Defense Federal Acquisition Regulation Supplement: Further Implementation of Trafficking in Persons Policy, 59325-59328 [2013-23501]

Download as PDF emcdonald on DSK67QTVN1PROD with PROPOSALS Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Proposed Rules (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 hostcountry 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: * VerDate Mar<15>2010 18:01 Sep 25, 2013 Jkt 229001 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) ■ 16. Amend section 52.244–6 by— ■ a. Revising the date of the provision and paragraph (c)(1)(viii) to read as follows: 52.244–6 Items. * * Subcontracts for Commercial * * * 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 DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 203, 204, 212, 222, and 252 [DFARS Case 2013–D007] RIN 0750–AH93 Defense Federal Acquisition Regulation Supplement: Further Implementation of Trafficking in Persons Policy Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Proposed rule. AGENCY: * * * * 15. Add section 52.222–XX to read as follows: ■ 52.222–XX Certification Regarding Trafficking in Persons Compliance Plan. PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 59325 DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to further implement DoD trafficking in persons policy and to supplement Governmentwide changes proposed in connection with the Executive Order entitled Strengthening Protections Against Trafficking in Persons in Federal Contracts, to improve awareness, compliance, and enforcement. DATES: Comment Date: Comments on the proposed rule should be submitted in writing to the address shown below on or before November 25, 2013, to be considered in the formation of a final rule. ADDRESSES: Submit comments identified by DFARS Case 2013–D007, using any of the following methods: Æ Regulations.gov: http:// www.regulations.gov. Submit comments via the Federal eRulemaking portal by inserting ‘‘DFARS Case 2013–D007’’ under the heading ‘‘Enter keyword or ID’’ and selecting ‘‘Search.’’ Select the link ‘‘Submit a Comment’’ that corresponds with ‘‘DFARS Case 2013– D007.’’ Follow the instructions provided at the ‘‘Submit a Comment’’ screen. Please include your name, company name (if any), and ‘‘DFARS Case 2013– D007’’ on your attached document. Æ Email: dfars@osd.mil. Include DFARS Case 2013–D007 in the subject line of the message. Æ Fax: 571–372–6094. Æ Mail: Defense Acquisition Regulations System, Attn: Meredith Murphy, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301–3060. Comments received generally will be posted without change to http:// www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). FOR FURTHER INFORMATION CONTACT: Meredith Murphy, telephone 571–372– 6098. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background The United States Government has a longstanding zero-tolerance policy against human trafficking in Federal supply chains, codified in Governmentwide acquisition regulations at Federal Acquisition Regulation (FAR) subpart 22.17. DFARS Procedures, Guidance, and Information 222.1703 (referencing DoD Instruction E:\FR\FM\26SEP1.SGM 26SEP1 emcdonald on DSK67QTVN1PROD with PROPOSALS 59326 Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Proposed Rules 2200.01) supplements the policy, and DFARS 242.302 imposes additional monitoring requirements upon contractors. Despite these protections, recent reports on Federal contracting— including findings from the Commission on Wartime Contracting and agency Inspector General offices—and testimony presented at congressional hearings indicated that the Government needs to strengthen its policies and practices to ensure that no taxpayer resources are used to support such egregious labor violations. On September 25, 2012, President Obama signed Executive Order 13627, Strengthening Protections Against Trafficking in Persons in Federal Contracts, to address these needs and reinforced the Government’s commitment to a zero-tolerance. On January 2, 2013, the Congress passed its own measure in Title VXII of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112–239), known as the End Trafficking in Government Contracting Act. Both authorities create a stronger framework for agency prevention of trafficking by, among other things, (i) Clarifying what constitutes trafficking or traffickingrelated activities in the Federal supply chain, (ii) requiring contractors in certain circumstances to maintain compliance plans to help ensure their employees do not engage in, or become complicit to, human trafficking in their supply chain, and (iii) establishing requirements for training the Federal acquisition workforce. In addition to working with members of the Federal Acquisition Regulatory Council to implement the Executive Order and the statute in the Federal Acquisition Regulation, DoD has identified a number of important supplementary actions to help eradicate trafficking in its own supply chain. Accordingly, DoD is proposing changes to the DFARS coverage on trafficking to supplement the proposed new FAR coverage. The DFARS coverage would include ensuring that employees of DoD contractors are fully aware of their labor rights and that they have a means of reporting suspected labor violations directly to the DoD Inspector General’s office. These added protections will further improve stability, productivity, and certainty in the contingency operations that DoD supports, and they will ensure that DoD contractors do not benefit from the use of coerced labor. II. Discussion and Analysis This DFARS case proposes to amend DFARS parts 203, 204, 212, 222, and 252 of title 48, to increase contractor and employee awareness of trafficking VerDate Mar<15>2010 18:01 Sep 25, 2013 Jkt 229001 in persons and improve compliance and enforcement by the Government, contractors, and subcontractors. Significant changes are as follows: • Revise the title of DFARS clause 252.203–7004, now titled ‘‘Display of Fraud Hotline Poster(s),’’ to ‘‘Display of Hotline Poster(s)’’ and add the requirements for posting of additional types of hotline posters (regarding trafficking in persons and whistleblowing). The revised clause would retain the $5 million threshold and the exclusion for commercial items, but require contractors to post these new posters when performing either inside or outside the United States. If a substantial portion of the workforce does not speak English, then contractors must also post the posters in the language(s) spoken by a substantial portion of the workforce. • Add a new representation that the offerors’ hiring practices address Combating Trafficking in Persons and that their companies are complying with these requirements (252.222–70XX). This representation would be applicable to all solicitations that exceed the simplified acquisition threshold, including contracts for acquisition of commercial items. This representation would also add requirements to notify employees and subcontractors regarding their obligation to report trafficking in persons violations and that they will be afforded whistleblower protection (see the clause at DFARS 252.203–7002, Requirement to Inform Employees of Whistleblower Rights). • Integrate a contractor employee bill of rights (developed in 2009 by the Army Air Force Exchange Service as a Concessionaire Bill of Rights) into DFARS clause 252.225–7040, Contractor Personnel Authorized to Accompany the U.S. Armed Forces outside the United States, with a requirement that contractor employees be made aware of it, that their employers enforce it, and that it is posted in employee workspaces in English and any foreign languages spoken by a significant portion of the workforce. 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 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 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 DoD does not expect this rule 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. However, an initial regulatory flexibility analysis has been performed and is summarized as follows: This rule proposes to amend the Defense Federal Acquisition Regulation Supplement to improve awareness, compliance, and enforcement of DoD policies on combating trafficking in persons. This rule proposes the display of hotline posters on combating trafficking in persons and whistleblower protection for contracts that exceed $5 million (for performance both inside and outside the United States), display of a contractor employee bill of rights when the contract includes the DFARS clause 252.225–7040, Contractor Personnel Authorized to Accompany the U.S. Armed Forces Deployed Outside the United States, and a representation with regard to hiring policies that goes in all DoD solicitations and contracts that exceed the simplified acquisition threshold. The legal basis for the rule is 41 U.S.C. 1303. In total, there are about 57,760 small entities that do business with DoD. The mandatory disclosure requirements and the hotline poster requirements only apply to small business concerns with DoD contracts or subcontracts that exceed $5 million (except for commercial items). The representation regarding hiring practices applies to all small business concerns that respond to solicitations with an estimated value exceeding the simplified acquisition threshold. The requirement to display the contractor employee bill of rights only applies to contracts that authorize contractor personnel to accompany the U.S. Armed Forces deployed outside the United States in contingency operations, humanitarian or peacekeeping operations, or other military operations or exercises, when designated by the combatant commander. None of these requirements is expected to impose a significant economic burden on small business concerns. There are no requirements in this proposed rule that represent an information collection requirement. E:\FR\FM\26SEP1.SGM 26SEP1 Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Proposed Rules The rule does not duplicate, overlap, or conflict with any other Federal rules. There were no alternatives to be adopted that could further decrease the impact on small entities. DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 610 (DFARS Case 2013–D007), in correspondence. V. Paperwork Reduction Act The rule does not contain information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C chapter 35.) List of Subjects in 48 CFR Parts 203, 204, 212, 222, and 252 Government procurement. (xiv) and adding a new paragraph (2)(v) as follows: 204.1202 Solicitation provision. * * * * * (2) * * * (v) 252.222–7007, Representation with Regard to Combating Trafficking in Persons. * * * * * * 4. In section 212.301, paragraph (f) is amended by redesignating paragraphs (f)(xiv) through (lxii) as (f)(xv) through (lxiii) and adding a new paragraph (f)(xiv) as follows: 212.301 Solicitation provisions and contract clauses for the acquisition of commercial items. (f) * * * (xiv) Use the provision at 252.222– 7007, Representation with Regard to Combating Trafficking in Persons, as prescribed in 222.1771. * * * * * ■ Manuel Quinones, Editor, Defense Acquisition Regulations System. PART 222—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS Therefore, 48 CFR parts 203, 204, 212, 222, and 252 are proposed to be amended as follows: ■ 1. The authority citation for parts 203, 204, 212, 222, and 252 continues to read as follows: ■ Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. PART 203—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST 2. In section 203.1004, paragraph (b)(2)(ii) is revised to read as follows: ■ emcdonald on DSK67QTVN1PROD with PROPOSALS 203.1004 (a) * * * (b)(2)(ii) Unless the contract is for the acquisition of a commercial item, if the contract exceeds $5 million, use the clause at 252.203–7004, Display of Hotline Poster(s), in lieu of the clause at FAR 52.203–14, Display of Hotline Poster(s). If the Department of Homeland Security (DHS) provides disaster relief funds for the contract, DHS will provide information on how to obtain and display the DHS fraud hotline poster (see FAR 3.1003). 3. In section 204.1202, paragraph (2) is amended by redesignating paragraphs (2)(v) through (xiii) as (2)(vi) through 18:01 Sep 25, 2013 Jkt 229001 Solicitation provision. Unless the solicitation includes the provision at 252.204–7007, use the provision at 252.222–70XX, Representation with Regard to Combating Trafficking in Persons, in all solicitations and contracts that exceed the simplified acquisition threshold, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items. PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 6. Section 252.203–7004 is amended by— ■ a. Removing the word ‘‘Fraud’’ from the section heading; ■ b. Removing the word ‘‘Fraud’’ from the clause title; ■ PART 204—ADMINISTRATIVE MATTERS VerDate Mar<15>2010 Procedures. For a sample checklist for auditing compliance with Combating Trafficking in Persons policy, see the Defense Contract Management Agency checklist, Afghanistan Universal Examination Record Combating Trafficking in Persons, available at DFARS Procedures Guidance and Information 222.17 under the Supplemental Information tab. 222.1771 Contact clauses. ■ 5. Subpart 222.17 is amended by adding sections 222.1770 and 222.1771 as follows: 222.1770 PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 c. Removing the clause date ‘‘(DEC 2012)’’ and adding in its place ‘‘(DATE)’’; ■ d. Redesignating paragraph (c) as paragraph (e) and adding new paragraphs (c) and (d); and ■ e. Revising newly designated paragraph (e). The additions and revision read as follows: ■ 252.203–7004 PART 212—ACQUISITION OF COMMERCIAL ITEMS 59327 * * Display of Hotline Poster(s) * * (c) Display of Combating Trafficking in Persons and Whistleblower Protection hotline posters. The Contractor shall display prominently in common work areas within business segments performing work under DoD contracts DoD Combating Trafficking in Persons and Whistleblower Protection hotline posters prepared by the DoD Office of the Inspector General. (d)(1) These DoD hotline posters may be obtained from: Defense Hotline, The Pentagon, Washington, DC 20301–1900, or are also available online at http:// www.dodig.mil/hotline/hotline_posters.htm. (2) If a significant portion of the employee workforce does not speak English, then the posters are to be displayed in the foreign languages that a significant portion of the employees speak. Contact the DoD Inspector General at the address provided in paragraph (d)(1) of this clause if there is a requirement for employees to be notified of this clause and assistance with translation is required. (3) Additionally, if the Contractor maintains a company Web site as a method of providing information to employees, the Contractor shall display an electronic version of these poster(s) at the Web site. (e) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (e), in all subcontracts that exceed $5 million except when the subcontract is for the acquisition of a commercial item. (End of clause) ■ 7. Section 252.204–7007 is amended by— ■ a. Removing the provision date ‘‘(MAY 2013)’’ and adding in its place ‘‘(DATE)’’; and ■ b. Amending paragraph (d)(1) by redesignating paragraphs (d)(1)(iv) through (vii) as (d)(1)(v) through (viii) and adding new paragraph (d)(1)(iv) to read as follows: 252.204–7007 Alternate A, Annual Representations and Certifications. * * * * * (d)(1) * * * (iv) 252.222–7007, Representation with Regard to Combating Trafficking in Persons, as prescribed in 222.1771. Applies to solicitations with a value expected to exceed the simplified acquisition threshold. * * * * * ■ 8. Section 252.222–70XX is added as follows: E:\FR\FM\26SEP1.SGM 26SEP1 59328 Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Proposed Rules 252.222–70XX Representation with Regard to Combating Trafficking in Persons. As prescribed in 222.1771, use the following provision: REPRESENTATION WITH REGARD TO COMBATING TRAFFICKING IN PERSONS (DATE) By submission of its offer, the Offeror represents that it— (a) Will not engage in any trafficking in persons or related activities, including but not limited to the use forced labor, in the performance of this contract; (b) Has hiring and subcontracting policies to protect the rights of its employees and the rights of subcontractor employees and will comply with those policies in the performance of this contract; (c) Has notified its employees and subcontractors of— (1) The responsibility to report trafficking in persons violations by the Contractor or subcontractor employees, at any tier; and (2) Employee protection under 10 U.S.C. 2409, as implemented in FAR subpart 3.9, from retribution for whistleblowing on trafficking in persons violations. (End of provision) ■ 9. Section 252.225–7040 is amended by— ■ a. Removing the clause date ‘‘(FEB 2013)’’ and adding in its place ‘‘(DATE)’’; and ■ b. Adding paragraph (d)(8) to read as follows: emcdonald on DSK67QTVN1PROD with PROPOSALS * * * * (d) * * * (8)(i) The Contractor shall ensure that Contractor employees accompanying the U.S. Armed Forces are aware of their rights to— (A) Hold their own identity or immigration documents, such as passport or driver’s license; (B) Receive agreed upon wages on time; (C) Take lunch and work-breaks; (D) Elect to terminate employment at any time; (E) Identify grievances without fear of reprisal; (F) Have a copy of their employment contract in a language they understand; (G) Receive wages that are not below the legal in-country minimum wage; (H) Be notified of their rights, wages, and prohibited activities prior to signing their employment contract; and (I) If housing is provided, live in housing that meets host-country housing and safety standards. (ii) The Contractor shall post these rights in employee work spaces in English and in any foreign language(s) spoken by a significant portion of the workforce. VerDate Mar<15>2010 18:01 Sep 25, 2013 Jkt 229001 [FR Doc. 2013–23501 Filed 9–25–13; 8:45 am] BILLING CODE 5001–06–P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 383 [Docket No. FMCSA–2013–0140] RIN 2126–AB61 Commercial Driver’s License Standards: Definition of Tank Vehicle Used for Determining the License Endorsement Requirement Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of proposed rulemaking (NPRM), request for comments. AGENCY: FMCSA proposes to revise its definition of ‘‘tank vehicle.’’ Commercial driver’s license (CDL) holders who operate such vehicles are required to obtain a tank vehicle endorsement. On May 9, 2011, FMCSA published a final rule on ‘‘Commercial Driver’s License Testing and Commercial Learner’s Permit Standards’’ that included a new definition of tank vehicle which required additional drivers to obtain tank vehicle endorsements on their commercial learners’ permits (CLPs) and CDLs. FMCSA received numerous petitions regarding the new definition. On May 24, 2012, the Agency published guidance in the Federal Register to clarify the ‘‘tank vehicle’’ definition. This NPRM would revise the definition by incorporating the 2012 regulatory guidance. FMCSA seeks comment on the proposal and information on the impact that the revised definition would have on the industry. DATES: Comments must be received on or before November 25, 2013. ADDRESSES: You may submit comments identified by Docket Number FMCSA– 2013–0140 using any of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the online instructions for submitting comments. • Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building, Ground Floor, Room W12–140, Washington, DC 20590–0001. • Hand Delivery or Courier: West Building, Ground Floor, Room W12– SUMMARY: 252.225–7040 Contractor Personnel Authorized To Accompany U.S. Armed Forces Deployed Outside the United States. * (iii) The Contractor shall enforce the rights of Contractor personnel accompanying the U.S. Armed Forces. * * * * * PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. E.T., Monday through Friday, except Federal holidays. • Fax: 202–493–2251. To avoid duplication, please use only one of these four methods. See the ‘‘Public Participation and Request for Comments’’ portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments. Comments received after the comment closing date will be included in the docket, and we will consider late comments to the extent practicable. FMCSA may, however, issue a final rule at any time after the close of the comment period. FOR FURTHER INFORMATION CONTACT: Robert Redmond, Office of Safety Programs, Commercial Driver’s License Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590– 0001, by telephone at (202) 366–5014 or via email at robert.redmond@dot.gov. Office hours are from 8 a.m. to 4:30 p.m. ET, Monday through Friday, except Federal holidays. If you have questions on viewing or submitting material to the docket, contact Docket Operations, telephone (202) 366–9826. SUPPLEMENTARY INFORMATION: Table of Contents for Preamble I. Public Participation and Request for Comments A. Submitting Comments B. Viewing Comments and Documents C. Privacy Act II. Executive Summary A. Purpose and Summary of the Major Provisions B. Benefits and Costs III. Abbreviations IV. Legal Basis for the Rulemaking V. Background VI. Section-by-Section Analysis VII. Regulatory Analyses I. Public Participation and Request for Comments FMCSA encourages you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http:// www.regulations.gov and will include any personal information you provide. A. Submitting Comments You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission. E:\FR\FM\26SEP1.SGM 26SEP1

Agencies

[Federal Register Volume 78, Number 187 (Thursday, September 26, 2013)]
[Proposed Rules]
[Pages 59325-59328]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23501]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 203, 204, 212, 222, and 252

[DFARS Case 2013-D007]
RIN 0750-AH93


Defense Federal Acquisition Regulation Supplement: Further 
Implementation of Trafficking in Persons Policy

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule.

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

SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to further implement DoD trafficking in 
persons policy and to supplement Governmentwide changes proposed in 
connection with the Executive Order entitled Strengthening Protections 
Against Trafficking in Persons in Federal Contracts, to improve 
awareness, compliance, and enforcement.

DATES: Comment Date: Comments on the proposed rule should be submitted 
in writing to the address shown below on or before November 25, 2013, 
to be considered in the formation of a final rule.

ADDRESSES: Submit comments identified by DFARS Case 2013-D007, using 
any of the following methods:
    [cir] Regulations.gov: http://www.regulations.gov. Submit comments 
via the Federal eRulemaking portal by inserting ``DFARS Case 2013-
D007'' under the heading ``Enter keyword or ID'' and selecting 
``Search.'' Select the link ``Submit a Comment'' that corresponds with 
``DFARS Case 2013-D007.'' Follow the instructions provided at the 
``Submit a Comment'' screen. Please include your name, company name (if 
any), and ``DFARS Case 2013-D007'' on your attached document.
    [cir] Email: dfars@osd.mil. Include DFARS Case 2013-D007 in the 
subject line of the message.
    [cir] Fax: 571-372-6094.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Meredith 
Murphy, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon, 
Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Meredith Murphy, telephone 571-372-
6098.

SUPPLEMENTARY INFORMATION:

I. Background

    The United States Government has a longstanding zero-tolerance 
policy against human trafficking in Federal supply chains, codified in 
Governmentwide acquisition regulations at Federal Acquisition 
Regulation (FAR) subpart 22.17. DFARS Procedures, Guidance, and 
Information 222.1703 (referencing DoD Instruction

[[Page 59326]]

2200.01) supplements the policy, and DFARS 242.302 imposes additional 
monitoring requirements upon contractors. Despite these protections, 
recent reports on Federal contracting--including findings from the 
Commission on Wartime Contracting and agency Inspector General 
offices--and testimony presented at congressional hearings indicated 
that the Government needs to strengthen its policies and practices to 
ensure that no taxpayer resources are used to support such egregious 
labor violations.
    On September 25, 2012, President Obama signed Executive Order 
13627, Strengthening Protections Against Trafficking in Persons in 
Federal Contracts, to address these needs and reinforced the 
Government's commitment to a zero-tolerance. On January 2, 2013, the 
Congress passed its own measure in Title VXII of the National Defense 
Authorization Act for Fiscal Year 2013 (Pub. L. 112-239), known as the 
End Trafficking in Government Contracting Act. Both authorities create 
a stronger framework for agency prevention of trafficking by, among 
other things, (i) Clarifying what constitutes trafficking or 
trafficking-related activities in the Federal supply chain, (ii) 
requiring contractors in certain circumstances to maintain compliance 
plans to help ensure their employees do not engage in, or become 
complicit to, human trafficking in their supply chain, and (iii) 
establishing requirements for training the Federal acquisition 
workforce.
    In addition to working with members of the Federal Acquisition 
Regulatory Council to implement the Executive Order and the statute in 
the Federal Acquisition Regulation, DoD has identified a number of 
important supplementary actions to help eradicate trafficking in its 
own supply chain. Accordingly, DoD is proposing changes to the DFARS 
coverage on trafficking to supplement the proposed new FAR coverage. 
The DFARS coverage would include ensuring that employees of DoD 
contractors are fully aware of their labor rights and that they have a 
means of reporting suspected labor violations directly to the DoD 
Inspector General's office. These added protections will further 
improve stability, productivity, and certainty in the contingency 
operations that DoD supports, and they will ensure that DoD contractors 
do not benefit from the use of coerced labor.

II. Discussion and Analysis

    This DFARS case proposes to amend DFARS parts 203, 204, 212, 222, 
and 252 of title 48, to increase contractor and employee awareness of 
trafficking in persons and improve compliance and enforcement by the 
Government, contractors, and subcontractors. Significant changes are as 
follows:
     Revise the title of DFARS clause 252.203-7004, now titled 
``Display of Fraud Hotline Poster(s),'' to ``Display of Hotline 
Poster(s)'' and add the requirements for posting of additional types of 
hotline posters (regarding trafficking in persons and whistleblowing). 
The revised clause would retain the $5 million threshold and the 
exclusion for commercial items, but require contractors to post these 
new posters when performing either inside or outside the United States. 
If a substantial portion of the workforce does not speak English, then 
contractors must also post the posters in the language(s) spoken by a 
substantial portion of the workforce.
     Add a new representation that the offerors' hiring 
practices address Combating Trafficking in Persons and that their 
companies are complying with these requirements (252.222-70XX). This 
representation would be applicable to all solicitations that exceed the 
simplified acquisition threshold, including contracts for acquisition 
of commercial items. This representation would also add requirements to 
notify employees and subcontractors regarding their obligation to 
report trafficking in persons violations and that they will be afforded 
whistleblower protection (see the clause at DFARS 252.203-7002, 
Requirement to Inform Employees of Whistleblower Rights).
     Integrate a contractor employee bill of rights (developed 
in 2009 by the Army Air Force Exchange Service as a Concessionaire Bill 
of Rights) into DFARS clause 252.225-7040, Contractor Personnel 
Authorized to Accompany the U.S. Armed Forces outside the United 
States, with a requirement that contractor employees be made aware of 
it, that their employers enforce it, and that it is posted in employee 
workspaces in English and any foreign languages spoken by a significant 
portion of the workforce.

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

    DoD does not expect this rule 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. However, an initial 
regulatory flexibility analysis has been performed and is summarized as 
follows:
    This rule proposes to amend the Defense Federal Acquisition 
Regulation Supplement to improve awareness, compliance, and enforcement 
of DoD policies on combating trafficking in persons. This rule proposes 
the display of hotline posters on combating trafficking in persons and 
whistleblower protection for contracts that exceed $5 million (for 
performance both inside and outside the United States), display of a 
contractor employee bill of rights when the contract includes the DFARS 
clause 252.225-7040, Contractor Personnel Authorized to Accompany the 
U.S. Armed Forces Deployed Outside the United States, and a 
representation with regard to hiring policies that goes in all DoD 
solicitations and contracts that exceed the simplified acquisition 
threshold.
    The legal basis for the rule is 41 U.S.C. 1303.
    In total, there are about 57,760 small entities that do business 
with DoD. The mandatory disclosure requirements and the hotline poster 
requirements only apply to small business concerns with DoD contracts 
or subcontracts that exceed $5 million (except for commercial items). 
The representation regarding hiring practices applies to all small 
business concerns that respond to solicitations with an estimated value 
exceeding the simplified acquisition threshold. The requirement to 
display the contractor employee bill of rights only applies to 
contracts that authorize contractor personnel to accompany the U.S. 
Armed Forces deployed outside the United States in contingency 
operations, humanitarian or peacekeeping operations, or other military 
operations or exercises, when designated by the combatant commander. 
None of these requirements is expected to impose a significant economic 
burden on small business concerns.
    There are no requirements in this proposed rule that represent an 
information collection requirement.

[[Page 59327]]

    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There were no alternatives to be adopted that could further 
decrease the impact on small entities.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C 610 (DFARS Case 2013-D007), in 
correspondence.

V. Paperwork Reduction Act

    The rule does not contain information collection requirements that 
require the approval of the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C chapter 35.)

List of Subjects in 48 CFR Parts 203, 204, 212, 222, and 252

    Government procurement.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 203, 204, 212, 222, and 252 are proposed to 
be amended as follows:

0
1. The authority citation for parts 203, 204, 212, 222, and 252 
continues to read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

PART 203--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

0
2. In section 203.1004, paragraph (b)(2)(ii) is revised to read as 
follows:


203.1004  Contact clauses.

    (a) * * *
    (b)(2)(ii) Unless the contract is for the acquisition of a 
commercial item, if the contract exceeds $5 million, use the clause at 
252.203-7004, Display of Hotline Poster(s), in lieu of the clause at 
FAR 52.203-14, Display of Hotline Poster(s). If the Department of 
Homeland Security (DHS) provides disaster relief funds for the 
contract, DHS will provide information on how to obtain and display the 
DHS fraud hotline poster (see FAR 3.1003).

PART 204--ADMINISTRATIVE MATTERS

0
3. In section 204.1202, paragraph (2) is amended by redesignating 
paragraphs (2)(v) through (xiii) as (2)(vi) through (xiv) and adding a 
new paragraph (2)(v) as follows:


204.1202  Solicitation provision.

* * * * *
    (2) * * *
    (v) 252.222-7007, Representation with Regard to Combating 
Trafficking in Persons.
* * * * *

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
4. In section 212.301, paragraph (f) is amended by redesignating 
paragraphs (f)(xiv) through (lxii) as (f)(xv) through (lxiii) and 
adding a new paragraph (f)(xiv) as follows:
    212.301 Solicitation provisions and contract clauses for the 
acquisition of commercial items.
    (f) * * *
    (xiv) Use the provision at 252.222-7007, Representation with Regard 
to Combating Trafficking in Persons, as prescribed in 222.1771.
* * * * *

PART 222--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

0
5. Subpart 222.17 is amended by adding sections 222.1770 and 222.1771 
as follows:


222.1770  Procedures.

    For a sample checklist for auditing compliance with Combating 
Trafficking in Persons policy, see the Defense Contract Management 
Agency checklist, Afghanistan Universal Examination Record Combating 
Trafficking in Persons, available at DFARS Procedures Guidance and 
Information 222.17 under the Supplemental Information tab.


222.1771  Solicitation provision.

    Unless the solicitation includes the provision at 252.204-7007, use 
the provision at 252.222-70XX, Representation with Regard to Combating 
Trafficking in Persons, in all solicitations and contracts that exceed 
the simplified acquisition threshold, including solicitations and 
contracts using FAR part 12 procedures for the acquisition of 
commercial items.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. Section 252.203-7004 is amended by--
0
a. Removing the word ``Fraud'' from the section heading;
0
b. Removing the word ``Fraud'' from the clause title;
0
c. Removing the clause date ``(DEC 2012)'' and adding in its place 
``(DATE)'';
0
d. Redesignating paragraph (c) as paragraph (e) and adding new 
paragraphs (c) and (d); and
0
e. Revising newly designated paragraph (e).
    The additions and revision read as follows:


252.203-7004  Display of Hotline Poster(s)

* * * * *
    (c) Display of Combating Trafficking in Persons and 
Whistleblower Protection hotline posters. The Contractor shall 
display prominently in common work areas within business segments 
performing work under DoD contracts DoD Combating Trafficking in 
Persons and Whistleblower Protection hotline posters prepared by the 
DoD Office of the Inspector General.
    (d)(1) These DoD hotline posters may be obtained from: Defense 
Hotline, The Pentagon, Washington, DC 20301-1900, or are also 
available online at http://www.dodig.mil/hotline/hotline_posters.htm.
    (2) If a significant portion of the employee workforce does not 
speak English, then the posters are to be displayed in the foreign 
languages that a significant portion of the employees speak. Contact 
the DoD Inspector General at the address provided in paragraph 
(d)(1) of this clause if there is a requirement for employees to be 
notified of this clause and assistance with translation is required.
    (3) Additionally, if the Contractor maintains a company Web site 
as a method of providing information to employees, the Contractor 
shall display an electronic version of these poster(s) at the Web 
site.
    (e) Subcontracts. The Contractor shall include the substance of 
this clause, including this paragraph (e), in all subcontracts that 
exceed $5 million except when the subcontract is for the acquisition 
of a commercial item.


(End of clause)

0
7. Section 252.204-7007 is amended by--
0
a. Removing the provision date ``(MAY 2013)'' and adding in its place 
``(DATE)''; and
0
b. Amending paragraph (d)(1) by redesignating paragraphs (d)(1)(iv) 
through (vii) as (d)(1)(v) through (viii) and adding new paragraph 
(d)(1)(iv) to read as follows:


252.204-7007  Alternate A, Annual Representations and Certifications.

* * * * *
    (d)(1) * * *
    (iv) 252.222-7007, Representation with Regard to Combating 
Trafficking in Persons, as prescribed in 222.1771. Applies to 
solicitations with a value expected to exceed the simplified 
acquisition threshold.
* * * * *
0
8. Section 252.222-70XX is added as follows:

[[Page 59328]]

252.222-70XX  Representation with Regard to Combating Trafficking in 
Persons.

    As prescribed in 222.1771, use the following provision:

REPRESENTATION WITH REGARD TO COMBATING TRAFFICKING IN PERSONS

(DATE)

By submission of its offer, the Offeror represents that it--

    (a) Will not engage in any trafficking in persons or related 
activities, including but not limited to the use forced labor, in 
the performance of this contract;
    (b) Has hiring and subcontracting policies to protect the rights 
of its employees and the rights of subcontractor employees and will 
comply with those policies in the performance of this contract;
    (c) Has notified its employees and subcontractors of--
    (1) The responsibility to report trafficking in persons 
violations by the Contractor or subcontractor employees, at any 
tier; and
    (2) Employee protection under 10 U.S.C. 2409, as implemented in 
FAR subpart 3.9, from retribution for whistleblowing on trafficking 
in persons violations.

(End of provision)
0
9. Section 252.225-7040 is amended by--
0
a. Removing the clause date ``(FEB 2013)'' and adding in its place 
``(DATE)''; and
0
b. Adding paragraph (d)(8) to read as follows:


252.225-7040  Contractor Personnel Authorized To Accompany U.S. Armed 
Forces Deployed Outside the United States.

* * * * *
    (d) * * *
    (8)(i) The Contractor shall ensure that Contractor employees 
accompanying the U.S. Armed Forces are aware of their rights to--
    (A) Hold their own identity or immigration documents, such as 
passport or driver's license;
    (B) Receive agreed upon wages on time;
    (C) Take lunch and work-breaks;
    (D) Elect to terminate employment at any time;
    (E) Identify grievances without fear of reprisal;
    (F) Have a copy of their employment contract in a language they 
understand;
    (G) Receive wages that are not below the legal in-country minimum 
wage;
    (H) Be notified of their rights, wages, and prohibited activities 
prior to signing their employment contract; and
    (I) If housing is provided, live in housing that meets host-country 
housing and safety standards.
    (ii) The Contractor shall post these rights in employee work spaces 
in English and in any foreign language(s) spoken by a significant 
portion of the workforce.
    (iii) The Contractor shall enforce the rights of Contractor 
personnel accompanying the U.S. Armed Forces.
* * * * *
[FR Doc. 2013-23501 Filed 9-25-13; 8:45 am]
BILLING CODE 5001-06-P