Federal Acquisition Regulation; FAR Case 2005-012, Combating Trafficking in Persons, 20301-20303 [06-3681]

Agencies

• General Services Administration
• National Aeronautics and Space Administration
• DEPARTMENT OF DEFENSE

[Federal Register Volume 71, Number 75 (Wednesday, April 19, 2006)]
[Rules and Regulations]
[Pages 20301-20303]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3681]



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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 12, 22, and 52

[FAC 2005-09; FAR Case 2005-012; Item IV; Docket FAR-2006-0020]
RIN 9000-AK31


Federal Acquisition Regulation; FAR Case 2005-012, Combating 
Trafficking in Persons

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

ACTION: Interim rule with request for comments.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on an interim 
rule amending the Federal Acquisition Regulation (FAR) to implement 22 
U.S.C. 7104(g). This statute requires that contracts must include a 
provision that authorizes the department or agency to terminate the 
contract, if the Contractor or any subcontractor engages in trafficking 
in persons.

DATES: Effective Date: April 19, 2006.
    Comment Date: Interested parties should submit written comments to 
the FAR Secretariat on or before June 19, 2006 to be considered in the 
formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-09, FAR case 2005-
012, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Agency Web site: https://www.acqnet.gov/far/ProposedRules/
proposed.htm. Click on the FAR case number to submit comments.
     E-mail: farcase.2005-012@gsa.gov. Include FAC 2005-09, FAR 
case 2005-012 in the subject line of the message.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann 
Duarte, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-09, FAR 
case 2005-012, in all correspondence related to this case. All comments 
received will be posted without change to https://www.acqnet.gov/far/
ProposedRules/proposed.htm, including any personal and/or business 
confidential information provided.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. William Clark, Procurement Analyst, at (202) 219-1813. Please cite 
FAC 2005-09, FAR case 2005-012. For information pertaining to status or 
publication schedules, contact the FAR Secretariat at (202) 501-4755.

SUPPLEMENTARY INFORMATION:

A. Background

    The Trafficking Victims Protection Reauthorization Act of 2003, as 
amended by the Trafficking Victims Protection Reauthorization Act of 
2005, addresses the victimization of countless men, women, and children 
in the United States and abroad. The United States believes that its 
contractors can help combat trafficking in persons. 22 U.S.C. 7104(g) 
requires that the contract contain a clause allowing the agency to 
terminate the contract if the contractor or subcontractor engages in 
severe forms of trafficking in persons or has procured a commercial sex 
act, or used forced labor in the performance of the contract. For this 
purpose, ``contractors'' includes the contractor employees.
    In order to implement the law, the Councils have added FAR Subpart 
22.17 with an associated clause at 52.222-50 which address combating 
trafficking in persons.
    The interim rule applies to contractors awarded service contracts 
(other than commercial service contracts under FAR Part 12). Such 
contractors must develop policies to combat trafficking in persons. The 
clause lists remedies, including termination, that may be imposed on 
contractors that support or promote or fail to monitor the conduct of 
their employees and subcontractors with regard to severe forms of 
trafficking in persons, the procurement of commercial sex acts, or use 
of forced labor.
    This is a significant regulatory action and, therefore, is subject 
to review under Section 6(b) of Executive Order 12866, Regulatory 
Planning and Review, dated September 30, 1993. This interim rule raises 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in this Executive 
Order. This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The interim rule is not expected to 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 
only applies to the acquisition of services (except commercial services 
under FAR Part 12). Furthermore, the impact will be minimal unless the 
contractor or its employees engage in forms of trafficking in persons 
or commercial sex acts that are illegal within the U.S. Although not 
considered significant, additional impact may be associated with 
contract performance in counties/states where certain commercial sex 
acts are legal. However, the termination authorities at 22 U.S.C. 
7104(g) apply to Government contracts performed in these areas. 
Therefore, an Initial Regulatory Flexibility Analysis has not been 
performed. The Councils will consider comments from small entities 
concerning the affected FAR Parts 12, 22, and 52 in accordance with 5 
U.S.C. 610. Interested parties must submit such comments separately and 
should cite 5 U.S.C 601, et seq. (FAC 2005-09, FAR case 2005-012), in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) applies because the 
interim rule contains information collection requirements. Accordingly, 
the FAR Secretariat has forwarded a request for approval of a new 
information collection requirement concerning OMB Number 9000-00XX to 
the Office of Management and Budget under 44 U.S.C. 3501, et seq.
    The clause at 52.222-50 requires the contractor to notify the 
contracting officer of any information alleging employee misconduct 
under the clause, and any actions taken against employees pursuant to 
the clause.
    Public reporting burden for this collection of information is 
estimated to average 1 hour per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    The annual reporting burden is estimated as follows:
    Respondents: 250
    Responses per respondent: 1
    Total annual responses: 250
    Preparation hours per response: 1
    Total response burden hours: 250

D. Request for Comments Regarding Paperwork Burden

    Submit comments, including suggestions for reducing this burden, 
not later than June 19, 2006 to: FAR Desk Officer, OMB, Room 10102, 
NEOB, Washington, DC 20503, and a copy to the General Services 
Administration, FAR Secretariat (VIR), 1800 F Street,

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NW, Room 4035, Washington, DC 20405. Please cite OMB Control No. 9000-
00XX, Combating Trafficking in Persons (FAR Case 2005-012), in all 
correspondence.
    Public comments are particularly invited on: whether this 
collection of information is necessary for the proper performance of 
functions of the FAR, and will have practical utility; whether our 
estimate of the public burden of this collection of information is 
accurate, and based on valid assumptions and methodology; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways in which we can minimize the burden of the 
collection of information on those who are to respond, through the use 
of appropriate technological collection techniques or other forms of 
information technology.
    Requester may obtain a copy of the justification from the General 
Services Administration, FAR Secretariat (VIR), Room 4035, Washington, 
DC 20405, telephone (202) 501-4755. Please cite OMB Control Number 
9000-00XX, Combating Trafficking in Persons (FAR Case 2005-012), in all 
correspondence.

E. Determination to Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary because the Trafficking Victims Protection Reauthorization 
Act of 2003 (Pub. L. 108-193), and the Trafficking Victims Protection 
Reauthorization Act of 2005 (Pub. L. 109-164) were effective upon 
enactment. However, pursuant to Public Law 98-577 and FAR 1.501, the 
Councils will consider public comments received in response to this 
interim rule in the formation of the final rule.

List of Subjects in 48 CFR Parts 12, 22, and 52

    Government procurement.

    Dated: April 12, 2006.
Gerald Zaffos,
Director, Contract Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 12, 22, and 52 as set 
forth below:
0
1. The authority citation for 48 CFR parts 12, 22, and 52 continues to 
read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 12--ACQUISITION OF COMMERCIAL ITEMS

0
2. Amend section 12.503 by revising the section heading and adding 
paragraph (a)(6) to read as follows:


12.503  Applicability of certain laws to Executive agency contracts for 
the acquisition of commercial services.

    (a)* * *
    (6) 22 U.S.C. 7104, Trafficking Victims Protection Reauthorization 
Act of 2003 (see 22.1705).
* * * * *

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

0
3. Add Subpart 22.17 to read as follows:

Subpart 22.17--Combating Trafficking in Persons

Sec.
22.1700 Scope of subpart.
22.1701 Applicability.
22.1702 Definitions.
22.1703 Policy.
22.1704 Violations and remedies.
22.1705 Contract clause.


22.1700  Scope of subpart.

    This subpart prescribes policy for implementing 22 U.S.C. 7104 as 
amended by Pub. L. No. 108-193 and 109-164.


22.1701  Applicability.

    This subpart applies to acquisitions of all services except for 
commercial services under Part 12.


22.1702  Definitions.

    As used in this subpart--
    Coercion means--
    (1) Threats of serious harm to or physical restraint against any 
person;
    (2) Any scheme, plan, or pattern intended to cause a person to 
believe that failure to perform an act would result in serious harm to 
or physical restraint against any person; or
    (3) The abuse or threatened abuse of the legal process.
    Commercial sex act means any sex act on account of which anything 
of value is given to or received by any person.
    Debt bondage means the status or condition of a debtor arising from 
a pledge by the debtor of his or her personal services or of those of a 
person under his or her control as a security for debt, if the value of 
those services as reasonably assessed is not applied toward the 
liquidation of the debt or the length and nature of those services are 
not respectively limited and defined.
    Employee means an employee of a contractor directly engaged in the 
performance of work under a Government contract, including all direct 
cost employees and any other contractor employee who has other than a 
minimal impact or involvement in contract performance.
    Involuntary servitude includes a condition of servitude induced by 
means of--
    (1) Any scheme, plan, or pattern intended to cause a person to 
believe that, if the person did not enter into or continue in such 
conditions, that person or another person would suffer serious harm or 
physical restraint; or
    (2) The abuse or threatened abuse of the legal process.
    Severe forms of trafficking in persons means--
    (1) Sex trafficking in which a commercial sex act is induced by 
force, fraud, or coercion, or in which the person induced to perform 
such act has not attained 18 years of age; or
    (2) The recruitment, harboring, transportation, provision, or 
obtaining of a person for labor or services, through the use of force, 
fraud, or coercion for the purpose of subjection to involuntary 
servitude, peonage, debt bondage, or slavery.
    Sex trafficking means the recruitment, harboring, transportation, 
provision, or obtaining of a person for the purpose of a commercial sex 
act.


22.1703  Policy.

    Contracts for services (except commercial services under Part 12) 
shall--
    (a) Prohibit any activities on the part of the contractor or 
contractor employees that support or promote--
    (1) Severe forms of trafficking in persons;
    (2) The procurement of commercial sex acts; or
    (3) The use of forced labor in the performance of the contract;
    (b) Require contractors to develop policies to combat severe forms 
of trafficking in persons, the procurement of commercial sex acts, and 
use of forced labor; and
    (c) Impose suitable remedies, including termination, on contractors 
that support or promote or fail to monitor the conduct of their 
employees and subcontractors with regard to severe forms of trafficking 
in persons, the procurement of commercial sex acts, and use of forced 
labor.


22.1704  Violations and remedies.

    (a) Violations. The Government may impose the remedies set forth in 
paragraph (b) of this section if--

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    (1) The contractor or any contractor employee engages in severe 
forms of trafficking in persons;
    (2) Any contractor employee procures a commercial sex act during 
the period of performance of the contract;
    (3) The contractor or any contractor employee uses forced labor in 
the performance of the contract; or
    (4) The contractor fails to comply with the requirements of the 
clause at 52.222-50, Combating Trafficking in Persons.
    (b) Remedies. After determining in writing that adequate evidence 
exists to suspect any of the violations at paragraph (a) of this 
section, the contracting officer may pursue any of the remedies 
specified in paragraph (e) of the clause at 52.222-50, Combating 
Trafficking in Persons. These remedies are in addition to any other 
remedies available to the Government.


22.1705  Contract clause.

    Insert the clause at 52.222-50, Combating Trafficking in Persons, 
in all solicitations and contracts for the acquisition of services 
(except commercial services under Part 12).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Add section 52.222-50 to read as follows:


52.222-50  Combating Trafficking in Persons.

    As prescribed in 22.1705, insert the following clause:

    COMBATING TRAFFICKING IN PERSONS (APR 2006)
    (a) Definitions. As used in this clause--
    Coercion means--
    (1) Threats of serious harm to or physical restraint against any 
person;
    (2) Any scheme, plan, or pattern intended to cause a person to 
believe that failure to perform an act would result in serious harm 
to or physical restraint against any person; or
    (3) The abuse or threatened abuse of the legal process.
    Commercial sex act means any sex act on account of which 
anything of value is given to or received by any person.
    Debt bondage means the status or condition of a debtor arising 
from a pledge by the debtor of his or her personal services or of 
those of a person under his or her control as a security for debt, 
if the value of those services as reasonably assessed is not applied 
toward the liquidation of the debt or the length and nature of those 
services are not respectively limited and defined.
    Employee means an employee of a Contractor directly engaged in 
the performance of work under a Government contract, including all 
direct cost employees and any other Contractor employee who has 
other than a minimal impact or involvement in contract performance.
    Individual means a Contractor that has no more than one employee 
including the Contractor.
    Involuntary servitude includes a condition of servitude induced 
by means of--
    (1) Any scheme, plan, or pattern intended to cause a person to 
believe that, if the person did not enter into or continue in such 
conditions, that person or another person would suffer serious harm 
or physical restraint; or
    (2) The abuse or threatened abuse of the legal process.
    Severe forms of trafficking in persons means--
    (1) Sex trafficking in which a commercial sex act is induced by 
force, fraud, or coercion, or in which the person induced to perform 
such act has not attained 18 years of age; or
    (2) The recruitment, harboring, transportation, provision, or 
obtaining of a person for labor or services, through the use of 
force, fraud, or coercion for the purpose of subjection to 
involuntary servitude, peonage, debt bondage, or slavery.
    Sex trafficking means the recruitment, harboring, 
transportation, provision, or obtaining of a person for the purpose 
of a commercial sex act.
    (b) Policy. The United States Government has adopted a zero 
tolerance policy regarding Contractors and Contractor employees that 
engage in or support severe forms of trafficking in persons, 
procurement of commercial sex acts, or use of forced labor. During 
the performance of this contract, the Contractor shall ensure that 
its employees do not violate this policy.
    (c) Contractor requirements. The Contractor, if other than an 
individual, shall establish policies and procedures for ensuring 
that its employees do not engage in or support severe forms of 
trafficking in persons, procure commercial sex acts, or use forced 
labor in the performance of this contract. At a minimum, the 
Contractor shall--
    (1) Publish a statement notifying its employees of the United 
States Government's zero tolerance policy described in paragraph (b) 
of this clause and specifying the actions that will be taken against 
employees for violations of this policy. Such actions may include, 
but are not limited to, removal from the contract, reduction in 
benefits, or termination of employment;
    (2) Establish an awareness program to inform employees about--
    (i) The Contractor's policy of ensuring that employees do not 
engage in severe forms of trafficking in persons, procure commercial 
sex acts, or use forced labor;
    (ii) The actions that will be taken against employees for 
violation of such policy;
    (iii) Regulations applying to conduct if performance of the 
contract is outside the U.S., including--
    (A) All host country Government laws and regulations relating to 
severe forms of trafficking in persons, procurement of commercial 
sex acts, and use of forced labor; and
    (B) All United States laws and regulations on severe forms of 
trafficking in persons, procurement of commercial sex acts, and use 
of forced labor which may apply to its employees' conduct in the 
host nation, including those laws for which jurisdiction is 
established by the Military Extraterritorial Jurisdiction Act of 
2000 (18 U.S.C. 3261-3267), and 18 U.S.C 3271, Trafficking in 
Persons Offenses Committed by Persons Employed by or Accompanying 
the Federal Government Outside the United States;
    (3) Provide all employees directly engaged in performance of the 
contract with a copy of the statement required by paragraph (c)(1) 
of this clause and obtain written agreement from the employee that 
the employee shall abide by the terms of the statement; and
    (4) Take appropriate action, up to and including termination, 
against employees or subcontractors that violate the policy in 
paragraph (b) of this clause.
    (d) Notification. The Contractor shall inform the contracting 
officer immediately of--
    (1) Any information it receives from any source (including host 
country law enforcement) that alleges a contract employee has 
engaged in conduct that violates this policy; and
    (2) Any actions taken against employees pursuant to this clause.
    (e) Remedies. In addition to other remedies available to the 
Government, the Contractor's failure to comply with the requirements 
of paragraphs (c) or (d) of this clause may render the Contractor 
subject to--
    (1) Required removal of a Contractor employee or employees from 
the performance of the contract;
    (2) Required subcontractor termination;
    (3) Suspension of contract payments;
    (4) Loss of award fee for the performance period in which the 
Government determined Contractor non-compliance;
    (5) Termination of the contract for default, in accordance with 
the termination clause of this contract; or
    (6) Suspension or debarment.
    (f) Subcontracts. The Contractor shall include the substance of 
this clause, including this paragraph (f), in all subcontracts for 
the acquisition of services.
[FR Doc. 06-3681 Filed 4-18-06; 8:45 am]
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