[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]
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