Federal Acquisition Regulation; Federal Acquisition Circular 2005-29; Small Entity Compliance Guide, 67705-67706 [E8-26905]

Download as PDF mstockstill on PROD1PC66 with RULES3 Federal Register / Vol. 73, No. 221 / Friday, November 14, 2008 / Rules and Regulations (iii) Offered to the Government, without modification, in the same form in which it is sold in the commercial marketplace; and (2) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 (46 U.S.C. App. 1702), such as agricultural products and petroleum products. Per 46 CFR 525.1(c)(2), ‘‘bulk cargo’’ means cargo that is loaded and carried in bulk onboard ship without mark or count, in a loose unpackaged form, having homogenous characteristics. Bulk cargo loaded into intermodal equipment, except LASH or Seabee barges, is subject to mark and count and, therefore, ceases to be bulk cargo. Employee assigned to the contract means an employee who was hired after November 6, 1986, who is directly performing work, in the United States, under a contract that is required to include the clause prescribed at 22.1803. An employee is not considered to be directly performing work under a contract if the employee— (1) Normally performs support work, such as indirect or overhead functions; and (2) Does not perform any substantial duties applicable to the contract. Subcontract means any contract, as defined in 2.101, entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract. It includes but is not limited to purchase orders, and changes and modifications to purchase orders. Subcontractor means any supplier, distributor, vendor, or firm that furnishes supplies or services to or for a prime Contractor or another subcontractor. United States, as defined in 8 U.S.C. 1101(a)(38), means the 50 States, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands. (b) Enrollment and verification requirements. (1) If the Contractor is not enrolled as a Federal Contractor in E-Verify at time of contract award, the Contractor shall— (i) Enroll. Enroll as a Federal Contractor in the E-Verify program within 30 calendar days of contract award; (ii) Verify all new employees. Within 90 calendar days of enrollment in the E-Verify program, begin to use E-Verify to initiate verification of employment eligibility of all new hires of the Contractor, who are working in the United States, whether or not assigned to the contract, within 3 business days after the date of hire (but see paragraph (b)(3) of this section); and (iii) Verify employees assigned to the contract. For each employee assigned to the contract, initiate verification within 90 calendar days after date of enrollment or within 30 calendar days of the employee’s assignment to the contract, whichever date is later (but see paragraph (b)(4) of this section). (2) If the Contractor is enrolled as a Federal Contractor in E-Verify at time of contract award, the Contractor shall use E-Verify to initiate verification of employment eligibility of— (i) All new employees. (A) Enrolled 90 calendar days or more. The Contractor shall initiate verification of all new hires of the Contractor, who are working in the United States, whether or not assigned to the VerDate Aug<31>2005 17:48 Nov 13, 2008 Jkt 217001 contract, within 3 business days after the date of hire (but see paragraph (b)(3) of this section); or (B) Enrolled less than 90 calendar days. Within 90 calendar days after enrollment as a Federal Contractor in E-Verify, the Contractor shall initiate verification of all new hires of the Contractor, who are working in the United States, whether or not assigned to the contract, within 3 business days after the date of hire (but see paragraph (b)(3) of this section); or (ii) Employees assigned to the contract. For each employee assigned to the contract, the Contractor shall initiate verification within 90 calendar days after date of contract award or within 30 days after assignment to the contract, whichever date is later (but see paragraph (b)(4) of this section). (3) If the Contractor is an institution of higher education (as defined at 20 U.S.C. 1001(a)); a State or local government or the government of a Federally recognized Indian tribe; or a surety performing under a takeover agreement entered into with a Federal agency pursuant to a performance bond, the Contractor may choose to verify only employees assigned to the contract, whether existing employees or new hires. The Contractor shall follow the applicable verification requirements at (b)(1) or (b)(2), respectively, except that any requirement for verification of new employees applies only to new employees assigned to the contract. (4) Option to verify employment eligibility of all employees. The Contractor may elect to verify all existing employees hired after November 6, 1986, rather than just those employees assigned to the contract. The Contractor shall initiate verification for each existing employee working in the United States who was hired after November 6, 1986, within 180 calendar days of— (i) Enrollment in the E-Verify program; or (ii) Notification to E-Verify Operations of the Contractor’s decision to exercise this option, using the contact information provided in the E-Verify program Memorandum of Understanding (MOU). (5) The Contractor shall comply, for the period of performance of this contract, with the requirements of the E-Verify program MOU. (i) The Department of Homeland Security (DHS) or the Social Security Administration (SSA) may terminate the Contractor’s MOU and deny access to the E-Verify system in accordance with the terms of the MOU. In such case, the Contractor will be referred to a suspension or debarment official. (ii) During the period between termination of the MOU and a decision by the suspension or debarment official whether to suspend or debar, the Contractor is excused from its obligations under paragraph (b) of this clause. If the suspension or debarment official determines not to suspend or debar the Contractor, then the Contractor must reenroll in E-Verify. (c) Web site. Information on registration for and use of the E-Verify program can be obtained via the Internet at the Department of Homeland Security Web site: http:// www.dhs.gov/E-Verify. (d) Individuals previously verified. The Contractor is not required by this clause to PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 67705 perform additional employment verification using E-Verify for any employee— (1) Whose employment eligibility was previously verified by the Contractor through the E-Verify program; (2) Who has been granted and holds an active U.S. Government security clearance for access to confidential, secret, or top secret information in accordance with the National Industrial Security Program Operating Manual; or (3) Who has undergone a completed background investigation and been issued credentials pursuant to Homeland Security Presidential Directive (HSPD)–12, Policy for a Common Identification Standard for Federal Employees and Contractors. (e) Subcontracts. The Contractor shall include the requirements of this clause, including this paragraph (e) (appropriately modified for identification of the parties), in each subcontract that— (1) Is for—(i) Commercial or noncommercial services (except for commercial services that are part of the purchase of a COTS item (or an item that would be a COTS item, but for minor modifications), performed by the COTS provider, and are normally provided for that COTS item); or (ii) Construction; (2) Has a value of more than $3,000; and (3) Includes work performed in the United States. (End of clause) [FR Doc. E8–26904 Filed 11–13–08; 8:45 am] BILLING CODE 6820–EP–P ?≤ DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Chapter 1 [Docket FAR 2008–0003, Sequence 4] Federal Acquisition Regulation; Federal Acquisition Circular 2005–29; Small Entity Compliance Guide Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Small Entity Compliance Guide. AGENCIES: SUMMARY: This document is issued under the joint authority of the Secretary of Defense, the Administrator of General Services and the Administrator of the National Aeronautics and Space Administration. This Small Entity Compliance Guide has been prepared in accordance with Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. It consists of a summary of the E:\FR\FM\14NOR3.SGM 14NOR3 67706 Federal Register / Vol. 73, No. 221 / Friday, November 14, 2008 / Rules and Regulations rule appearing in Federal Acquisition Circular (FAC) 2005–29 which amends the FAR. An asterisk (*) next to a rule indicates that a regulatory flexibility analysis has been prepared. Interested parties may obtain further information regarding this rule by referring to FAC 2005–29 which precedes this document. These documents are also available via the Internet at http:// www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Laurieann Duarte, Regulatory Secretariat, (202) 501–4225. For clarification of content, contact the analyst whose name appears in the table below. RULE LISTED IN FAC 2005–29 Item Subject * I ............................. Employment Eligibility Verification ............................................................................. A summary of the FAR rule follows. For the actual revisions and/or amendments to this FAR case, refer to FAR Case 2007–013. FAC 2005–29 amends the FAR as specified below: SUPPLEMENTARY INFORMATION: Item I—Employment Eligibility Verification (FAR Case 2007–013) mstockstill on PROD1PC66 with RULES3 This final rule implements Executive Order 12989, as amended June 6, 2008, and the selection of the Secretary for Homeland Security of the E-Verify system as the electronic system to be used for certain contractors and subcontractors as the means of verifying that certain of their employees are eligible to work in the United States. This final rule inserts a clause into Federal contracts that are above the simplified acquisition threshold and have a performance period of at least 120 days, committing Government contractors to use the U.S. Citizenship and Immigration Services’ E-Verify system to verify that all of the contractors’ new hires, and all employees (existing and new) directly performing work under Federal VerDate Aug<31>2005 17:48 Nov 13, 2008 Jkt 217001 FAR case contracts, are authorized to work in the United States. Exemptions include contracts that are for commercially available off-the-shelf (COTS) items and items that would be COTS items but for minor modifications. The final rule requires prime contractors to include the clause in subcontracts over $3,000 for services or for construction. In exceptional circumstances, a head of the contracting activity, without power of redelegation, is authorized to waive the requirement to include the clause. In response to public comments, the final rule significantly extends the timelines for registering, beginning to use the system for new and existing employees, and using the program to initiate verification of new hires. Applicability to certain entities was limited in the following ways: • Institutions of higher education need only verify employees assigned to a covered Federal contract. • State and local governments and Federally Recognized Indian Tribes need only verify employees assigned to a covered Federal contract. PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 2007–013 Analyst Murphy. • Sureties performing under a takeover agreement entered into with a Federal agency pursuant to a performance bond need only verify employees assigned to the covered Federal contract. In addition, the final rule exempts from verification requirements (a) employees who hold an active security clearance of confidential, secret, or top secret and (b) employees for whom background investigations have been completed and credentials issued pursuant to Homeland Security Presidential Directive (HSPD)-12. Contractors concerned with costs associated with identifying and separating existing employees assigned to a Federal contract, for the purpose of E-Verify, are provided the option of verifying all employees of the contractor, including any existing employees not currently assigned to a Government contract. Dated: November 6, 2008. Al Matera, Director, Office of Acquisition Policy. [FR Doc. E8–26905 Filed 11–13–08; 8:45 am] BILLING CODE 6820–EP–P E:\FR\FM\14NOR3.SGM 14NOR3

Agencies

[Federal Register Volume 73, Number 221 (Friday, November 14, 2008)]
[Rules and Regulations]
[Pages 67705-67706]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-26905]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Chapter 1

[Docket FAR 2008-0003, Sequence 4]


Federal Acquisition Regulation; Federal Acquisition Circular 
2005-29; Small Entity Compliance Guide

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

ACTION: Small Entity Compliance Guide.

-----------------------------------------------------------------------

SUMMARY: This document is issued under the joint authority of the 
Secretary of Defense, the Administrator of General Services and the 
Administrator of the National Aeronautics and Space Administration. 
This Small Entity Compliance Guide has been prepared in accordance with 
Section 212 of the Small Business Regulatory Enforcement Fairness Act 
of 1996. It consists of a summary of the

[[Page 67706]]

rule appearing in Federal Acquisition Circular (FAC) 2005-29 which 
amends the FAR. An asterisk (*) next to a rule indicates that a 
regulatory flexibility analysis has been prepared. Interested parties 
may obtain further information regarding this rule by referring to FAC 
2005-29 which precedes this document. These documents are also 
available via the Internet at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Laurieann Duarte, Regulatory 
Secretariat, (202) 501-4225. For clarification of content, contact the 
analyst whose name appears in the table below.

                                           Rule Listed in FAC 2005-29
----------------------------------------------------------------------------------------------------------------
                Item                           Subject               FAR case                 Analyst
----------------------------------------------------------------------------------------------------------------
* I................................  Employment Eligibility             2007-013  Murphy.
                                      Verification.
----------------------------------------------------------------------------------------------------------------


SUPPLEMENTARY INFORMATION: A summary of the FAR rule follows. For the 
actual revisions and/or amendments to this FAR case, refer to FAR Case 
2007-013.
    FAC 2005-29 amends the FAR as specified below:

Item I--Employment Eligibility Verification (FAR Case 2007-013)

    This final rule implements Executive Order 12989, as amended June 
6, 2008, and the selection of the Secretary for Homeland Security of 
the E-Verify system as the electronic system to be used for certain 
contractors and subcontractors as the means of verifying that certain 
of their employees are eligible to work in the United States. This 
final rule inserts a clause into Federal contracts that are above the 
simplified acquisition threshold and have a performance period of at 
least 120 days, committing Government contractors to use the U.S. 
Citizenship and Immigration Services' E-Verify system to verify that 
all of the contractors' new hires, and all employees (existing and new) 
directly performing work under Federal contracts, are authorized to 
work in the United States.
    Exemptions include contracts that are for commercially available 
off-the-shelf (COTS) items and items that would be COTS items but for 
minor modifications. The final rule requires prime contractors to 
include the clause in subcontracts over $3,000 for services or for 
construction.
    In exceptional circumstances, a head of the contracting activity, 
without power of redelegation, is authorized to waive the requirement 
to include the clause.
    In response to public comments, the final rule significantly 
extends the timelines for registering, beginning to use the system for 
new and existing employees, and using the program to initiate 
verification of new hires.
    Applicability to certain entities was limited in the following 
ways:
     Institutions of higher education need only verify 
employees assigned to a covered Federal contract.
     State and local governments and Federally Recognized 
Indian Tribes need only verify employees assigned to a covered Federal 
contract.
     Sureties performing under a takeover agreement entered 
into with a Federal agency pursuant to a performance bond need only 
verify employees assigned to the covered Federal contract.
    In addition, the final rule exempts from verification requirements 
(a) employees who hold an active security clearance of confidential, 
secret, or top secret and (b) employees for whom background 
investigations have been completed and credentials issued pursuant to 
Homeland Security Presidential Directive (HSPD)-12. Contractors 
concerned with costs associated with identifying and separating 
existing employees assigned to a Federal contract, for the purpose of 
E-Verify, are provided the option of verifying all employees of the 
contractor, including any existing employees not currently assigned to 
a Government contract.

    Dated: November 6, 2008.
Al Matera,
Director, Office of Acquisition Policy.
[FR Doc. E8-26905 Filed 11-13-08; 8:45 am]
BILLING CODE 6820-EP-P