Federal Acquisition Regulation; Ending Trafficking in Persons, 59317-59325 [2013-23311]

Agencies

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

[Federal Register Volume 78, Number 187 (Thursday, September 26, 2013)]
[Proposed Rules]
[Pages 59317-59325]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23311]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 2, 9, 12, 22, and 52

[FAR Case 2013-001; Docket 2013-0001; Sequence 1]
RIN 9000-AM55


Federal Acquisition Regulation; Ending Trafficking in Persons

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

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to strengthen protections against 
trafficking in persons in Federal contracts. These changes are intended 
to implement E.O. 13627 and Title XVII of the National Defense 
Authorization Act for Fiscal Year 2013.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the addresses shown below on or before 
November 25, 2013 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2013-001 by any of 
the following methods:

[[Page 59318]]

     Regulations.gov: https://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching ``FAR Case 
2013-001''. Select the link ``Submit a Comment'' that corresponds with 
``FAR Case 2013-001''. Follow the instructions provided at the ``Submit 
a Comment'' screen. Please include your name, company name (if any), 
and ``FAR Case 2013-001'' on your attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, 
Washington, DC 20405-0001.
    Instructions: Please submit comments only and cite FAR Case 2013-
001, in all correspondence related to this case. All comments received 
will be posted without change to https://www.regulations.gov, including 
any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Marissa Petrusek, Procurement 
Analyst, at 202-501-0136, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAR Case 2013-001.

SUPPLEMENTARY INFORMATION:

I. Background

    The United States has long had a zero-tolerance policy regarding 
Government employees and contractor personnel engaging in prohibited 
trafficking activities, such as severe forms of trafficking in persons, 
which are defined in section 103 of the Trafficking Victims Protection 
Act of 2000 (TVPA) (22 U.S.C. 7102) to include 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, and sex trafficking. As the largest single purchaser of 
goods and services in the world, the Federal Government bears a 
responsibility to ensure that taxpayer dollars do not contribute to any 
form of this criminal behavior.
    FAR subpart 22.17 codifies the zero-tolerance policy. It provides 
for the use of a clause that requires contractors and subcontractors to 
notify Government employees of trafficking violations and puts parties 
on notice that the Government may impose remedies, including 
termination, for failure to comply with the requirements. However, 
recent studies of trafficking in persons, including findings made by 
the Commission on Wartime Contracting and agency Inspectors General, as 
well as testimony provided at congressional hearings, have pointed to a 
need for additional steps--including regulatory action--to eliminate 
trafficking in persons from Government contracts.

II. Discussion and Analysis

A. Proposed FAR Amendments

    E.O. 13627, entitled ``Strengthening Protections Against 
Trafficking in Persons in Federal Contracts,'' issued on September 25, 
2012 (77 FR 60029, October 2, 2012), and Title XVII, entitled ``Ending 
Trafficking in Government Contracting,'' of the National Defense 
Authorization Act for Fiscal Year 2013 (Pub. L. 112-239, enacted 
January 2, 2013) create a stronger framework for agency compliance by 
providing additional requirements for awareness, compliance, and 
enforcement. DOD, GSA, and NASA are proposing a series of amendments to 
implement the requirements of the E.O. and TVPA in the FAR. Consistent 
with the E.O. and the TVPA, some of the changes would apply to all 
Federal contracts while others would apply to contracts where the 
portion to be performed outside the United States exceeds $500,000.
    New policies applying to all contracts. This case proposes to amend 
FAR parts 22 and 52 to provide additional policies applicable to all 
solicitations and contracts, including those performed in the United 
States. These policies would prohibit:
     Destroying, concealing, confiscating, or otherwise denying 
access by an employee to his or her identity or immigration documents 
(e.g., passports or drivers' licenses);
     Using misleading or fraudulent practices during the 
recruitment of employees (e.g., failing to disclose basic information 
or making material misrepresentations regarding the key terms and 
conditions of employment);
     Charging employees recruitment fees, providing or 
arranging housing that fails to meet the host country housing and 
safety standards; or
     Failing to provide in writing an employment contract, 
recruitment agreement or similar work paper in the employee's native 
language prior to the employee departing from his or her country of 
origin.
    In addition, the proposed rule would require a contractor to 
provide return transportation or pay for the cost of return 
transportation upon the end of employment (for an employee who is not a 
national of the country in which the work is taking place and who was 
brought into that country for the purpose of working on a U.S. 
Government contract or subcontract), or, for portions of contracts 
performed inside the United States, failing to provide return 
transportation or pay for the cost of return transportation upon the 
end of employment (for an employee who is not a United States national 
and who was brought into the United States for the purpose of working 
on a U.S. Government contract or subcontract), if the payment of such 
costs is required under existing temporary worker programs or pursuant 
to a written agreement with the employee. The Executive Order and the 
statute provide limited exceptions to these requirements in specific 
circumstances.
    Contractors would also be required to protect and interview all 
employees suspected of being victims of or witnesses to prohibited 
activities, prior to returning to their country of origin. Contractors 
would be prohibited from preventing or hindering these employees from 
cooperating fully with government authorities.
    Further, the proposed rule would update the regulations addressing 
the Federal Awardee Performance and Integrity Information System 
(FAPIIS) at FAR 9.104-6, to require the contracting officer to include 
in FAPIIS any allegations substantiated in an Inspector General report 
in which the contractor violated the trafficking in persons 
prohibitions in E.O. 13267 or the TVPA.
    New policy applying to contracts where the portion to be performed 
outside the United States exceeds $500,000. Section 2(a)(2) of E.O. 
13627 provides further guidance and tools to protect against TIP where 
the estimated value of the supplies acquired, or the services required 
to be performed, outside the United States exceeds $500,000. Section 
1703 of the statute establishes similar protections at the same 
threshold, i.e., ``if the estimated value of the services to be 
performed under the . . . contract . . . outside the United States 
exceeds $500,000 . . .''. These protections consist of a contractor 
certification and a compliance plan. The E.O. makes it clear that the 
requirement for a compliance plan applies only to the portion of the 
contract that is performed outside the United States, i.e., ``the 
following requirements pertaining to the portion of the contract or 
subcontract performed outside the United States'' (see section 
2(a)(2)). The thresholds and applicability do not apply to a contract 
or subcontract that is solely for commercially available off-the-shelf 
items.
    If a compliance plan is required, it must be (1) maintained during 
the performance of the contract and (2)

[[Page 59319]]

appropriate to the size and complexity of the contract and to the 
nature and scope of the activities performed, including the risk that 
the contract will involve services or supplies susceptible to 
trafficking. The compliance plan must be provided to the contracting 
officer upon request (it need not be automatically submitted to the 
Government). Further, the contractor is required to post the relevant 
contents (see below) of the compliance plan, no later than the 
initiation of contract performance, at the workplace and on the 
contractor's Web site (if one is maintained).
    Contractors would be required to incorporate the following elements 
into their compliance plans:
     An awareness program to inform contractor employees 
about--
    [cir] The U.S. Government's zero-tolerance policy with regard to 
trafficking in persons;
    [cir] The trafficking-related activities in which the contractor is 
prohibited from engaging; and
    [cir] The actions that will be taken against employees for 
violations.
     A reporting process for employees to use, without fear of 
retaliation, to report any activity inconsistent with the zero-
tolerance policy.
     A recruitment and wage plan that only permits the use of 
recruitment companies with trained employees, prohibits charging 
recruitment fees to the employee, and ensures that wages meet 
applicable host country legal requirements or explains any variance.
     A housing plan, if the contractor intends to provide or 
arrange housing that ensures that the housing meets host country 
housing and safety standards or explains the variance.
     Procedures to prevent agents and subcontractors at any 
tier from engaging in trafficking in persons, and to monitor, detect, 
and terminate any agents, subcontractors, or subcontractor employees 
that have engaged in such activities.
    A contractor would be required to certify that it has implemented 
the compliance plan to prevent prohibited activities and to monitor, 
detect, and terminate any subcontractor engaging in prohibited 
activities. In addition, the contractor would be required to certify 
that, after having conducted due diligence, to the best of the 
contractor's knowledge and belief, (1) neither it nor any of its 
agents, subcontractors, or their agents is engaged in any trafficking 
in persons activities or, (2) if abuses have been found, the contractor 
or subcontractor has taken the appropriate remedial and referral 
actions. The certification would be required from the apparent 
successful offeror prior to award (see 52.222-XX), and annually from 
the contractor. The requirements for a compliance plan and 
certification would also apply to all portions of subcontracts where 
the estimated value of the supplies acquired, or the services required 
to be performed, outside the United States exceeds $500,000 (see 
section 2(a)(2) of the E.O.).
    The compliance plan and certification would not be required for 
contracts or subcontracts for commercially available off-the-shelf 
items. The E.O. specifies that the certification, if required, must be 
completed prior to receiving an award and annually thereafter during 
the term of the contract or subcontract. Therefore, the proposed rule 
is drafted so that certification is required only by the apparent 
successful offeror, not all offerors.

B. Public Input

    Prior to the issuance of this proposed rule, the Federal 
Acquisition Regulatory Council (FAR Council) sponsored a public meeting 
and invited written comment to express views on the most effective and 
least burdensome approaches for implementing the E.O. and the TVPA. The 
FAR Council encouraged comment on issues such as identifying areas of 
the E.O. and statute in greatest need of guidance, and identifying 
practices that are most effective in prohibiting trafficking in persons 
by contractor and subcontractor employees. The Council also sought 
input to evaluate potential burden, including the most significant 
drivers of cost in developing and maintaining compliance plans. 
(Notice--MVC-2013-01 was published in the Federal Register at 78 FR 
9918 on February 12, 2013.)
    Ten associations, individuals, and law firm representatives made 
presentations during the public meeting, which took place on March 5, 
2013. There were 15 public comments, submitted by 13 respondents (two 
respondents submitted multiple comments). These comments may be found 
in the transmittal of consolidated comments posted at regulations.gov. 
The comments addressed a wide range of human trafficking-related 
issues. Commonly raised themes included the following: (1) Recruitment 
(providing employees with detailed recruitment agreements or similar 
work papers, in the employees' native language, prior to leaving their 
home country); (2) fees (prohibiting employee recruitment fees); (3) 
certifications (requiring contractors to provide initial and annual 
written certifications of compliance; (4) employee interviews 
(interviewing all employees and witnesses prior to their leaving the 
country and making them available to Government investigators); (5) 
transparency (requiring contracting officers to enter all agency 
determinations into FAPIIS); and (6) training (interactive training).
    Almost all of these general themes are covered in the proposed 
rule, and a number of associated issues are addressed in some manner. 
For instance, on the issue of recruitment, the proposed rule prohibits 
contractors from using misleading or fraudulent recruitment practices. 
Contractors must also disclose details about pay. The proposed rule 
reflects the strong view expressed by a number of respondents regarding 
the importance of a prohibition on charging employees recruitment fees. 
With respect to interviews, the proposed rule requires contractors to 
cooperate fully and protect and interview all employees suspected of 
being victims of or witnesses to prohibited activities, prior to 
returning to their country of origin. (This would be in addition to the 
requirement, imposed in certain situations, to maintain an awareness 
program and develop a process for employees to report, without fear of 
retaliation, activities inconsistent with the policy regarding 
trafficking in persons.)
    For additional details on the ideas submitted to the FAR Council in 
response to its notice, go to Regulations.gov and search for Docket ID 
``FAR-2013-0081''. The public may wish to consider this input in 
formulating comments on the proposed rule.
    In addition to the matters highlighted above, several comments were 
received recommending requirements that are either not addressed in the 
E.O. or the statute, or not addressed to a sufficient level of detail. 
DOD, GSA, and NASA encourage feedback on potential benefits and any 
burdens associated with these recommendations, which include the 
following (respondents are encouraged to use the numbering below when 
providing comments):
    (1) Require a detailed recruitment and wage plan that would 
include:
    (a) The identity of recruitment companies being used and proof that 
the company and/or recruiter is licensed under laws of the country of 
recruitment.
    (b) A description of the selection process used by the Government 
contractor or subcontractor to select, evaluate, and engage its 
recruiting company or recruiter.
    (c) Signed copies of any recruiting agreements between the 
contractor or

[[Page 59320]]

subcontractor and the recruiting company or recruiter.
    (d) Definition of allowable variances in wage plan requirements.
    (2) Require that compliance plans include the following:
    (a) A written contract to recruits;
    (b) An account of working and living conditions of recruits;
    (c) A requirement for facilitating regular contact with family and 
embassies;
    (d) A provision for providing Defense Base Act (DBA) insurance, 
when and where required, notifying employees of such coverage, and 
promptly reporting employee claims that are covered by the DBA or by 
the Taxpayer War Hazard Act; and
    (e) A requirement to prominently post notices of trafficking-in-
persons prevention requirements in workers' living and work areas.
    (f) A code of conduct that addresses core labor standards including 
compensation, hours of work, occupational safety and health, industrial 
hygiene, emergency preparedness, safety equipment, sanitation and 
access to food and water.
    (g) A monitoring mechanism which includes risk assessments, 
compliance evaluation and independent audits of compliance system 
effectiveness, and public reports on compliance system effectiveness.
    (h) A reporting mechanism which includes internal and public 
reports on compliance system effectiveness.
    (i) An enforcement mechanism which includes internal remediation of 
anti-trafficking policy violations, where trafficking in persons is 
discovered, or where the contractor or subcontractor engages in any 
other type of non-compliance with the Trafficking in Persons compliance 
plan or labor code of conduct. Enforcement procedures should be in 
writing and communicated to employees at the start of employment. 
Employee performance evaluations should include discussion of code of 
conduct and employee compliance with the code. Contractors and 
subcontractors should also take appropriate immediate actions, such as 
referral to law enforcement and other appropriate authorities, where 
there is evidence of child labor, forced labor, debt bondage, or 
trafficking in persons.
    (3) Harmonize the requirements of 52.203-13, Contractor Code of 
Business Ethics and Conduct with the requirements of the E.O. and 
statute.
    (4) Require the contractor to train employees on (a) grievance 
procedures and procedures for filing complaints and (b) providing 
specific explanations of exploitation, causes and consequences. 
(Respondents may wish to address the level of detailed requirements 
that should be included.)

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is a significant regulatory action and, therefore, was subject to 
review under section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

IV. Regulatory Flexibility Act

    The change may 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. The Initial Regulatory 
Flexibility Analysis (IRFA) is summarized as follows:

    This proposed rule strengthens the policy on combating 
trafficking in persons in Federal contracts and updates the related 
clause. Executive Order (E.O.) 13627, entitled ``Strengthening 
Protections Against Trafficking in Persons in Federal Contracts'', 
dated September 25, 2012, (77 FR 60029, October 2, 2012), and title 
XVII, entitled ``Ending Trafficking in Government Contracting'', of 
the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 
2013 (Pub. L. 112-239, enacted January 2, 2013), strengthen the 
long-standing zero-tolerance policy of the United States regarding 
Government employees and contractor personnel engaging in any form 
of trafficking in persons. The statute and E.O. prompted the 
Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) to develop the coverage in this 
proposed rule in consultation with the Departments of State, 
Justice, Labor, Homeland Security, and the United States Agency for 
International Development.
    The objective of the proposed rule is to strengthen protections 
against trafficking in persons in Federal contracting by providing 
the Government workforce with additional tools to enforce existing 
policy and provide additional clarity to Government contractors and 
subcontractors on the steps necessary to comply with that policy.
    Any entity of any size that violates the U.S. Government's zero-
tolerance policy against trafficking in persons will be impacted by 
this rule. New policies prohibit denying an employee access to his/
her identity or immigration documents; using misleading or 
fraudulent recruitment practices or charging recruitment fees; 
providing or arranging housing that fails to meet the host country 
housing and safety standards; and failing to provide return 
transportation or requiring payment for the cost of return 
transportation for certain employees. There are also requirements 
for a compliance plan and certification; this will impact only 
entities where the estimated value of supplies acquired or services 
required to be performed outside the United States exceeds $500,000. 
There is no requirement for a compliance plan or certification if 
the supplies to be furnished outside the United States involve 
solely commercially available off-the-shelf items. The Councils 
anticipate that these certification and written compliance plan 
exceptions will significantly reduce the impact on small entities. 
Using Fiscal Year 2011 data from the Federal Procurement Data System 
(FPDS) and Electronic Subcontractor Reporting System (eSRS), the 
Councils estimate that about 1,622 of the entities impacted will be 
small entities. This number is the number of small businesses with a 
prime contract or subcontract of $500,000 or more that is performed 
outside the U.S.
    The rule requires the following projected reporting and 
recordkeeping burdens for access to information:
    a. Compliance Plan: (1,622 recordkeepers x 24 hours per record = 
38,928 hours)
    b. Certification: (1,622 respondents x 4 hours per response = 
6,488 hours)
    For the certification process, the Councils estimate that the 
respondents will be high-level administrative/legal employees 
earning an average of approximately $83.00 an hour ($60.47 + 36.45% 
overhead). For the compliance plan, the Councils estimate that the 
respondents will be high-level administrative/program manager 
employees earning an average of approximately $68.00 per hour 
($50.05 + 36.45% overhead).
    The Councils did not identify any significant alternatives that 
would accomplish the objectives of the E.O. and the statute. Steps 
have been taken in this proposed rule to minimize the impact on 
small entities by making the compliance plan requirements of this 
rule tailorable to the appropriate size and complexity of the 
contract and subcontract and the nature and scope of the activities 
performed, including number of non-U.S. citizens expected to be 
employed and the risk that these activities will involve services or 
supplies susceptible to trafficking.

    The Regulatory Secretariat has submitted a copy of the IRFA to the 
Chief Counsel for Advocacy of the Small Business Administration. A copy 
of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, 
and NASA invite comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by this rule 
in

[[Page 59321]]

accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2013-001) in 
correspondence.

V. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The 
proposed rule contains information collection requirements. 
Accordingly, the Regulatory Secretariat has submitted a request for 
approval of a new information collection requirement concerning Ending 
Trafficking in Persons to the Office of Management and Budget.

A. Annual Reporting Burden

    Public reporting and recordkeeping burden for this collection of 
information is estimated to average 24 hours to prepare a compliance 
plan and 4 hours to prepare and submit the annual certification, 
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 source for the data used 
is Federal Procurement Data System data for FY 2011. The number below 
includes all contracts and subcontracts, to both large and small 
businesses, over $500,000 required to be performed outside the United 
States.
    The annual recordkeeping burden for the compliance plan is 
estimated as follows:
    Recordkeepers: 11,960.
    Records per recordkeeper: 1.
    Total annual responses: 11,960.
    Preparation hours per response: 24.
    Total recordkeeping burden hours: 287,040.
    The annual reporting burden for the certification is estimated as 
follows:
    Respondents: 11,960.
    Responses per respondent: 1.
    Total annual responses: 11,960.
    Preparation hours per response: 4.
    Total response burden hours: 47,840.
    There will be a small, but measurable reporting burden for 
submission of a contractor's compliance plan, but only when the plan is 
requested by the contracting officer. We anticipate that requests to 
submit the compliance plan will be the exception, rather than the rule, 
and will be requested only in circumstances where the contracting 
officer has reason to believe that there may be trafficking activities 
in violation of the Government's zero-tolerance policy. We estimated 
that submission of the contractor's compliance plan would be required 
no more than 1 percent of the time. Therefore, the annual reporting 
burden for submission of the compliance plan to the Government is 
estimated as follows:
    Respondents: 120.
    Responses per respondent: 1.
    Total annual responses: 120.
    Preparation hours per response: 1.
    Total response burden hours: 120.

B. Request for Comments Regarding Paperwork Burden

    Submit comments, including suggestions for reducing this burden, 
not later than November 25, 2013 to: FAR Desk Officer, OMB, Room 10102, 
NEOB, Washington, DC 20503, and a copy to the General Services 
Administration, Regulatory Secretariat (MVCB), ATTN: Ms. Flowers, 1800 
F Street NW., 2nd Floor, Washington, DC 20405.
    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.
    Requesters may obtain a copy of the supporting statement from the 
General Services Administration, Regulatory Secretariat (MVCB), 1800 F 
Street NW., 2nd Floor, Washington, DC 20405. Please cite OMB Control 
Number 9000-00XX, Ending Trafficking in Persons, in correspondence.

List of Subjects in 48 CFR Parts 1, 2, 9, 12, 22, and 52 Government 
Procurement.

    Dated: September 19, 2013.
William Clark,
Acting Director, Office of Government-wide Acquisition Policy, Office 
of Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1, 2, 
9, 12, 22, and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 1, 2, 9, 12, 22, and 52 
continues to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM


1.106  [Amended]

0
2. Amend section 1.106, in the table following the introductory text, 
by adding in numerical sequence, FAR segments ``22.17'' and ``52.222-
50'' and their corresponding OMB Control No. ``9000-00XX'' and ``9000-
00XX'', respectively.

PART 2--DEFINITIONS OF WORDS AND TERMS

0
3. Amend section 2.101 in paragraph (b)(2), in the definition ``United 
States'' by redesignating paragraphs (7) through (11) as paragraphs (8) 
through (12), respectively; and adding a new paragraph (7) to read as 
follows:


2.101  Definitions.

* * * * *
    (b) * * *
    (2) * * *
    United States * * *
    (7) For use in subpart 22.17, see the definition at 22.1702.
* * * * *

PART 9--CONTRACTOR QUALIFICATIONS

0
4. Amend section 9.104-6 by adding paragraph (e) to read as follows:


9.104-6  Federal Awardee Performance and Integrity Information System.

* * * * *
    (e) The head of an executive agency shall ensure that the 
contracting officer is provided a copy of the agency Inspector General 
report of an investigation of a violation of the trafficking in persons 
prohibitions in E.O. 13627 or the Trafficking Victims Protection Act of 
2000, as amended, (22 U.S.C. chapter 78). The contracting officer is 
responsible for including in FAPIIS any allegation substantiated by the 
Inspector General in its report and providing the contractor an 
opportunity to respond to any such report in accordance with applicable 
statutes and regulations. Information posted in FAPIIS regarding such 
reports will be publicly available.

PART 12--ACQUISITION OF COMMERCIAL ITEMS

0
5. Amend section 12.301 by adding paragraph (d)(4) to read as follows:


12.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (d) * * *
    (4) Insert the provision at 52.222-XX, Certification Regarding 
Trafficking in Persons Compliance Plan, in solicitations as prescribed 
at 22.1705(b). This certification is not in the Online

[[Page 59322]]

Representations and Certifications Application (ORCA) Database.
* * * * *

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

0
6. Revise section 22.1700 to read as follows:


22.1700  Scope of subpart.

    This subpart prescribes policy for implementing 22 U.S.C. chapter 
78 and Executive Order 13627, Strengthening Protections Against 
Trafficking in Persons in Federal Contracts, dated September 25, 2012.
0
7. Revise section 22.1701 to read as follows:


22.1701  Applicability.

    This subpart applies to all acquisitions, except that the 
requirement at 22.1703(d) for a certification and compliance plan for 
contracts and subcontracts other than commercially available off-the-
shelf items, applies only where the estimated value of the supplies to 
be acquired, or services required to be performed, outside the United 
States exceeds $500,000.
0
8. Amend section 22.1702 by adding, in alphabetical order, the 
definition ``United States'' to read as follows:


22.1702  Definitions.

* * * * *
    United States means the 50 States, the District of Columbia, and 
outlying areas.
0
9. Amend section 22.1703 by--
0
a. Removing from the introductory text ``in Persons' at'' and adding 
``in Persons at'' in its place;
0
b. Revising paragraph (a); and
0
c. Adding paragraphs (d) and (e).
    The revised and added text reads as follows:


22.1703  Policy.

* * * * *
    (a) Prohibit contractors, contractor employees, subcontractors, 
subcontractor employees, and their agents from--
    (1) Engaging in severe forms of trafficking in persons during the 
period of performance of the contract;
    (2) Procuring commercial sex acts during the period of performance 
of the contract;
    (3) Using forced labor in the performance of the contract;
    (4) Destroying, concealing, confiscating, or otherwise denying 
access by an employee to the employee's identity or immigration 
documents, such as passports or drivers' licenses;
    (5) Using misleading or fraudulent recruitment practices, such as 
failing to disclose basic information or making material 
misrepresentations during the recruitment of employees regarding the 
key terms and conditions of employment, including wages and fringe 
benefits, the location of work, the living conditions, housing (if 
employer provided or arranged), any significant costs to be charged to 
the employee, and, if applicable, the hazardous nature of the work;
    (6) Charging employees recruitment fees;
    (7)(i)(A) Failing to provide return transportation or pay for the 
cost of return transportation upon the end of employment, for an 
employee who is not a national of the country in which the work is 
taking place and who was brought into that country for the purpose of 
working on a U.S. Government contract or subcontract, for portions of 
contracts and subcontracts performed outside the United States;
    (B) Failing to provide return transportation or pay for the cost of 
return transportation upon the end of employment, for an employee who 
is not a United States national and who was brought into the United 
States for the purpose of working on a U.S. Government contract or 
subcontract, if the payment of such costs is required under existing 
temporary worker programs or pursuant to a written agreement with the 
employee for portions of contracts and subcontracts performed inside 
the United States; except that--
    (ii) The requirements of paragraph (a)(7)(i) of this section do not 
apply to an employee who is--
    (A) Legally permitted to remain in the country of employment and 
who chooses to do so;
    (B) Exempted by the contracting agency from the requirement to 
provide return transportation or pay for the cost of return 
transportation; or
    (C) A victim of trafficking and is seeking victim services or legal 
redress in the country of employment, or who is a witness in a 
trafficking-related enforcement action;
    (8) Providing or arranging housing that fails to meet the host 
country housing and safety standards; or
    (9) If it is required, failing to provide an employment contract, 
recruitment agreement, or similar work document in writing in the 
employee's native language and prior to the employee departing from his 
or her country of origin. The employee's contract, agreement or work 
document should include, but is not limited to, details about work 
description, wages, prohibition on charging recruitment fees, work 
location(s), living accommodations, leave, roundtrip transportation 
arrangements, grievance process, and the content of applicable laws and 
regulations that prohibit trafficking in persons.
* * * * *
    (d) Except for contracts and subcontracts for commercially 
available off-the-shelf items--
    (1) Require a certification that the contractor has a compliance 
plan for any portion of the contract or subcontract where the estimated 
value of the supplies to be acquired, or services required to be 
performed, outside the United States exceeds $500,000. The 
certification must state that the contractor has implemented the plan 
and has implemented procedures to prevent any prohibited activities and 
to monitor, detect, and terminate the contract with a subcontractor or 
agent engaging in prohibited activities. In addition, the certification 
must state that, after having conducted due diligence, either (i), to 
the best of the contractor's knowledge and belief, neither it nor its 
agents, nor any of its subcontractors or their agents, has engaged in 
any such activities, or (ii), if abuses have been found, the contractor 
or subcontractor has taken the appropriate remedial and referral 
actions. The contracting officer must verify that the apparent 
successful offeror has made this certification before awarding the 
contract.
    (2) Require annual certifications during performance of the 
contract, when a compliance plan was required at award.
    (3) Require the contractor to obtain a certification from each 
subcontractor, prior to award of a subcontract, that it has a 
compliance plan for any portion of its subcontract where the estimated 
value of the supplies to be acquired, or services required to be 
performed, outside the United States under the subcontract exceeds 
$500,000. In addition, the certification must state that, after having 
conducted due diligence, either (i), to the best of the contractor's 
knowledge and belief, neither it or its agents, nor any of its 
subcontractors nor their agents, has engaged in any such activities, or 
(ii), if abuses have been found, the contractor or subcontractor has 
taken the appropriate remedial and referral actions;
    (4) Require the contractor to obtain annual certifications from 
subcontractors during performance of the contract, when a compliance 
plan was required at the time of subcontract award; and

[[Page 59323]]

    (5) Any compliance plan or procedures implemented in response to 
paragraph (d) of this section shall be appropriate to the size and 
complexity of the contract and the nature and scope of its activities, 
including the number of non-U.S. citizens expected to be employed and 
the risk that the contract or subcontract will involve services or 
supplies susceptible to trafficking.
    (e) Require the contractor and subcontractors to cooperate fully in 
providing reasonable access to their facilities and staff (both inside 
and outside the U.S.) to allow contracting agencies and other 
responsible enforcement agencies to conduct audits, investigations, or 
other actions to ascertain compliance with the Trafficking Victims 
Protection Act (22 U.S.C. chapter 78), Executive Order 13627, or any 
other applicable law or regulation establishing restrictions on 
trafficking in persons, the procurement of commercial sex acts, or the 
use of forced labor. Contractors shall protect and interview all 
employees suspected of being victims of or witnesses to prohibited 
activities, prior to returning to their country of origin, and shall 
not prevent or hinder the ability of these employees from cooperating 
fully with government authorities.
0
10. Revise section 22.1704 to read as follows:


22.1704  Violations, remedies, and notifications.

    (a) Violations. The Government may impose the remedies set forth in 
paragraph (b) of this section if--
    (1) The contractor, contractor employee, subcontractor, 
subcontractor employee, or their agents engages in severe forms of 
trafficking in persons during the period of performance of the 
contract;
    (2) The contractor, contractor employee, subcontractor, 
subcontractor employee, or their agents procures a commercial sex act 
during the period of performance of the contract;
    (3) The contractor, contractor employee, subcontractor, 
subcontractor employee, or their agents 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. The contracting officer may take into 
consideration whether the contractor had a Trafficking in Persons 
compliance plan or awareness program at the time of the violation, and 
whether the contractor was in compliance with the plan, as mitigating 
factors when determining the appropriate remedies. The contracting 
officer may consider the failure of a contractor to abate an alleged 
violation or enforce the requirements of a compliance plan, when 
directed by a contracting officer to do so, as an aggravating factor. 
These remedies are in addition to any other remedies available to the 
United States Government.
    (c) Notifications. Contracting officers shall notify, in accordance 
with agency procedures, the agency Inspector General, the agency 
debarring and suspending official, and if appropriate, law enforcement, 
of credible violations. The Contracting officer shall include in FAPIIS 
any allegation substantiated by the Inspector General in its report 
(see 9.104-6).
0
11. Revise section 22.1705 to read as follows:


22.1705  Solicitation provision and contract clause.

    (a)(1) Insert the clause at 52.222-50, Combating Trafficking in 
Persons, in all solicitations and contracts.
    (2) Use the clause with its Alternate I when the contract will be 
performed outside the United States (as defined at 22.1702) and the 
contracting officer has been notified of specific U.S. directives or 
notices regarding combating trafficking in persons (such as general 
orders or military listings of ``off-limits'' local establishments) 
that apply to contractor employees at the contract place of 
performance.
    (b) Insert the provision at 52.222-XX, Certification Regarding 
Trafficking in Persons Compliance Plan, in solicitations if--
    (1) It is possible that at least $500,000 of the contract may be 
performed outside the United States; and
    (2) The acquisition is not entirely for commercially available off-
the-shelf items.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
12. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing paragraph (a)(1);
0
c. Redesignating paragraphs (a)(2) and (a)(3) as paragraphs (a)(1) and 
(a)(2), respectively;
0
d. Redesignating paragraphs (b)(34) through (b)(52) as paragraphs 
(b)(35) through (b)(53), respectively;
0
e. Adding a new paragraph (b)(34);
0
f. Revising paragraph (e)(1)(ix); and
0
g. Amending Alternate II by--
0
i. Revising the date and introductory text of Alternate II; and
0
ii. Revising paragraph (e)(1)(ii)(I).
    The revised and added text reads as follows:


52.212-5  Contract Terms and Conditions Required to Implement Statutes 
or Executive Orders--Commercial Items.

* * * * *

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR 
EXECUTIVE ORDERS--COMMERCIAL ITEMS (DATE)

* * * * *
    (b) * * *
    ---- (34)(i) 52.222-50, Combating Trafficking in Persons (DATE) 
(22 U.S.C. chapter 78 and Executive Order 13627).
    ---- (ii) Alternate I (DATE) of 52.222-50 (22 U.S.C. chapter 78 
and Executive Order 13627).
* * * * *
    (e)(1) * * *
    (ix) 52.222-50, Combating Trafficking in Persons (DATE) (22 
U.S.C. chapter 78 and Executive Order 13627) (use with its Alternate 
I, if used in the prime contract).
* * * * *
    Alternate II (DATE). As prescribed in 12.301(b)(4)(ii), 
substitute the following paragraphs (d)(1) and (e)(1) for paragraphs 
(d)(1) and (e)(1) of the basic clause as follows:
* * * * *
    (e)(1) * * *
    (ii) * * *
    (I) 52.222-50, Combating Trafficking in Persons (DATE) (22 
U.S.C. chapter 78 and Executive Order 13627) (use with its Alternate 
I, if used in the prime contract).
* * * * *
0
13. Amend section 52.213-4 by--
0
a. Revising the date of the clause;
0
b. Removing paragraph (a)(1)(iv);
0
c. Redesignating paragraphs (a)(1)(v) through (a)(1)(vii) as paragraphs 
(a)(1)(iv) through (a)(1)(vi), respectively;
0
d. Revising paragraph (a)(2)(vi);
0
e. Redesignating paragraphs (b)(1)(viii) through (b)(1)(xiii) as 
paragraphs (b)(1)(ix) through (b)(1)(xiv), respectively; and
0
f. Adding a new paragraph (b)(1)(viii).
    The revised and added text reads as follows:


52.213-4  Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Items).

* * * * *

TERMS AND CONDITIONS--SIMPLIFIED ACQUISITIONS (OTHER THAN COMMERCIAL 
ITEMS) (DATE)

* * * * *
    (a) * * *
    (2) * * *
    (vi) 52.244-6, Subcontracts for Commercial Items (DATE)
* * * * *

[[Page 59324]]

    (b) * * *
    (1) * * *
    (i) * * *
    (viii)(A) 52.222-50, Combating Trafficking in Persons (DATE) (22 
U.S.C. chapter 78 and Executive Order 13627).
    (B) Alternate I (applies if the contracting officer fills in the 
following information with regard to applicable directives or 
notices: Document title(s), source for obtaining document(s), 
contract performance location outside the United States to which the 
document applies.
* * * * *
0
14. Amend section 52.222-50 by--
0
a. Revising the date of the clause;
0
b. Adding to paragraph (a), in alphabetical order, the definition 
``United States'';
0
c. Revising paragraphs (b), (d), and (e);
0
d. Removing paragraph (f);
0
e. Redesignating paragraph (g) as paragraph (f);
0
f. Revising the newly designated paragraph (f);
0
g. Adding a new paragraph (g), and paragraphs (h) and (i); and
0
h. Amending Alternate I by--
0
i. Revising the date of the Alternate and the introductory text; and
0
ii. Removing from paragraph (i)(B), in the table, ``Applies performance 
to'', and adding ``Applies to performance'' in its place; and removing 
in the bracketed text, ``U.S.'' and adding ``United States'' in its 
place.
    The revised and added text reads as follows:


52.222-50  Combating Trafficking in Persons.

* * * * *

COMBATING TRAFFICKING IN PERSONS (DATE)

* * * * *
    (a) * * *
    United States means the 50 States, the District of Columbia, and 
outlying areas.
    (b) Policy. The United States Government has adopted a zero 
tolerance policy regarding trafficking in persons. Contractors, 
contractor employees, and their agents shall not--
    (1) Engage in severe forms of trafficking in persons during the 
period of performance of the contract;
    (2) Procure commercial sex acts during the period of performance 
of the contract;
    (3) Use forced labor in the performance of the contract;
    (4) Destroy, conceal, confiscate, or otherwise deny access by an 
employee to the employee's identity or immigration documents, such 
as passports or drivers' licenses;
    (5) Use misleading or fraudulent recruitment practices, such as 
failing to disclose basic information or making material 
misrepresentations during the recruitment of employees regarding the 
key terms and conditions of employment, including wages and fringe 
benefits, the location of work, the living conditions, housing (if 
employer provided or arranged), any significant cost to be charged 
to the employee, and, if applicable, the hazardous nature of the 
work;
    (6) Charge employees recruitment fees;
    (7)(i) Fail to provide return transportation or pay for the cost 
of return transportation upon the end of employment--
    (A) For an employee who is not a national of the country in 
which the work is taking place and who was brought into that country 
for the purpose of working on a U.S. Government contract or 
subcontract (for portions of contracts performed outside the United 
States); or
    (B) For an employee who is not a United States national and who 
was brought into the United States for the purpose of working on a 
U.S. Government contract or subcontract, if the payment of such 
costs is required under existing temporary worker programs or 
pursuant to a written agreement with the employee (for portions of 
contracts performed inside the United States); except that--
    (ii) The requirements of paragraphs (b)(7)(i) of this clause 
shall not apply to--
    (A) An employee who is legally permitted to remain in the 
country of employment and who chooses to do so; or
    (B) An employee who is a victim of trafficking and is seeking 
victim services or legal redress in the country of employment, or an 
employee who is a witness in a trafficking-related enforcement 
action;
    (8) Provide or arrange housing that fails to meet the host 
country housing and safety standards; or
    (9) If required, fail to provide an employment contract, 
recruitment agreement, or similar work document in writing in the 
employee's native language and prior to the employee departing from 
his or her country of origin. The employee's contract, agreement or 
work document should include, but is not limited to, details about 
work description, wages, prohibition on charging recruitment fees, 
work location(s), living accommodations, leave, roundtrip 
transportation arrangements, grievance process, and the content of 
applicable laws and regulations that prohibit trafficking in 
persons.
* * * * *
    (d) Notification. The Contractor shall inform the Contracting 
Officer and the agency Inspector General immediately of--
    (1) Any credible information it receives from any source 
(including host country law enforcement) that alleges a Contractor 
employee, subcontractor, subcontractor employee, or their agent has 
engaged in conduct that violates this policy; and
    (2) Any actions taken against a Contractor employee, 
subcontractor, subcontractor employee, or their agent 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), (d), (g), (h), or (i) of this clause may result 
in--
    (1) Requiring the Contractor to remove a Contractor employee or 
employees from the performance of the contract;
    (2) Requiring the Contractor to terminate a subcontract;
    (3) Suspension of contract payments;
    (4) Loss of award fee, consistent with the award fee plan, for 
the performance period in which the Government determined Contractor 
non-compliance;
    (5) Declining to exercise available options under the contract;
    (6) Termination of the contract for default or cause, in 
accordance with the termination clause of this contract; or
    (7) Suspension or debarment.
    (f) Mitigating and aggravating factors. The Contracting Officer 
may consider whether the Contractor had a Trafficking in Persons 
compliance plan or awareness program at the time of the violation 
and was in compliance with the plan as mitigating factors when 
determining remedies. The Contracting Officer may consider the 
failure of the Contractor to abate an alleged violation or enforce 
the requirements of a compliance plan, when directed by the 
Contracting Officer to do so, as aggravating factors. Additional 
information about Trafficking in Persons and examples of awareness 
programs can be found at the Web site for the Department of State's 
Office to Monitor and Combat Trafficking in Persons at https://www.state.gov/j/tip/.
    (g) Full cooperation. The Contractor shall cooperate fully in 
providing reasonable access to its facilities and staff (both inside 
and outside the U.S.) to allow contracting agencies and other 
responsible enforcement agencies to conduct audits, investigations, 
or other actions to ascertain compliance with the Trafficking 
Victims Protection Act of 2000 (22 U.S.C. chapter 78), Executive 
Order 13627, or any other applicable law or regulation establishing 
restrictions on trafficking in persons, the procurement of 
commercial sex acts, or the use of forced labor. Contractors shall 
protect and interview all employees suspected of being victims of or 
witnesses to prohibited activities, prior to returning to their 
country of origin, and shall not prevent or hinder the ability of 
these employees from cooperating fully with government authorities.
    (h) Compliance plan. (1) This paragraph (h) applies to the 
portion of the contract that--
    (i) Is for supplies acquired, other than commercially available 
off-the-shelf items, or services performed, outside the United 
States; and
    (ii) Has an estimated value that exceeds $500,000.
    (2) The Contractor, shall maintain a compliance plan during the 
performance of the contract that is appropriate to the size and 
complexity of the contract and to the nature and scope of the 
activities to be performed for the Government, including the number 
of non-United States citizens expected to be employed and the risk 
that the contract or subcontract will involve services or supplies 
susceptible to trafficking.
    (3) Minimum requirements. The compliance plan must include, at a 
minimum, the following:
    (i) An awareness program to inform contractor employees about 
the Government's zero-tolerance policy, the activities prohibited, 
and the actions that will be taken against the employee for 
violations.

[[Page 59325]]

    (ii) A process for employees to report, without fear of 
retaliation, activity inconsistent with the zero-tolerance policy.
    (iii) A recruitment and wage plan that only permits the use of 
recruitment companies with trained employees, prohibits charging 
recruitment fees to the employee, and ensures that wages meet 
applicable host-country legal requirements or explains any variance.
    (iv) A housing plan, if the Contractor or subcontractor intends 
to provide or arrange housing, that ensures that the housing meets 
host-country housing and safety standards or explains any variance.
    (v) Procedures to prevent agents and subcontractors at any tier 
and at any dollar value from engaging in trafficking in persons 
(including activities in paragraph (b)) and to monitor, detect, and 
terminate any agents, subcontracts, or subcontractor employees that 
have engaged in such activities.
    (4) Posting. (i) The Contractor shall post the relevant contents 
of the compliance plan, no later than the initiation of contract 
performance, at the workplace and on the Contractor's Web site (if 
one is maintained).
    (ii) The Contractor shall provide the compliance plan to the 
Contracting Officer upon request.
    (5) Certification. Annually after receiving an award, the 
Contractor shall submit a certification to the Contracting Officer 
that--
    (i) It has implemented a compliance plan to prevent any 
prohibited activities identified at paragraph (b) of this clause and 
to monitor, detect, and terminate any agent, subcontract or 
subcontractor employee engaging in prohibited activities; and
    (ii) After having conducted due diligence, either--
    (A) To the best of the Contractor's knowledge and belief, 
neither it nor any of its agents, subcontractors, or their agents is 
engaged in any such activities; or
    (B) If abuses have been found, the Contractor or subcontractor 
has taken the appropriate remedial and referral actions.
    (i) Subcontracts. (1) The Contractor shall include the substance 
of this clause, including this paragraph (i), in all subcontracts 
and in all contracts with agents. The requirements in paragraph (h) 
apply only to the portion of the subcontract that is required to be 
performed outside the United States, for which the estimated value 
exceeds $500,000 and is for supplies acquired, other than 
commercially available off-the-shelf items or services performed, 
outside the United States.
    (2) If applicable, the Contractor shall require subcontractors 
to submit a subcontract compliance plan and certification to the 
prime Contractor prior to the award of the subcontract and annually 
thereafter. The certification shall cover the items in paragraph 
(h)(5).


(End of clause)

    Alternate I (DATE). As prescribed in 22.1705(a)(2), substitute 
the following paragraph in place of paragraph (c)(1)(i) of the basic 
clause:
* * * * *
0
15. Add section 52.222-XX to read as follows:


52.222-XX  Certification Regarding Trafficking in Persons Compliance 
Plan.

    As prescribed in 22.1705(b), insert the following provision:

CERTIFICATION REGARDING TRAFFICKING IN PERSONS COMPLIANCE PLAN (DATE)

    The apparent successful offeror shall submit, prior to award, 
for the portion of the contract where the estimated value of the 
supplies to be acquired, or services required to be performed, 
outside the United States exceeds $500,000, a certification that--
    (a) It has implemented a compliance plan to prevent any 
prohibited activities and to monitor, detect, and terminate the 
contract with a subcontractor engaging in prohibited activities 
identified at paragraph (b) of the clause at 52.222-50, Combating 
Trafficking in Persons; and
    (b) After having conducted due diligence, either--
    (1) To the best of the Contractor's knowledge and belief, 
neither it nor any of its agents, subcontractors, or their agents is 
engaged in any such activities; or
    (2) If abuses have been found, the Contractor or subcontractor 
has taken the appropriate remedial and referral actions.


(End of Provision)

0
16. Amend section 52.244-6 by--
0
a. Revising the date of the provision and paragraph (c)(1)(viii) to 
read as follows:


52.244-6  Subcontracts for Commercial Items.

* * * * *
    SUBCONTRACTS FOR COMMERCIAL ITEMS (DATE)
* * * * *
    (c)(1) * * *
    (viii) 52.222-50, Combating Trafficking in Persons (DATE) (22 
U.S.C. chapter 78 and Executive Order 13627) (use with its Alternate 
I, if used in the prime contract).
* * * * *
[FR Doc. 2013-23311 Filed 9-24-13; 11:15 am]
BILLING CODE 6820-EP-P