[Federal Register: June 12, 2008 (Volume 73, Number 114)][Proposed Rules] [Page 33374-33381]From the Federal Register Online via GPO Access [wais.access.gpo.gov][DOCID:fr12jn08-37] =======================================================================-----------------------------------------------------------------------DEPARTMENT OF DEFENSEGENERAL SERVICES ADMINISTRATIONNATIONAL AERONAUTICS AND SPACE ADMINISTRATION48 CFR Parts 2, 12, 22, and 52[FAR Case 2007-013; Docket 2008-0001; Sequence 1]RIN 9000-AK91 Federal Acquisition Regulation; FAR Case 2007-013, Employment Eligibility VerificationAGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).ACTION: Proposed rule.-----------------------------------------------------------------------SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to require certain contractors and subcontractors to use the U.S. Citizenship and Immigration Services' (USCIS) E-Verify system as the means of verifying that certain of their employees are eligible to work in the United States.
DATES: Interested parties should submit written comments to the FAR Secretariat on or before August 11, 2008 to be considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2007-013 by any of the following methods: Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by inputting ``FAR Case 2007-013'' under the heading ``Comment or Submission''. Select the link ``Send a Comment or Submission'' that corresponds with FAR Case 2007-013. Follow the instructions provided to complete the ``Public Comment and Submission Form''. Please include your name, company name (if any), and ``FAR Case 2007-013'' on your attached document.[[Page 33375]] Fax: 202-501-4067. Mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW., Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2007-013 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: Meredith Murphy, Procurement Analyst, at (202) 208-6925 for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755. Please cite FAR case 2007-013.
SUPPLEMENTARY INFORMATION:
A. Background This rule proposes to amend the Federal Acquisition Regulation (FAR) to require that certain contracts contain a clause requiring that the contractor and certain subcontractors utilize the E-Verify System to verify employment eligibility of all newly hired employees of the contractor or subcontractor and all employees directly engaged in the performance of work in the United States under those contracts. The Government awards numerous contracts each fiscal year worth hundreds of billions of dollars. At the same time, one of the Government's primary responsibilities is the enforcement of the immigration laws of the United States. It is appropriate to ensure that Government contractors and subcontractors abide by the immigration laws that the Government enforces. In 1986, Congress amended the Immigration and Nationality Act (INA) to prohibit the hiring or continued employment of aliens, knowing that the aliens are unauthorized to work in the United States. Public Law 99-603, Title I, Sec. 101(a)(1), 100 Stat. 3360, codified at 8 U.S.C. 1324a(a). Congress also established an employment verification system in 8 U.S.C. 1324a(b), and directed the President to evaluate that system's security and efficacy and implement necessary changes, subject to congressional oversight. 8 U.S.C. 1324a(d). To assist in the development of such changes and additions to the system, Congress also authorized the President to establish demonstration projects designed to strengthen the employment verification system. 8 U.S.C. 1324a(d)(4). In 1992 the Immigration and Naturalization Service (INS) launched the Telephone Verification System (TVS) pilot program--an early form of what is now the E-Verify system--as a demonstration project. 69 Interpreter Releases 702 (June 8, 1992); 515 (Apr. 27, 1992). In 1996, Congress established the Basic Pilot program (now E-Verify) as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Public Law No. 104-208, Sec. Sec. 401-405, 110 Stat. 3009-655--3009-665 (1996) (8 U.S.C. 1324a note). The Basic Pilot statute instructs all departments of the Executive Branch to participate in E-Verify as part of their hiring process. IIRIRA Sec. 402(e)(1). This rule is authorized by an exercise of the President's authority under the Federal Property and Administrative Services Act of 1949 (FPASA), to ``prescribe policies and directives'' governing procurement policy ``that the President considers necessary to carry out'' that Act and that are ``consistent'' with the Act's aim of ``provid[ing] the Federal Government with an economical and efficient'' procurement system. 40 U.S.C. 121, 101. The ``economy and efficiency'' benefits to Federal contracting that flow from ensuring that the Federal Government does not do business with contractors that hire or employ unauthorized aliens were first set forth in Executive Order 12989 (see 61 FR 6091, February 15, 1996). That order, which pre-dated Congress's creation of the Basic Pilot program (now E-Verify), noted that the presence of unauthorized aliens on a contractor's workforce rendered that contractor's workforce less stable and reliable than the workforces of contractors who do not employ unauthorized aliens. The executive order entitled ``Economy and Efficiency in Government Procurement Through Compliance with Certain Immigration and Nationality Act Provisions and Use of an Electronic Employment Eligibility Verification System'' of June 6, 2008, amends Executive Order 12989 and, together with the Designation by the Secretary of Homeland Security, directs Federal agencies, in light of the recent advances in the reliability, convenience, and accuracy of the E-Verify system, to use this powerful tool to avoid both the general inefficiencies that flow from contracting with employers burdened with unstable workforces as well as the direct costs of disruptions to Federal contract performance that result when unauthorized aliens are found in, and must be subsequently removed from, the Federal contract workforce. This proposed rule inserts a clause into Federal contracts committing Government contractors to use the United States Citizenship and Immigration Service (USCIS) E-Verify System to verify that all of the contractors' new hires, and all employees (existing and new) directly engaged in the performance of work under Federal contracts, are authorized to work in the United States. The E-Verify System is expected to help contractors avoid employment of unauthorized aliens and will assist Federal agencies to avoid contracting with companies that knowingly hire unauthorized aliens. This enhances the Government's ability to protect national security and ensure compliance with the nation's immigration laws--core aspects of the Government's mission that otherwise could be compromised by the presence of unauthorized aliens in Government facilities or by the employment of unauthorized aliens in the Government's supply chain. It also protects U.S. workers by creating another disincentive for companies to hire unauthorized aliens who may command lower wages.
In summary, the proposed rule-- 1. Requires insertion of a clause into Government prime contracts that include work in the United States, other than those that do not exceed the micro-purchase threshold (generally $3,000), or that are for commercially available off-the-shelf (COTS) items or items that would be COTS items but for minor modifications (the rule adopts the statutory definition of COTS). 2. Requires inclusion of the clause in subcontracts over $3,000 for services or for construction. 3. Requires a contractor or subcontractor to enroll in the E-Verify program within 30 days of contract award, begin verifying the employment eligibility of all new employees of the contractor or subcontractor that are hired after enrollment in E-Verify, and continue to use the E-Verify program for the life of the contract. 4. Requires contractors and subcontractors to use E-Verify to confirm the employment eligibility of all existing employees who are directly engaged in the performance of work under the covered contract. 5. Applies to solicitations issued and contracts awarded after the effective date of the final rule in accordance with FAR 1.108(d). Under the final rule, Departments and agencies should, in accordance with FAR 1.108(d)(3), amend existing indefinite-delivery/indefinite-quantity contracts to include the clause for future orders if the remaining period of performance extends at least six months after the effective date of the final rule and the amount of work or number of orders[[Page 33376]]expected under the remaining performance period is substantial. 6. In exceptional circumstances, allows a head of the contracting activity to waive the requirement to include the clause. This authority is not delegable. The proposed rule applies only to employment in the United States as defined at section 101(a)(38) of the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq. ``United States'' includes the fifty States and the District of Columbia, Guam, Puerto Rico, and the United States Virgin Islands. It does not currently include the United States territories of American Samoa and the Commonwealth of the Northern Mariana Islands. Under the Consolidated Natural Resources Act of 2008, Federal immigration law will begin to apply--through a phased process--to the Commonwealth of the Northern Mariana Islands starting in mid-2009. At this time, however, these two territories have their own immigration laws and are not covered by the employment verification requirements of INA section 274A, 8 U.S.C. 1324a (see Form I-9). The proposed rule also does not apply to any employment outside the United States, including work on United States embassies or military bases in foreign countries. Finally, the proposed rule does not apply to any employee hired prior to November 6, 1986, as these employees are not subject to employment verification under INA section 274A, 8 U.S.C. 1324a.
[To read the entire proposed regulation, go to: http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&o=0900006480620ee8 ]
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