[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41472-41473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20190]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 9

[FAC 90-41, FAR Case 96-320, Item II]
RIN 9000-AHXX


Federal Acquisition Regulation; Compliance With Immigration and 
Nationality Act Provisions

AGENCIES: Department of Defense (DOD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rule with request for comment.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council have agreed to an interim rule amending 
the Federal Acquisition Regulation (FAR) Part 9 to implement Executive 
Order 12989 of February 13, 1996, Economy and Efficiency in Government 
Procurement Through Compliance With Certain Immigration and Nationality 
Act Provisions. This regulatory action was not subject to Office of 
Management and Budget review under Executive Order 12866, dated 
September 30, 1993, and is not a major rule under 5 U.S.C. 804.

DATES: Effective Date: August 8, 1996.
    Comment Date: Comments should be submitted to the FAR Secretariat 
at the address shown below on or before October 7, 1996 to be 
considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to: -
General Services Administration, FAR Secretariat (MVRS), 18th & F 
Streets, NW, Room 4035, Attn: Ms. Beverly Fayson, Washington, DC 20405.

Please cite FAC 90-41, FAR case 96-320, in all correspondence related 
to this case.

FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758 
in reference to this FAR case. For general information, contact the FAR 
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-41, FAR case 96-320.

SUPPLEMENTARY INFORMATION:

A. Background

    Executive Order 12989, Economy and Efficiency in Government 
Procurement Through Compliance With Certain Immigration and Nationality 
Act Provisions, was signed on February 13, 1996. The Executive Order 
provides that a contractor may be debarred upon a determination by the 
Attorney General that the contractor is not in compliance with the 
employment provisions of the Immigration and Nationality Act (INA). 
This interim rule revises FAR 9.406-2, to specify that such a 
determination by the Attorney General is a basis for debarment, and 
9.406-4, to stipulate the duration of the debarment mandated by the 
Executive order.

B. Regulatory Flexibility Act

    This interim rule is not expected to have a significant impact on a 
substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. Only a small number of 
Federal contractors are likely to be the subject of a determination, by 
the Attorney General, that they are not in compliance with the 
employment provisions of the Immigration and Nationality Act. An 
Initial Regulatory Flexibility Analysis has, therefore, not been 
performed. Comments from small entities concerning the affected FAR 
subpart will be considered in accordance with 5 U.S.C. 610. Such 
comments must be submitted separately and cite 5 U.S.C. 601, et seq. 
(FAR Case 96-320), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose recordkeeping or information collection 
requirements, or collections of information from offerors, contractors, 
or members of the public which require the approval of OMB under 44 
U.S.C. 3501, et seq.

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 compelling

[[Page 41473]]

reasons exist to promulgate this interim rule without prior opportunity 
for public comment. This action is necessary to implement Executive 
Order 12989, Economy and Efficiency in Government Procurement Through 
Compliance With Certain Immigration and Nationality Act Provisions, 
which was effective upon its execution (February 13, 1996). However, 
pursuant to Public Law 98-577 and FAR 1.501, public comments received 
in response to this interim rule will be considered in the formation of 
the final rule.

List of Subjects in 48 CFR Part 9

    Government procurement.

    Dated: August 2, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
    Therefore, 48 CFR Part 9 is amended as set forth below:
    1. The authority citation for 48 CFR Part 9 continues to read as 
follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 9--CONTRACTOR QUALIFICATIONS

    2. Section 9.406-2 is amended in paragraph (a)(4) in the second 
parenthetical by removing ``section'' and inserting ``Section'' in its 
place, and by revising (b) to read as follows:


9.406-2  Causes for debarment.

* * * * *
    (b)(1) The debarring official may debar a contractor, based upon a 
preponderance of the evidence, for--
    (i) Violation of the terms of a Government contract or subcontract 
so serious as to justify debarment, such as--
    (A) Willful failure to perform in accordance with the terms of one 
or more contracts; or
    (B) A history of failure to perform, or of unsatisfactory 
performance of, one or more contracts.
    (ii) Violations of the Drug-Free Workplace Act of 1988 (Public Law 
100-690), as indicated by--
    (A) The offeror's submission of a false certification;
    (B) The contractor's failure to comply with its certification; or
    (C) Such a number of contractor employees having been convicted of 
violations of criminal drug statutes occurring in the workplace, as to 
indicate that the contractor has failed to make a good faith effort to 
provide a drug-free workplace (see 23.504).
    (iii) Intentionally affixing a label bearing a ``Made in America'' 
inscription (or any inscription having the same meaning) to a product 
sold in or shipped to the United States, when the product was not made 
in the United States (see Section 202 of the Defense Production Act 
(Public Law 102-558)).---
    (iv) Commission of an unfair trade practice as defined in 9.403 
(see Section 201 of the Defense Production Act (Public Law 102-558)).
    (2) The debarring official may debar a contractor, based on a 
determination by the Attorney General of the United States, or 
designee, that the contractor is not in compliance with Immigration and 
Nationality Act employment provisions (see Executive Order 12989). The 
Attorney General's determination is not reviewable in the debarment 
proceedings.
* * * * *
    3. Section 9.406-4 is amended by revising paragraphs (a) and (b) to 
read as follows:


9.406-4  Period of debarment.

    (a)(1) Debarment shall be for a period commensurate with the 
seriousness of the cause(s). Generally, debarment should not exceed 3 
years, except that--
    (i) Debarment for violation of the provisions of the Drug-Free 
Workplace Act of 1988 (see 23.506) may be for a period not to exceed 5 
years; and
    (ii) Debarments under 9.406-2(b)(2) shall be for one year unless 
extended pursuant to paragraph (b) of this subsection.
    (2) If suspension precedes a debarment, the suspension period shall 
be considered in determining the debarment period.
    (b) The debarring official may extend the debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the Government's interest. However, a debarment 
may not be extended solely on the basis of the facts and circumstances 
upon which the initial debarment action was based. Debarments under 
9.406-2(b)(2) may be extended for additional periods of one year if the 
Attorney General or designee determines that the contractor continues 
to be in violation of the employment provisions of the Immigration and 
Nationality Act. If debarment for an additional period is determined to 
be necessary, the procedures of 9.406-3 shall be followed to extend the 
debarment.
* * * * *
[FR Doc. 96-20190 Filed 8-7-96; 8:45 am]
BILLING CODE 6820-EP-P