definition of ``Direct threat'' at Sec. 60-250.2(u) and Direct
threat defense at Sec. 60-250.22). Paragraph (a)(2) clarifies that the
contractor has the same obligation to provide a reasonable
accommodation for the mental and physical limitations of an alcoholic--
in an effort to enable the individual to perform the essential
functions of the job in question or to eliminate or reduce the direct
threat posed by an alcoholic's current use of alcohol--as the
contractor has with respect to any other disabling condition. OFCCP
believes that this provision is necessary to clarify that paragraph
(a)(1) does not create a blanket exclusion for all alcoholics whose
condition presents a direct threat.
Paragraph (b) establishes an exclusion from the Act's protection
with respect to currently contagious diseases or infections that is
analogous to the exclusion regarding alcoholics set forth in paragraph
(a)(1). The provision is patterned after a proviso set out in the
Section 503 final rule at Sec. 60-741.3(c) (which was derived from a
1988 amendment to the Rehabilitation Act by the Civil Rights
Restoration Act, Public Law 100-259, 29 U.S.C.A. 706(8)(D) (West Supp.
1992)). The proviso does not represent a substantive change in the
scope of protection under Section 4212 or a change in OFCCP policy.
Rather, it merely provides a clarification regarding the scope of
protection under the Act similar to that set out in paragraph (a)(1).
Paragraph (c)(2) sets out a clarification regarding a contractor's
duty to provide reasonable accommodation for a covered veteran with a
currently contagious disease or infection which is analogous to
paragraph (a)(2) above.
Today's proposal does not adopt the Section 503 final rule's
exclusion regarding illegal drug use (see Sec. 60-741.3(a) of those
regulations). That provision states that the terms ``individual with a
disability'' and ``qualified individual with a disability'' do not
include a person who is currently engaging in the illegal use of drugs,
when the contractor acts on the basis of such use. The language was
derived from an amendment to the definition section of the
Rehabilitation Act by Section 512(a) of the ADA (29 U.S.C.A.
706(8)(C)(i) (West Supp. 1992)) which significantly altered the
existing coverage provisions for drug users under Section 503. The
statutory amendment did not affect Section 4212, and OFCCP declines to
adopt an analogous regulatory exclusion with respect to Section 4212.

Section 60-250.4 Coverage and Waivers

Proposed paragraph (a)(1), which sets out the general monetary
jurisdiction requirement, is derived from existing Sec. 60-250.3(a)(1),
and is substantially identical to that section.
Proposed paragraph (a)(2), which relates to contracts for
indefinite quantities, is derived from existing Sec. 60-250.3(a)(2),
and is substantially identical to that section.
Proposed paragraph (a)(3) narrows the existing provision regarding
the applicability of Part 60-250 to work performed outside the United
States. The proposal is consistent with the Section 503 final rule. It
makes VEVRAA applicable only to employment activities within the United
States, which includes actual employment within the United States and,
in limited circumstances, decisions made within the United States
regarding employment abroad. Proposed paragraph (a)(4) is identical to
current Sec. 60-250.3(a)(4), and proposed paragraph (a)(5) is identical
to current Sec. 60-250.3(a)(5).
For the sake of clarity, proposed paragraph (b) consolidates
current Secs. 60-250.3(b)(1) and (3), which relate to waivers and
withdrawal of waivers, respectively. The portion of the paragraph
relating to the grant of waivers has been revised to permit the Deputy
Assistant Secretary for Federal Contract Compliance Programs to
unilaterally grant waivers in the national interest. Currently,
Sec. 60-250.3(b)(1) permits the head of an agency to grant such a
waiver with the concurrence of the Deputy Assistant Secretary. When
this provision was issued, enforcement responsibilities under the Act
were carried out by individual Federal compliance agencies as well as
by OFCCP. During this period, the granting of waivers was coordinated
between these compliance agencies and OFCCP. All compliance
responsibility was consolidated into OFCCP in 1978; accordingly, such a
requirement is no longer appropriate.
Proposed paragraph (b)(2), which relates to national security
waivers, is substantially identical to current Sec. 60-250.3(b)(2).
Paragraph (5) of the current rule, `` Facilities not connected with
contracts,'' has been integrated as subparagraph (b)(3) to provide
clarity and be consistent with Section 503.

Section 60-250.5 Equal Opportunity Clause

This section is derived from current Sec. 60-250.4. The current
heading for the section, ``Affirmative action clause,'' has been
revised to read ``Equal opportunity clause,'' in order to conform it
with the analogous provision contained in the Section 503 final rule
(Sec. 60-741.5) and the regulations implementing Executive Order 11246
(41 CFR 60-1.4). The heading for the clause itself has been revised to
reference ``Equal Opportunity'' rather than ``Affirmative Action.''
With respect to paragraph (a)1 (current paragraph (a)), the proposal
expands and reorganizes the listing of the prohibited types of
disability discrimination to conform to the parallel provisions in the
Section 503 final rule, which in turn, were derived from analogous
provisions in the EEOC ADA regulations (Sec. 1630.4). Further, in
contrast to the current paragraph (a), the proposal states that the
discrimination prohibition applies also to apprenticeship and on-the-
job training under 38 U.S.C. 3687. This provision, which is set out in
current Sec. 60-250.6(a) Affirmative action policy, practice and
procedures, is more properly included in the equal opportunity clause.
(The statutory citation has been revised to reflect an amendment which
resulted in its redesignation.)
Proposed paragraph (a)2, which is based on current paragraph (b),
provides that the contractor shall immediately list its employment
openings with the local office of the state employment service system.
In contrast to the proposal, current paragraph (b) states that the
contractor shall also provide other reports to such local office as may
be required. It is not possible to ascertain burden reduction since the
requirement was suspended by OMB on January 29, 1982 (47 FR 4258).
OFCCP has found that this additional reporting requirement is
unnecessary, and therefore, declines to carry the provision forward.
Further, current paragraph (b) exempts state and local government
agencies covered by Section 4212 from the reporting requirements set
out in paragraphs (d) and (e). As discussed below, the reporting
requirement in current paragraph (d) is not carried forward by this
proposal, and therefore, the reference to that requirement is omitted
from the proposed equal opportunity clause.

[[Page 50086]]

Proposed paragraph 3 is identical to current paragraph (c). Current
paragraph (d) is not carried forward by today's proposal. That
paragraph requires that the contractor file, on a quarterly basis,
reports with the state employment service system regarding the number
of disabled veterans and veterans of the Vietnam era that the
contractor hired during the reporting period. This provision was
suspended on January 29, 1982 (47 FR 4258) because the reporting
requirement had not been approved by OMB under the Paperwork Reduction
Act. The suspension was to remain in effect pending final action on the
Department's 1980 proposal to amend Part 60-250. A similar annual
reporting requirement is currently imposed on contractors covered under
Section 4212 pursuant to 41 CFR Part 61-250; that requirement is
administered by the Department's Office of the Assistant Secretary for
Veterans' Employment and Training. Accordingly, the requirements set
out in current paragraph (d) are no longer necessary.
Proposed paragraphs 4 and 5 are identical to current paragraphs (e)
and (f), with the exception of a few minor editorial changes. The
provisions of current paragraph (g) have been incorporated into
proposed paragraph 6. Proposed paragraphs 6 (i), (ii) and (iv), which
define terms used in connection with the mandatory listing requirement,
are identical to the current paragraphs (h) (1), (2) and (3), with the
exception of one minor editorial change. Proposed paragraph 6(iii),
which defines the term ``executive and top management,'' is new.
Section 702 of the Veterans' Benefits Improvements Act of 1994, Public
Law 103-446, permits the exemption of the contractor's ``executive and
top management'' positions from the mandatory job listing requirement.
Our proposed definition of ``executive and top management'' is based
upon the definition of ``executive'' found in the regulations
implementing the Fair Labor Standards Act, 29 CFR 541.1, except that we
do not propose to adopt the compensation levels specified in subsection
(f) of that regulation. Proposed paragraphs 7, 8, 10 and 11, which set
out additional contractor requirements, are substantially identical to
current paragraphs (i) through (m), respectively, with the exception of
a number of editorial changes. For instance, proposed paragraph 10
(current paragraph (l)) makes reference to a ``labor organization''
rather than to a ``labor union.''
Proposed paragraph 9, regarding contractor posting of notices, is
similar to current paragraph (k). In conformance with the final Section
503 rule, the posting requirement specifically commits the contractor
to ensure that the notices are accessible to applicants and employees
who are special disabled veterans. A contractor may make these notices
accessible, for example, by having the notice read to a visually
disabled individual or by lowering the posted notice so that it may be
read by a person in a wheelchair.
Further, current Secs. 60-250.20 to 60-250.24 have been
consolidated (without substantive change) into this section as
paragraphs (b)-(f), respectively. These provisions, which relate to the
equal opportunity clause, are more logically included here than as
separate sections. Proposed paragraph (d) provides that the contractor
may make the equal opportunity clause a part of the contract by simply
citing to Sec. 60-250.5. In contrast, current Sec. 60-250.22 states
that the equal opportunity clause may be incorporated into the contract
by reference. The intent of the proposal is to clarify the current
requirement. The proposal does not use the term ``incorporation by
reference,'' inasmuch as the regulations of the Office of Federal
Register at 1 CFR Part 51 preclude the use of the term in this context.

Subpart B--Discrimination Prohibited

Section 60-250.20 Covered Employment Activities

This section, which lists various types of employment practices to
which Part 60-250 applies, is substantially identical to Sec. 60-741.20
of the Section 503 final rule. In turn, the Section 503 regulation is
patterned after Sec. 1630.4 of the EEOC regulations. The current
Section 4212 regulations contain a similar, but less detailed, listing
in the affirmative action clause (Sec. 60-250.4(a)).

Section 60-250.21 Prohibitions

This section, which sets out in detail the various types of
prohibited discriminatory practices, parallels the Section 503 final
rule (Sec. 60-741.21), which, in turn, generally adopts and
consolidates the EEOC regulations at Sec. 1630.5 through 1630.11. A
number of the prohibitions set out in this section are paralleled in
the current Section 4212 regulations or are implicit from those
regulations. However, the analogous existing provisions are organized
under the rubric of ``affirmative action policy, practices, and
procedures'' (Sec. 60-250.6). As noted above, today's proposal
reorganizes the regulations so as to clearly define which obligations
are components of the affirmative action program requirement, and thus
applicable only to contractors that employ 50 or more persons and hold
a contract valued at $50,000 or more (see discussion of Subpart C
below).
The introductory sentence of this section, which states that
``discrimination'' includes the acts described in proposed Secs. 60
250.21 and 60-250.23, is patterned after the final sentence of
Sec. 1630.4 of the EEOC regulations. Paragraph (a), which sets out a
general prohibition regarding disparate treatment discrimination, is
patterned after Sec. 60-741.21(a) of the Section 503 regulations. The
Section 503 final rule has no direct counterpart in the EEOC
regulations, but rather was proposed to clarify that disparate
treatment is one form of prohibited discrimination under those
regulations. Paragraphs (b) through (h), which specify other types of
prohibited discrimination, are new to the Section 4212 regulations and
parallel their EEOC and Section 503 final rule counterparts, except as
discussed below.
Proposed paragraph (f)(1), which provides that it is unlawful to
fail to make reasonable accommodation, unless the contractor can
demonstrate an undue hardship, is substantially similar to current
Sec. 60-250.6(d). As stated in the discussion in the EEOC's
interpretative guidance appendix, the contractor is not required to
provide a reasonable accommodation unless the special disabled veteran
informs the contractor that an accommodation is needed. However, if an
employee who is a known special disabled veteran is having difficulty
performing his or her job, the contractor may inquire whether the
employee is in need of a reasonable accommodation. (This contrasts with
the duty of a contractor covered by the written affirmative action
program requirement; such a contractor must inquire about the need for
an accommodation in that circumstance. See proposed Sec. 60-250.44(d).)
Further, although proposed paragraph (f)(2), which states that it is
unlawful to deny employment opportunities based on the need to make a
reasonable accommodation, is not paralleled in the current regulations,
that obligation is implicit in current Sec. 60-250.6(d).
The first sentence of proposed paragraph (g)(1)--which prohibits
the use of selection criteria that screen out special disabled veterans
or veterans of the Vietnam era, unless the selection criteria are shown
to be job-related and consistent with business necessity--is
essentially the same as the requirements contained in parallel
provisions of the Section 503 final rule (Sec. 60-741.21(g)(1)) and the
EEOC regulation (Sec. 1630.10), as well as the current VEVRAA
regulation

[[Page 50087]]

(Sec. 60-250.6(c)(2)). The last sentence in that paragraph, which
limits the purposes for which a contractor may rely on a covered
veteran's military record, is substantially similar to language
contained in current Sec. 60-250.6(b). Paragraph (g)(2) provides that
the Uniform Guidelines on Employee Selection Procedures (which, among
other things, set out certain requirements for validating employee
selection procedures which adversely affect particular race, sex or
ethnic groups) do not apply to Part 60-250. An analogous statement is
made by EEOC in its appendix discussion of the parallel EEOC regulation
(Sec. 1630.10).
Paragraph (h) requires that the contractor administer employment
tests to eligible applicants or employees with impaired sensory,
manual, or speaking skills in a format that does not require the use of
the impaired skills, unless such skills are the factors that the test
purports to measure. This provision is substantially identical to the
counterpart provision in the Section 503 final rule, which, in turn, is
derived from Sec. 1630.11 of the EEOC regulations.
Paragraph (i), compensation, is derived from current Sec. 60-
250.6(e), and (with the exception of some editorial changes) is
substantially similar to that section.

Section 60-250.22 Direct Threat Defense

This section clarifies that a contractor may exclude from
employment opportunities persons who cannot perform essential functions
without posing a direct health or safety threat to themselves or
others. This provision is substantially identical to the parallel
provision in the Section 503 final rule (Sec. 60-741.22), which is
derived from, and substantially similar to, Sec. 1630.15(b)(5) of the
EEOC regulations.

Section 60-250.23 Medical Examinations and Inquiries

This section incorporates the Section 503 final rules' provisions
regarding prohibited and permitted medical examinations and inquiries
(Sec. 60-741.23), which, in turn, are patterned after the counterpart
provisions in the EEOC's regulations (Secs. 1630.13 and 1630.14).
The provisions contained in this section generally have no
counterpart in the current Section 4212 regulations. In some cases, the
provisions in this section significantly contrast with the current
regulations. In this regard, proposed paragraph (b)(2) permits the
contractor to require an employment entrance medical examination or
inquiry after making an offer of employment to a job applicant and to
condition an offer of employment on the results of such an examination
or inquiry if all similarly situated employees are subjected to such an
examination or inquiry, and proposed paragraph (b)(3) permits a
contractor to require a job-related medical examination or inquiry of
an employee. Proposed paragraph (b)(5) specifies that examinations
conducted pursuant to paragraph (b)(2) need not be job-related;
however, if a special disabled veteran is screened out from an
employment opportunity as a result of such examination or as the result
of another examination, the contractor must demonstrate that the
exclusionary criteria are job-related and consistent with business
necessity. In contrast, the current Section 4212 regulations do not
limit the use of medical examinations to the post-employment-offer
context or require that examinations or inquiries of employees be job-
related. Rather, current Sec. 60-250.6(c)(3) states that a contractor
may conduct a pre-employment medical examination, provided that the
results of such examination are used consistently with other
requirements in Sec. 60-250.6 (Affirmative action policy, practices,
and procedures). However, similar to proposed paragraph (b)(5), current
Sec. 60-250.6(c)(2) provides that the contractor may not use physical
or mental qualification requirements to screen out qualified disabled
veterans, unless such requirements are shown to be job-related and
consistent with business necessity.
Proposed paragraph (c), Invitation to self-identify, references
Sec. 60-250.42, which specifies that a contractor shall invite
applicants to self-identify as being covered by the Act and wishing to
benefit under the affirmative action program. Proposed paragraph (d)
specifies, with certain limited exceptions, that information obtained
under this section shall be kept confidential.

Section 60-250.24 Drugs and Alcohol

Proposed paragraph (a), which sets out permitted types of
contractor practices relating to the regulation of workplace drug and
alcohol use, and proposed paragraph (b), which governs the permissible
use of drug testing, are identical to the revised Section 503
regulation (60-741.24), which, in turn, is patterned after the EEOC
regulations at Secs. 1630.16(b) and (c), respectively. As discussed
below, paragraphs (a) and (b) contain minor technical changes (as well
as a number of editorial changes) from the EEOC rule. This section is
not paralleled by any provisions contained in the current Section 4212
regulations. Sections 1630.16(b)(5) and (6) of the EEOC regulations
state that employees may be required to comply with the regulations of
the Departments of Defense and Transportation and of the Nuclear
Regulatory Commission regarding alcohol and drugs. In contrast,
proposed paragraphs (a)(5) and (a)(6) state that employees also may be
required to comply with similar regulations of other Federal agencies.
Paragraph (b)(3) states that any medical information obtained from
a drug test, except information regarding the illegal use of drugs, is
subject to the requirements of Secs. 60-250.23(b)(5) and (d). In turn,
proposed Sec. 60-250.23(b)(5) states that the contractor must
demonstrate that criteria which are used to screen out special disabled
veteran applicants or employees are job-related and consistent with
business necessity; and proposed Sec. 60-250.23(d) provides for certain
confidentiality requirements with regard to medical information. The
parallel EEOC regulation (Sec. 1630.16(c)(3)) fails to reference
medical confidentiality requirements, but the EEOC appendix discussion
regarding the section notes that the information in question should be
treated as a confidential medical record.

Section 60-250.25 Health Insurance, Life Insurance and Other Benefit
Plans

Proposed paragraphs (a), (b), (c) and (e) of this section provide
that the contractor may administer benefit plans in a manner which is
not inconsistent with state law, or administer a benefit plan that is
not subject to state laws that regulate insurance, provided that such
activities are not used as a subterfuge to evade the purposes of Part
60-250. These provisions are substantially identical to the Section 503
final rule at Sec. 60-741.25. Paragraphs (a), (b), (c) and (e) of those
regulations, in turn, are patterned after EEOC's regulations at
Sec. 1630.16(f)(1)-(f)(4), respectively. Proposed paragraph (d), which
provides that the contractor may not deny a qualified special disabled
veteran equal access to insurance based on disability alone if the
disability does not pose increased risks, is derived from the EEOC
appendix discussion regarding Sec. 1630.16(f).

Subpart C--Affirmative Action Program

Subpart C is derived from Secs. 60-250.5 (Applicability of the
affirmative action program requirement) and 60-250.6 (Affirmative
action policy, practice, and procedures) of the current Section 4212
regulations. This subpart revises and reorganizes those sections to
incorporate only obligations which are applicable to

[[Page 50088]]

contractors with a written affirmative action program requirement,
i.e., those that employ 50 or more employees and hold a contract of
$50,000 or more. See proposed Sec. 60-250.40(a). Provisions currently
in Sec. 60-250.6 that are applicable to all covered contractors have
been incorporated into proposed Subparts B (Discrimination Prohibited)
or E (Ancillary Matters).

Section 60-250.40 Applicability of the Affirmative Action Program
Requirement

Paragraph (a), which has no parallel in the current Section 4212
regulations, clarifies the application of the requirements of Subpart
C. Paragraphs (b) and (c)--which specify the contractor's duties with
regard to the preparation and maintenance of its affirmative action
program (AAP), and the updating of its AAP, are derived from current
Secs. 60-250.5(a) and (b), respectively. Minor clarifying changes or
organizational changes have been made with respect to these provisions.
For instance, current Sec. 60-250.5(a) states that the AAP shall set
forth the contractor's policies, practices and procedures ``in
accordance with Sec. 60-250.6 of this part.'' The reference to this
particular section has been omitted to clarify that the contractor's
AAP should address all relevant practices under Part 60-250, not only
those that relate to this particular section. Current Sec. 60-250.5(a)
also states that contractors presently holding contracts shall update
their AAPs within 120 days of the effective date of Part 60-250. This
provision has been incorporated into a separate effective date section
(Sec. 60-250.86). Current Sec. 60-250.5(d), which sets out the ``self-
identification'' procedures, has been incorporated with revisions at
proposed Sec. 60-250.42.
Paragraph (d) states that the contractor shall generally submit its
AAP within 30 days of a request by OFCCP and that it shall also make
the document promptly available on-site upon such request. These
provisions, which are not contained in the current regulations, have
been included in order to help ensure that OFCCP has access to the
contractor's AAP as soon as needed.

Section 60-250.41 Availability of Affirmative Action Program

With the exception of some stylistic differences, this section,
which provides that the AAP shall be available to any applicant or
employee at a location and time which shall be posted at each
establishment, is identical to current Sec. 60-250.5(c).

Section 60-250.42 Invitation to Self-identify

On ____________, 1996, OFCCP published (______ F.R. ______) an
interim rule amending Sec. 60-250.5(d) of the current regulations
relating to invitations to self-identify. The purpose of the interim
rule was to conform the invitation to self-identify requirement under
VEVRAA with the requirement contained in the new Section 503 final rule
(______ F.R. ______).
This proposal mirrors the VEVRAA interim rule and the Section 503
final rule. Paragraph (a) requires the contractor, after making an
offer of employment and before the applicant begins his or her
employment duties, to invite applicants to self-identify in order to
benefit from the contractor's affirmative action program. In addition,
under paragraphs (b) and (c) a pre-offer invitation is permitted only
in two limited circumstances: if the invitation is made when the
contractor actually is undertaking affirmative action at the pre-offer
stage; and if the invitation is made pursuant to a Federal, state or
local law requiring affirmative action for special disabled or Vietnam
era veterans. This approach is consistent with Sec. 1630.14(b) of the
EEOC's regulations, and the EEOC's October 10, 1995, ``ADA Enforcement
Guidance: Preemployment Disability-Related Questions and Medical
Examinations.''
Paragraph (d) of the proposed rule requires that the invitation
inform the individual that the request to benefit under the
contractor's affirmative action program may be made immediately or at
any time in the future. This is intended to help ensure that the
individual is aware that he or she is not precluded from making the
request at any time in the future merely because an initial request was
made or because he or she failed to make the request immediately in
response to the invitation. For example, a special disabled veteran
simply may not choose to self-identify before beginning work, but may
wish to do so later.
The contractor may develop its own invitation for this purpose,
although an acceptable form of such invitation is set forth in Appendix
B.

Section 60-250.43 Affirmative Action Policy

This section, which sets out the contractor's fundamental
affirmative action obligations, clarifies that such obligations include
a duty to refrain from discrimination; that the contractor is required
to take affirmative action efforts with respect to all levels of
employment, including the executive level; and that such requirements
apply to all employment activities. This provision is substantially
similar to current Sec. 60-250.6(a) (which does not contain the
reference to the prohibition against discrimination). The remaining
paragraphs of current Sec. 60-250.6 are comprised of the specific
required affirmative action policy, practices and procedures. As
discussed below, these provisions have been incorporated with
modification into proposed Sec. 60-250.44.

Section 60-250.44 Required Contents of Affirmative Action Programs

The provisions contained in this section were derived from existing
Sec. 60-250.6, and have been organized, as stated in this section's
introductory sentence, to set out the minimum required AAP ingredients.
Although a number of the requirements are also applicable to
contractors that do not have a written AAP obligation, i.e., those
contractors that do not employ 50 or more employees and hold a contract
of $50,000 or more, all requirements applicable to AAP contractors are
included in this section for the sake of clarity. In addition, this
section sets out suggested affirmative action activities that the
contractor is encouraged to undertake in order to comply with the
specified minimum affirmative action requirements. The contractor has
discretion in undertaking these suggested activities or other
activities in satisfying the mandatory requirements. In some cases,
obligations that are not mandatory under the current regulations have
been made mandatory in this proposal and vice versa.
Paragraph (a) states that the contractor's AAP shall include an
equal opportunity policy statement and specifies the contents--both
suggested (relevant information about the contractor's policy) and
required (notification that the contractor is obligated, as specified
in proposed Sec. 60-250.69, to refrain from harassment or
intimidation). The proposal is intended as a clarification of an
existing regulatory provision. Current Sec. 60-250.6(g) states that the
contractor should adopt, implement and disseminate an equal opportunity
policy (through various enumerated methods), but does not expressly
require that it be included in the contractor's AAP or indicate what
should be contained in the statement.
With the exception of its third sentence, paragraph (b), which
specifies that the contractor must ensure that its personnel processes
provide for careful consideration of the job qualifications of known
special disabled veterans or veterans of the Vietnam era, is
substantially similar to existing Sec. 60-

[[Page 50089]]

250.6(b). The third sentence of the paragraph, which states that the
contractor shall ensure that its personnel processes are free from
stereotyping, is derived from current Sec. 60-250.6(i)(2), except that
the requirement is made mandatory in the proposal, and is a suggested
method of compliance in the current regulation. OFCCP believes that
this requirement is central to the Act's affirmative action obligation,
and therefore should be mandatory.
Paragraphs (c)(1) and (2) are substantially similar to current
Secs. 60-250.6(c)(1) and (2), respectively. Like current Sec. 60-
250.6(c)(1), proposed paragraph (c)(1) requires that the contractor
periodically review all physical and mental job qualification standards
to ensure that qualification standards that tend to screen out special
disabled veterans are job-related for the position in question and
consistent with business necessity. In contrast to the proposal, the
current regulation also states that such standards must be consistent
with safe performance of the job. It is unnecessary to incorporate the
reference to ``safe performance'' in the proposal because that concept
is subsumed by the concept of business necessity. Proposed paragraph
(c)(1), also in contrast with the current regulation, clarifies that
the contractor must ensure that such exclusionary job standards concern
essential functions of the job in issue. This clarification is based on
the counterpart provision in the Section 503 final rule (Sec. 60-
741.44(c)(1)), which, in turn, is based on the EEOC's interpretation of
analogous requirements under the ADA. (See the discussion regarding
Sec. 1630.10 in the appendix to the ADA's regulations.) Proposed
paragraph (c)(2) requires that the contractor demonstrate that its use
of physical or mental selection standards which tend to screen out
qualified special disabled veterans is job-related and consistent with
business necessity. This paragraph contains the same type of
modifications that have been incorporated into proposed paragraph
(c)(1).
Paragraph (c)(3) incorporates, for the sake of clarity, a statement
similar to the statement in proposed Sec. 60-250.22 that the contractor
may exclude from employment opportunities persons who pose a direct
threat to health or safety.
Paragraph (d) requires the contractor to make reasonable
accommodation for a known otherwise qualified special disabled veteran,
unless it can demonstrate an undue hardship on the operation of its
business. The proposal is similar to current Sec. 60-250.6(d) (first
sentence), except that it clarifies that the accommodation duty is owed
only to an ``otherwise qualified'' special disabled veteran. As stated
in proposed Appendix B, a special disabled veteran is ``otherwise
qualified'' if he or she is qualified for a job, except that, because
of a disability, he or she needs a reasonable accommodation to be able
to perform the job's essential functions. The second sentence of the
current regulation, which sets out factors that are relevant to the
determination of the extent of the contractor's accommodation
obligation, is not incorporated in proposed paragraph (d). A similar
more detailed listing of factors is included in the proposed definition
of ``undue hardship'' (Sec. 60-250.2(s)(2)). Proposed paragraph (d)
also requires that where an employee who is a known special disabled
veteran is having difficulty performing his or her job and it is
reasonable to conclude that the performance problem may be related to
the known disability, the contractor shall confidentially inquire
whether the employee is in need of a reasonable accommodation. The
current regulations do not contain a parallel provision. This
requirement is an essential component of the contractor's affirmative
action duty. Absent such a requirement, the contractor would be free to
take adverse action against a known special disabled veteran (who might
be otherwise qualified) merely because the veteran failed to request an
accommodation. A special disabled veteran who is in need of an
accommodation may fail to seek out an accommodation for any number of
reasons; for instance, he or she may not perceive the need for an
accommodation or may be unaware of his or her right to obtain an
accommodation. Because the provision applies only to an employee the
contractor knows to be a special disabled veteran (that is, in the
situation where it is reasonable to conclude that a performance problem
may be related to a veteran's disability) and does not require the
contractor to speculate about the need for accommodation in equivocal
situations, OFCCP believes that it fairly balances the rights of both
the veteran and employer.
Paragraph (e) provides that the contractor must develop procedures
to ensure that its employees are not harassed because of their
disability or Vietnam era veteran status. The current regulations, at
Sec. 60-250.6(h)(1)(ii), contain a similar provision which is not
mandatory (supervisors ``should'' be advised that the contractor is
obligated to prevent harassment). Upon reconsideration, OFCCP believes
that harassment is a sufficiently important issue to warrant mandatory
affirmative steps to ensure that it does not occur.
Paragraph (f) provides that the contractor has a duty to take
actions such as outreach and recruitment activities to effectively
recruit special disabled veterans and veterans of the Vietnam era as
are appropriate in light of the circumstances, including the
contractor's size and resources and the extent to which existing
practices are adequate. The paragraph also sets out a listing of
appropriate activities that contractors should take in this regard, and
specifies that the contractor has discretion in undertaking these or
other activities. This section is generally consistent with current
Sec. 60-250.6(f), but incorporates a number of clarifying
modifications. Some of the suggested outreach and recruitment
activities listed in the current regulations concern policies regarding
the internal dissemination of the contractor's policy, and therefore
have been incorporated into proposed Sec. 60-250.44(g), which addresses
that subject.
Also, the proposal consolidates into paragraph (f) (without
substantive change) some portions of current Sec. 60-250.6(f) (positive
recruitment and external dissemination of policy), and Sec. 60-250.6(i)
(development and execution of AAPs). Proposed paragraph (f)(1), which
states that the contractor should obtain assistance from specified
types of recruitment sources, is derived from current Sec. 60-
250.6(f)(4). That provision has been edited for clarity and references
to recruitment sources have been updated. Proposed paragraph (f)(2),
which states that the contractor should conduct formal briefing
sessions with recruitment source representatives, is derived from
current Sec. 60-250.6(i)(4). Proposed paragraph (f)(3), which relates
to recruitment efforts at educational institutions, consolidates
current Secs. 60-250.6(i)(7) and (8). Proposed paragraph (f)(5), which
specifies that special disabled veterans and veterans of the Vietnam
era should participate in outreach and recruitment activities, is based
on current Secs. 60-250.6(i)(6).
Proposed paragraph (f)(8) establishes a new suggested recruitment
activity (which parallels Sec. 60-741.44(f)(7) of the Section 503 final
rule) that has no counterpart in the current regulations. That
paragraph states that the contractor, in making hiring decisions,
should consider applicants who are known special disabled veterans or
veterans of the Vietnam era for other positions for which they may be
qualified when the position applied for is unavailable. OFCCP believes
that such a practice will be effective in helping to maximize the
employment

[[Page 50090]]

opportunities of special disabled veterans and veterans of the Vietnam
era. In many cases, the consideration of applicants for such
alternative jobs will not place any added burdens on the contractor's
personnel system (because, for instance, that practice is already
standard for applicants in general). Indeed, this practice may
frequently benefit a business inasmuch as it can obviate the need to
seek additional qualified candidates.
Proposed paragraph (g)(1), which sets out requirements which are
complementary to proposed paragraph (f), states that the contractor
must develop internal procedures to assure supervisory, management and
other employee cooperation and participation in the contractor's
efforts to implement its affirmative action obligation. Like paragraph
(f), paragraph (g)(2) lists suggested procedures that the contractor
should undertake to communicate its affirmative action obligation
internally. For the most part, the provisions in these paragraphs are
derived from existing Sec. 60-250.6(g). However, in contrast to the
proposal, that section provides that the contractor's duty to engage in
internal dissemination activities is not mandatory. Upon
reconsideration, OFCCP concludes, as stated in proposed paragraph
(g)(1) itself, that the contractor's outreach program will not be
effective without internal support, which, in turn, requires that the
contractor engage in reasonable efforts to disseminate its affirmative
action policy to all employees. Accordingly, OFCCP believes that the
internal communication duty should be mandatory. Further, paragraph
(g)(1) incorporates a clarification (like that contained in proposed
paragraph (f)) that the scope of the contractor's efforts shall depend
on all the relevant circumstances.
Moreover, as noted above, relevant provisions from current Sec. 60-
250.6(f) are consolidated (without substantive change) into this
paragraph as well: proposed paragraph (g)(1) combines provisions from
current Secs. 60-250.6(f)(1) and (g) (introductory sentence). Proposed
paragraph (g)(2)(ii), which states that the contractor should inform
all employees and prospective employees of its affirmative action
policy and schedule employee meetings to discuss the policy, is derived
from current Secs. 60-250.6(f)(3) and (g)(4). Current Sec. 60-
250.6(g)(9) states that the contractor, as a suggested internal
dissemination procedure, should post its affirmative action policy,
including a statement that employees and applicants who are special
disabled veterans are protected from disability-related harassment, on
company bulletin boards. Today's proposal incorporates this provision
as a mandatory requirement at Sec. 60-250.44(a).
Paragraph (h), which requires the contractor to implement an audit
system to measure the effectiveness of its AAP and to undertake
necessary action to bring its program into compliance, is derived
(without substantive modification) from current Sec. 60-250.6(h)(3)
(where the provision is set out as one of several specified
responsibilities of the contractor's affirmative action manager). In
contrast to the current regulation, today's proposal sets out the
provision as a separate subsection in order to emphasize its
importance. Further, the proposal clarifies that the requirement is
mandatory.
Paragraph (i) provides that the contractor shall designate an
official of the company as an affirmative action manager and provide
that individual with necessary top management support and staff. This
provision is derived from current Sec. 60-250.6(h). In view of the
importance of designating an official as responsible for the
implementation of the contractor's AAP, the proposal, in contrast to
the current regulation, provides that the contractor's duty in this
regard is mandatory. Additionally today's proposal does not incorporate
the current regulation's listing of activities in which the affirmative
action manager should engage, inasmuch as such a listing would
unnecessarily duplicate other provisions contained in the proposal.
Paragraph (j), which is based on current Sec. 60-250.6(i)(3),
requires the contractor to train all employees involved in the
personnel process to ensure that the contractor's AAP commitments are
implemented. Because of the importance of this requirement, the
proposal, in contrast to the current regulations, specifies that it is
mandatory and sets it out as a separate subsection.

Subpart D--General Enforcement and Complaint Procedures

As stated above, this subpart expands the current provisions
contained in Subpart B of the current regulations and conforms many of
those provisions to the parallel provisions contained in the
regulations implementing Executive Order 11246 (41 CFR Part 60-1,
Subpart B), which have been incorporated in the Section 503 final rule.
Upon careful consideration, OFCCP has concluded that in the specific
instances where the regulations are conformed there is no reason to
apply different procedures under the Act, the Executive Order or
Section 503. Further, this subpart incorporates one stylistic change
throughout. The current regulations in some instances make reference to
violations of (or compliance with) the affirmative action clause (i.e.,
equal opportunity clause) and/or to violations of (or compliance with)
the Act or this part. For the sake of consistency, the proposal
generally makes reference to violations (or compliance with) ``the Act
or this part.''
OFCCP recognizes that differences and disputes about the
requirements of the Act and the regulations may arise between
contractors and special disabled veterans and veterans of the Vietnam
era as a result of misunderstandings. Such disputes frequently can be
resolved more effectively through informal negotiation or mediation
procedures, rather than through the formal enforcement process set out
in the regulations. Accordingly, OFCCP will encourage efforts to settle
such differences through alternative dispute resolution, provided that
such efforts do not deprive any individual of legal rights under the
Act or the regulations. (See the Department of Labor's policy on the
use of alternative dispute resolution. 40 FR 7292, Feb. 28, 1992.)

Section 60-250.60 Compliance Reviews

Paragraph (a) of this section clarifies existing regulatory
authority for OFCCP to conduct compliance reviews with regard to
contractors' implementation of their affirmative action obligations,
and provides that the review shall consist of a comprehensive analysis
of all relevant practices, and that recommendations for appropriate
sanctions shall be made. Paragraph (b) specifies that where
deficiencies are found, reasonable conciliation efforts shall be made
pursuant to Sec. 60-250.62. Paragraph (c) provides that, during a
compliance review, OFCCP will verify whether the contractor has
properly filed its annual Veterans' Employment Report (VETS-100) with
the Assistant Secretary for Veterans' Employment and Training (OASVET)
(as required under 41 CFR Part 61-250), and that OFCCP will notify
OASVET if the contractor has not done so.
Paragraphs (a) and (b) have no parallel in the current section 4212
regulations, but are generally patterned after selected portions of the
compliance review provisions of the regulations implementing Executive
Order 11246 (41 CFR 60-1.20(a) and (b), respectively). However, the
statement

[[Page 50091]]

authorizing OFCCP to conduct compliance reviews in proposed paragraph
(a), which is included for the sake of clarity, is a new provision and
is not contained in the Executive Order regulations. Proposed
paragraphs (a) and (b) are consistent with OFCCP's existing authority
under Section 4212 and Sec. 60-250.25 of the current regulations, and
with current OFCCP practice.
Proposed paragraphs (a) and (b) are generally consistent with the
relevant provisions of the 1980 final rule at Sec. 60-1.20. The final
rule, however, does not contain an express statement regarding OFCCP's
authority. Further, in contrast to the proposal, the 1980 final rule,
in Secs. 60-1.20(a) and (b), discusses various technical internal
agency procedures regarding the conduct of compliance reviews (e.g.,
noting in paragraph (a) that compliance reviews normally are conducted
in three stages). Upon further consideration, OFCCP has determined that
it is unnecessary to incorporate these procedural statements into
today's proposal.
Moreover, today's proposal does not adopt the 1980 final rule's
preaward compliance reviews provision (Sec. 60-1.21), which is
essentially a modified version of the preaward procedures contained in
the Executive Order regulations (Sec. 60-1.21(d)). The current Section
4212 regulations do not contain a similar provision. In substance, the
1980 final rule would have required that all prospective
nonconstruction contractors and subcontractors seeking contracts
exceeding $1 million be subject to a compliance review under the Act
before the award of the contract. The 1980 final rule also would have
specified criteria that OFCCP should apply in establishing priorities
for the conduct of preaward reviews, and would have established
requirements regarding the clearance of the contract. OFCCP has
determined not to adopt a preaward compliance review procedure in
today's proposal because it believes, upon reconsideration, that the
diversion of necessary resources to support such a compliance
initiative would unduly impair its ability to effectively conduct other
compliance activities.
Paragraph (c) has no parallel in the current regulations. The
proposal, however, reflects current OFCCP practice.

Section 60-250.61 Complaint Procedures

Paragraph (a), a provision not paralleled in the current
regulations, cross-references OFCCP's and EEOC's procedural regulations
at 41 CFR Part 60-742 which govern the processing of complaints
cognizable under both Section 503 and the ADA, and specifies that
complaints filed under Part 60-250 that are cognizable under Section
503 and the ADA will be processed in accordance with those regulations.
All other procedural provisions contained in paragraphs (b) through (f)
of this proposed section shall be applicable with regard to the
processing of such complaints as well. The procedural regulations
require, among other things, that OFCCP (acting as EEOC's agent)
process and resolve complaints of employment discrimination based on
disability for purposes of the ADA (as well as for Section 503) when
there is jurisdiction under both statutes. In doing so, OFCCP is
required to apply legal standards which are consistent with the
substantive legal standards applied under the ADA. (It should be
understood that OFCCP has no enforcement authority under the ADA beyond
that specified in the procedural regulations.) The purpose of the
proposal is to ensure that an aggrieved individual's rights under the
ADA are preserved, including the right to file a private lawsuit.
(Section 4212 does not provide for a private right of action. The
complaint procedures provide the only means by which an individual may
seek redress for a violation of the Act.)
The proposal drops the provision in current Sec. 60-250.25 that the
Director of OFCCP shall be primarily responsible for the investigation
of complaints and other matters as necessary to ensure the effective
enforcement of the Act. The intent of this provision, which was
included in the regulations prior to the delegation of all compliance
authority under Section 4212 to OFCCP, was to ensure that OFCCP had
primary control with regard to the administration of the Act. The
provision is no longer necessary. The 1980 final rule would have
established similar provisions in Sec. 60-1.27 to state that the
Director may assume jurisdiction over any matter when necessary to the
enforcement of Section 4212, and that the Director may reconsider any
pending matter under the Act. OFCCP concludes that these provisions are
unnecessary, and thus declines to incorporate them in today's proposal.
Further, the provision from the 1980 final rule (Sec. 60-1.48) that
states that a contractor which has complied with the recommendations or
orders of OFCCP which it believes to be erroneous may request a hearing
and review of the alleged erroneous action, is unnecessary and is not
carried forward. That provision relates to preaward compliance reviews
(specifically, it is a means by which a contractor can avoid a contract
``pass over'' while still contesting OFCCP's review findings) and is
not needed because, as stated above, OFCCP will not be conducting
preaward reviews under the Act.
Paragraph (b), which is derived from current Sec. 60-250.26(a),
specifies that a person may, personally or by an authorized
representative, file a written complaint alleging an individual or
class-wide violation of the Act or the regulations within 300 days of
the alleged violation with OFCCP (at a specified location) or with the
Veterans' Employment and Training Service (VETS) directly or through
the Local Veteran's Employment Representative (LVER) or his or her
designee at the local state employment service office. The provision
also specifies that such parties will assist veterans in preparing
complaints and will promptly refer them to the OFCCP. In contrast to
the proposal, current Sec. 60-250.26(a) provides that an individual may
file a complaint only with VETS (current Sec. 60-250.26(a) is otherwise
identical in substance to the proposal with regard to the
responsibilities of LVERs and the state employment service). OFCCP's
proposal is based on an amendment to the complaint procedure set out in
Section 4212(b) by section 509 of the Veterans' Rehabilitation and
Education Amendments of 1980. Public Law 96-466, 94 Stat. 2207. The
amendment deleted from Section 4212(b) a provision that specified that
complaints may be filed with the Veterans' Employment Service and
promptly referred to the Secretary of Labor, and substituted a
provision that specifies that complaints may be filed with the
Secretary, who shall promptly investigate such complaints and take
appropriate action. The intent of this amendment was to permit the
Secretary of Labor the flexibility to designate a representative, in
addition to VETS, to receive complaints directly from aggrieved
individuals. See H.R. Rep. No. 1154, 96th Cong., 2d Sess. 77 (1980).
The Department has determined, in view of OFCCP's current role in
processing complaints, that the agency should act in that capacity.
(The Secretary previously delegated authority for enforcement of
Section 4212 to the Department's Employment Standards Administration,
the parent agency of OFCCP. 52 FR 48466, December 22, 1987.)
The current regulation requires that the complaint be filed within
180 days of the alleged violation, and does not indicate the location
where the complaint should be filed. The proposal adopts a 300-day
filing deadline, which

[[Page 50092]]

is consistent with the complaint-filing deadline in the Section 503
final rule. The current provision, unlike the proposal, does not
specify the office at which the complaint may be filed. The location
for filing is included to assist the complainant.
Further, the proposal does not incorporate the internal review
procedure contained in current Sec. 60-250.26(b) or in the 1980 final
rule (Sec. 60-250.23(f)). The current regulation provides that, when an
employee of a contractor files a complaint, and the contractor has an
internal review procedure, the contractor will be permitted 60 days to
process the complaint under that procedure. If there is no resolution
of the matter which is satisfactory to the complainant within 60 days,
the complaint then is processed by OFCCP. The 1980 final rule would
have provided that the complaint may be referred to the contractor for
internal review with the employee's consent. OFCCP has found that the
current procedure has not been particularly effective in providing
expeditious and satisfactory complaint resolutions. Therefore, OFCCP
has decided not to carry forward either a mandatory or voluntary
complaint referral procedure. Although there is no regulatory
requirement regarding informal resolution of complaints, OFCCP
nevertheless strongly encourages parties to attempt to do so whenever
possible.
Paragraph (c)(1) specifies the required contents of complaints, and
generally is consistent with current Sec. 60-250.26(c). In contrast to
the current regulation, the proposal specifies that the complainant
must state the pertinent dates concerning the alleged violation (the
information need only be provided to the best of the complainant's
recollection). Also, the description of the documentation that the
individual must submit to show that he or she is a special disabled
veteran or a veteran of the Vietnam era has been updated (see proposed
paragraph (b)(1)(iii)). The proposal drops current Sec. 60-250.7, which
specifies the type of documentation that a complainant must submit
regarding his or her special disabled status, because it is
unnecessarily duplicative of proposed paragraph (b)(1)(iii).
Paragraph (c)(2) establishes new Section 4212 procedures regarding
third party complaints. The procedures are patterned after the
analogous provisions of the Section 503 final rule (Sec. 60-
741.61(c)(2)), and the EEOC's procedural regulations applicable to the
ADA (29 CFR 1601.7(a)). This paragraph specifies that a third party
complaint need not identify by name the person on whose behalf it is
filed, although the person filing the complaint shall provide
identifying information to OFCCP and other information required under
paragraph (c)(1); and that OFCCP shall verify the authorization of the
complaint by the person on whose behalf it is made, who may request
that his or her identity remain confidential. The purpose of these
provisions is to help prevent retaliation against persons seeking to
exercise rights protected under the Act by preserving the
confidentiality of the complaint process while also ensuring both that
OFCCP has sufficient information to properly investigate the complaint
and that the complaint is properly authorized. The 1980 final rule
would have provided (at Sec. 60-250.23(c)) that signed third party
complaints will be accepted whether or not the third party signing the
complaint is the authorized representative. Upon reconsideration, OFCCP
believes that authorization to file a complaint is an appropriate
requirement.
Paragraph (d), which establishes procedures for handling a
complaint which contains insufficient information, is substantially
identical to current Sec. 60-250.26(d).
Paragraph (e), which is based on the first sentence of current
Sec. 60-250.26(e), provides that the Department of Labor shall promptly
investigate complaints. OFCCP has determined not to incorporate the
statement contained in the second sentence of the current regulation
regarding the contents of a complete case record, inasmuch as this is
primarily an internal procedural matter, and thus need not be a part of
the regulations.
Paragraph (f)(1), which states that the complainant and the
contractor shall be notified where the complaint investigation finds no
violation or the Deputy Assistant Secretary decides not to refer the
matter to the Solicitor of Labor for enforcement proceedings against
the contractor, is consistent with the first sentence of current
Sec. 60-250.26(g). However, the proposal does not incorporate the final
sentence of that provision, which states that the complainant may
request that the Deputy Assistant Secretary review the finding or
decision. Instead, the paragraph incorporates a provision which
specifies that the Deputy Assistant Secretary, on his or her own
initiative, may reconsider the finding or decision. OFCCP has found
that the existing review procedure has not been productive and has
therefore determined to drop the procedure.
Paragraph (f)(2) provides that the Deputy Assistant Secretary will
review all determinations of no violation that involve complaints that
are not also cognizable under the ADA. This will help ensure accuracy
of determinations regarding claims raised by persons who would not have
an opportunity to seek relief in Federal court. OFCCP believes that the
proposed review procedure will provide an adequate check on its no
violation findings and decisions not to initiate proceedings.
Paragraph (f)(3) sets out notification procedures regarding the
Deputy Assistant Secretary's reconsideration of investigative findings.
Paragraph (f)(4), which states that the contractor shall be invited
to participate in conciliation pursuant to Sec. 60-250.62 where there
is a finding of violation, is substantially similar to the first
sentence of current Sec. 60-250.26(g)(2). As discussed immediately
below, the proposal incorporates (with modification) other portions of
that section into a separate section on conciliation agreements.

Section 60-250.62 Conciliation Agreements and Letters of Commitment

The purpose of this section is to conform the Section 4212
regulatory procedures regarding conciliation agreements and letters of
commitment to the substance of the parallel procedures contained in the
Executive Order regulations (41 CFR 60-1.33). Proposed paragraph (a),
which incorporates without substantive change paragraph (a) of the
Executive Order regulation, requires OFCCP, where it finds a material
violation of the Act, to enter into a written agreement with the
contractor which provides for appropriate remedial action, provided
that the contractor is willing to do so and OFCCP determines that
settlement on that basis (rather than referral for potential
enforcement) is appropriate. The proposal is conceptually similar to
the corresponding current Section 4212 regulation (Sec. 60-
250.26(g)(2)), but incorporates a number of clarifying changes which
reflect current OFCCP practice under Section 4212. For instance,
although the current regulation, like the proposal, provides for the
use of written settlement agreements under which the contractor shall
commit to take corrective action, it does not: use the term
``conciliation agreement''; expressly state that ``make whole
remedies'' shall be addressed by the agreement; or expressly require
that OFCCP determine that settlement through such an agreement (rather
than referral for potential enforcement) is appropriate. The last
sentence of the proposal, which is derived from the current Section
4212 regulation,

[[Page 50093]]

provides that the agreement shall specify the date for the completion
of the needed remedial action, which shall be the earliest date
possible.
However, the proposal does not incorporate the provision from the
current regulation which states that the contractor may be considered
in compliance on condition that the commitments contained in the
agreement are kept. Further, the proposal does not incorporate a
related provision from the 1980 final rule. The 1980 rule, at Sec. 60-
1.20(c), states the taking of corrective actions by the contractor
pursuant to a conciliation agreement does not preclude OFCCP from
making future determinations of noncompliance where OFCCP either finds
that the contractor's actions are not sufficient to achieve compliance,
or it uncovers violations not previously revealed in an investigation.
Upon reconsideration, OFCCP concludes that these provisions are
unnecessary and should not be incorporated into the regulations,
because the concerns they reflect are addressed by general legal
principles.
Paragraph (b), which clarifies the distinction between conciliation
agreements and letters of commitment, is incorporated without
substantive change from paragraph (b) of the Executive Order regulation
(41 CFR 60-1.33(b)).
The 1980 final rule (at Sec. 60-1.26(a)) is substantially similar
to proposed paragraph (a), but would have made a number of technical
revisions that are not reflected in the proposal (e.g., paragraph (c)
of the final rule clarified when a conciliation agreement becomes
effective). OFCCP has determined not to incorporate these technical
revisions, inasmuch as relevant guidance is already provided in OFCCP's
Federal Contract Compliance Manual.

Section 60-250.63 Violation of Conciliation Agreements and Letters of
Commitment

This section, which specifies the required notification and
enforcement procedures relating to the contractor's violation of a
conciliation agreement or letter of commitment, is derived from the
Executive Order regulations (41 CFR 60-1.34), and contains a number of
clarifying modifications. Most notably, paragraph (a)(4) of the
proposal contains a clarification that in enforcement proceedings
related to violation of a conciliation agreement, OFCCP is not required
to present proof of the underlying violations resolved by the
agreement. The intent of this provision is to remove any doubt that
OFCCP need not litigate claims that have already been resolved through
the agreement. Although the current Section 4212 regulations do not
contain provisions parallel to the proposal, the proposal reflects
OFCCP's current practice under the Act.

Section 60-250.64 Show Cause Notices

This section is substantially identical to Sec. 60-1.28 of the
Executive Order regulations. It provides that when the Deputy Assistant
Secretary finds a violation he or she may issue to the contractor a
notice requiring it to show cause, within 30 days, why enforcement
proceedings should not be instituted; the provision also states that
such a notice is not a prerequisite to enforcement proceedings. The
current Section 4212 regulations do not contain a comparable provision.
The 1980 final rule (at Sec. 60-1.25) would have incorporated
considerably more detailed procedures regarding show cause notices than
are contained in the proposal; for instance, that rule would have
incorporated specific rules on the issuance of the notice and its
contents. OFCCP believes that it is more appropriate to incorporate
such procedures into its Compliance Manual, and has done so.

Section 60-250.65 Enforcement Proceedings

This section generally conforms the provisions governing Section
4212 enforcement proceedings to those under the Executive Order
regulations (Sec. 60-1.26(a)(2)), and reflects OFCCP's long-standing
practice under the Act. Similar to the Executive Order regulation,
proposed paragraph (a)(1) provides, in part, that where a violation has
not been corrected in accordance with applicable conciliation
procedures, an administrative enforcement proceeding may be instituted
to enjoin the violations, to seek appropriate make whole relief and to
impose appropriate sanctions. The current Section 4212 regulations are
consistent with this part of proposed paragraph (a)(1), but do not
expressly state what relief will be sought in the proceedings. See
Secs. 60-250.26(g)(3) and 60-250.28(a) (the contractor shall be
provided a formal hearing where a violation has not been resolved by
informal means) and 60-250.29(a) (an opportunity for a formal hearing
shall be provided where a violation is not resolved informally and a
hearing is requested or the Director proposes to impose a sanction).
The above-referenced provisions from the current regulations are
subsumed within proposed paragraph (a)(1), and therefore are not
separately adopted by the proposal. The proposal at paragraph (a)(1)
also differs from the current Section 4212 regulations as well as the
Executive Order regulation in the following respects: It provides that
enforcement proceedings also may be instituted where OFCCP determines
that referral for formal enforcement (rather than settlement) is
appropriate; and it specifies that the enforcement referral will be
made to the Solicitor of Labor. Further, paragraph (a)(1) of the
proposal clarifies that OFCCP may seek relief for aggrieved individuals
identified either during a compliance review or a complaint
investigation whether or not such individuals have filed a complaint
with OFCCP. This clarification responds to an argument that has
sometimes been raised by contractors that relief under the Act is
available only to persons who have filed a complaint with OFCCP. OFCCP
concludes that such a limitation on available relief is clearly
inconsistent with the Act.
Finally, paragraph (a)(1) (paralleling the counterpart provision in
the Section 503 final rule at Sec. 60-741.65(a)(1)), again contrasting
with both the current Section 4212 regulations and the Executive Order
regulations, states that interest on back pay shall be compounded
quarterly at the percentage rate established by the Internal Revenue
Service for the underpayment of taxes. This provision responds to the
ruling of the Department of Labor's Assistant Secretary for Employment
Standards in OFCCP v. Washington Metropolitan Area Transit Authority,
84-OFC-8 (orders dated August 23 and November 17, 1989) that simple
interest, rather than compounded interest, should be used in the
calculation of back pay awards under Section 503. The rationale of that
ruling is equally applicable to Section 4212. OFCCP had a longstanding
policy of requiring that interest on back pay awards under Section 4212
be compounded; such policy is consistent with the case law under Title
VII of the Civil Rights Act of 1964. OFCCP believes that it must
reinstate this policy in order to ensure that aggrieved individuals
obtain ``make whole'' relief.
Proposed paragraph (a)(2) provides that the Deputy Assistant
Secretary, in addition to the use of administrative enforcement
proceedings, may seek appropriate judicial action, including injunctive
relief, to enforce the contractual provisions set forth in the
regulations' equal opportunity clause. This provision is substantially
identical to current Sec. 60-250.28(b).
The proposal differs substantively from the 1980 final rule's
enforcement procedures, which appear at Sec. 60-1.29, in that it does
not incorporate the

[[Page 50094]]

procedures contained in paragraphs (i) and (j) of that section.
Paragraph (i) of that section provides that the Department may refer
alleged violations of the Act by financial institutions to an
appropriate financial regulatory agency, and states that such agency
may take whatever action it deems appropriate. OFCCP considers this
provision unnecessary at this time, and therefore does not propose to
carry it forward. Paragraph (j) states an enforcement policy under
which the Department will not debar financial institutions from future
Federal deposit or share insurance, or cancel, terminate or suspend
existing Federal deposit or share insurance. OFCCP wishes to reassure
the public that it does not intend to debar or cancel a financial
institution's deposit or share insurance. This has been OFCCP's long-
standing policy, even in the absence of a regulation mandating that
result. Indeed, OFCCP has repeatedly stated on the record in litigation
regarding financial institutions that it does not seek debarment or
cancellation of deposit and share insurance. OFCCP will maintain that
policy. Upon reconsideration, however, OFCCP believes that it is
unnecessary to specify this policy in the regulations. The regulations
do not generally specify the precise manner in which the agency will
exercise its enforcement powers with regard to particular types of
contractors.
Proposed paragraph (b), which pertains to hearing practice and
procedure under the Act, is derived from Sec. 60-250.29(b) of the
current Section 4212 regulations. Proposed paragraph (b)(1), like
current paragraph (b)(1), provides that hearings conducted under the
Act shall be governed by the hearing rules applicable to enforcement of
Executive Order 11246 (41 CFR Part 60-30). Proposed paragraph (b)(1),
revising current paragraph (b)(1), states that the Rules of Evidence
set out in the hearing rules applicable to the Department's
Administrative Law Judges shall also apply to such hearings. These
rules, which were issued in 1990, are generally applicable to the
Department's formal adversarial adjudications. In contrast to the
current regulation, proposed paragraph (b)(1) requires that the
Department's final administrative order under a Section 4212 case be
issued within one year from the date of the issuance of the
Administrative Law Judge's recommended decision, or the submission of
the parties' exceptions and responses to exceptions to such decision
(if any), whichever is later. OFCCP believes that this time limit is
needed in order to ensure that aggrieved individuals obtain expeditious
relief.
Proposed paragraph (b)(2), which designates the specific officials
in the Office of the Solicitor who may file administrative complaints,
corresponds to the last sentence of current paragraph (b)(1). This
proposed paragraph incorporates some changes in nomenclature.
Proposed paragraph (b)(3), which incorporates conforming changes to
the terminology in the hearing rules for purposes of Part 60-250, is
substantially identical to current paragraph (b)(2).

Section 60-250.66 Sanctions and Penalties

Paragraphs (a) and (b), which respectively specify that OFCCP may
seek to withhold progress payments on a contract or terminate a
contract to enforce compliance with the Act, are substantially
identical to current Secs. 60-250.28 (c) and (d). Similarly, proposed
paragraph (d), which provides that the contractor shall be provided an
opportunity for a formal hearing before the imposition of sanctions or
penalties, is substantially similar to current Sec. 60-250.29(a).
Proposed paragraph (c) authorizes OFCCP to impose fixed-term
debarments. However, proposed paragraph (c)--which provides that a
contractor may be debarred from future contracts for either a fixed
period of not less than six months but no more than three years--
contrasts with the current regulations, which expressly permit only
indefinite-period debarments. In this regard, the current regulations
(at Sec. 60-250.28(e)) simply establish authority for the imposition of
debarments, and (at Sec. 60-250.50) provide that a debarred contractor
may be reinstated as an eligible contractor by demonstrating that it
has established and will continue to carry out employment practices in
compliance with the Act. Explicit regulatory authority to impose
debarment for a minimum fixed-term is necessary to ensure the continued
future compliance of some contractors. OFCCP wishes to ensure the
regulated community that it does not intend to seek a fixed term
debarment for minor, technical violations of the law. (This change is
consistent with Sec. 60-741.66(c) of the Section 503 final rule.)
OFCCP believes the fixed-term debarment sanction will be
particularly effective in encouraging compliance among the limited
class of recalcitrant contractors who repeatedly break their promises
of future compliance with respect to affirmative action and
recordkeeping requirements. Fixed-period debarments will serve as a
more effective deterrent in these cases than the current practice of
reinstating the contractor upon its demonstration of compliance. Under
the current procedure the contractor may be reinstated without
incurring any economic loss for some violations (e.g., a contractor
which has failed to develop an AAP can simply do so to be eligible for
reinstatement, provided that it can demonstrate that it will remain in
compliance). As discussed below, pursuant to proposed Sec. 60-250.68, a
contractor debarred for a fixed term will not be automatically
reinstated upon such a showing. In making his or her determination as
to whether reinstatement of such a contractor is appropriate under
proposed Sec. 60-250.68, the Deputy Assistant Secretary shall
additionally consider, among other factors, the severity of the
violation which resulted in the debarment and whether the contractor's
reinstatement would impede the effective enforcement of the Act or this
part.
The proposal drops the provision contained in current Sec. 60-
250.27 that noncompliance with the contractor's affirmative action
clause obligations is a ground for taking appropriate action for
noncompliance. This issue is already addressed in proposed Sec. 60-
250.66.

Section 60-250.67 Notification of Agencies

This proposed section, which provides that OFCCP shall ensure that
the heads of all agencies are notified of debarments, is substantially
similar to current Sec. 60-250.30, which requires the Director to
notify agencies ``of any action for noncompliance taken against a
contractor.'' However, in contrast to the proposal, current Sec. 60-
250.30 also addresses the granting by a contracting agency of waivers
in the national interest. This provision is not carried forward,
because, as discussed above (see discussion regarding proposed Sec. 60-
250.4(b)(1)), OFCCP unilaterally grants such waivers, and no longer
shares enforcement under Section 4212 with other agencies.
Moreover, the proposal drops current Sec. 60-250.31, which requires
the Director to distribute a list of debarred contractors to all
executive departments and agencies. This function is currently
performed by the General Services Administration. The 1980 final rule
would have required (at Sec. 60-1.30) that OFCCP promptly notify the
Comptroller General of the United States regarding contract
cancellations and debarments. OFCCP, which currently follows this
practice, does not believe it necessary to

[[Page 50095]]

incorporate this provision into the regulations. Further, that section
of the final rule would have required that OFCCP take appropriate steps
to notify prime contractors of the debarred contractor's ineligibility
for subcontracts. Upon reconsideration, OFCCP concludes that the
incidence of prime contractors contracting with debar