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74 FR 52856 on October 14, 2009, to a 

final rule with minor changes. 

This final rule amends the FAR to 

implement section 814 of the John 

Warner National Defense Authorization 

Act for Fiscal Year 2007 and section 867 

of the Duncan Hunter 2009 National 

Defense Authorization Act for Fiscal 

Year 2009. This rule requires agencies 

to— 

(1) Link award fees to acquisition 

objectives in the areas of cost, schedule, 

and technical performance; 

(2) Clarify that a base fee amount 

greater than zero may be included in a 

cost-plus-award-fee type contract at the 

discretion of the contracting officer; 

(3) Prescribe narrative ratings that will 

be utilized in award-fee evaluations; 

(4) Prohibit the issuance of award fees 

for a rating period if the contractor’s 

performance is judged to be below 

satisfactory; 

(5) Conduct a risk and cost-benefit 

analysis and consider the results of the 

analysis when determining whether to 

use an incentive-fee type contract or 

not; 

(6) Include specific content in the 

award-fee plans; and 

(7) Prohibit the rolling over of 

unearned award fees to subsequent 

rating periods. 

This FAR change will integrate where 

appropriate, FAR part 7, Acquisition 

Planning, and FAR part 16, Contract 

Types, to improve agency use and 

decision making when using incentive 

contracts. 

Item V—Offering a Construction 

Requirement—8(a) Program (FAR Case 

2009–020) 

This final rule amends the FAR to 

revise FAR subpart 19.8, Contracting 

with the Small Business Administration 

(The 8(a) Program), specifically FAR 

19.804–2(b) to conform to the Small 

Business Administration (SBA) 

regulations. The SBA regulation 13 CFR 

124.502(b)(2) requires that the offering 

letter for an open construction 

requirement be submitted to the SBA 

District Office for the geographical area 

where the work is to be performed. The 

SBA regulation 13 CFR 124.502(b)(3) 

requires that the offering letter for a 

construction requirement offered on 

behalf of a specific participant be 

submitted to the SBA District Office 

servicing that concern. This rule revises 

FAR 19.804–2 accordingly. 

Item VI—Encouraging Contractor 

Policies To Ban Text Messaging While 

Driving (FAR Case 2009–028) (Interim) 

This interim rule amends the FAR to 

implement Executive Order 13513, 

entitled ‘‘Federal Leadership on 

Reducing Text Messaging while 

Driving,’’ which was issued on October 

1, 2009 (74 FR 51225, October 6, 2009). 

Section 4 of the Executive order requires 

each Federal agency, in procurement 

contracts, entered into after the date of 

the order, to encourage contractors and 

subcontractors to adopt and enforce 

policies that ban text messaging while 

driving company-owned or -rented 

vehicles or Government-owned 

vehicles; or privately-owned vehicles 

when on official Government business 

or when performing any work for or on 

behalf of the Government. Section 4 also 

requires Federal agencies to encourage 

contractors to conduct initiatives such 

as establishment of new rules and 

programs or re-evaluation of existing 

programs to prohibit text messaging 

while driving, and education, 

awareness, and other outreach programs 

to inform employees about the safety 

risks associated with texting while 

driving. This requirement applies to all 

solicitations and contracts. Contracting 

officers are encouraged to modify 

existing contracts to include the FAR 

clause. 

Item VII—Buy American Exemption for 

Commercial Information Technology— 

Construction Material (FAR Case 2009– 

039) (Interim) 

This interim rule implements section 

615 of Division C, Title VI, of the 

Consolidated Appropriations Act, 2010 

(Pub. L. 111–117). Section 615 

authorizes exemption from the Buy 

American Act for acquisition of 

information technology that is a 

commercial item. 

Dated: September 21, 2010. 

Edward Loeb, 

Director, Acquisition Policy Division. 

[FR Doc. 2010–24217 Filed 9–28–10; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 1, 22, and 52 

[FAC 2005–46; FAR Case 2009–007; Item 

I; Docket 2010–0101, Sequence 1] 

RIN 9000–AL67 

Federal Acquisition Regulation; Equal 

Opportunity for Veterans 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) are issuing an interim rule 

amending the Federal Acquisition 

Regulation (FAR) to implement 

Department of Labor (DoL) regulations 

on equal opportunity provisions for 

various categories of military veterans. 

This rule sets forth revised coverage and 

definitions of veterans covered under 

the Vietnam Era Veterans’ Readjustment 

Assistance Act of 1972 (VEVRAA) and 

includes new reporting requirements 

established under the VEVRAA and the 

Jobs for Veterans Act (JVA). 

DATES: Effective Date: September 29, 

2010. 

Applicability date: Contracting 

officers may modify existing contracts of 

$100,000 or more that were awarded or 

modified on or after December 1, 2003, 

to require the use of the new VETS– 

100A form starting with the report filed 

September 30, 2010. 

Comment Date: Interested parties 

should submit written comments to the 

Regulatory Secretariat on or before 

November 29, 2010 to be considered in 

the formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–46, FAR Case 

2009–007, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2009–007’’ under 

the heading ‘‘Enter Keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘FAR Case 2009–007.’’ Follow the 

instructions provided at the ‘‘Submit a 

Comment’’ screen. Please include your 

name, company name (if any), and ‘‘FAR 

Case 2009–007’’ on your attached 

document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(MVCB), 1800 F Street, NW., Room 

4041, ATTN: Hada Flowers, 

Washington, DC 20405. 

Instructions: Please submit comments 

only and cite FAC 2005–46, FAR Case 

2009–007, in all correspondence related 

to this case. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Mr. 


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Ernest Woodson, Procurement Analyst, 

at (202) 501–3775. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–46, FAR Case 2009–007. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The DoL Office of Federal Contract 

Compliance Programs (OFCCP) 

published a final rule in the Federal 

Register at 72 FR 44393 on August 8, 

2007, that implements amendments to 

the affirmative action provisions of the 

Vietnam Era Veterans’ Readjustment 

Assistance Act of 1972 (VEVRAA) as 

amended by the Jobs for Veterans Act 

(JVA), Public Law 107–288. This final 

DoL rule changed the categories of 

veterans protected by these laws for 

covered Government contracts entered 

into or modified on or after December 1, 

2003. These changes were published in 

41 CFR part 60–300 and specifically 

modified the equal opportunity clause 

to be included in each covered 

Government contract or subcontract. 

The JVA amendments eliminated 

listing employment openings solely 

with America’s Job Bank as an option 

for complying with the mandatory job 

listing requirement. The final DoL rule 

provides that listing employment 

openings with the State workforce 

agency job bank or with the local 

employment service delivery system 

where the opening occurs will satisfy 

the requirement to list job openings 

with the appropriate employment 

service delivery system. 

The categories of veterans covered by 

the equal opportunity provisions 

changed to include: Disabled Veterans, 

Recently Separated Veterans, Other 

Protected Veterans, and Armed Forces 

Service Medal Veterans. The JVA 

eliminated the separate coverage 

category of Vietnam-era veterans; 

however, DoL in its rule explained that 

many people in this category may be 

covered under the other categories. The 

JVA expanded the coverage of veterans 

with disabilities to all veterans who 

were discharged or released from active 

duty because of a service-connected 

disability. 

In addition, the DoL Veterans’ 

Employment and Training Service 

(VETS) published a final rule in the 

Federal Register at 73 FR 28710 on May 

19, 2008, that further implements the 

requirements under the VEVRAA and 

the JVA that Government contractors 

track and annually report the number of 

veteran employees in their workforces. 

This final DoL rule adopted a new 

Federal Contractor Veterans’ 

Employment Report, VETS–100A form, 

to be used for reporting the revised 

categories of veterans that contractors 

are to track and report. These reporting 

requirements are published in 41 CFR 

part 61–300 and require each covered 

contract or subcontract contain the 

clause for reporting using the new 

VETS–100A form for contracts entered 

into or modified on or after December 1, 

2003. The new VETS–100A form was 

required to be used for the report to be 

filed by September 30, 2009. 

This interim FAR rule re-titles FAR 

subpart 22.13 from ‘‘Special Disabled 

Veterans, Veterans of the Vietnam Era, 

and Other Eligible Veterans’’ to ‘‘Equal 

Opportunity for Veterans.’’ Accordingly, 

FAR clause 52.222–35 is also renamed 

‘‘Equal Opportunity for Veterans’’ and 

incorporates the new categories and 

definitions of protected veterans as 

established by DoL. In addition, the 

FAR clause at 52.222–37, ‘‘Employment 

Reports on Special Disabled Veterans, 

Veterans of the Vietnam Era, and Other 

Eligible Veterans,’’ is renamed 

‘‘Employment Reports on Veterans’’ and 

the new DoL requirements for using the 

VETS–100A report are incorporated. 

Lastly, the FAR provision at 52.222–38, 

‘‘Compliance with Veterans’ 

Employment Reporting Requirements,’’ 

is revised to incorporate new title 

references for FAR 52.222–37 and the 

new report form VETS–100A. 

The interim rule also makes 

conforming changes to the lists of FAR 

clauses in 52.212–5, 52.213–4, and 

52.244–6. 

This is a significant regulatory action 

and, therefore, was subject to review 

under section 6(b) of Executive Order 

12866, Regulatory Planning and Review, 

dated September 30, 1993. This rule is 

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

B. Regulatory Flexibility Act 

The Councils do not expect this 

interim rule to have a significant 

economic impact on a substantial 

number of small entities within the 

meaning of the Regulatory Flexibility 

Act, 5 U.S.C. 601, et seq., because 

contractors are already required to 

annually track and report their veteran 

workforces on the VETS–100 form in 

accordance with VEVRAA. This rule 

implements a new form, VETS–100A, 

that simply includes the revised 

categories of veterans for reporting 

purposes. Therefore, an Initial 

Regulatory Flexibility Analysis has not 

been performed. The Councils invite 

comments from small business concerns 

and other interested parties on the 

expected impact of this rule on small 

entities. 

The Councils will also consider 

comments from small entities 

concerning the existing regulations in 

parts affected by this rule in accordance 

with 5 U.S.C. 610. Interested parties 

must submit such comments separately 

and should cite 5 U.S.C. 610 (FAC 

2005–46, FAR Case 2009–007) in all 

correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

apply; however, these changes to the 

FAR do not impose additional 

information collection requirements to 

the paperwork burden previously 

approved under OMB Control Numbers 

1293–0005 and 1215–0072. 

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

(DoD), the Administrator of General 

Services (GSA), and the Administrator 

of the National Aeronautics and Space 

Administration (NASA) that urgent and 

compelling reasons exist to promulgate 

this interim rule without prior 

opportunity for public comment. This 

action is necessary to implement the 

Department of Labor (DoL) final rule on 

Veterans’ Employment and Training 

Service (VETS) published in the Federal 

Register at 73 FR 28710 on May 19, 

2008, and a DoL final rule, published in 

the Federal Register on August 8, 2007, 

that implements amendments to the 

affirmative action provisions of the 

Vietnam Era Veterans’ Readjustment 

Assistance Act of 1972 (VEVRAA), as 

amended by the Jobs for Veterans Act 

(JVA). However, pursuant to 41 U.S.C. 

418b and FAR 1.501–3(b), the Councils 

will consider public comments received 

in response to this interim rule in the 

formation of the final rule. 

List of Subjects in 48 CFR Parts 1, 22, 

and 52 

Government procurement. 

Dated: September 21, 2010. 

Edward Loeb, 

Director, Acquisition Policy Division. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 1, 22, and 52 as set 

forth below: 

■ 1. The authority citation for 48 CFR 

parts 1, 22, and 52 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 42 U.S.C. 2473(c). 

PART 1—FEDERAL ACQUISITION 

REGULATIONS SYSTEM 

1.106 [Amended] 

■ 2. Amend section 1.106, in the table 

following the introductory text, by 

removing from FAR segment 22.13 OMB 


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Control Number ‘‘1215–0072’’ and 

adding ‘‘1293–0005 and 1215–0072’’ in 

its place; and adding, in numerical 

sequence, FAR segment ‘‘52.222–37’’ 

and its corresponding OMB Control 

Number ‘‘1293–0005’’. 

PART 22—APPLICATION OF LABOR 

LAWS TO GOVERNMENT 

ACQUISITION 

■ 3. Revise the heading of subpart 22.13 

to read as follows: 

Subpart 22.13—Equal Opportunity for 

Veterans 

■ 4. Revise sections 22.1300, 22.1301, 

and 22.1302 to read as follows: 

22.1300 Scope of subpart. 

This subpart prescribes policies and 

procedures for implementing the 

following: 

(a) The Vietnam Era Veterans’ 

Readjustment Assistance Act of 1972 

(38 U.S.C. 4211 and 4212) (the Act). 

(b) The Veterans Employment 

Opportunities Act of 1998, Public Law 

105–339. 

(c) The Jobs for Veterans Act, Public 

Law 107–288. 

(d) Executive Order 11701, January 

24, 1973 (3 CFR, 1971–1975 Comp., p. 

752). 

(e) The regulations of the Secretary of 

Labor (41 CFR part 60–250, part 61–250, 

part 60–300, and part 61–300). 

22.1301 Definitions. 

As used in this subpart— 

Armed Forces service medal veteran 

means any veteran who, while serving 

on active duty in the U.S. military, 

ground, naval, or air service, 

participated in a United States military 

operation for which an Armed Forces 

service medal was awarded pursuant to 

Executive Order 12985 (61 FR 1209). 

Disabled veteran means— 

(1) A veteran of the U.S. military, 

ground, naval, or air service, who is 

entitled to compensation (or who, but 

for the receipt of military retired pay, 

would be entitled to compensation) 

under laws administered by the 

Secretary of Veterans Affairs; or 

(2) A person who was discharged or 

released from active duty because of a 

service-connected disability. 

Other protected veteran means a 

veteran who served on active duty in 

the U.S. military, ground, naval, or air 

service, during a war or in a campaign 

or expedition for which a campaign 

badge has been authorized under the 

laws administered by the Department of 

Defense. 

Qualified disabled veteran means a 

disabled veteran who has the ability to 

perform the essential functions of the 

employment positions with or without 

reasonable accommodation. 

Recently separated veteran means any 

veteran during the three-year period 

beginning on the date of such veteran’s 

discharge or release from active duty in 

the U.S. military, ground, naval, or air 

service. 

United States, means the 50 States, 

the District of Columbia, Puerto Rico, 

the Northern Mariana Islands, American 

Samoa, Guam, the U.S. Virgin Islands, 

and Wake Island. 

22.1302 Policy. 

(a) Contractors and subcontractors, 

when entering into contracts or 

subcontracts subject to the Act, must— 

(1) List all employment openings, 

with the appropriate employment 

service delivery system where the 

opening occurs, except for— 

(i) Executive and senior management 

positions; 

(ii) Positions to be filled from within 

the contractor’s organization; and 

(iii) Positions lasting three days or 

less. 

(2) Take affirmative action to employ, 

advance in employment, and otherwise 

treat qualified individuals, including 

qualified disabled veterans, without 

discrimination based upon their status 

as a disabled veteran, recently separated 

veteran, other protected veteran, and 

Armed Forces service medal veteran, in 

all employment practices. 

(b) Except for contracts for 

commercial items or contracts that do 

not exceed the simplified acquisition 

threshold, contracting officers must not 

obligate or expend funds appropriated 

for the agency for a fiscal year to enter 

into a contract for the procurement of 

personal property and nonpersonal 

services (including construction) with a 

contractor that has not submitted the 

required annual form VETS–100, 

Federal Contractor Veterans’ 

Employment Report (VETS–100 Report 

and/or VETS–100A Report), with 

respect to the preceding fiscal year if the 

contractor was subject to the reporting 

requirements of 38 U.S.C. 4212(d) for 

that fiscal year. 

22.1303 [Amended] 

■ 5. Amend section 22.1303 by 

removing from paragraph (b) ‘‘Special 

Disabled Veterans, Veterans of the 

Vietnam Era, and Other Eligible’’; and 

removing from paragraph (c) ‘‘VETS–100 

Report’’ and adding ‘‘VETS–100A 

Report’’ in its place. 

■ 6. Amend section 22.1304 by revising 

the introductory text, and paragraph (a) 

to read as follows: 

22.1304 Procedures. 

To verify if a proposed contractor is 

current with its submission of the 

VETS–100 and/or the VETS–100A 

Report, the contracting officer may— 

(a) Query the Department of Labor’s 

VETS–100 Database via the Internet at 

http://www.vets100.com/login.aspx. 

Contracting officer organization, name, 

e-mail, telephone, and password 

information are required on the 

Contracting Officer Registration page to 

register for system use. 

* * * * * 

■ 7. Amend section 22.1305 by revising 

the introductory text of paragraph (a) to 

read as follows: 

22.1305 Waivers. 

(a) The Director, Office of Federal 

Contract Compliance Programs, 

Department of Labor, may waive any or 

all of the terms of the clause at 52.222– 

35, Equal Opportunity for Veterans, 

for— 

* * * * * 

■ 8. Revise section 22.1306 to read as 

follows: 

22.1306 Department of Labor notices and 

reports. 

(a) The contracting officer must 

furnish to the contractor appropriate 

notices for posting when they are 

prescribed by the Deputy Assistant 

Secretary of Labor (see http://www.dol.

gov/ofccp/regs/compliance/posters/

ofccpost.htm. 

(b) The Act requires contractors and 

subcontractors to submit a report at least 

annually to the Secretary of Labor 

regarding employment of disabled 

veterans, recently separated veterans, 

other protected veterans, and Armed 

Forces service medal veterans, unless all 

of the terms of the clause at 52.222–35, 

Equal Opportunity for Veterans, have 

been waived (see 22.1305). The 

contractor and subcontractor must use 

form VETS–100A, Federal Contractor 

Veterans’ Employment Report, to submit 

the required reports (see https:// 

vets100.vets.dol.gov). 

22.1307 [Amended] 

■ 9. Amend section 22.1307 by 

removing the words ‘‘Special Disabled 

Veterans, Veterans of the Vietnam Era, 

and Other Eligible’’. 

■ 10. Revise section 22.1308 to read as 

follows: 

22.1308 Complaint procedures. 

Following agency procedures, the 

contracting office must forward any 

complaints received about the 

administration of the Act to the 

Veterans’ Employment and Training 


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Service of the Department of Labor, or 

to the Director, Office of Federal 

Contract Compliance Programs, 200 

Constitution Avenue, NW., Washington, 

DC 20210, or to any OFCCP regional, 

district, or area office or through the 

local Veterans’ Employment 

Representative or designee, at the local 

State employment office. The Director, 

Office of Federal Contract Compliance 

Programs, is responsible for 

investigating complaints. 

■ 11. Amend section 22.1309 by 

revising the introductory text, and 

paragraph (a) to read as follows: 

22.1309 Actions because of 

noncompliance. 

The contracting officer must take 

necessary action as soon as possible 

upon notification by the appropriate 

agency official to implement any 

sanctions imposed on a contractor by 

the Department of Labor for violations 

of the clause at 52.222–35, Equal 

Opportunity for Veterans. These 

sanctions (see 41 CFR 60–300.66) may 

include— 

(a) Withholding progress payments; 

* * * * * 

■ 12. Amend section 22.1310 by 

revising paragraphs (a) and (b) to read 

as follows: 

22.1310 Solicitation provision and 

contract clauses. 

(a)(1) Insert the clause at 52.222–35, 

Equal Opportunity for Veterans, in 

solicitations and contracts if the 

expected value is $100,000 or more, 

except when— 

(i) Work is performed outside the 

United States by employees recruited 

outside the United States; or 

(ii) The Director, Office of Federal 

Contract Compliance Programs, has 

waived, in accordance with 22.1305(a) 

or the head of the agency has waived, 

in accordance with 22.1305(b) all of the 

terms of the clause. 

(2) If the Director, Office of Federal 

Contract Compliance Programs, or the 

head of the agency waives one or more 

(but not all) of the terms of the clause, 

use the basic clause with its Alternate 

I. 

(b) Insert the clause at 52.222–37, 

Employment Reports on Veterans, in 

solicitations and contracts containing 

the clause at 52.222–35, Equal 

Opportunity for Veterans. 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 13. Amend section 52.212–5 by 

revising the date of the clause, 

paragraphs (b)(24), (b)(26), and (e)(1)(v); 

and the date of Alternate II and 

paragraph (e)(1)(ii)(E) of Alternate II to 

read as follows: 

52.212–5 Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders—Commercial Items. 

* * * * * 

CONTRACT TERMS AND 

CONDITIONS REQUIRED TO 

IMPLEMENT STATUTES OR 

EXECUTIVE ORDERS—COMMERCIAL 

ITEMS (SEP 2010) 

* * * * * 

(b) * * * 

__(24) 52.222–35, Equal Opportunity for 

Veterans (SEP 2010) (38 U.S.C. 4212). 

* * * * * 

__(26) 52.222–37, Employment Reports on 

Veterans (SEP 2010) (38 U.S.C. 4212). 

* * * * * 

(e)(1) * * * 

(v) 52.222–35, Equal Opportunity for 

Veterans (SEP 2010) (38 U.S.C. 4212). 

* * * * * 

Alternate II (SEP 2010). * * * 

* * * * * 

(e)(1) * * * 

(ii) * * * 

(E) 52.222–35, Equal Opportunity for 

Veterans (SEP 2010) (38 U.S.C. 4212). 

* * * * * 

■ 14. Amend section 52.213–4 by 

revising the date of the clause, and 

paragraphs (a)(2)(vii), (b)(1)(iii) and 

(b)(1)(v) to read as follows: 

52.213–4 Terms and Conditions— 

Simplified Acquisitions (Other Than 

Commercial Items). 

* * * * * 

TERMS AND CONDITIONS— 

SIMPLIFIED ACQUISITIONS (OTHER 

THAN COMMERCIAL ITEMS) (SEP 

2010) 

(a) * * * 

(2) * * * 

(vii) 52.244–6, Subcontracts for 

Commercial Items (SEP 2010). 

* * * * * 

(b) * * * 

(1) * * * 

(iii) 52.222–35, Equal Opportunity for 

Veterans (SEP 2010) (38 U.S.C. 4212) (applies 

to contracts of $100,000 or more). 

* * * * * 

(v) 52.222–37, Employment Reports on 

Veterans (SEP 2010) (38 U.S.C. 4212) (applies 

to contracts of $100,000 or more). 

* * * * * 

■ 15. Revise section 52.222–35 to read 

as follows: 

52.222–35 Equal Opportunity for Veterans. 

As prescribed in 22.1310(a)(1), insert 

the following clause: 

EQUAL OPPORTUNITY FOR 

VETERANS (SEP 2010) 

(a) Definitions. As used in this clause— 

All employment openings means all 

positions except executive and senior 

management, those positions that will be 

filled from within the Contractor’s 

organization, and positions lasting 3 days or 

less. This term includes full-time 

employment, temporary employment of more 

than 3 days duration, and part-time 

employment. 

Armed Forces service medal veteran means 

any veteran who, while serving on active 

duty in the U.S. military, ground, naval, or 

air service, participated in a United States 

military operation for which an Armed 

Forces service medal was awarded pursuant 

to Executive Order 12985 (61 FR 1209). 

Disabled veteran means— 

(1) A veteran of the U.S. military, ground, 

naval, or air service, who is entitled to 

compensation (or who but for the receipt of 

military retired pay would be entitled to 

compensation) under laws administered by 

the Secretary of Veterans Affairs; or 

(2) A person who was discharged or 

released from active duty because of a 

service-connected disability. 

Executive and senior management 

means—(1) Any employee— 

(i) Compensated on a salary basis at a rate 

of not less than $455 per week (or $380 per 

week, if employed in American Samoa by 

employers other than the Federal 

Government), exclusive of board, lodging or 

other facilities; 

(ii) Whose primary duty consists of the 

management of the enterprise in which the 

individual is employed or of a customarily 

recognized department or subdivision 

thereof; 

(iii) Who customarily and regularly directs 

the work of two or more other employees; 

and 

(iv) Who has the authority to hire or fire 

other employees or whose suggestions and 

recommendations as to the hiring or firing 

and as to the advancement and promotion or 

any other change of status of other employees 

will be given particular weight; or 

(2) Any employee who owns at least a bona 

fide 20-percent equity interest in the 

enterprise in which the employee is 

employed, regardless of whether the business 

is a corporate or other type of organization, 

and who is actively engaged in its 

management. 

Other protected veteran means a veteran 

who served on active duty in the U.S. 

military, ground, naval, or air service, during 

a war or in a campaign or expedition for 

which a campaign badge has been authorized 

under the laws administered by the 

Department of Defense. 

Positions that will be filled from within the 

Contractor’s organization means employment 

openings for which the Contractor will give 

no consideration to persons outside the 

Contractor’s organization (including any 

affiliates, subsidiaries, and parent 

companies) and includes any openings the 

Contractor proposes to fill from regularly 

established ‘‘recall’’ lists. The exception does 

not apply to a particular opening once an 


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employer decides to consider applicants 

outside of its organization. 

Qualified disabled veteran means a 

disabled veteran who has the ability to 

perform the essential functions of the 

employment positions with or without 

reasonable accommodation. 

Recently separated veteran means any 

veteran during the three-year period 

beginning on the date of such veteran’s 

discharge or release from active duty in the 

U.S. military, ground, naval or air service. 

(b) General. (1) The Contractor shall not 

discriminate against any employee or 

applicant for employment because the 

individual is a disabled veteran, recently 

separated veteran, other protected veterans, 

or Armed Forces service medal veteran, 

regarding any position for which the 

employee or applicant for employment is 

qualified. The Contractor shall take 

affirmative action to employ, advance in 

employment, and otherwise treat qualified 

individuals, including qualified disabled 

veterans, without discrimination based upon 

their status as a disabled veteran, recently 

separated veteran, Armed Forces service 

medal veteran, and other protected veteran in 

all employment practices including the 

following: 

(i) Recruitment, advertising, and job 

application procedures. 

(ii) Hiring, upgrading, promotion, award of 

tenure, demotion, transfer, layoff, 

termination, right of return from layoff and 

rehiring. 

(iii) Rate of pay or any other form of 

compensation and changes in compensation. 

(iv) Job assignments, job classifications, 

organizational structures, position 

descriptions, lines of progression, and 

seniority lists. 

(v) Leaves of absence, sick leave, or any 

other leave. 

(vi) Fringe benefits available by virtue of 

employment, whether or not administered by 

the Contractor. 

(vii) Selection and financial support for 

training, including apprenticeship, and onthe-job training under 38 U.S.C. 3687, 

professional meetings, conferences, and other 

related activities, and selection for leaves of 

absence to pursue training. 

(viii) Activities sponsored by the 

Contractor including social or recreational 

programs. 

(ix) Any other term, condition, or privilege 

of employment. 

(2) The Contractor shall comply with the 

rules, regulations, and relevant orders of the 

Secretary of Labor issued under the Vietnam 

Era Veterans’ Readjustment Assistance Act of 

1972 (the Act), as amended (38 U.S.C. 4211 

and 4212). 

(3) The Department of Labor’s regulations 

require contractors with 50 or more 

employees and a contract of $100,000 or 

more to have an affirmative action program 

for veterans. See 41 CFR part 60–300, subpart 

C. 

(c) Listing openings. (1) The Contractor 

shall immediately list all employment 

openings that exist at the time of the 

execution of this contract and those which 

occur during the performance of this 

contract, including those not generated by 

this contract, and including those occurring 

at an establishment of the Contractor other 

than the one where the contract is being 

performed, but excluding those of 

independently operated corporate affiliates, 

at an appropriate employment service 

delivery system where the opening occurs. 

Listing employment openings with the State 

workforce agency job bank or with the local 

employment service delivery system where 

the opening occurs shall satisfy the 

requirement to list jobs with the appropriate 

employment service delivery system. 

(2) The Contractor shall make the listing of 

employment openings with the appropriate 

employment service delivery system at least 

concurrently with using any other 

recruitment source or effort and shall involve 

the normal obligations of placing a bona fide 

job order, including accepting referrals of 

veterans and nonveterans. This listing of 

employment openings does not require hiring 

any particular job applicant or hiring from 

any particular group of job applicants and is 

not intended to relieve the Contractor from 

any requirements of Executive orders or 

regulations concerning nondiscrimination in 

employment. 

(3) Whenever the Contractor becomes 

contractually bound to the listing terms of 

this clause, it shall advise the State workforce 

agency in each State where it has 

establishments of the name and location of 

each hiring location in the State. As long as 

the Contractor is contractually bound to these 

terms and has so advised the State agency, 

it need not advise the State agency of 

subsequent contracts. The Contractor may 

advise the State agency when it is no longer 

bound by this contract clause. 

(d) Applicability. This clause does not 

apply to the listing of employment openings 

that occur and are filled outside the 50 

States, the District of Columbia, Puerto Rico, 

the Northern Mariana Islands, American 

Samoa, Guam, the U.S. Virgin Islands, and 

Wake Island. 

(e) Postings. (1) The Contractor shall post 

employment notices in conspicuous places 

that are available to employees and 

applicants for employment. 

(2) The employment notices shall— 

(i) State the rights of applicants and 

employees as well as the Contractor’s 

obligation under the law to take affirmative 

action to employ and advance in 

employment qualified employees and 

applicants who are disabled veterans, 

recently separated veterans, Armed Forces 

service medal veterans, and other protected 

veterans; and 

(ii) Be in a form prescribed by the Director, 

Office of Federal Contract Compliance 

Programs, and provided by or through the 

Contracting Officer. 

(3) The Contractor shall ensure that 

applicants or employees who are disabled 

veterans are informed of the contents of the 

notice (e.g., the Contractor may have the 

notice read to a visually disabled veteran, or 

may lower the posted notice so that it can be 

read by a person in a wheelchair). 

(4) The Contractor shall notify each labor 

union or representative of workers with 

which it has a collective bargaining 

agreement, or other contract understanding, 

that the Contractor is bound by the terms of 

the Act and is committed to take affirmative 

action to employ, and advance in 

employment, qualified disabled veterans, 

recently separated veterans, other protected 

veterans, and Armed Forces service medal 

veterans. 

(f) Noncompliance. If the Contractor does 

not comply with the requirements of this 

clause, the Government may take appropriate 

actions under the rules, regulations, and 

relevant orders of the Secretary of Labor. This 

includes implementing any sanctions 

imposed on a contractor by the Department 

of Labor for violations of this clause (52.222– 

35, Equal Opportunity for Veterans). These 

sanctions (see 41 CFR 60–300.66) may 

include— 

(1) Withholding progress payments; 

(2) Termination or suspension of the 

contract; or 

(3) Debarment of the contractor. 

(g) Subcontracts. The Contractor shall 

insert the terms of this clause in subcontracts 

of $100,000 or more unless exempted by 

rules, regulations, or orders of the Secretary 

of Labor. The Contractor shall act as specified 

by the Director, Office of Federal Contract 

Compliance Programs, to enforce the terms, 

including action for noncompliance. 

(End of clause) 

Alternate I (Dec 2001). As prescribed 

in 22.1310(a)(2), add the following as a 

preamble to the clause: 

Notice: The following term(s) of this 

clause are waived for this contract: 

llllllllllll [List term(s)]. 

16. Revise section 52.222–37 to read 

as follows: 

52.222–37 Employment Reports on 

Veterans. 

As prescribed in 22.1310(b), insert the 

following clause: 

EMPLOYMENT REPORTS ON 

VETERANS (SEP 2010) 

(a) Definitions. As used in this clause, 

‘‘Armed Forces service medal veteran,’’ 

‘‘disabled veteran,’’ ‘‘other protected veteran,’’ 

and ‘‘recently separated veteran,’’ have the 

meanings given in the Equal Opportunity for 

Veterans clause 52.222–35. 

(b) Unless the Contractor is a State or local 

government agency, the Contractor shall 

report at least annually, as required by the 

Secretary of Labor, on— 

(1) The total number of employees in the 

contractor’s workforce, by job category and 

hiring location, who are disabled veterans, 

other protected veterans, Armed Forces 

service medal veterans, and recently 

separated veterans. 

(2) The total number of new employees 

hired during the period covered by the 

report, and of the total, the number of 

disabled veterans, other protected veterans, 

Armed Forces service medal veterans, and 

recently separated veterans; and 

(3) The maximum number and minimum 

number of employees of the Contractor or 

subcontractor at each hiring location during 

the period covered by the report. 

(c) The Contractor shall report the above 

items by completing the Form VETS–100A, 


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60254 Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 

entitled ‘‘Federal Contractor Veterans’ 

Employment Report (VETS–100A Report).’’ 

(d) The Contractor shall submit VETS– 

100A Reports no later than September 30 of 

each year. 

(e) The employment activity report 

required by paragraphs (b)(2) and (b)(3) of 

this clause shall reflect total new hires, and 

maximum and minimum number of 

employees, during the most recent 12-month 

period preceding the ending date selected for 

the report. Contractors may select an ending 

date— 

(1) As of the end of any pay period 

between July 1 and August 31 of the year the 

report is due; or 

(2) As of December 31, if the Contractor has 

prior written approval from the Equal 

Employment Opportunity Commission to do 

so for purposes of submitting the Employer 

Information Report EEO–1 (Standard Form 

100). 

(f) The number of veterans reported must 

be based on data known to the contractor 

when completing the VETS–100A. The 

contractor’s knowledge of veterans status 

may be obtained in a variety of ways, 

including an invitation to applicants to selfidentify (in accordance with 41 CFR 60– 

300.42), voluntary self-disclosure by 

employees, or actual knowledge of veteran 

status by the contractor. This paragraph does 

not relieve an employer of liability for 

discrimination under 38 U.S.C. 4212. 

(g) The Contractor shall insert the terms of 

this clause in subcontracts of $100,000 or 

more unless exempted by rules, regulations, 

or orders of the Secretary of Labor. 

(End of clause) 

■ 17. Amend section 52.222–38 by 

revising the date of the provision and 

the provision to read as follows: 

52.222–38 Compliance with Veterans’ 

Employment Reporting Requirements. 

* * * * * 

COMPLIANCE WITH VETERANS’ 

EMPLOYMENT REPORTING 

REQUIREMENTS (SEP 2010) 

By submission of its offer, the offeror 

represents that, if it is subject to the reporting 

requirements of 38 U.S.C. 4212(d) (i.e., if it 

has any contract containing Federal 

Acquisition Regulation clause 52.222–37, 

Employment Reports on Veterans), it has 

submitted the most recent VETS–100A 

Report required by that clause. 

(End of provision) 

■ 18. Amend section 52.244–6 by 

revising the date of the clause and 

paragraph (c)(1)(v) to read as follows: 

52.244–6 Subcontracts for Commercial 

Items. 

* * * * * 

SUBCONTRACTS FOR COMMERCIAL 

ITEMS (SEP 2010) 

* * * * * 

(c)(1) * * * 

(v) 52.222–35, Equal Opportunity for 

Veterans (SEP 2010) (38 U.S.C. 4212(a)); 

* * * * * 

[FR Doc. 2010–24218 Filed 9–28–10; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 4, 25 and 52 

[FAC 2005–46; FAR Case 2010–012; Item 

II; Docket 2010–0102, Sequence 1] 

RIN 9000–AL71 

Federal Acquisition Regulation; 

Certification Requirement and 

Procurement Prohibition Relating to 

Iran Sanctions 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) are issuing an interim rule 

amending the Federal Acquisition 

Regulation (FAR) to implement section 

102 and partially implements section 

106 of the Comprehensive Iran 

Sanctions, Accountability, and 

Divestment Act of 2010. Section 102 

requires certification that each offeror, 

and any person owned or controlled by 

the offeror, does not engage in any 

activity for which sanctions may be 

imposed under section 5 of the Iran 

Sanctions Act of 1996, as amended (the 

Iran Sanctions Act). Section 106 

imposes a procurement prohibition 

relating to contracts with persons that 

export certain sensitive technology to 

Iran. There will be further 

implementation of section 106 in FAR 

Case 2010–018. 

DATES: Effective Date: September 29, 

2010. 

Comment Date: Interested parties 

should submit written comments to the 

Regulatory Secretariat on or before 

November 29, 2010 to be considered in 

the formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–46, FAR Case 

2010–012, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting ‘‘FAR 

Case 2010–012’’ under the heading 

‘‘Enter Keyword or ID’’ and selecting 

‘‘Search.’’ Select the link ‘‘Submit a 

Comment’’ that corresponds with ‘‘FAR 

Case 2010–012.’’ Follow the instructions 

provided at the ‘‘Submit a Comment’’ 

screen. Please include your name, 

company name (if any), and ‘‘FAR Case 

2010–012’’ on your attached document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(MVCB), 1800 F Street, NW., Room 

4041, Attn: Hada Flowers, Washington, 

DC 20405. 

Instructions: Please submit comments 

only and cite FAC 2005–46, FAR Case 

2010–012, in all correspondence related 

to this case. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. 

Cecelia L. Davis, Procurement Analyst, 

at (202) 219–0202. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–46, FAR Case 2010–012. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This interim rule implements section 

102 and partially implements section 

106 of the Comprehensive Iran 

Sanctions, Accountability, and 

Divestment Act of 2010 (Pub. L. 111– 

195), enacted July 1, 2010. Section 102, 

entitled ‘‘Expansion of Sanctions under 

the Iran Sanctions Act of 1996,’’ requires 

that, not later than 90 days after the date 

of the enactment of Public Law 111– 

195, the FAR shall be revised to require 

a certification from each person that is 

a prospective contractor that the person, 

and any person owned or controlled by 

the person, does not engage in any 

activity for which sanctions may be 

imposed under section 5 of the Iran 

Sanctions Act. 

This interim rule has added in FAR 

subpart 25.7 a new section 25.703, 

Prohibition on contracting with entities 

that engage in certain activities relating 

to Iran. This section provides a 

definition of ‘‘person’’ at FAR 25.703–1, 

which is applicable to both of the 

following subsections. 

FAR 25.703–2 implements section 

102 of Public Law 111–195. It explains 

the certification requirement at FAR 

25.703–2(a) and provides a summary of 

the activities for which sanctions may 

be imposed, which are described in 


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