RFQ Atch USFJI64102.pdf

BY ORDER OF THE HEADQUARTERS, UNITED STATES FORCES, JAPAN

COMMANDER USFJ INSTRUCTION 64-102

27 February 2003

Contracting

UNITED STATES OFFICIAL CONTRACTORS AND THEIR EMPLOYEES

COMPLIANCE WITH THIS PUBLICATION IS MANDATORY

OPR: USFJ/J54 (Mr. A. Nakai) Certified by: USFJ/J5 (COL David J. Knack) Supersedes USFJPL 70-2, 1 August 1985 Pages: 12 Distribution: A

PURPOSE: To establish uniform policies and procedures to be used throughout United States Forces, Japan in the implementation of Article XIV of the United States - Japan Status of Forces Agreement (SOFA). Article XIV deals with the designation, rights, privileges and responsibilities of US Official Contractors and their employees.

COMUSJAPAN designates United States official contractors based on the satisfaction of appropriate requirements.

SUMMARY OF CHANGES: Changed to new USFJ Instruction format.

1. Scope: This instruction is applicable to Component Commanders in Japan with respect to requirements for persons including corporations organized under the laws of the United States who have been or request to be designated US Official (Article XIV) Contractors, and to their employees.

2. General.

2.1. Background:

2.1.1. Article XIV, SOFA, provides that certain United States contractors present in Japan solely for the purpose of executing contracts with the US Armed Forces may be designated US Official Contractors (Article XIV Contractors) if they qualify under criteria set forth in SOFA and repeated elsewhere in this instruction. As US Official Contractors, these contractors and their bonafide US citizen employees are accorded benefits enumerated in Article XIV, SOFA.

2.1.2. Article XIV further provides that the arrival, departure, and residence in Japan of such contractors and their employees shall be communicated from time to time by the United States Forces to the Japanese authorities. Monthly reports on these matters are submitted to the Government of Japan through the Joint Committee.

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2.2. Definitions.

2.2.1. United States Official Contractors: Persons or corporations who are ordinarily resident in the United States and whose presence in Japan is solely for the purpose of performing contracts with the United States for the benefit of the United States Armed Forces in Japan, and who have been so designated by COMUSJAPAN.

2.2.2. Certified Employees: Those bonafide employees of United States Official Contractors who have been certified as to their identity by appropriate United States authorities, who are ordinarily resident in the United States and who are citizens of the United States.

2.3. Policies:

2.3.1. United States Official Contractors:

2.3.1.1. Component commanders in Japan will recommend to COMUSJAPAN, those persons and corporations they believe should be designated as United States Official Contractors. Similar recommendations will be submitted as appropriate concerning withdrawal of designations. COMUSJAPAN will approve or disapprove such recommendations and will coordinate approvals with the Government of Japan through Joint Committee channels.

2.3.1.2. Only those persons and corporations who are ordinarily residents in the United States and whose presence in Japan is soley for the purpose of performing contracts with the United States for the benefit of the United States armed forces may be designated as United States Official Contractors. Such designations shall be restricted to cases where open competitive bidding is not practical due to (1) security considerations, or (2) technical qualifications of the contractors involved, or (3) unavailability of material or services required by United States standards, or (4) limitations of United States Law.

2.3.1.3. Performance under these contracts utilizing the status of United States Official Contractor may commence at any time after the effective date of the designation provided that the component commander concerned has first been notified by COMUSJAPAN of this designation.

2.3.1.4. Persons and corporations designated United States Official Contractors by COMUSJAPAN will be accorded certain benefits and will be subject to the liabilities and responsibilities set forth in Article XIV of SOFA.

2.3.2. Employees of United States Official Contractors:

2.3.2.1. Component commanders will certify and terminate the certification of employees of United States Official Contractors; will submit monthly reports of their certification, HQ USFJ INST 64-102 27 February 2003 3 change in status, change in address or entry into or departure from Japan, to COMUSJAPAN as stated in paragraph 3 to this instruction.

2.3.2.2. Only employees of United States citizenship who are ordinarily resident in the United States and whose security reliability has been determined will be certified.

2.3.2.3. Only those employees of United States Official Contractors who are stationed in Japan will be certified. Employees, who are not stationed in Japan, such as crew members of transient aircraft, will not be certified.

2.3.2.4. Employees will be certified only after having entered into full time employment with a United States Official Contractor. The employee's certification will be terminated upon conclusion of full time employment. Certified employees entering into a leave without pay status will lose certified status, and immediate steps will be taken to assure compliance with Japanese immigration laws if the individual remains in Japan.

2.3.2.5. Certified employees will be accorded the benefits, and will be subject to the liabilities and responsibilities, set forth in Article XIV of the SOFA.

2.3.2.6. Certified employees who terminate their employment with a United States Official Contractor and remain in Japan will change to alien residence status in accordance with paragraph 3.4 of this instruction.

3. Procedures.

3.1. Recommendation for designation of United States Official Contractor: Component commanders will carefully screen each applicant for Article XIV status to determine which of the four criteria listed in paragraph 2.3.1.2 above fits the applicant. When the component commander is convinced that the applicant qualifies under one or more of the listed criteria, the recommendation to COMUSJAPAN will specify under which of the criteria the applicant qualifies, and why. Background materials, such as laws and regulations or pertinent extracts there from, should be forwarded. This information is essential as the SOFA provides that no Article XIV contractor will be designated unless at least one of the four criteria is met.

3.2. Designation and termination of Designation of United States Official Contractor:

3.2.1. The person or corporation to be designated will be advised to prepare a letter of request addressed to the appropriate component commander containing the following information:

3.2.1.1. Official name of the corporation.

3.2.1.2. Place and date of incorporation

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3.2.1.3. Address of the principal business office of the corporation in the United States where records are maintained.

3.2.1.4. Statement as to where contract was signed.

3.2.1.5. Name, title, and address of the principal representative of the corporation in Japan.

3.2.1.6. Location of the corporation's place of business in Japan for the purpose of performing contract in Japan.

3.2.1.7. Location of branch or field office in Japan.

3.2.1.8. Statement as to whether corporation has any business activities in Japan other than those pertaining to the United States armed forces.

3.2.1.9. Statement as to whether corporation is to be operated in Japan for the sole purpose of performing its contract with United States armed forces.

3.2.1.10. Statement that the applicant does not intend to engage in business activities in Japan other than those pertaining to the United States armed forces for the duration of the contract under which its application has been submitted and that it understands that entering into such business activities will be a basis for withdrawal of Article XIV designation.

3.2.1.11. General statement with respect to the principal business to be conducted by the corporation for the United States armed forces.

3.2.1.12. Number of US citizen employees to be given status under Article XIV.

3.2.1.13. Number of Japanese to be employed.

3.2.1.14. Statement as to whether the corporation, in order to perform the contract, will let any subcontracts and, if so, whether the subcontractors will be US or Japanese. The monetary value of and nature of work to be performed under the subcontracts should be given.

3.2.2. The letter of request will be forwarded by indorsement to COMUSJAPAN with appropriate recommendations. The following documents will be enclosed:

3.2.2.1. Copy of the Articles of Incorporation and amendments thereto.

3.2.2.2. Copy of the contract between representatives of the United States and the corporation.

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3.2.3. Component commanders and the American Embassy will be kept informed by COMUSJAPAN of all firms currently designated as United States Official Contractors.

3.2.4. The component commander concerned will notify the person or corporation of the decision concerning the request for designation. If the firm is designated as a United States Official Contractor, the component commander concerned will notify the corporation that duly designated contractors and certified employees are entitled to the exemption from Japanese Government taxes only in accordance with Article XIV and particularly paragraphs 5, 6, and 7 thereof.

3.2.5. The component commander responsible for supervising the execution of the contracts with a United States Official Contractor will notify COMUSJAPAN upon the completion, termination or abandonment of all contacts on the basis of which Article XIV status has been awarded, so that the designation of the corporation may be withdrawn and the Government of Japan notified. The component commander will likewise advise COMUSJAPAN when aware of any other condition, which would warrant withdrawal of the designation under paragraph 2 of Article XIV.

3.2.6. If the contract contains a firm termination date, the component commander will inform COMUSJAPAN on the termination date stated in the contract whether the contract was in fact terminated, whether it has been extended, and if so, for what period. If the contract has been terminated, the component commander will forward notification, together with the contractor statement described in 3.2.7. below. If the contract has been extended, the component commander should repeat actions specified in this subparagraph, as applicable, on the termination date of the extension of the contract.

3.2.7. In connection with the termination of designation, the contractor will submit a statement concerning the following matters for transmittal to the Government of Japan through the Joint Committee. This statement will be transmitted by the component commander to COMUSJAPAN.

3.2.7.1. Does the contractor intend to remain in Japan as a commercial business activity? (If answer is yes, disregard the following questions).

3.2.7.2. Has the corporation withdrawn or does it intend to withdraw all of its assets and personal property (including motor vehicles) from Japan concurrently with the withdrawal of its designation?

3.2.7.3. Has the corporation settled its liabilities within Japan, or does it intend to do so concurrently with the withdrawal of its designation?

3.2.7.4. Does the corporation plan to dispose of any of its personal property (including motor vehicles) in Japan subsequent to the withdrawal of its designation?

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3.3. Certification of Employees:

3.3.1. The local manager of the United States Official Contractor will be advised to forward to the component commander concerned, a written request for certification. This request will be the standard Letter of Identification (Contractor Travel) which will include:

name of United States Official Contractor, name of employee, date of entry into Japan, position with contractor, United States address, Japan residence address and information identifying the contract under which employed. A statement of the employee will be included to the effect that he/she is a bona fide employee of the contractor named, is a United States citizen, and will not engage in business activities in the Japanese economy outside the scope of his/her employment with said contractor during the period he/she is a certified employee. Only those employees of United States Official Contractors who are stationed in Japan will be certified under Article XIV.

3.3.2. The component commander will certify eligible employees in accordance with the policies in 2.3.2. of this instruction. Such certification will consist of furnishing the individual a DD Form 1173, Uniform Services Identification and Privilege Card, and a written statement that the individual is an employee of a United States Official Contractor within the meaning of paragraph 1, Article XIV of the SOFA. On the DD Form 1173 the employer will be identified as “ Article XIV Contractor.”

NOTE: Where justified by workload factors, the responsibility for carrying out procedures for certification and termination of certification of contractor employees may be delegated by the component commander to the respective contract managers. This delegation shall be in writing.

3.3.3. Certified employees will sign a receipt for their DD Form 1173 and any other privilege identification documents issued to them. The certified employees will acknowledge receipt and that the items are the property of the United States, loaned to them for their use while they are certified employees, and are to be returned to United States authorities upon termination of such status.

3.3.4. At the time of certification, a representative of the component commander will inform the individual concerned of his/her rights, liabilities, and responsibilities as a certified employee under the SOFA. This orientation will include but will not necessarily be limited to the regulations with respect to the following:

3.3.4.1. Engaging in business activities in Japan.

3.3.4.2. Acquisition and disposition of personal property, including automobiles, in Japan.

3.3.4.3. Japanese immigration and customs laws.

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3.3.4.4. Authorized use of military banking facilities and privilege documents.

3.3.5. Requests by certified employees to effect the entry into Japan of motor vehicles free from the payment of Japanese customs duties and other such Japanese charges will be reviewed by officials familiar with the status of the contract to assure such entry is for the personal use of the individual owner as opposed to a purpose of financial gain.

3.3.6. Employees who are certified will be directed to report to the nearest American Consul with their passports for annotation therein that they are in Japan under Article XIV of the SOFA. Employees will furnish the American Consul a copy of the written statement referred to in 3.2.2. above. If the contractor employee has entered Japan through a GOJ facility, using a visa, he/she must likewise report to the GOJ authorities for cancellation of prior status. Procedures are set forth in reference 5.3.

3.4. Termination of Certification of Employees:

3.4.1. The local manager of the United States Official Contractor will be advised to forward immediately to the component commander concerned a written notification when individuals cease to be full-time employees of the corporation in Japan.

3.4.2. The component commander will terminate certification of employees of United States Official Contractors in accordance with the policies set forth below.

3.4.3. Termination of certification will consist of cancellation of privileges and withdrawing the benefits set forth in paragraph 3, Article XIV of the SOFA.

3.4.4. Standing operating procedures for clearance of certified employees whose services have been terminated will include:

3.4.4.1. Surrendering and cancellation of DD Form 1173, library card, club and any other privilege identification document issued.

3.4.4.2. Closing out of military banking facility and telephone accounts.

3.4.4.3. Termination of registration and disposition of privately owned motor vehicles, in accordance with applicable regulations.

3.4.4.4. Cancellation by American Consul of annotation in individual’s passport that he/she is in Japan under provisions of Article XIV of the SOFA.

3.4.5. Component commanders will notify other component commanders and the American Embassy, Tokyo, ATTN: Passport Officer, immediately upon termination of certification, giving the date such action was accomplished.

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3.4.6. Certified employees of United States Official Contractors who terminate their employment and desire to remain in Japan will be required to change to an alien residence status in accordance with the following procedure:

3.4.6.1. The certified employee will submit a letter of request to convert to alien residence status through his/her employer to the component commander which will include the following:

3.4.6.1.1. Reason for remaining in Japan and address in Japan.

3.4.6.1.2. Number and expiration date of passport.

3.4.6.1.3. A statement, “No request for assistance of any kind will be made by me to the United States Forces, Japan since I will not be engaged in any activity connected with the United States Forces, Japan.”

3.4.6.1.4. A statement, as applicable, “I hereby waive any rights to transportation to the United States (or other country, territory, or area of residence) for myself and personal effects at government expense to which I may be entitled. I decline such transportation and understand that my failure to accept transportation at this time releases the United States Government from any further obligation to provide transportation or reimburse me for the value of the unused transportation.”

3.4.6.1.5. Employer’s statement of non-objection to separation in Japan will be enclosed.

3.4.6.2. If the component commander has no objection to the separation of the individual in Japan, he/she will issue and forward to the individual concerned a notice of conditional approval for change of status of Japan.

3.4.6.3. The individual will contact the Immigration Bureau, Ministry of Justice, GOJ, and submit required documentation.

3.4.6.4. If the Japanese Immigration Bureau has no objection to the change of status in Japan, the Bureau will issue a memorandum, which will indicate tentative approval of the application.

3.4.6.5. The individual concerned will present the memorandum to the component commander or a duly designated representative. The component commander will take action to terminate the status of the individual as a certified employee under Article XIV of SOFA and will issue to the individual concerned a notice of final approval for change of status.

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3.4.6.6. The individual concerned will then be directed to report to the Japanese Immigration Bureau with the following documents, for the purpose of securing a residence entry status in his/her passport:

3.4.6.6.1. Passport.

3.4.6.6.2. Notice of final approval for change of status.

3.4.6.7. The individual concerned will then report to the nearest American Consul with the above two documents for the purpose of securing cancellation of the Article XIV contractor annotation in his/her passport.

3.4.6.8. Standing operating procedure for clearance of termination of certified employees whose service has been terminated, stated in subparagraph 3.4.4. above, will be followed.

3.5. Contractor Personnel Status Report: Component commanders will submit a report to the COMUSJAPAN not later than the 10th day of each month, covering changes in the status of certified employees which occurred during the preceding month and for whom they have administrative responsibility. This report will include the following information, alphabetized as applicable:

3.5.1. Initial entry into Japan

3.5.1.1. Name

3.5.1.2. Affirmative statement of United States citizenship.

3.5.1.3. Date and place of entry.

3.5.1.4. Date of certification.

3.5.1.5. Address in United States.

3.5.1.6. Japan residence address.

3.5.2. Employee hired in Japan:

3.5.2.1. Name.

3.5.2.2. Affirmative statement of United States citizenship.

3.5.2.3. Date of certification.

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3.5.2.4. Address in the United States.

3.5.2.5. Japan residence address.

3.5.2.6. Prior employment in Japan, if any.

3.5.2.7. Prior status in Japan. This will include an affirmative statement that the individual’s prior status under Japanese immigration regulation has been cancelled by the Japanese Government.

3.5.3. Employee departing from and returning to Japan in a certified status.

3.5.3.1. Name.

3.5.3.2. Reason of departure or re-entry.

3.5.3.3. Place of departure or re-entry.

3.5.3.4. Date of departure or re-entry.

3.5.4. Termination of employment by one United States Official Contractor and transfer to employment by another, or transfer to employment by a United States Government Agency.

3.5.4.1. Name.

3.5.4.2. Name of former employer.

3.5.4.3. Date of termination of former employment.

3.5.4.4. Name of new employer.

3.5.4.5. Date of entry into new employment.

3.5.5. Termination of employment resulting in departure from Japan.

3.5.5.1. Name.

3.5.5.2. Date of departure.

3.5.5.3. Place of departure.

3.5.5.4. Date of certification.

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3.5.5.5. Date of termination of certification.

3.5.6. Termination of employment with the individual remaining in Japan and not being employed by another United States Official Contractor, or by a United States Government agency.

3.5.6.1. Name.

3.5.6.2. Date of termination of certification.

3.5.6.3. A statement that the individual concerned has been authorized by the Japanese Government to remain in Japan.

3.5.7. Change of address in Japan.

3.5.7.1. Name.

3.5.7.2. Employer.

3.5.7.3. Former address in Japan.

3.5.7.4. Present address in Japan.

3.6. Consolidated Contractor Personnel Status Report. COMUSJAPAN will consolidate the component commanders’ Contractor Personnel Status Reports for submission to the Japanese Government through the Joint Committee and furnish copies to the American Embassy and each component commander.

4. Responsibilities.

4.1. Component commanders will implement the policies contained in this letter, as applicable.

4.2. Certifying officers designated by component commanders in accordance with paragraph 3.3.2. “NOTE,” will be responsible for certification and termination of certification of US Official Contractor Program under the policies contained herein.

4.3. If the status of any certified employee is altered so that he or she would no longer be entitled to admission SOFA Article XIV, the component commander shall notify the Japanese authorities and shall, if such person be required by the Japanese authorities to leave Japan assure that all requirements of SOFA Article IX.5 are complied with.

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4.4. Component commanders will assume responsibility for monitoring United States Official Contractor programs of organizations of their service in Japan, although such organizations may not be in the direct chain of command.

5. References:

5.1. Agreement under Article VI of the Treaty of Mutual Cooperation and Security between the United States of America and Japan, Regarding Facilities and Areas and the Status of United States Armed Forces in Japan (SOFA).

5.2. USFJ Policy Letter 4-3, 15 February 1995, Entry and Exit of Individuals, Cargo, Aircraft and Surface Vessels of the United Forces, Japan.

5.3. USFJ Policy Letter 30-19, 22 September 1995, Change of Status by Persons in Japan to One of the Categories Authorized by the Status of Forces Agreement.

5.4. USFJ Instruction 65-103, 15 April 2002, Financial Regulations.

//Signed//

ROBERT M. SHEA

Major General, US Marine Corps

Deputy Commander