[Federal Register Volume 64, Number 189 (Thursday, September 30, 1999)]
[Rules and Regulations]
[Pages 52672-52673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25164]


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DEPARTMENT OF DEFENSE

48 CFR Parts 222 and 252

[DFARS Case 97-D318]


Defense Federal Acquisition Regulation Supplement; Contractor Use 
or Nonimmigrant Aliens--Guam

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: The Director of Defense Procurement is adopting as final, with 
changes, an interim rule amending the Defense Federal Acquisition 
Regulation Supplement (DFARS). The rule addresses statutory 
prohibitions against the performance of work by nonimmigrant aliens 
under DoD contracts for military construction or base operations 
support on Guam.

DATES: September 30, 1999.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition 
Regulations Council, PDUSD (A&T) DP (DAR), IMD 3D139, 3062 Defense 
Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0288; telefax 
(703) 602-0350. Please cite DFARS Case 97-D318.

SUPPLEMENTARY INFORMATION: 

A. Background

    This rule finalizes, with changes, the interim rule published at 63 
FR 31935 on June 11, 1998. The interim rule added a new DFARS Subpart 
222.73 and a new contract clause at DFARS 252.222-7005 to implement 
Section 390 of the National Defense Authorization Act for Fiscal Year 
1998 (Public Law 105-85). Section 390 provides that each DoD contract 
for base operations support to be performed on Guam must contain a 
condition that work under the contract may not be performed by any 
alien who is issued a visa or otherwise provided nonimmigrant status 
under Section 101(a) (15) (H) (ii) of the Immigration and Nationality 
Act (8 U.S.C. 1101(a) (15) (H) (ii)).
    Four sources submitted comments on the interim rule. DoD considered 
all comments in the development of the final rule. The final rule 
differs from the interim rule in that it incorporates the similar 
restrictions of 10 U.S.C. 2864 pertaining to military construction 
contracts on Guam, and clarifies that the prohibition against 
performance of work by nonimmigrant aliens does not apply to lawfully 
admitted citizens of the freely associated states of the Republic of 
the Marshall Islands, the Federated States of Micronesia, or the 
Republic of Palau.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD certifies that this final rule will not 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 the rule applies only to military construction and base 
operations support contracts to be performed on Guam.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the rule does 
not impose any information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

List of Subjects in 48 CFR Parts 222 and 252

    Government procurement.

Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.

Interim Rule Adopted as Final With Changes

    Accordingly, the interim rule amending 48 CFR parts 222 and 252, 
which was published at 63 FR 31935 on June 11, 1998, is adopted as a 
final rule with the following changes:
    1. The authority citation for 48 CFR Parts 222 and 252 continues to 
read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 222--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

    2. Subpart 222.73 is revised to read as follows:

Subpart 222.73--Limitations Applicable to Contracts Performed on 
Guam

Sec.
222.7300  Scope of subpart.
222.7301  Prohibition on use of nonimmigrant aliens.
222.7302  Exception.
222.7303  Contract clause.


222.7300  Scope of subpart.

    (a) This subpart implements--
    (1) 10 U.S.C. 2864; and
    (2) Section 390 of the National Defense Authorization Act for 
Fiscal Year 1998 (Public Law 105-85).
    (b) This subpart applies to--
    (1) Contracts for military construction projects on Guam; and
    (2) Contracts for base operations support on Guam that--
    (i) Are awarded as a result of a competition conducted under OMB 
Circular A-76; and
    (ii) Are entered into or modified on or after November 18, 1997.


222.7301  Prohibition on use of nonimmigrant aliens.

    (a) Any alien who is issued a visa or otherwise provided 
nonimmigrant status under Section 101(a)(15)(H)(ii) of the Immigration 
and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)) is prohibited from 
performing work under a contract for--
    (1) A military construction project on Guam; or

[[Page 52673]]

    (2) Base operations support on Guam.
    (b) Lawfully admitted citizens of the freely associated states of 
the Republic of the Marshall Islands, the Federated States of 
Micronesia, or the Republic of Palau are not subject to the prohibition 
in paragraph (a) of this section.


222.7302  Exception.

    The prohibition in 222.7301(a)(1) does not apply to a military 
construction project if--
    (a) There is no acceptable offer in response to a solicitation for 
the project;
    (b) The Secretary concerned makes a determination that the 
prohibition is a significant deterrent to obtaining offers on the 
project; and
    (c) Another solicitation is issued for the project.


222.7303  Contract clause.

    Use the clause at 252.222-7005, Prohibition on Use of Nonimmigrant 
Aliens-Guam, in solicitations and contracts subject to this subpart, 
except those issued in accordance with 222.7302.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    3. Section 252.222-7005 is revised to read as follows:


252.222-7005  Prohibition on Use of Nonimmigrant Aliens--Guam.

    As prescribed in 222.7303, use the following clause:

    PROHIBITION ON USE OF NONIMMIGRANT ALIENS--GUAM (SEP 1999)
    The work required by this contract shall not be performed by any 
alien who is issued a visa or otherwise provided nonimmigrant status 
under Section 101(a)(15)(H)(ii) of the Immigration and Nationality 
Act (8 U.S.C. 1101(a)(15)(H)(ii)). This prohibition does not apply 
to the performance of work by lawfully admitted citizens of the 
freely associated states of the Republic of the Marshall Islands, 
the Federated States of Micronesia, or the Republic of Palau.

(End of clause)

[FR Doc. 99-25164 Filed 9-29-99; 8:45 am]
BILLING CODE 5000-04-M