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Administrative Regulation Week 2 Assignment
Nicole Alexander

1. Department of Labor: Office of Federal Contract Compliance Programs http://www.regulations.gov/search/Regs/contentStreamer?objectId=0900006480273667&disposition=attachment&contentType=html My father is a 22-year veteran of the United States Army. He was considered 40% disabled because of injuries and trauma sustained during his military career (including two tours in Vietnam) upon his discharge. (Currently he is considered 90% disabled). He also became a government procurement director after his discharge and worked in the arena of assisting other veterans who owned their own businesses attain state and federal contracts.

2. The Office of Federal Contract Compliance Programs published a new set of regulations to implement the amendments to the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974(``VEVRAA'') that were made by the Jobs for Veterans Act (JVA) enacted in 2002. These amendments addressed three areas: a. Raised the threshold dollar amount of the Government contracts that are subject to the affirmative action provisions of VEVRAA b. Changed the categories of veterans protected by the law c. Changed the manner in which the mandatory job listing requirement is to be implemented

3. My comment on the proposal: d. I am writing to support the current proposal changing the category of veteran protection in the current law. I had concerns when the JVA eliminated the category of Vietnam Era Veterans under VEVRAA. But I recognize that may Vietnam era veterans will remain covered in other categories. This regulation expands the coverage to three years after discharge. This is vital because studies show that it takes anywhere from 6 to 24 months for disabled veterans to re-assimilate into society after discharge. I am in full support of the efforts to provide and protect our veterans of the armed forces and I believe this regulation must be passed to continue to ensure their well being.

4. The deadline for public comment was March 21, 2006

5. Comment submission:

e. Anyone who wishes to challenge the validity of a federal regulation after it becomes law must participate in the comment period and voice his or her concerns at that time.

f. Five Legal Theories to overturn regulation in court 1. Arbitrary and Capricious – generally applied to informal rulemaking and simply requires agency to show evidence to support the proposed rule. 2. Substantial Evidence –states that the regulation is unsupported by substantial evidence. It requires more convincing evidence in support of the regulation than against it. This substantial evidence test is applied in the review of formal and hybrid rulemaking. 3. A regulation can be set aside if the agency did not comply with the APA requirements of notice, publication, and public comment or input. 4. A regulation can be challenged on the grounds that it is unconstitutional. Many of these challenges deal with regulations giving agencies authority to search records or that impose discriminatory requirements for licensed professionals. 5. Ultra Vires – “Beyond its powers” If the agency goes beyond the authority it was given in enabling its act, it can be overturned.

g. The best opportunity to challenge this regulation is ultra vires. But I think it can only be applied to the first part of this proposed change, which is to increase the dollar threshold of government contracts that are subject to the requirements of VEVRAA. My understanding is that the OFCCP sole charge is to ensure that contractors doing business with the Federal government do not discriminate but allow affirmative action. By raising the threshold, an argument can be made that all contracts under $100,000 will not be monitored and these contractors could discriminate and not be held accountable to the VEVRAA of 1974.

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