Defense Federal Acquisition Regulation Supplement: Further Implementation of Trafficking in Persons Policy, 59325-59328 [2013-23501]
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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:
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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.
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Subcontracts for Commercial
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SUBCONTRACTS FOR COMMERCIAL
ITEMS (DATE)
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(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).
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[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:
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15. Add section 52.222–XX to read as
follows:
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52.222–XX Certification Regarding
Trafficking in Persons Compliance Plan.
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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: https://
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 https://
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
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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
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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
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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.
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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.
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(2) * * *
(v) 252.222–7007, Representation
with Regard to Combating Trafficking in
Persons.
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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.
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■
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:
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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
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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;
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PART 204—ADMINISTRATIVE
MATTERS
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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
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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
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Display of Hotline Poster(s)
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(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 https://
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.
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(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.
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■ 8. Section 252.222–70XX is added as
follows:
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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:
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(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.
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[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: https://
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.
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(iii) The Contractor shall enforce the
rights of Contractor personnel
accompanying the U.S. Armed Forces.
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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 https://
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: https://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 https://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 https://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
