Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4967 Dated: January 22, 2015. I. Table of Contents additional steps to prohibit trafficking Richard Ginman, I. Table of Contents in Government contracting—including Director, Defense Procurement and II. Background regulatory action. Acquisition Policy. III. Discussion and Analysis E.O. 13627, entitled ‘‘Strengthening Dated: January 22, 2015. A. Summary of Significant Changes to the Protections Against Trafficking in Jeffrey A. Koses, Proposed Rule Persons in Federal Contracts,’’ issued on B. Analysis of Public Comments September 25, 2012 (77 FR 60029, Senior Procurement Executive/Deputy CAO, Introduction: General Support for the Rule Office of Acquisition Policy, U.S. General October 2, 2012), and title XVII, entitled 1. Applicability ‘‘Ending Trafficking in Government Services Administration. 2. Definition or Clarification of Terms (FAR Dated: January 21, 2015. Contracting,’’ of the National Defense 22.1702, 22.1703, 52.222–50, and 52.222–56) Authorization Act (NDAA) for Fiscal William P. McNally, 3. Policy Prohibitions (FAR 22.1703(a) and Year (FY) 2013 (Pub. L. 112–239, Assistant Administrator, Office of 52.222–50(b)) enacted January 2, 2013) create a Procurement National Aeronautics and Space Administration. 4. Compliance Plan/Certification (FAR stronger framework to eliminate 22.1703(d) (now at Paragraph (c)), trafficking in persons from Government [FR Doc. 2015–01523 Filed 1–28–15; 8:45 am] 52.222–50(h), and 52.222–56) contracts. The E.O. and statute provide BILLING CODE 6820–EP–P 5. Full Cooperation (FAR 22.1703(d) and new policies applicable to all contracts 52.222–50(g)) that prohibit contractors and 6. Violations and Remedies (FAR 22.1704 and 52.222–50(e) and (f)) subcontractors from engaging in DEPARTMENT OF DEFENSE 7. Posting in the Federal Awardee prohibited practices such as destroying, GENERAL SERVICES Performance and Integrity Information concealing, confiscating, or otherwise ADMINISTRATION System (FAPIIS) denying access by an employee to his or 8. Harmonize With Contractor Code of her identity or immigration documents; Business Ethics and Conduct (FAR using misleading or fraudulent NATIONAL AERONAUTICS AND Subpart 3.10 and 52.203–13) SPACE ADMINISTRATION recruitment practices; charging 9. Training employees recruitment fees; and 10. Other 48 CFR Parts 1, 2, 9, 12, 22, 42, and 52 11. Paperwork Reduction Act providing or arranging housing that fails 12. Regulatory Flexibility to meet the host country housing and [FAC 2005–80; FAR Case 2013–001; Item IV. Determinations safety standards. Additionally, the E.O. I; Docket 2013–0001; Sequence No. 1] V. Executive Orders 12866 and 13563 and statute provide new policies for RIN 9000–AM55 VI. Regulatory Flexibility Act contracts performed outside the United VII. Paperwork Reduction Act States that exceed $500,000, including a Federal Acquisition Regulation; II. Background requirement for a compliance plan and Ending Trafficking in Persons annual certifications. The United States has long had a Contractors and subcontractors are AGENCY: Department of Defense (DoD), policy prohibiting Government reminded of their responsibilities General Services Administration (GSA), employees and contractor personnel associated with H–1B, H–2A, and H–2B and National Aeronautics and Space from engaging in trafficking in persons Programs or Migrant and Seasonal Administration (NASA). activities, including severe forms of Agricultural Worker Protection Act ACTION: Final rule. trafficking in persons. ‘‘Severe forms of (MSPA) and should act accordingly. trafficking in persons’’ is defined in Nothing in this rule shall be construed SUMMARY: DoD, GSA, and NASA are section 103 of the Trafficking Victims to permit a contractor or subcontractor issuing a final rule amending the Protection Act of 2000 (TVPA) (22 from failing to comply with any Federal Acquisition Regulation (FAR) to U.S.C. 7102) to include the recruitment, provision of any other law, including, strengthen protections against harboring, transportation, provision, or for example, the requirements of the trafficking in persons in Federal obtaining of a person for labor or MSPA, as amended, 29 U.S.C. 1801, et contracts. These changes are intended to services, through the use of force, fraud, seq. and the Immigration and implement Executive Order (E.O.) or coercion for the purpose of subjection Nationality Act, in particular 13627, entitled ‘‘Strengthening to involuntary servitude, peonage, debt nonimmigrants entering the country Protections Against Trafficking in bondage, or slavery, and sex trafficking. under 8 U.S.C. 1101(a)(15)(H)(i)(b) (‘‘H– Persons in Federal Contracts,’’ and title FAR subpart 22.17 strengthens the 1B Program’’), 8 U.S.C. XVII of the National Defense efficacy of the policy prohibiting 1101(a)(15)(H)(ii)(a) (‘‘H–2A Program’’), Authorization Act for Fiscal Year 2013. trafficking in persons by codifying or 8 U.S.C. 1101(a)(15)(H) (ii)(b) (‘‘H–2B DATES: Effective: March 2, 2015. trafficking-related prohibitions for Program’’). The requirements of these Applicability: Contracting officers Federal contractors and subcontractors. programs were not incorporated into the shall modify, on a bilateral basis, It provides for the use of a clause that FAR because this rule is implementing existing indefinite-delivery/indefinite- requires contractors and subcontractors a specific statute and E.O. which are quantity contracts to include the clause to notify Government employees of separate and apart from the immigration for future orders, if additional orders are trafficking in persons violations and laws cited and because all of the anticipated. puts parties on notice that the responsibilities that employers have FOR FURTHER INFORMATION CONTACT: Ms. Government may impose remedies, under H–1B, H–2A, and H–2B Programs Cecelia L. Davis, Procurement Analyst, including termination, for failure to or MSPA are already enumerated in law at 202–219–0202, for clarification of comply with the requirements. Recent and separate regulations. tkelley on DSK3SPTVN1PROD with RULES2 content. For information pertaining to studies of trafficking in persons, The Federal Acquisition Regulatory status or publication schedules, contact including findings made by the Council, on March 5, 2013, sponsored a the Regulatory Secretariat at 202–501– Commission on Wartime Contracting public meeting and request for comment 4755. Please cite FAC 2005–80, FAR and agency Inspectors General, as well on the implementation of E.O. 13627 Case 2013–001. as testimony provided at congressional and title XVII of the NDAA for FY 2013. SUPPLEMENTARY INFORMATION: hearings, have identified a need for Feedback from that meeting has been VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 4968 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations used to help inform the development of Æ Remove the requirement for Æ Clarified the contractor’s regulations and other guidance to contractors to interview employees responsibility to post the compliance implement the E.O. and new statutory suspected of being victims or witnesses plan at the worksite or on its Web site. provisions and to strengthen existing of trafficking in persons. Clarify the B. Analysis of Public Comments prohibitions on trafficking in persons. requirement to provide them return DoD, GSA, and NASA published a transportation. Introduction: General Support for the proposed rule in the Federal Register at • Revised FAR 22.1704, Violations Rule 78 FR 59317 on September 26, 2013, to and remedies, and FAR 52.222–50 to— Comment: Half of the respondents implement E.O. 13627 and title XVII of Æ Clarify contracting officer actions expressed explicit support for the the NDAA for FY 2013. This final rule upon receipt of credible information of proposed rule. For example, one amends the FAR to promote the United a trafficking in persons violation; respondent expressed its continued States policy prohibiting trafficking in Æ Provide for an administrative support for the Government’s efforts to persons activities and creates a stronger proceeding upon receipt of a report from eradicate trafficking in persons and framework and additional requirements the agency Inspector General that modern day slavery. Another for awareness, compliance, and provides support for the allegations respondent stated that the proposed enforcement—to prevent trafficking in with regard to violation of trafficking in amendments to the FAR are ‘‘overall persons in Government contracts. person policies; great steps to ensure the protection of Twenty respondents submitted Æ Clarify in FAR 22.1704 that if the potential victims of trafficking.’’ comments on the proposed rule. administrative proceeding is conducted Response: Noted. by the suspending and debarring III. Discussion and Analysis 1. Applicability official, he or she may use the The Civilian Agency Acquisition suspension and debarment procedures a. Applicability to Commercial Items Council and the Defense Acquisition in FAR subpart 9.4, and continues to and COTS Items Regulations Council (the Councils) have suspending and debarring Comment: Several respondents reviewed the public comments in the authority; commented on the applicability of the development of the final rule. A Æ Provide that imposition of remedies rule to commercial items and discussion of the comments is provided by the contracting officer shall occur commercially available off-the-shelf as follows: after a final determination that an (COTS) items. Respondents also A. Summary of Significant Changes to allegation is substantiated, although the commented on inclusion of FAR the Proposed Rule suspending and debarring official has 52.222–50 in all solicitations and the authority, at any time before or after contracts, and inclusion in FAR 52.212– • Revised FAR 9.104–6, Federal the final determination as to whether 5 for acquisition of commercial items. Awardee Performance and Integrity the allegations are substantiated, to use One respondent noted that the proposed Information System (FAPIIS), to notify the suspension and debarment rule would amend FAR 12.301 to add contractors that any information about a procedures in FAR subpart 9.4 to FAR 52.222–56 in all solicitations subcontractor is posted to the record of suspend, propose for debarment, or prescribed in FAR 22.1705(b), including the prime contractor; however, prime debar the contractor, if appropriate; and those for commercial items and COTS contractors will have the opportunity to Æ Clarify mitigating and aggravating items. According to the respondent, this post in FAPIIS any mitigating factors or factors that the contracting officer may is a blanket application of the information. consider, including whether the certification requirements, particularly • Revised FAR 22.1701, Applicability contractor has taken appropriate action to COTS items domestically. and 52.222–50, Combating Trafficking for violations such as reparation to Response: The rule does apply to the in Persons, to clarify the applicability of victims and whether the contractor acquisition of commercial items, the subpart. failed to abate a violation or enforce including COTS items. However, COTS • Revised FAR 22.1702, Definitions, requirements of its compliance plan items are exempt from the requirements and FAR 52.222–50, Combating (also affects FAR 52.222–50(f)). for a compliance plan and the Trafficking in Persons, to add the • Revised FAR 42.1503(h) to— certification. Although the clause at definitions of ‘‘agent,’’ ‘‘subcontract,’’ Æ Require entry of substantiated 52.222–50 is included in each and ‘‘subcontractor.’’ allegations into FAPIIS; and solicitation and contract, including for • Revised FAR 22.1703, Policy, and Æ Clarify that the information to be the acquisition of COTS items, and FAR 52.222–50, Combating Trafficking posted in FAPIIS in accordance with flows down to all subcontracts, COTS in Persons, to— FAR 42.1503(h)(1) will be available to items are exempt from the compliance Æ Require contractors to use the public. plan and certification requirements. recruiters that comply with local labor • Revised FAR 52.222–50 to— The provision at FAR 52.222–56 is laws of the country in which the Æ Require contractors to notify agents only included in solicitations that may recruiting takes place; as well as employees about the policy meet the requirement for applicability of Æ Require contractors to provide prohibiting trafficking in persons the certification requirement, i.e., it is employees with a work document if it described in FAR 52.222–50(b), and possible that at least $500,000 of the is required by law or contract; actions that will be taken for violations; contract may be performed outside the Æ Clarify the certification and Æ Add a State Department Web site United States and the acquisition is not compliance plan requirements, link for further information, including entirely for COTS items. The provision including the posting and submission of examples of awareness programs; has been revised in the final rule to tkelley on DSK3SPTVN1PROD with RULES2 the plan; Æ Add a requirement for a clarify that it only imposes a Æ Clarify contractor and compliance plan to include making requirement on the apparently subcontractor requirements for available to all workers the hotline successful offeror if any portion of the disclosing information to the agency number for the Global Human contract is for purchase of supplies, Inspector General and cooperating fully Trafficking Hotline, and its email other than COTS items, to be acquired in an investigation; and address; outside the United States or services to VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4969 be performed outside the United States, certification and compliance plan only corresponding change made at FAR and that portion of the contract has an apply if the portion of the contract 52.222–50(i). estimated value that exceeds $500,000. performed overseas exceeds $500,000. Comment: One respondent The Councils note that E.O. 13627 One respondent recommended that recommended that FAR 22.1703(d) applies to all contracts except at Sec. 2, contractors and subcontractors should should read: ‘‘Except for contracts and paragraph (a)(3) where it expressly be required to have a compliance plan subcontracts for commercially available specifies that the requirements in and certify if the value of the contract off-the-shelf items, where the estimated section 2(a)(2) of the E.O. (relating to or subcontract exceeds $500,000, even if value of the supplies to be acquired or compliance plan and certification) shall only a portion is conducted outside the the services required to be performed not apply to contracts or subcontracts United States. under the contract outside the United for COTS items. The Councils also note Some respondents were concerned States exceeds $500,000—’’, and then that both title XVII of the NDAA for FY about flowing down the clause at FAR delete the applicability language in FAR 2013 and 22 U.S. Code Chapter 78— 52.222–50 to subcontracts at every tier, 22.1703(d)(1). Trafficking Victims Protection, are silent regardless of dollar value, as being too Response: The final rule has been on the applicability of the statute to burdensome. revised at former paragraph (d)(1) (now commercial contracts in general and One respondent objected to the paragraph (c)(1)) to clarify its COTS items in particular. subcontract certification flowdown applicability to the apparent successful In accordance with 41 U.S.C. 1906 being set at $500,000, and offeror. and 1907, the FAR Council has recommended that the requirement determined that it is not in the best Comment: One respondent noted that apply to all service contracts that exceed the phrase ‘‘if applicable’’ at FAR interest of the Government to exempt $25,000 and flow down to all contracts for the acquisition of 52.222–50(i)(2) is ambiguous and subcontracts. The respondent pointed should be clarified to explain whether a commercial items from the requirements out that there are service subcontracts of title XVII of the NDAA for FY 2013, contractor should require the overseas which are below the $500,000 subcontractor compliance plan only in and the Administrator for Federal level, which the respondent Procurement Policy has determined that support of a CO’s request or should the recommends be covered. Another contractor always require submittal of it is not in the best interest of the respondent noted that contractors Government to exempt acquisitions of the plan when the plan is ‘‘applicable.’’ would break subcontracts into smaller Response: The text at FAR 52.222– COTS items from the requirements of dollar amounts to avoid the $500,000 title XVII of the NDAA for FY 2013, 50(i)(2) has been clarified, that if any threshold. The respondent subcontractor is required by this clause except for the requirements for recommended that the requirement certification and a compliance plan. to submit a certification, the Contractor apply to all contracts and subcontracts shall require submission prior to the Comment: Several respondents exceeding $500,000 if any portion is recommended eliminating the COTS award of the subcontract and annually conducted outside the United States. thereafter. item exclusion or ensuring that the Response: The thresholds are set in exclusion does not apply to commercial d. Foreign Military Sales the statute and the E.O. The final rule services, only to supply items, because at FAR 52.222–50(h)(1) clarifies that the Comment: One respondent asked if this is where the unskilled labor force paragraph (requiring a compliance plan foreign military sales would be covered. is most vulnerable. and certification) applies to any portion Response: By definition, COTS items Response: The FAR does not address of the contract that (i) is for supplies, do not include services (see FAR 2.101). foreign military sales. Under the Comment: One respondent stated that other than COTS items, acquired Defense Federal Acquisition Regulation the exemptions for contracts for COTS outside the United States, or services to Supplement, the contracting officer is items could be interpreted to apply to be performed outside the United States, required to conduct foreign military sale base-support operations, which is a and (ii) has an estimated value that acquisitions under the same acquisition pernicious source of human trafficking exceeds $500,000. The flow-down to and contract management procedures in Government contracting. subcontracts at FAR 52.222–50(i) has a used for other defense acquisitions (see Response: Base-support operations similar clarification. For subcontracts 48 CFR 225.7301(b)). contracts are not primarily COTS items. that do not require a compliance plan or COTS items are a small sub-set of certification, the clause expresses how 2. Definition or Clarification of Terms commercial items and do not include the policy prohibiting trafficking in (FAR 22.1702, 22.1703, 52.222–50, and services. Any COTS items on a contract persons works (e.g., no recruitment fees, 52.222–56) for base-support services will only be no confiscating passports, no material a. ‘‘Abuses’’ exempt from the requirements for a misrepresentations about salary and compliance plan and certification. work location), and requires full Comment: One respondent cooperation with agency investigations. recommended clarifying the term b. Thresholds and Flowdown With these clarifications, the Councils ‘‘abuses’’ as it is used at FAR Requirement (FAR 52.222–50(i)) do not consider these anti-trafficking 22.1703(d)(1)(ii), 52.222–50(h)(5)(ii)(B) Comment: Two respondents asked for steps to be overly burdensome. and 52.222–56 by adding after ‘‘abuses’’ clarification of the flowdown to the explanatory phrase ‘‘relating to any c. Editorial Comments on Applicability of the prohibited activities identified in subcontracts. The respondents objected to application of the flowdown on very Comment: One respondent FAR 52.222–50(b).’’ The respondent low dollar subcontracts, and recommended revising FAR 22.1701 for also noted that the term is used in the tkelley on DSK3SPTVN1PROD with RULES2 recommended application only above clarity, deleting the commas after the E.O. but not further defined and is not the micro-purchase threshold. phrase ‘‘value of the supplies to be used in the statute. One respondent pointed out that the acquired’’ and after the phrase ‘‘services Response: The final rule has been clause must be flowed down at any required to be performed.’’ revised to incorporate this dollar level, but questioned whether the Response: The section has been recommendation. (Note that paragraph paragraph (h) requirements for a restructured for clarity, and a FAR 22.1703(d) is now paragraph (c).) VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 4970 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations b. ‘‘Agent’’ greater autonomy while working on the Response: Failure to provide basic Comment: Several respondents contract, and reduces the worker’s information and making material recommended defining the term vulnerability to possible exploitation. misrepresentations are examples of the ‘‘agent’’. One respondent recommended Response: Noted. overarching violation of using use of the definition in the clause at Comment: One respondent misleading or fraudulent recruiting FAR 52.203–13, Contractor Code of recommended conducting spot checks practices. E.O. 13627 section Business Ethics. on and off-site of contractor workplaces 2(a)(1)(A)(i) creates a duty to inform Response: The final rule incorporates in Middle Eastern countries to ensure prospective employees of basic at FAR 22.1702 and FAR 52.222–50 the that contractor employees have both employment information and provides definition of ‘‘agent’’ used in 52.203–13. their civilian ID and passports. remedies if that duty is breached. It also The term has not been added to FAR Response: The final rule requires provides remedies when employers contractors to cooperate fully in make material misrepresentations to 2.101, because this definition is not providing reasonable access to their prospective employees of key terms and necessarily applicable to the term as it facilities and staff (both inside and conditions. FAR 22.1703(a)(5) mirrors is used in multiple locations throughout outside the United States) to allow language in E.O. 13627 section the FAR, without definition. contracting agencies and other 2(a)(1)(A)(i) and 22 U.S.C. c. ‘‘Due Diligence’’ responsible enforcement agencies to 7104(g)(iv)(III). conduct audits, investigations, or other Comment: One respondent sought Comment: Some respondents actions to ascertain compliance with the clarification of the requirement to requested clarification and/or definition Trafficking Victims Protection Act (22 provide ‘‘basic information’’ about the of the term ‘‘due diligence’’ at FAR U.S.C. chapter 78), E.O. 13627, or any ‘‘hazardous nature of the work’’ at FAR 22.1703(d)(3), 52.222–50(h)(5)(ii), other applicable law or regulation 22.1703(a)(5) and 52.222–50(b)(5). 52.222–56. establishing restrictions on trafficking in Specifically, the respondent requested Response: The Councils note that the persons. This general auditing and guidance on the level of detail required. level of ‘‘due diligence’’ required Response: The level of detail depends on the particular compliance requirement allows an agency to evaluate workplace conditions sufficient to comply with the rule will circumstances. This is a business vary based upon individual decision, requiring judgment by the and suspected trafficking in persons violations within the terms of the circumstances associated with the work contractor. environment. contract where it identifies the greatest d. ‘‘Procurement of Commercial Sex needs. Comment: One respondent suggested Act’’ Comment: One respondent that the terms ‘‘misleading or recommended creating a database of fraudulent’’ taken from E.O. 13627 Comment: One respondent requested owners and managers of companies that section 2(a)(1)(A)(i) be replaced with the more precise definitions of have been withholding passports, and terms ‘‘materially false or fraudulent ‘‘procurement’’ and ‘‘sex act.’’ prohibiting further Government pretenses’’ from 22 U.S.C. Response: The term ‘‘commercial sex business with those companies in 7104(g)(iv)(III). The respondent notes act’’ is defined in FAR 22.1702 and the violation. that the terms ‘‘misleading or prohibition of its procurement was not Response: FAR 22.1704(b) requires fraudulent’’ are broader than the terms added or affected by the changes in this contracting officers to notify, in ‘‘materially false or fraudulent case but was already in FAR accordance with agency procedures, the pretenses.’’ 22.1703(a)(2) and 52.222–50(b)(2) since Response: The Councils agree that the 2006, based on 22 U.S.C. 7102 and 7104. agency Inspector General, the agency debarring and suspending official, and if terms ‘‘misleading or fraudulent’’ are The Councils do not believe that broader than the terms ‘‘materially false additional definitions are necessary. appropriate, law enforcement officials with jurisdiction over the alleged or fraudulent pretenses,’’ with the scope e. ‘‘Subcontract’’ offense, of credible information of the former terms encompassing the regarding violations. The section also latter. With the objective of Comment: One respondent requested requires the contracting officer to implementing both the E.O. and the a definition of ‘‘subcontract,’’ and include in FAPIIS any allegation statutory provisions, the terms recommended use of the definition at substantiated by the agency Inspector ‘‘misleading or fraudulent’’ are retained. FAR 44.101. General in its report, after a final agency Since the terms from the E.O. are Response: This definition has been determination (see FAR 22.1704(d)). broader than the terms used in the incorporated in the final rule, along This requirement ensures that violations statute, use of the terms from the E.O. with the definition of ‘‘subcontractor,’’ are catalogued, and that the agency will encompass situations contemplated consistent with the definition of those suspending and debarring official is by both documents thereby effectively terms at FAR 3.1001. aware of all suspected violations. implementing both provisions. 3. Policy Prohibitions (FAR 22.1703(a) ii. Hire Contractors Directly and 52.222–50(b)) b. Recruitment Practices (FAR 22.1703(a)(5) and 52.222–50(b)(5)) Comment: One respondent a. Identity or Immigration Documents recommended encouraging prime (FAR 22.1703(a)(4) and 52.222–50(b)(4)) i. Basic Information contractors to hire workers directly, Comment: One respondent expressed Comment: One respondent including third country nationals, and a strong support for the requirements of commented that the proposed language preference should be given to bidders FAR 22.1703(a)(4), which prohibits makes any failure to provide ‘‘basic who can prove they do so. According to tkelley on DSK3SPTVN1PROD with RULES2 contractors from destroying, concealing, information’’ about ‘‘key’’ employment the respondent, this would create an confiscating, or otherwise denying terms a violation of the U.S. employee-employer relationship access by an employee to the Government trafficking in persons creating greater responsibility. employee’s identity or immigration policy, which could potentially apply to Response: The Federal Government documents. The respondent noted that employment matters with no connection cannot require prime contractors to hire this requirement gives the employee to trafficking in persons. workers directly for their company. See VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4971 section III.B.9. of this preamble for and prohibit ‘‘charging unreasonable his/her program. The Department of available training related to hiring placement or recruitment fees.’’ State took action in 2012 to address practices. One respondent recommended weaknesses in the Summer Work Travel defining the term ‘‘recruitment fees’’ program by, among other things, iii. Require Licensed Recruiters using the definition of recruitment costs publishing new regulations to Comment: Several respondents found at FAR 31.205–34. implement safeguards that expand the recommended incorporating the Another respondent recommended list of ineligible positions, enhancing requirement for licensed recruiters into prohibiting other types of fees being oversight and vetting of sponsors and the final rule. One respondent stated charged to the employee such as travel, third parties, and better defining that requiring a plan that includes the hiring, administrative, handling, or any cultural activities. Notably, the identity of recruitment companies being other types of fees assessed against the Department of State has conducted more used and proof that the company and/ employee. than 1500 site visits in the past two or recruiter is licensed under laws of the Response: In order to comply with years, required comprehensive country of recruitment could be vital to both the E.O. and the statute, the rule orientation materials for participants, identifying potential persons involved applies the most stringent requirement and has made available a 24-hour toll in human trafficking and preventing (i.e., no recruitment fees). The Councils free helpline. The Department of State further victims. Another respondent note public support for prohibiting continues to examine ways to further recommended prohibiting the use of employees from being charged strengthen the program. As part of this agents, subagents or consultants or recruitment fees. Prohibiting effort, the Department of State through anyone other than a bona fide employee recruitment fees for employees is a key regulation requires sponsors to submit of the recruiting company to recruit anti-trafficking in persons principle, annual participant price lists each year, workers. The respondent also since being charged any recruitment breaking down the costs that exchange recommended using only licensed fees increases workers’ vulnerability to visitors must pay to both sponsors and recruiters. Another respondent debt bondage or involuntary servitude. foreign third party entities to participate recommended that FAR 52.222– Additionally, monitoring and enforcing in the program. 50(h)(3)(iii) should be amended to ‘‘unreasonable’’ recruitment fees is burdensome for Federal agencies and d. Return Transportation (FAR require licensed recruiters be used by contractors and requires evidence to 22.1703(a)(7) and 52.222–50(b)(7)) contractors, and to stipulate that no agents or subagents of those recruiters evaluate whether the amount of money Comment: One respondent may be utilized. According to the that an employee is charged is recommended adding at FAR respondent, the current rule requires ‘‘reasonable.’’ 22.1703(a)(7) the statutory modifier as only trained recruiters, which does not The rule prohibits charging follows: ‘‘if requested by the employee go far enough. employees any recruitment fees, not just at the end of employment, failing to Response: The final rule has been those recruitment fees that are provide return transportation . . .’’. revised to specify that recruiters must considered allowable costs under a Response: If the employer brought the comply with local labor laws of the contract. Expanding the types of employee into a country where the country in which the recruiting takes prohibited fees beyond recruitment fees employee is not a national, then the place. The statute and E.O. do not is beyond the scope of this case. employer cannot leave the employee in specifically require licensing of Comment: One respondent was that country at the end of employment. recruiters. Practices regarding recruiting concerned that the prohibition of certain Unless an exception applies (see FAR vary greatly from country to country. kinds of fees may be construed to 22.1703(a)(7)(ii) and 52.222– prohibit program fees through the State 50(b)(7)(ii)), the employer is required to iv. Editorial Comment on Recruitment Department Exchange Visitor Program, provide the employee return Practices which is a fee-for-service program. transportation; this is not contingent on Comment: One respondent Response: The E.O. prohibits the employee requesting it. For recommended adding ‘‘or offering recruitment fees charged by employers, employees not aware of their right to employment’’ after ‘‘during the contractors, and/or subcontractors, return transportation, the concern is that recruitment of employees’’ in FAR which are different than program fees. the employer would use that as an 22.1703(a)(5) and 52.222–50(b)(5) to Program fees for the J nonimmigrants excuse to claim the employee did not better integrate E.O. 13627 section (i.e., students, exchange visitors, and formally request return transportation. 2(a)(1)(A)(i) and 22 U.S.C. their dependents) are fees mandated by The rule allows an employee to refuse 7104(g)(iv)(III). The respondent further Congress to support the program office return transportation, if that employee is recommended moving the place of the and the Student and Exchange Visitor otherwise allowed to stay in the revised phrase to come after a modified Program automated system (i.e., the country; however, the rule does not lead-in phrase ‘‘Using misleading or Student and Exchange Visitor state that employees who do not request fraudulent practices.’’ Information System). This system is transportation are not entitled to it. Response: The Councils accepted the used to track students and exchange Comment: Two respondents sought recommendations and have visitors while in the United States. The clarification on the conditions regarding incorporated the changes into the final Department of State collects these the ‘‘provide or pay’’ provision at FAR rule. program fees when it redesignates 22.1703(a)(7): Would the contractor be program sponsor organizations, usually required to ‘‘pay’’ only at the end of the c. Recruitment Fees (FAR 22.1703(a)(6) every two years. period of employment? What mode of and 52.222–50(b)(6)) Recruitment fees are quite different transportation is required? Must the tkelley on DSK3SPTVN1PROD with RULES2 Comment: Several respondents from program fees. Recruitment/ payment be in the form of a non- supported the unequivocal stance of placement/housing fees are payments transferrable and non-refundable ticket? prohibiting charging employees made by individual exchange visitors to Can it be in cash in the currency of the recruitment fees. One respondent the sponsor organization or a related country where the work is being commented that the final rule should third party organization for services performed or can it be a voucher for the align with the language in the statute provided to the exchange visitor during employee to use as they see fit? VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 4972 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations Referencing FAR 31.205–35, which individual agency guidance and documents, prior to relocation of the permits contractors to recover relocation regulations. Agencies may also choose employee. costs on Government contracts, would not to use this exemption. Comment: A respondent expressed an employee’s return relocation be Comment: Two respondents had concern that the housing requirements allowable even if the employee resigns, questions concerning return established at FAR 22.1703(a)(8) and at is terminated, or the project transportation for victims or witnesses 52.222–50(b)(8) were inconsistent with unexpectedly ends within 12 months of of human trafficking. One asked if the the housing plan requirements at FAR hire? country of employment or the U.S. 52.222–50(h)(3)(iv). Specifically, the Response: The contractor must make Government will provide the means for respondent noted that the clause at FAR a reasonable decision on whether to the victims or witnesses to return to 52.222–50(h)(3)(iv) allows the provide or pay for transportation and their home countries. One respondent contractor to explain any variance from then what mode of transportation to states that the rule does not consistently the host country housing standards, provide or how to reimburse an address the return of workers to their while the language at FAR 22.1703(a)(8) employee for transportation. This country of origin. According to the and 52.222–50(b)(8) does not. decision should be based on any respondent, the rule states that Response: Following the principle of existing requirements to provide or pay contractors merely have to interview compliance with the most stringent for return transportation for temporary suspected victims and witnesses prior to requirement in order to comply with nonimmigrant workers, the contractor’s repatriation. Elsewhere in the rule, the both the statute and the E.O., the final established travel policies and contractors’ requirement to provide rule has been amended at FAR 52.222– procedures, the modes and cost of return transportation or costs is waived 50(h)(3)(iv) to be consistent with FAR transportation available, and other for victims of or witnesses to trafficking 22.1703(a)(8) and 52.222–50(b)(8) and factors related to the unique in persons. This respondent the statute. The statute requires that circumstances for the employees, the recommended, because repatriation contractors meet the host country location they work in and the country could be a form of retaliation against housing and safety standards (22 U.S.C. to which they are returning. There are workers, once a contractor notifies 7104(g)(iv)(V)). It does not provide the no exemptions to the ‘‘provide’’ or Government authorities of suspected opportunity for contractors to explain ‘‘pay’’ requirements of the rule for trafficking in persons, the contractor any variances from host-country employees who are terminated or who should first obtain authorization from housing standards, even though the E.O. want to leave before one year of appropriate Government officials prior would allow such explanation of employment. While FAR 31.205–35, to repatriating a witness or victim. variance in the housing plan (sec Relocation costs, addresses relocation Response: It is beyond the scope of 2(a)(2)(A)(iv)). costs incident to the permanent change this rule to set requirements for an Comment: One respondent of assigned work location, the agency or another entity to pay for a recommended deleting the phrase transportation costs referred to in the victim or witness’ return transportation ‘‘housing (if employer provided or rule are not the same as relocation costs or to require prior approval for the arranged)’’ in FAR 22.1703(a)(5) from in the FAR. The rule refers to travel only repatriation of victims or witnesses. the list of employment terms and to and from the place of employment. It However, the rule has been clarified that conditions that the contractor may not does not include all the costs listed in the contractor shall provide the return misrepresent or fail to disclose material FAR, such as moving family and transportation or pay the cost of return information about. The respondent furnishings, real estate sales, etc. The transportation in a way that does not commented that FAR 22.1703(a)(8) and rule puts no limits on the length of obstruct the victim services, legal 52.222–50(b)(8) already preclude employment or whether the redress, or witness activity. For ‘‘providing or arranging housing that employment was ended for cause. example, the contractor shall also offer fails to meet the host country housing Indeed, for an unscrupulous employer, return transportation to a witness at a and safety standards,’’ rendering the these limitations could be used as an time that supports the witness’ need to phrase in FAR 22.1703(a)(5) excuse not to pay for or provide return testify. Also, the rule has been revised unnecessary. fare for its employees. to delete the requirement for Response: The phrases at FAR Comment: One respondent noted that interviewing (FAR 52.222–50(g)(1)(iv)). 22.1703(a)(5) and 52.222–50(b)(5) serve the exemption ‘‘by the Federal different purposes than the similar department or agency providing the e. Housing Arrangement (FAR phrases at FAR 22.1703(a)(8) and contract,’’ is only addressed at FAR 22.1703(a)(8) and 52.222–50(b)(8)) 52.222–50(b)(8). The former 22.1703(a)(7)(ii)(B) and not included in Comment: A respondent requirement governs false the contract clause at FAR 52.222–50. recommended adding a requirement to representations during the employee Two respondents noted there is no prohibit employees from being charged recruitment process, while the guidance in the regulation as to how, an excess portion of their wages as prohibitions at FAR 22.1703(a)(8) and when or from whom within the agency payment for housing. One respondent 52.222–50(b)(8) govern the condition such exception is to be obtained and suggested that such a requirement and safety of the employee housing that this could create a significant would prevent traffickers from keeping arrangements once the employee is loophole because there are no listed their employees in a perpetual state of working on the contract. Therefore, the criteria that would circumscribe the indebtedness. Councils have retained the phrases at agency’s discretion to exempt Response: It is beyond the scope of FAR 22.1703(a)(5) and 52.222–50(b)(5). contractors. this rule to regulate the costs charged for Response: The exemption has been housing. However, the final rule has f. Employment Contract (FAR tkelley on DSK3SPTVN1PROD with RULES2 added to the list of exemptions at FAR been modified at FAR 22.1703(a)(5)(i) 22.1703(a)(9) and 52.222–50(b)(9)) 52.222–50(b)(7)(ii)(B). By its nature, this and (a)(9) and 52.222–50(b)(5)(i) and Comment: Two respondents exemption is unique to individual (b)(9) to require disclosure of housing recommended always requiring an agencies and their particular situation. costs. The employer should provide this employment contract for workers Any guidance on the use of this disclosure during the recruiting process participating in a Federal contract, and exemption should be addressed in and as part of any required work therefore removing the qualifying ‘‘if VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4973 required’’ language in FAR employee’’ as indicated in FAR b. Compliance Plan Requirements 22.1703(a)(9). The respondents argued 22.1703(a)(5). i. Appropriate to Size and Complexity that this uniform requirement for a Response: The Trafficking Victims written contract would allow Protection Act (22 U.S.C. chapter 78) Comment: One respondent stated that contractors to more effectively and Executive Order 13627 do not the E.O. in one place required a implement the FAR 22.1703(a)(5) require a written employment contract. compliance plan that was appropriate requirement that contractors not use The list of items for inclusion into work for the size of the contract, but in misleading or fraudulent recruitment documents is not intended to be a another place required the plan to practices. comprehensive list. Rather, it is a include procedures to prevent Response: Neither the Trafficking nonexclusive list which contractors are subcontractors ‘‘at any tier’’ from Victims Protection Act (22 U.S.C. encouraged to expand as needed. The engaging in trafficking in persons. The chapter 78), as modified by the NDAA scope and specificity of covered terms respondent pointed out the proposed for FY 2013, nor the E.O. require a and conditions will likely vary based on rule went even further by requiring the written employment contract or other factors such as the sophistication of the plan procedures to prevent trafficking in work documents. The rule has clarified employee and country in which the persons ‘‘at any tier and at any dollar that written work documents are contract is to be performed. A contract level.’’ mandated only when required by law or or work document covering the Response: The E.O. was more specific contract. This provides the contracting employment of a professional from one in the place where ‘‘at any tier’’ officer the option of requiring written European Union (EU) country in language was used. The FAR Council work documents in situations where the another EU country may not require the does not consider this to be an compliance provisions contained in this same level of detail and coverage as a ambiguity. The clause added the words rule do not adequately manage the risk ‘‘at any dollar level’’ to clarify that laborer from one developing country of trafficking in persons. although the lesser-dollar employed in a another developing A written employment contract or subcontractors are not expected to other work documents are not a panacea country or an area of military operations. Additionally, contractors implement a formal plan, they are not to trafficking in persons and may in allowed to engage in trafficking, and the some circumstances work to the and subcontractors must always comply with any contract or disclosure prime contractor and higher-tier detriment of the employee. This subcontractors are expected to pay situation can arise when verbal requirements under any other law, including, for example, the attention to what the lower-tier inducements conflict with written terms subcontractors are doing. The Federal and the written terms accurately reflect requirements of the Migrant & Seasonal Agricultural Worker Protection Act and Government’s policy prohibits key terms and conditions of trafficking in persons activities. employment. Not all potential the Immigration and Nationality Act, employees are literate, able to fully and applicable regulations for Comment: One respondent noted that understand an artfully drafted contract, temporary nonimmigrant workers. section 1703(b) of the NDAA for FY or actually read the entire document Comment: One respondent was 2013 provides that any compliance plan before signing it. Additionally, supportive of the FAR 22.1703(a)(9) or procedure shall be appropriate to the compliance monitoring will require requirement for written employment size and complexity of the contract and additional resources and enforcement contracts when required, but noted that the nature and scope of its activities, could be challenging, since failure to one common scam used by traffickers including the number of non-U.S. provide a written employment contract was to give the worker his/her contract citizens expected to be employed and is not one of the listed acts or omissions while either at the airport, on the plane the risk that the contract or subcontract in 22 U.S.C. 7104(g) for which a remedy or at the ultimate destination. The will involve services or supplies is provided under 22 U.S.C. 7104b(c). respondent therefore recommended susceptible to trafficking in persons. Employees are afforded the protection of revising the language to include a The respondent stated that this language this rule whether or not they have a requirement that the contract be was missing from the FAR 52.222–50 signed employment contract. provided to the workers at least five clause and asserted that the language Comment: One respondent days in advance of his/her deployment, should also appear in the FAR 22.1705 recommended that employment thus allowing the worker adequate time prescription. contracts require disclosure of the to make a reasoned and well-informed Response: The Councils note that this following: identity of the employer and decision. language, from the statute and the E.O., identity of the person conducting the Response: The recommendation is does, in fact, already appear in recruiting on behalf of the employer, accepted and has been incorporated into paragraph (h)(2) of clause at FAR including any subcontractor or agent the final rule. 52.222–50. It is not appropriate to also involved in such recruiting; the period include that language in the FAR of employment; any withholdings or 4. Compliance Plan/Certification (FAR 22.1705 prescription. In accordance deductions from compensation, whether 22.1703(d) (Now at Paragraph (c)), with FAR drafting principles, the clause on behalf of a government, the 52.222–50(h), and 52.222–56) prescription is to direct when the clause employer, or a third party; any penalties a. Positive Support is to be used, not to address the terms for early termination of employment; the clause contains. and if applicable, the type of visa under Comment: One respondent stated that the certification and compliance plan ii. Provide More Guidance which the foreign worker is to be employed, the length of time the visa is requirements are important for the Comment: One respondent stated that tkelley on DSK3SPTVN1PROD with RULES2 valid, the terms and conditions under purposes of adding the crucial the rule does not establish minimum which this visa may be renewed with a implementation element to the rule, and guidelines for the compliance plan, clear statement that there is no are a proactive measure for all which would make it difficult for guarantee that the visa will be renewed, contractors involved in Federal contractors and subcontractors to know and an itemized list detailing the contracts to participate. what is a ‘‘good plan’’, and ‘‘significant costs to be charged to the Response: Noted. recommended identifying agency VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 4974 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations experts to provide technical assistance clause at 52.222–50(h)(3) sets forth the independent and confidential complaint to the contractors. minimum requirements for an mechanism would be effective in Another respondent recommended acceptable compliance plan that is surfacing abuses. One respondent that the proposed requirement for a appropriate to the size and complexity further suggested that the certification of code of conduct for suppliers should at of the contract. Many of the a contractor or subcontractor should a minimum require contractors to respondent’s recommendations require identification of how an adhere to the international core labor concerning flow down provisions, independent complaint mechanism will standards and provide decent compliance plans from subcontractors, be operated and by whom. conditions at work, including and review of the plan, are contained in Response: FAR clause 52.222–50(h) compensation, hours of work, the FAR clause. E.O. 13627 also requires requires that the contractor’s occupational safety and health, guidance and training for Federal compliance plan include a process for industrial hygiene, emergency employees awarding and administering employees to report, ‘‘without fear of preparedness, safety equipment, contracts subject to anti-trafficking in retaliation.’’ When the contractor fails in sanitation, and access to food and water. persons statutes and regulations. its responsibilities, the Government may Response: As noted in FAR Additionally, the E.O. also called on impose one or more of the available 22.1703(d)(5), any compliance plan or the President’s Interagency Task Force remedies as contained in FAR 22.1704 procedures needs to be appropriate to to Monitor and Combat Trafficking in and 52.222–50(e). the size and complexity of the contract Persons member agencies to establish a Comment: One respondent and the nature and scope of its process for identifying industries or recommended that contractors and activities, including the number of non- sectors where there is either a history or subcontractors be required to provide all U.S. citizens expected to be employed evidence of trafficking in persons or workers with the phone number (1– and the risk that the contract or trafficking-related activities, in the 888–373–7888), texting number subcontract will involve services or context of Federal contracts performed (233733), email address, and Web site supplies susceptible to trafficking in substantially in the United States. In address for the National Human persons. In addition, 52.222–50(h)(3) support of this effort, the Department of Trafficking Resource Center (NHTRC) lists the minimum requirements for any State is collaborating with a non- hotline posted in a place that is clearly compliance plan. The Councils do not governmental organization and leader in conspicuous and visible to workers, and consider it necessary to state that the supply chain management to strengthen it should be provided in a language contractor should not negligently protections against trafficking in understood by workers, describing expose its employees to unhealthy or persons in federal and corporate supply human trafficking and labor exploitation unsafe conditions, beyond the chains. The project will collect data and in non-technical and accessible ways. requirements already listed in the identify areas and industries at greatest Another respondent said that they statute and the E.O. risk of trafficking in persons in global currently supply their employees with Comment: One respondent supply chains. It will also develop a tool appropriate communication means, recommended providing additional for businesses to analyze the potential such as a phone number, operable 24/ guidance (either in the final rule or risk of trafficking in persons in their 7, by which an employee may inform discussion and analysis section) for supply chains and adopt compliance law enforcement authorities regarding contractors on creating an anti- plans that align with the language of the their observation of activities that, trafficking in persons compliance plan E.O. This Interagency Task Force is pursuant to their company training and guidance for contracting officers on evaluating and identifying industries program, appear to resemble human what compliance plans should include. and sectors with a history of trafficking trafficking. The respondent also provided detailed in persons and will publish appropriate Response: FAR 52.222–50(h)(3) proposed guidance on assessing the safeguards, guidance and compliance requires that as a part of the compliance trafficking in persons risk, based on assistance to prevent trafficking in plan, there be a process for employees Department of Labor and Department of persons under Federal contracts. to report activity inconsistent with the State lists of countries and industries Government’s policy prohibiting involved in trafficking in persons, iii. Reporting Requirement trafficking in persons. A number of number of non-United States citizens Comment: Two respondents Federal agencies provide information expected to be employed, as well as the recommended establishing minimum through posters, pamphlets, and other skill and labor mix to be used for the requirements or guidance governing the means to ensure that workers have a contracted effort. employee reporting process to ensure way to report such activity through Response: The FAR includes general that the process remains confidential specific anti-trafficking in persons or policies and procedures and does not and that employees do not fear anti-exploitation related hotlines or include detailed guidance. The retaliation. through Office of Inspector General respondent’s proposed guidance on risk- Response: The FAR rule outlines the hotlines. Several agencies, such as the based compliance plan will be shared minimum criteria for compliance plans. Department of Justice, Department of with State and Labor Departments for The rule requires a process for Homeland Security, and Department of their review. The Department of Labor’s employees to report without fear of State, also publicize the National Office of Child Labor, Forced Labor, and retaliation, but does not specify the Human Trafficking Resource Center Human Trafficking Web site at http:// process. However, the final rule has (NHTRC) hotline number including the www.dol.gov/ilab/child-forced-labor/ added the requirement to make Department of State’s ‘‘Know Your index.htm has a Toolkit for Responsible available to all employees the Global Rights’’ pamphlet and the Department of Businesses, which contains extensive Human Trafficking Hotline phone Homeland Security’s Blue Campaign tkelley on DSK3SPTVN1PROD with RULES2 information and guidance on trafficking number and email address. materials. To comply with the rule’s in persons. This information will be Comment: Two respondents mandate of a reporting process, the final useful to contractors and includes a expressed concern that contractors rule has been revised to require that as step-by-step process for developing a might dissuade employees from part of the compliance plan contractors social compliance plan to address speaking up about trafficking in persons must provide, at a minimum, the Global forced labor in supply chains. The FAR abuses and argued that only an Human Trafficking hotline and its email VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4975 address. However, contractors may also subcontractors are covered by FAR 2013 do not require the Federal exceed this requirement and provide 52.222–50(g). Government to facilitate regular contact additional ways for employees to report. between those employed on Federal vi. Products Included on the E.O. 13126 contracts and their families or iv. Other Requirements List embassies. Similarly, there is no Comment: One respondent Comment: One respondent requirement that the Federal recommended that contractors be recommended that all suppliers and Government facilitate regular contact required to establish and implement, their subcontractors who are supplying between contracting officers and the and/or cause subcontractors to establish goods that contain more than $500,000 contractor/subcontractor employees. and implement, managerial systems, worth of a product included on the E.O. However, the E.O. and NDAA for FY rules, and procedures to ensure they 13126 List produce a compliance plan 2013 do require contractor compliance have the ability to guarantee before being awarded a contract. plans and specify that there are compliance. The respondent further Response: The requirement for a minimum elements of the compliance recommended that these systems compliance plan is based on the criteria plan (see FAR 52.222–50(h)), but address pricing, order schedules, and in the statute and E.O. 13627, which do contractors may go beyond those other purchasing practices that impact not provide for special treatment of minimum elements and incorporate suppliers’ capacity to comply with labor suppliers of products on the List of further measures that promote ending standards. Products Requiring Contractor trafficking in persons. The President’s Response: The respondent’s Certification as to Forced or Indentured Interagency Task Force to Monitor and recommendations go beyond the scope Child Labor (E.O. 13126 List) (see FAR Combat Trafficking in Persons is of this case. The Councils implemented subpart 22.15, Prohibition of developing public awareness materials the requirements of the E.O. and statute Acquisition of Products Produced by to inform those employed on Federal in the least burdensome manner. The Forced or Indentured Child Labor); such contracts overseas of their rights under clause at FAR 52.222–50 establishes the offerors are already required to submit the E.O., the NDAA for FY 2013, and requirements for contractor and certifications regarding the use of forced this rule and to provide information on subcontractor compliance in paragraphs or indentured child labor. The where to call should an employee be (c), (d), (g), (h) and (i). apparently successful offeror is required subject to trafficking in persons. by FAR 52.222–56 to submit a Existing related efforts to track v. Contractor/Subcontractor certification in advance of award workers serving on contracts overseas Responsibilities regarding the compliance plan. include the Department of Defense’s Comment: One respondent stated that However, the contracting officer may Synchronized Pre-Deployment and FAR 22.1703(d)(3) (now (c)(3)) fails to consider that buying products on the Operational Tracker (SPOT), also used differentiate the responsibilities of the E.O. 13126 List presents a risk that the by the Department of State and other contractor and the subcontractor. The contract or subcontract may involve agencies. This system requires tracking respondent recommended deleting the supplies susceptible to trafficking in of data on contract employees from any duplicative coverage for contractors and persons. The contracting officer can country working in Afghanistan and revising the paragraph as follows: request a copy of the compliance plan Iraq and other designated operational ‘‘Require the contractor to obtain a at any time after contract award. areas. The State Department also uses certification from each subcontractor, the mandatory E-Clearance system to prior to award of a subcontract, for work c. Communication register Government personnel and that will be subject to the threshold, that Comment: One respondent provided contractors working as support the subcontractor (a) has a compliance feedback on the question concerning a personnel within the Department of plan that addresses the substantive requirement for facilitating regular State traveling to a post under Chief of elements of paragraph (d)(1) and (b) contact with family and embassies. The Mission authority. E-Clearance helps after conducting due diligence, either (i) respondents suggested that workers who posts understand how much support to the best of the subcontractor’s are able to keep in touch with families will be needed by visiting personnel. A knowledge and belief neither it nor its and embassies are less likely to be subset of all workers serving on U.S. agents, has engaged in any such trafficked. The respondents also Government contracts would be tracked activities or (ii) if abuses have been suggested that employers who are aware by these two systems. found, the subcontractor has taken the that their employees are communicating Other State Department efforts to appropriate remedial and referral with others about their living and make individuals aware of their rights actions;’’. working conditions are less likely to and to provide information on where to Response: The Councils have engage in human trafficking in persons. call for help could serve as models for rewritten FAR 22.1703(c)(3) to increase The respondent was concerned that it future outreach. Existing efforts to the clarity in the final rule. might be difficult to facilitate contact protect employment and education- Comment: One respondent when workers are in remote locations. based nonimmigrant visa applicants commented that the requirements for Another respondent suggested that intending to reside in the United States contractors to cooperate fully with the regulations should include a process include: The State Department’s ‘‘Know Government officials during audits, to facilitate direct contact by the Your Rights’’ pamphlet and video investigations or other actions, apply to contracting officer with contractors’ and developed in consultation with several subcontractors. subcontractors’ employees using email Federal agencies, which is given to Response: Subcontractors are required and social media. recipients in certain visa classes to cooperate fully with Government Response: The FAR includes general vulnerable to trafficking in persons tkelley on DSK3SPTVN1PROD with RULES2 officials during audits, investigations or policies and procedures. The available at: http://travel.state.gov/ other actions, see FAR 52.222–50(g). respondent’s recommendation is content/visas/english/general/rights- Also, contractors are required to include encouraged in other guidance protections-temporary-workers.html; the substance of the clause at FAR documents issued by the State and the development of an 52.222–50 in all of their subcontracts Department and other agencies. E.O. informational video that will (see FAR 52.222–50(i)). As a result, 13627 and title XVII of the NDAA for FY complement the pamphlet. Embassies VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 4976 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations and consulates overseas will play the receive additional details. Contractors the indicators of human trafficking and video in consular waiting rooms as may also go beyond a summary of the how to identify potential. The prime appropriate, in languages spoken by the five components and provide additional contractor’s monitoring efforts will vary greatest concentrations of those information to achieve the purpose of based on the risk of trafficking in applicants. Non-governmental the rule. persons related to the particular product organizations have commended the or service being acquired and whether e. Submission Federal Government for the the contractor has direct access to a effectiveness of the ‘‘Know Your Rights’’ Comment: One respondent stated that work site or not. Where a prime pamphlet in reaching those in the compliance plan should be available contractor has direct access, the prime exploitative and abusive situations. when the solicitation process is open, so contractor would be expected to look for that contracts are awarded to those who signs of trafficking in persons at the d. Posting are both qualified and most likely to workplace, and if housing is provided, Comment: A number of respondents avoid prohibited conduct. inspect the housing conditions. For were supportive of the posting Response: Section 1703 of the NDAA cases where the employees and requirement. for FY 2013 requires the potential subcontractors are distant, or for lower Response: Noted. recipient of a contract, prior to receiving tier subcontractors, the prime contractor Comment: Several respondents award, to provide certification to the must review the plans and certifications provided feedback on requiring posting contracting officer that the recipient has of its subcontractors to ensure they notices on trafficking in persons in implemented a plan to prevent include adequate monitoring workers’ living and work areas. prohibited trafficking in persons procedures, and to compare this Respondents expressed concern that the activities, and is in compliance with information to public audits and other posting requirement is burdensome and that plan. The statute only requires trafficking in persons data available. that some companies’ wage and disclosure of the plan to the contracting The plans must include a process for recruiting plans may contain proprietary officer upon request. employees to report, without fear of information. They also expressed the Comment: One respondent seeks retaliation, any prohibited activities. concern that the appropriate audience clarification regarding when or how a The contractor may use this process to for such plans is employees and not the subcontractor must submit a compliance monitor employees’ concerns. public-at-large. Respondents also plan to the prime prior to award. It is beyond the scope of this rule to questioned how information would be Response: In the final rule, the require that contractors release the posted if work is performed in the field Councils have revised FAR 52.222– results of audits and inspections. While or not in a fixed location. Respondents 50(i)(2) to delete the requirement for Federal agencies do share information suggested that an alternative would be subcontractors to submit the compliance about their activities related to posting on the contractor’s and/or plan prior to subcontract award. trafficking in persons, they are not subcontractor’s internal (non-public) allowed to make recommendations or Web site(s), so long as the Web site is f. Monitoring referrals to private or independent accessible to covered employees. Comment: Several respondents, asked entities. Respondents also suggested that greater for clarification and further guidance on Establishing a program to prequalify flexibility be given to the contractor on what constitutes adequate monitoring of contractors that work proactively to what it determines to be relevant subcontractors and employees. One eliminate trafficking in persons is content and on how to obtain such respondent recommended that beyond the scope of this rule. content in any such notice that is posted contractors release the results of audits Comment: One respondent conspicuously where work is and inspection results and that Federal recommended modifying the regulations performed, consistent with the nature of agencies share information about to eliminate the requirement that the its compliance plan, the nature and independent entities which perform prime contractor directly monitor each location of the work performed, and the monitoring and conduct investigations. subcontractor at any tier and any dollar number of employees performing work. This respondent also recommended a value and alternatively require each Response: As required by the statute, contractor prequalification for contractor to be responsible for FAR 52.222–50(h)(4) requires the contractors which work proactively to monitoring its direct subcontractor, with contractor, to post the relevant contents eliminate trafficking in persons. each subcontractor being responsible to of the compliance plan at the workplace Response: There are a variety of monitor its direct subcontractors. and on the Web site (if one is agencies and organizations that provide Additionally, if a risk assessment maintained), as appropriate. The guidance on monitoring for trafficking reveals credible evidence that there is a regulations do not specify that the Web in persons, including the Department of material risk of labor trafficking with a site must be available to the public. The Labor’s Reducing Child and Forced specific subcontractor, additional due final rule has been modified to provide Labor toolkit at http://www.dol.gov/ilab/ diligence and monitoring beyond the that if posting at the worksite or on the child-forced-labor/index.htm, which has first tier may be required. This Web site is impracticable (i.e., the work extensive information on developing, respondent alternatively proposed a is to be performed in the field or not in communicating and monitoring a good faith effort approach similar to the a fixed location and there is no Web site comprehensive social compliance certification requirements in FAR available), the relevant contents of the system. The State Department’s Office to subpart 22.15, regarding the Prohibition compliance plan may be presented to Monitor and Combat Trafficking in of Acquisition of Products Procured by the employee in writing. The rule Persons at http://www.state.gov/j/tip/id/ Forced or Indentured Child Labor. provides flexibility in determining what index.htm, the United States Agency for Response: The Councils consider the tkelley on DSK3SPTVN1PROD with RULES2 relevant content to post. However, given International Development at http:// responsibilities of the prime contractor that the compliance plan consists of five www.usaid.gov/trafficking, and the to prevent subcontractors at any tier components, it is logical that, at a Department of Homeland Security at from engaging in trafficking in persons minimum, a summary of the five https://www.dhs.gov/end-human- and to monitor, detect, and terminate components should be posted, with the trafficking have general information any subcontractors or subcontractor option for the employee to request and about trafficking in persons, including employees that have engaged in such VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4977 activities at any tier, to be one of the key Contractor Employees, further protects prime contract, the prime is required to contractual requirements to ensuring contractor employees against reprisal for obtain the certification from the compliance. Public comments on this certain disclosures of information subcontractor at the time of subcontract rule reveal that some subcontractor related to a contract. award. employees take kickbacks from Comment: One respondent h. Use as Evaluation Factor traffickers, and of course will not report commented that the requirement in the their own violations or those of their Comment: One respondent statute at section 1703(a) to obtain a agents or lower tier subcontractors. recommended mandating that the ‘‘recipient certification’’ should be Accordingly, vigilance by the prime evaluation of the corporate compliance moved to the opening of subparagraph contractor is necessary. program be a part of the evaluation (d)(1). Comment: One respondent questioned criteria found in section ‘‘M’’ of the Response: The Councils have moved whether it is appropriate for the Federal solicitation to encourage contractors to the language ‘‘apparent successful Government to require contractors to develop and implement effective offeror’’ to the beginning of the regulate the procuring of commercial compliance programs. paragraph (FAR 22.1703(c)(1)), as sex by its employees, stating that Response: It is not appropriate to recommended. prostitution is a state rather than a mandate consideration of the corporate Federal responsibility and it is not the compliance program in every 5. Full Cooperation (FAR 22.1703(d) function of the FAR to monitor. acquisition. FAR 15.304, Evaluation and 52.222–50(g)) Response: The final FAR rule is factors and significant subfactors, states a. Rights Against Self-Incriminations, implementing the requirements of that the contract award decision is etc. statute and Executive Order regarding based on evaluation factors that are the prohibition of trafficking in Federal tailored to the instant acquisition and Comment: Several respondents Government contracts. The coverage of that these evaluation factors must expressed concern that disclosure commercial sex is not new in this rule; represent the key areas of importance requirements and ‘‘full cooperation’’ see the explanation of this statutory and emphasis to be considered in the should be structured so as not to implementation in the final rule source selection decision as well as infringe on fundamental individual published January 15, 2009 (74 FR support meaningful comparison and rights against self-incrimination, 2741). discrimination between and among attorney-client privilege, and the Comment: One respondent competing proposals. In accordance company’s right to conduct an internal recommended implementing with established FAR procedures, the investigation. These respondents government-wide requirements to audit source selection authority determines recommended aligning this rule with contractor trafficking in persons the key discriminators in evaluating the FAR Business Ethics rules. compliance and random unannounced proposals based on the unique Response: The requirement for ‘‘full interviews with workers to ensure that requirements of a given acquisition and cooperation’’ at FAR 52.222–50(g) has trafficking in persons violations are not how to best assess an offeror’s ability to been augmented with a second occurring. meet those requirements. paragraph, which incorporates the rights Response: Agencies may institute The Councils note that the rule does in the second paragraph of the such auditing and interviewing tactics not preclude having the compliance definition of ‘‘full cooperation’’ at FAR now, as they deem appropriate, but are plan as a source selection factor, where 52.203–13(a). often constrained by resources from it is a key discriminator, but leaves this In addition, two types of full performing this type of oversight. decision to the discretion of the source cooperation listed in the definition at selection authority. FAR 52.203–13(a) have been added to g. Enforcement FAR 22.1703(d)(1) and (2) and FAR Comment: Two respondents i. Pre-Award Certification 52.222–50(g)(1)(i) and (ii)—the commented that contractors should not Comment: Some respondents responsibility to disclose sufficient be allowed to design and implement commented that the pre-award information to the contracting officer compliance plans that are structured certification requirements (now at FAR and the agency Inspector General to around self-disclosure on their part. The 22.1703(c)(1) and 52.222–56) would be identify the nature and extent of the respondent recommended that the FAR impossible for a contractor to comply offense, and provide timely and regulations should require independent with, since the contractor may not know complete response to Government and accessible grievance mechanisms, who all of their subcontractors are at all auditors’ and investigators’ request for independent verification of practices, tiers prior to award. documents. A reminder is added at FAR and sufficient resources and Response: The requirement for each 52.222–50(d)(1) that in contracts that mechanisms to ensure meaningful contractor and subcontractor that meets contain FAR 52.203–13 ‘‘Contractor enforcement. the criteria to certify, prior to receiving Code of Business Ethics and Conduct’’, Response: FAR 52.222–50(h)(3)(ii) an award, that they have implemented paragraph (b)(3)(i)(A) requires requires contractors to have a process a plan to prevent prohibited trafficking disclosure to the agency Office of for employees to report, without fear of in persons activities is expressly Inspector General when the contractor retaliation, activity inconsistent with required in the E.O. and statute. has credible evidence of fraud. the policy prohibiting trafficking in The offeror is certifying to the persons. In addition, during proposed subcontracts it has at the time. b. ‘‘Federal Agencies’’ administration of the contract, the At FAR 22.1703(c), the prime contractor Comment: Three respondents contracting officer has access to contract is required to certify annually to this requested clarification on what tkelley on DSK3SPTVN1PROD with RULES2 administration organizations and information and to require its constitutes ‘‘other responsible various Federal enforcement agencies to subcontractors to certify as well, when enforcement agencies’’ and provide assistance in the enforcement of applicable. Any subcontractors that recommended aligning FAR 22.1703(e) anti-trafficking in persons requirements. meet the criteria are required to (now (d)) with the provisions of the The policy at FAR subpart 3.9, complete the certification. If a prime NDAA for FY 2013 to specify ‘‘Federal Whistleblower Protections for adds a subcontractor after award of the agencies’’ and remove the ‘‘other VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 4978 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations responsible enforcement agencies’’ (now (d)) and 52.222–50(g), which only activity of a subcontractor if and when language. requires contractors to interview it becomes known to the contractor. Response: Efforts to prohibit workers before returning to their Response: Neither the statute nor the trafficking in persons under Federal country of origin. E.O. fully shield a prime contractor or Government contracts is a collaborative Response: The primary requirement create an affirmative defense. effort that requires cooperation among for the contractor to notify the Culpability is determined on a case-by- Federal agencies, state and local contracting officer and the agency case basis. agencies, foreign governments, non- Inspector General is at FAR 52.222– governmental organizations, faith-based ii. Stronger Remedies 50(d). However, the Councils have communities, private industry, and added at FAR 22.1703(d)(1) and 52.222– Comment: One respondent private citizens. However, ‘‘other 50(g)(1), the requirement that the commented that contractors who use responsible enforcement agency’’ was contractor disclose to the contracting forced labor or victims of severe forms written broadly in the E.O. to mean officer and the agency Inspector General of trafficking in the persons should not Federal agencies such as an agency information sufficient to identify the get paid for their work. Office of Inspector General, the nature and extent of an offense and the Response: Withholding payment, loss Department of Justice, Department of individuals responsible for the conduct. of award fee, contract termination, and State, Department of Homeland The requirement to interview has been suspension and debarment are remedies Security, or Department of Labor that removed. already available to the Government if are responsible for conducting audits, Comment: One respondent requested the contractor fails to comply with the investigations, or other actions to clarification on ‘‘reasonable access.’’ trafficking in persons provisions (see ascertain compliance with trafficking in Response: As with any other FAR 52.222–50(e)). persons laws or regulations. The final Government investigation or audit, the Comment: One respondent rule changes FAR 22.1703(d)(3) and contractor and any of its employees or commented that debarment should be FAR 52.222–50(g)(1)(iii) to read ‘‘other subcontractor employees are required to mandatory when a contractor violates responsible Federal agencies to cooperate fully with Government agents the prohibition against forced labor and conduct . . .’’. and allow access to their facilities and trafficking in persons. Another staff in a way that does not impede, respondent recommended suspending c. Interviews and debarring any entity that withholds obstruct or influence the investigation Comment: Two respondents or audit. passports. commented that the contractor should Response: FAR 9.402(b) states that not have primary responsibility for 6. Violations and Remedies (FAR debarment and suspension are not interviewing the witness, but rather the 22.1704 and 52.222–50(e) and (f)) imposed for punishment. The contractor should notify Government a. ‘‘May’’ to ‘‘Shall’’ Suspending and Debarring Official authorities about the existence of such (SDO) has discretion to address persons and make such persons Comment: Several respondents suspension or debarment cases with available to be interviewed by recommended changing the word from individualized analysis and uses a Government law enforcement agents. ‘‘may’’ to ‘‘shall’’ at FAR 22.1704. broad range of preliminary and final Another respondent commented that Response: The final rule has been actions to balance the need to protect interviews should be conducted only by revised at FAR 22.1704(d)(2) to require the Government against the need to treat employees who have been properly the contracting officer to consider taking fairly the contractors involved. FAR trained in the identification of the specified remedies. The E.O. was 22.1703(e) requires the Government to trafficking in persons and trafficking silent on this issue, but the statute was impose suitable remedies, including victims, and those who are interviewed clear (22 U.S.C. 7104b(c), Remedial termination, on contractors that fail to should have access to interpreters. actions). comply with the requirements to combat Another respondent commented that b. Mitigating and Aggravating Factors trafficking in persons. access to facilities and staff by the Comment: One respondent contracting agencies or responsible Comment: One respondent supported commented that through an enforceable enforcement agencies should not be the requirement for the contracting contract provision, contractors should required before a contractor performs its officer to address both mitigating and pay liquidated damages in a manner to own investigation; and that the aggravating factors in a remedy help compensate the victim harmed by contractor has a right to have a determination. (See also section the breach. representative present during any access III.B.6.c.ii. below on ‘‘stronger Response: While neither the E.O. nor and interviews. remedies’’). statute provide a basis for requiring the Response: The Councils have Response: Noted. contractors to pay liquidated damages to removed the requirement for contractors c. Remedies compensate victims, the FAR text at to interview all employees suspected of FAR 22.1704(d)(2)(i) and 52.222–50(f)(1) i. Safe Harbor being victims of or witnesses to was changed to more clearly identify prohibited trafficking in persons Comment: Two respondents suggested that if the contractor has taken activities because it is not a requirement that a provision be included absolving appropriate remedial actions for of the E.O. or the statute. Therefore, prime contractors from responsibility violations, including reparations to FAR 22.1703(d) and 52.222–50(g) have for acts of its subcontractors. victims, those actions will be been modified to delete the word Alternatively, it was suggested that an considered as a mitigating factor. ‘‘interview’’. affirmative defense be established for tkelley on DSK3SPTVN1PROD with RULES2 Comment: One respondent the prime contractor where it has iii. Due Process recommended that the rule should implemented its own compliance plan, Comment: One respondent was require that the contracting officer and flowed down the required clause, concerned that FAR 22.1704(b) (now the agency Inspector General be notified affirmatively communicated to (d)) violates the principle of due of suspected trafficking in persons in all subcontractors the requirements of the process, because the contracting officer sections, including FAR 22.1703(e) rule and reports trafficking in persons only requires adequate evidence to VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4979 suspect a violation in order to pursue General. The agency Inspectors General currently provide the capability for remedies against the contractor. establish the criteria by which they contractors to append documents. It is Response: The Councils have revised conduct reviews and the procedures for possible for contractors to post the final rule to require substantiation of providing an opportunity for the documents at their own Web site, and the allegations prior to consideration of contractor to rebut the allegations, prior provide the URL to that Web site in remedies. This is consistent with to completions of the investigation. their posted comments in FAPIIS. section 1704(c) of the NDAA for FY However, the Councils have The Councils did not find any 2013. addressed the requirement of section language at FAR 9.104–6 that provides 1704(d)(2) of the NDAA for FY 2013 the contractor such opportunity to 7. Posting in the Federal Awardee (codified at 41 U.S.C. 2313(c)(1)(E)) that comment on information in FAPIIS, Performance and Integrity Information entry into FAPIIS of a substantiated prior to posting. FAR 9.105–2(b)(2)(iv) System (FAPIIS) allegation pursuant to section 1704(b) of only addresses the narrow situation in a. Support Posting in FAPIIS the NDAA for FY 2013 shall be based which any information posted to FAPIIS Comment: One respondent supported on the outcome of an administrative is covered by a disclosure exemption the addition of FAR 9.104–6(e), proceeding. Therefore, the final rule under the Freedom of Information Act. requiring contracting officers to include provides at FAR 22.1704(c)(2), that Information is first posted in FAPIIS substantiated trafficking in persons upon receipt of a report from the agency and only shared with the contractor, allegations in the Federal Awardee Inspector General that provides support and this FAPIIS information is not made Performance and Integrity Information for the allegations relating to violation available to the public until after 14 System (FAPIIS). of the trafficking in persons days. If the contractor asserts within 7 Response: Noted. However, while prohibitions, the head of the agency, in days to the Government official who retaining the content, the Councils have accordance with agency procedures, posted the information, that some or all moved the proposed text at FAR 9.104– shall delegate to an authorized agency of the information is covered by a 6(e), because FAR 9.104–6 addresses the official, such as the agency suspending disclosure exemption under the use of FAPIIS, not actions relating to or debarring official, the responsibility Freedom of Information Act, the entry of the data into FAPIIS. The to expeditiously conduct an Government official who posted the requirements for agency head administrative proceeding, allowing the information must, within 7 days, notification to the contracting officer are contractor the opportunity to respond to remove the posting from FAPIIS and now located at FAR 22.1704(c)(1). The the report. The authorized official shall resolve the issue in accordance with the requirement for entry of the information then make a final determination as to Freedom of Information Act, prior to into FAPIIS was moved to FAR whether the allegations are reposting any releasable information. 42.1503(h)(1)(v), with a cross-reference substantiated. The final rule clarifies that all such at FAR 22.1704(d)(1), because the information entered in FAPIIS in c. Contractor Right To Comment After former section addresses entry of post- accordance with FAR 42.1503(h) (except Posting award contractor performance for past performance reviews) will be information (other than past Comment: One respondent stated that made publicly available after 14 days, performance reviews). Information while the proposed amendment to FAR unless covered by a disclosure entered in accordance with FAR 9.104–6 repeats the statutory language it exemption under the Freedom of 42.1503(h) will be made available to the does not provide meaningful guidance Information Act, with a cross-reference public after 14 days (see FAR 9.105– to the contracting officer or contractors. to FAR 9.105(b)(2). 2(b)(2)). The respondent recommended FAPIIS only contains records on referencing the existing provisions of entities that have been awarded a b. Standards for Review by the Agency FAR 9.104–6 that provide that the Federal contract or grant. Any Inspector General contractor shall be given a reasonable information on subcontractor violations Comment: One respondent stated that opportunity to review and comment on must be entered against the record of the the proposed rule fails to set forth the the report (in this case by the agency prime contractor. The prime contractor due process requirements for Inspector General) that substantiated the is required to have procedures in place establishing whether allegations are violation in advance of the report being to prevent subcontractors from engaging ‘‘substantiated’’ and does not provide posted in FAPIIS and to have the in trafficking in persons. The Councils any process for review. The respondent contractor’s comments appended to and have added, at FAR 9.104–6(b)(2), recommended establishing a framework made part of the information posted. guidance to the contracting officer in by which the agency Inspector General Another respondent also requested that assessing adverse information posted determines whether the allegation is the final rule establish a right for the regarding subcontractor violations of the substantiated, including the applicable contractor to post rebuttal documents in trafficking in persons prohibitions. The standard of proof. FAPIIS along with the agency Inspector contracting officer is directed to The respondent also stated that the General report. consider any mitigating factors, such as FAR regulations should provide Response: Revised FAR 22.1704(c) the degree of compliance by the prime procedures for the contractor to review provides for an administrative contractor with the terms of FAR clause and rebut the agency Inspector General proceeding that allows the contractor 52.222–50 (including disclosure of the report, including establishing time the opportunity to respond to the report, violation to the Government, full periods for review and comment prior to prior to a final determination as to cooperation with an investigation, and posting in FAPIIS. The respondent whether the allegations are remedial actions taken). stated that there should be an substantiated. tkelley on DSK3SPTVN1PROD with RULES2 affirmative requirement that rebuttal If the allegations are substantiated and d. Reporting of Unsubstantiated evidence be reviewed and taken into the violation is posted in FAPIIS, Allegations consideration prior to reporting into FAPIIS provides contractors an Comment: One respondent FAPIIS. opportunity to comment on any data commented that only including in Response: The FAR does not regulate that has been entered relating to the FAPIIS allegations substantiated by the the procedures of the agency Inspectors contractor. However, FAPIIS does not Inspector General does not go far VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 4980 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations enough to implement the E.O., since appropriate agency Inspectors General U.S.C. 3509 requires ‘‘timely Inspector General investigations and upon receipt of ‘‘credible information of notification’’ with regard to the Code of reports are rare and those affected by a violation’’. While the proposed clause Business Ethics and Conduct. trafficking in persons do not have the at FAR 52.222–50(d)(1) accurately Because of these separate statutory resources to get a complaint investigated reflects that standard, the proposed text requirements, the different notification by the Inspector General. Therefore, any at FAR 22.1704(c) used the term requirements in FAR 52.203–13 and allegations of trafficking in persons ‘‘credible violations.’’ In the final rule 52.222–50 have not been conformed to should be put into the database. FAR 22.1704(b) has been modified to match. Response: FAPIIS includes violations reflect the standard set forth in 22 iii. Tie to Contract or Subcontract regarding a contractor’s integrity where U.S.C. 7104b(a)(1) and the related there was a finding of fault. Section reporting requirement at 22 U.S.C. Comment: One respondent stated that 1704(d) of the NDAA for FY 2013, 7104c(1). Since the credible information the notification requirement (FAR requires inclusion in the FAPIIS standard is dictated by statute and 52.222–50(d)) does not tie to the database of substantiated allegations of modification of the reporting standard ‘‘award, performance or closeout of [a] violations of the prohibitions in 22 under FAR subpart 3.10 is beyond the contract or any subcontract thereunder,’’ U.S.C. 7104(g), after an administrative scope of this case, harmonization of the which differs from the Business Ethics proceeding. terms ‘‘credible information’’ and Rule. This lack of clarity in tying the ‘‘credible evidence’’ under this FAR requirement to an individual contract e. Change Reference to E.O. and Statute case is not possible. could result in a contractor having to Comment: One respondent It is not necessary to include a notify every contracting officer with recommended replacing at FAR 9.104– definition of the term ‘‘credible whom it has a contract. 6(e) ‘‘. . . a violation of the trafficking information.’’ Under the plain meaning Response: FAR 52.222–50(d) requires in persons prohibitions in E.O. 13627 or of the term, if believable information is the contractor to inform the contracting the Trafficking Victims Protection Act of presented, the matter shall be referred to officer of credible information that 2000, as amended, (22 U.S.C. chapter the appropriate Inspector General. alleges a contractor employee, 78)’’ with ‘‘a violation of the trafficking Although this standard presents a low subcontractor, or subcontractor in persons prohibitions in FAR 22.1704 threshold, contractors’ interests are employee, or their agent has engaged in or agency-specific supplemental protected through a mandatory and conduct that violates the policy at provisions.’’ This change was independent review by the appropriate paragraph (b) of the clause. This is recommended because the E.O. is not Inspector General prior to opening an consistent with the statutory substantive law and its provisions do investigation (22 U.S.C. 7104b(2)). The requirement. A trafficking in persons not provide an independent basis for low threshold for initial referral, violation by a contractor employee may establishing trafficking in persons conversely, upholds the policy to not be associated with a specific violations. prevent human trafficking. contract. The final rule has added the Response: This issue is now clarification at FAR 52.222–50(d) that, if ii. Immediate/Timely the allegation may be associated with addressed at FAR 22.1704(c)(1) and 42.1503(h)(1)(v), and the reference has Comment: Several respondents more than one contract, the contractor been revised to address the trafficking in commented on the requirement at FAR shall inform the contracting officer for persons prohibitions in FAR 22.1703(a) 52.222–50(d) for ‘‘immediate’’ the contract with the highest dollar and 52.222–50(b). It is not appropriate notification to the contracting officer value. to address in the FAR prohibitions that and the agency Inspector General of any credible information alleging a b. False Claims are in agency-specific supplemental provisions. violation. Both respondents mentioned Comment: One respondent stated that that the requirement under the the rule should contain a provision at 8. Harmonize With Contractor Code of contractor Code of Business Ethics and FAR 52.222–50(e) that advises that Business Ethics and Conduct (FAR Conduct at FAR 52.203–13 only requires filing a false certification or other Subpart 3.10 and 52.203–13) ‘‘timely’’ notification of credible trafficking in persons record could a. Contractor Notifications (FAR 52.222– evidence. One respondent constitute a false claim under 31 U.S.C. 50(d)) recommended that the final rule should 3729, and thereby trigger the False make it clear that the requirement for Claims Act. According to the i. Credible Information/Evidence immediate notification permits a respondent, with the newly added Comment: Several respondents contractor some period of time to criminal violation at 18 U.S.C. 1351, commented regarding the standard for conduct its own investigation into the linking the trafficking in persons triggering the reporting of apparent credibility of information it receives. provision mandatory disclosure and the violations. The respondents noted an Response: The Councils note that, False Claims Act would prompt internal inconsistency in the rule and prior to this final rule, the clause at FAR compliance and ensure timely suggested that the standard be 52.222–50 already included the trafficking in persons disclosures and harmonized with the credible evidence requirement for the contractor to inform cooperation from all within the labor standard in FAR subpart 3.10 Contractor the contracting officer immediately of supply chain. Code of Business Ethics and Conduct. any information it receives from any Response: The FAR does not specify Some respondents also expressed a source that alleges conduct that violates what constitutes a false claim. Nor does preference for the inclusion of a the policy on trafficking in persons. it specify what, or what constitutes a definition of the term ‘‘credible Section 1705 of the statute (22 U.S.C. crime, especially where this would tkelley on DSK3SPTVN1PROD with RULES2 information.’’ 7104c) requires immediate notification require a decision on the application of Response: Pursuant to 22 U.S.C. to the agency Inspector General of any United States criminal laws outside the 7104b(a)(1) and 22 U.S.C. 7104c(1), information from any source that alleges United States. The Councils consider contracting or grant officers and credible information regarding expansion of the list of remedies at recipients of grants, contracts, or violations of the prohibition in 22 paragraph (e) of the clause to be cooperative agreements shall inform U.S.C. 7104(g). On the other hand, 41 unnecessary because the final rule VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4981 already states that the remedies listed in 9. Training legislation; and articulates specific paragraph (e) are ‘‘in addition to any a. Enhanced Training for Contracting remedies available to acquisition other remedies available to the United Officers professionals if contractors engage in States Government’’ (FAR trafficking in persons, including 22.1704(d)(2)). Comment: Two respondents suspension or debarment. The training recommend enhancing training is available to all members of the c. Integrate Into FAR Subpart 3.10 and requirements for contracting officers. Federal acquisition workforce through 52.203–13 Response: The FAR does not include the Federal Acquisition Institute’s Web training. Section 3 of the E.O. requires site. (This training is not yet updated to Comment: Several respondents the Administrator of the Office of recommended integrating Trafficking in reflect the new law and policy Federal Procurement Policy, in promulgated in this rule.) During FY Persons reporting requirements into the consultation with the Federal list of violations covered by FAR 2013, 1,351 professionals, including 704 Acquisition Institute (FAI) and acquisition professionals, had 3.1003(a) and (b) and 52.203–13. appropriate councils, such as the Chief According to the respondent, the completed the training from 26 Federal Acquisition Officers Council, to agencies. regulations should expressly state that implement training requirements, to fraudulent hiring of labor constitutes a The Department of State’s Office to ensure that the Federal acquisition Monitor and Combat Trafficking in ‘‘violation of Federal criminal law workforce is trained on the policies and involving fraud, conflict of interest, Persons and the Department’s Foreign responsibilities for combating trafficking Service Institute developed and released bribery, gratuity, or trafficking in in persons. Training will be established persons violations found in Title 18 of an interactive online course, ‘‘Human in accordance with the E.O. Trafficking Awareness Training’’ to the United States Code’’. According to requirements. the respondents, including trafficking in enhance State Department personnel’s Many agencies, currently, offer understanding of the signs of human persons violations under the mandatory training on combating trafficking in disclosure rule pursuant to 52.203–13 trafficking and Department reporting persons (CTIP). For example, DoD obligations. This training has will ensure proper authorities are policy on CTIP requires heads of all notified and will better protect victims. information on the Department’s DoD components to conduct an annual standards of conduct related to One respondent commented, however, CTIP awareness training program for all that harmonizing the rule and related trafficking in persons. Component members and provide data reporting of misconduct with the Code to OSD (P&R) needed to compile its b. Contractor’s Awareness Program of Business Ethics, does not necessitate annual CTIP report. Trafficking in Comment: One respondent identical provisions. Persons General Awareness Training is recommended the final rule remain Response: The Councils have not mandatory for all DoD military members flexible with respect to tailoring the integrated the trafficking in persons and civilian employees. DoD has contractor’s training to the contractor’s disclosure requirements into the developed five trainings, offered on the compliance plan and awareness Contractor Code of Business Ethics and Department of Defense Combating program. Conduct (FAR 3.1003(a) and (b) and Trafficking in Persons Web site at Response: The FAR does not require 52.203–13) because this rule http://ctip.defense.gov/Training.aspx. contractors to tailor training to the implements a statute and E.O. with These include— contractor’s compliance plan and specific detailed requirements relating (1) General Awareness Training for awareness program. The FAR requires— to trafficking in persons violations. those who have never taken the CTIP (1) An awareness program as part of Trying to integrate the separate General Awareness Training; the compliance plan (see FAR 52.222– requirements relating to thresholds, (2) Law Enforcement Training for 50(h)(3)(i)); and compliance plans, mandatory those working in law enforcement and (2) Contracting officers to consider, as disclosure, full cooperation, etc. may investigative agencies; a mitigating factor, whether the result in confusion or inconsistent and (3) Refresher Training for those who contractor had a Trafficking in Person conflicting requirements. have previously taken the CTIP General compliance plan or an awareness Awareness Training, a 15-minute program at the time of the violation (see Comment: One respondent ‘‘refresher’’ course; FAR 22.1704(d), Remedies). commented that violation of the Foreign (4) Leadership Training for those in Comment: One respondent Labor Act (18 U.S.C. 1351) will trigger leadership positions; and recommended permitting agencies to the mandatory reporting requirement in (5) Contracting and Acquisition make available to contractors the FAR subpart 3.10 and the clause at Training—for acquisition professionals training provided to the Federal 52.203–13, and therefore should be and those working in contracting and acquisition workforce. specifically referenced in the listing of acquisition. The Contracting and Response: The FAR does not specify offenses mandated to be reported so that Acquisition Training is also available trafficking in person training details for contractors will be put on notice. from Defense Acquisition University at the Federal acquisition workforce. Response: As recognized by the http://www.dau.mil/default.aspx. However, various agencies have made respondent, 18 U.S.C. 1351 is already The Departments of State and on-line training for the Federal included under 3.1003(b) and 52.203– Homeland Security developed an acquisition workforce available to 13(b)(3)(i)(A) as a ‘‘violation of Federal interactive training for the Federal contractors as well. For example: criminal law involving fraud . . . found acquisition workforce on combating • The Department of Defense hosts on in title 18 of the U.S.C.’’ There are many trafficking in persons in 2011. The 35- its Web site a basic training for tkelley on DSK3SPTVN1PROD with RULES2 such laws, none of which are listed minute training module articulates the acquisition professionals. It is available individually. The Councils, however, U.S. Government’s policy prohibiting to the public at http://ctip.defense.gov/ have added a cross reference at FAR trafficking in persons; defines and Training/ContractingAcquisition.aspx. 52.222–50(d)(1) to this law when identifies forms of trafficking in • The Department of Homeland addressing the prohibitions at FAR persons; describes vulnerable Security training is specifically tailored 52.222–50(b)(5). populations, indicators, and relevant for the U.S. Government acquisition VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 4982 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations workforce on combating trafficking in persons awareness program and supply specifically identified by the contracting persons using the pertinent provisions their employees a means to inform law officer in the subcontracts clause of the of the FAR. enforcement of suspected trafficking in contract. The Government relies on • The Department of Defense persons activities. review and approval of a contractor’s Combating Trafficking in Persons Web Response: FAR clause 52.222–50, purchasing system, rather than site, at http://ctip.defense.gov/, offers Combating Trafficking in Persons, separately managing each subcontractor extensive information and guidance to currently requires contractors to notify and supplier. prime contractors on how to ensure its employees of the United States Government’s policy prohibiting 11. Paperwork Reduction Act hiring practices comply with the law and prevent trafficking in persons. In trafficking in persons and to inform the Comment: Several respondents particular, see CTIP Trainings at http:// contracting officer immediately of any commented that the four hour estimate ctip.defense.gov/Training.aspx. information it receives regarding per contract to prepare and submit an Comment: One respondent violations of this policy. Additionally, annual certification underestimates the recommended that contractors hold outside of the Federal acquisition burden because it does not take into educational workshops before work process, other Government agencies, consideration the time required to begins and throughout employment for such as the Department of Homeland monitor, detect and terminate any agent employees about modern slavery so that Security, the Department of Labor, and subcontractors or subcontractor an employee will know what to look for the State Department, have awareness employees who have engaged in and how to spot potential trafficking in programs and points of contact for trafficking in persons at all tiers. persons situations. assistance or to report potential human Response: The Councils performed an Response: Such recommendations trafficking activity (see responses at analysis and have determined that the may be included in the contractor’s section III.B.4.b.ii, III.B.4.f., and III.B.9 certification process should require awareness program required by the E.O. of this preamble). minimal additional attention if a and the statute. Comment: One respondent company is taking the time required to recommended that prohibitions on maintain a sound compliance plan. 10. Other Therefore, the Councils have not employer actions include a general Comment: One respondent prohibition on limiting employees’ increased the estimated number of recommended the additional freedom of association since unionized burden hours. requirements set forth in the Discussion workers are less vulnerable to employer Comment: One respondent and Analysis section of the proposed coercion and less vulnerable to commented that the 24 hour estimate to rule at 78 FR 59317 be promulgated in conditions that lead to forced labor and prepare the compliance plan the rule. trafficking in persons. underestimates the burden. Response: The proposed rule Response: This FAR rule implements Response: The Councils performed an preamble contained a summary of requirements to prohibit trafficking in analysis, taking into account that this is comments from the public meeting on Federal Government contracts. The a one-time submission only to be Trafficking in Persons on March 5, 2013. respondent’s comment is outside the updated, as necessary, to align with the Most of the recommendations at this scope of this rule. size, scope and complexity of the meeting were also submitted as Comment: One respondent procurement. The estimated burden comments to the proposed rule and recommended that setting aside associated with writing the compliance have been addressed separately through contracts for U.S. small business and plan takes into consideration that this is this section. then only allowing American workers a one-time requirement, to be updated Comment: One respondent on the contract would end human as necessary, to align with the size, recommended implementing a trafficking. scope, and complexity of later requirement to create and distribute Response: The Small Business Act procurements. The Councils have not documentation (all recruiting papers, does not apply overseas. Even if an increased the estimate. signed recruiting and employment acquisition is set aside for small contracts, posters, training materials, as 12. Regulatory Flexibility Act businesses or awarded to a small local well as victim and witness statements) business overseas, that does not enable Comment: One respondent separately up the labor supply chain. the Government to dictate the submitted comments on the reporting Response: While the prime contractor nationality of the workers, unless burden to the Chief Counsel for may, and in some cases should, ask for security considerations or contingency Advocacy at the Small Business these items, requiring submission of this operations require U.S. citizenship. Administration, in conjunction with much paperwork as a matter of course Comment: A comment was received comments that the information would greatly increase the paperwork recommending that offerors disclose the collection requirements of the rule are burden under Federal contracts and names and location of all suppliers and understated. Another respondent create a significant reporting burden on subcontractors prior to award. recommended that the FAR Council businesses. The prime contractor is Response: The FAR already provides should conduct a thorough and provided the flexibility to determine for a responsibility determination on complete regulatory flexibility analysis which documentation is needed based prospective subcontractors. In of the global reach of the proposed rule. on the place of performance, e.g., in a accordance with FAR 9.104–4, Response: DoD, GSA, and NASA did country and industry group with a high prospective prime contractors are an analysis of the burdens associated level of trafficking in persons. required to assess the responsibility of with this rule. Small business cannot be Comment: One respondent their prospective subcontractors, which excluded from the requirements of this tkelley on DSK3SPTVN1PROD with RULES2 recommended that agencies continue to includes a satisfactory record of rule, because violations of the work with transportation industry integrity and business ethics. trafficking in persons prohibitions often representatives to ensure that FAR subpart 44.2 provides that if a occur at various subcontract tiers and companies transporting Government contractor has an approved purchasing frequently involve small businesses. freight under Federal contracts adopt or system, consent to subcontract is However, the rule does provide establish a companywide trafficking in required only for subcontracts maximum flexibility to small VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4983 businesses. The compliance and • Failing to provide return example, the E.O. expressly prohibits certification requirements only apply to transportation for an employee from a federal contractors and subcontractors any portion of the contract or country outside the United States to the from charging employees recruitment subcontract that is for supplies (other country from which the employee was fees. than COTS items) to be acquired outside recruited upon the end of employment Section 1 of E.O. 13627, explaining the United States, or for services to be unless the contractor is exempted from the government’s policy against performed outside the United States; the requirement or the employee is a trafficking in persons, states: The United and only if such portion has an victim of human trafficking and is States has long had a zero-tolerance estimated value that exceeds $500,000. seeking redress in the country of policy regarding Government employees Furthermore, if a compliance plan is employment or a witness in a human and contractor personnel engaging in required, it shall be appropriate to the trafficking enforcement action. any form of this criminal behavior. As size and complexity of the contract or • Soliciting a person for the purposes the largest single purchaser of goods and subcontract and the nature and scope of of employment, or offering employment services in the world, the United States the activities under the contract or by means of materially false or Government bears a responsibility to subcontract. fraudulent pretenses, representations, or ensure that taxpayer dollars do not promises regarding that employment. contribute to trafficking in persons. By IV. Determinations • Charging recruited employees providing our Government workforce The Federal Acquisition Regulatory unreasonable placement or recruitment with additional tools and training to (FAR) Council has made the following fees such as fees equal to or greater than apply and enforce existing policy, and determinations with respect to the rule’s the employee’s monthly salary, or by providing additional clarity to application of title XVII, entitled recruitment fees that violate the laws of Government contractors and ‘‘Ending Trafficking in Government the country from which an employee is subcontractors on the steps necessary to Contracting (ETGCA),’’ of the National recruited; fully comply with that policy, this order Defense Authorization Act (NDAA) for • Providing or arranging housing that will help to protect vulnerable Fiscal Year (FY) 2013 to contracts in fails to meet the host Country housing individuals as contractors and amounts not greater than the simplified and safety standards. subcontractors perform vital services acquisition threshold (SAT), contracts 2. A requirement that contractors and and manufacture the goods procured by for the acquisition of commercial items, subcontractors fully cooperate with any the United States. and contracts for the acquisition of Federal agencies responsible for audits, In addition, the improved safeguards commercially available off-the-shelf investigations or corrective actions provided by this order to strengthen (COTS) items. relating to trafficking in persons. The compliance with anti-trafficking laws head of an executive agency must will promote economy and efficiency in A. Applicability to Contracts at or Below Government procurement. These ensure that any substantiated allegation the Simplified Acquisition Threshold safeguards, which have been largely in the report be included in the Federal Pursuant to 41 U.S.C. 1905 contracts Awardee Performance and Integrity modeled on successful practices in the or subcontracts in amounts not greater Information System (FAPIIS) and the private sector, will increase stability, than the SAT will be exempt from a contractor has an opportunity to productivity, and certainty in Federal provision of law unless the law (i) respond. contracting by avoiding the disruption contains criminal or civil penalties; (ii) 3. A requirement for a compliance and disarray caused by the use of specifically refers to 41 U.S.C. 1905 and plan appropriate to the size and trafficked labor and resulting states that the law applies to contracts complexity of the contract and a investigative and enforcement actions. and subcontracts in amounts not greater certification, upon award and annually The ETGCA is silent on the than the SAT; or (iii) the Federal thereafter, which provides that after applicability of the requirements set Acquisition Regulatory Council (FAR conducting due diligence the contractor forth in paragraphs 1 and 2 of section Council) makes a written determination has implemented a plan to prevent any IV.A. of this preamble to contracts and and finding (D&F) that it would not be prohibited trafficking in persons subcontracts in amounts not greater in the best interest of the Federal activities and implemented procedures than the SAT and does not provide for Government to exempt contracts and to prevent any prohibited trafficking in criminal or civil penalties. Therefore, subcontracts in amounts not greater persons activities. These requirements under 41 U.S.C. 1907 the ETGCA does than the SAT from the provision of law. for a certification and compliance plan not apply to contracts and subcontracts If none of these conditions are met, the apply to contracts and subcontracts, if not greater than the SAT unless the FAR Federal Acquisition Regulation (FAR) is any portion of the contract or Council makes a written determination required to include the statutory subcontract— that such application is in the best requirement(s) on a list of provisions of • Is for services to be performed interest of the Federal Government. law that are inapplicable to contracts outside the United States; and In contrast to the ETGCA, E.O. 13627 and subcontracts in amounts not greater • The estimated value exceeds applies most of its strengthened than the SAT. $500,000. prohibitions (other than the requirement The ETGCA requires that the FAR The contractor must provide a copy of for compliance plans and certifications) must be amended to provide certain the plan to the contracting officer, upon to acquisitions in any dollar amount. protections against trafficking in request, and post useful and relevant (The requirements for compliance plans persons, including the following: contents of the plan on its Web site and and certifications apply only to 1. A clause that prohibits contractors at the workplace. acquisitions valued above $500,000 for and subcontractors from engaging in the Several months prior to the enactment services performed outside the United tkelley on DSK3SPTVN1PROD with RULES2 following types of trafficking-related of the ETGCA, the President signed E.O. States.) activities: 13627, Strengthening Protections The final FAR rule mirrors the • Destroying, concealing, removing, Against Trafficking In Persons In implementation approach taken by E.O. confiscating, or otherwise denying Federal Contracts (September 25, 2012). 13627 regarding the handling of small access to the employee’s identity or The E.O. imposed similar requirements. dollar procurements. Specifically, the immigration documents. There are some differences. For rule applies the general prohibitions VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 4984 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations described in paragraphs 1 and 2 to employment or a witness in a human and contractor personnel engaging in contracts and subcontracts of a value trafficking enforcement action. any form of this criminal behavior. As equal to or less than the SAT. By • Soliciting a person for the purposes the largest single purchaser of goods and applying the general prohibitions, the of employment, or offering employment services in the world, the United States rule, like the E.O., most effectively by means of materially false or Government bears a responsibility to furthers the policy, including economy fraudulent pretenses, representations, or ensure that taxpayer dollars do not and efficiency in procurement, promises regarding that employment. contribute to trafficking in persons. By described in the E.O. and quoted above • Charging recruited employees providing our Government workforce and avoids creation of an exception that unreasonable placement or recruitment with additional tools and training to could undermine this policy and the fees such as fees equal to or greater than apply and enforce existing policy, and ability to enforce the prohibition. the employee’s monthly salary, or by providing additional clarity to The provisions listed above will apply recruitment fees that violate the laws of Government contractors and to acquisitions for commercial items. the country from which an employee is subcontractors on the steps necessary to They will also apply to acquisitions for recruited; fully comply with that policy, this order commercially available off-the-shelf • Providing or arranging housing that will help to protect vulnerable items, except for the requirements for a fails to meet the host Country housing individuals as contractors and compliance plan and certification. and safety standards. subcontractors perform vital services Separate D&Fs outline the rationale for 2. A requirement that contractors and and manufacture the goods procured by those additional determinations, as subcontractors fully cooperate with any the United States. required in 41 U.S.C. 1906 and 1907, Federal agencies responsible for audits, respectively. investigations or corrective actions In addition, the improved safeguards relating to trafficking in persons. The provided by this order to strengthen B. Applicability to Contracts for the compliance with anti-trafficking laws head of an executive agency must Acquisition of Commercial Items will promote economy and efficiency in ensure that any substantiated allegation Pursuant to 41 U.S.C. 1906, in the report be included in the Federal Government procurement. These acquisitions of commercial items (other Awardee Performance and Integrity safeguards, which have been largely than acquisitions of commercially Information System (FAPIIS) and the modeled on successful practices in the available off-the-shelf (COTS) items, contractor has an opportunity to private sector, will increase stability, which are addressed in 41 U.S.C. 1907) respond. productivity, and certainty in Federal are exempt from a provision of law 3. A requirement for a compliance contracting by avoiding the disruption unless the law (i) contains criminal or plan appropriate to the size and and disarray caused by the use of civil penalties; (ii) specifically refers to complexity of the contract and a trafficked labor and resulting 41 U.S.C. 1906 and states that the law certification, upon award and annually investigative and enforcement actions. applies to acquisitions of commercial thereafter, which provides that after The ETGCA is silent on the items; or (iii) the Federal Acquisition conducting due diligence the contractor applicability of the requirements set Regulatory Council (FAR Council) has implemented a plan to prevent any forth above to contracts for commercial makes a written determination and prohibited trafficking in persons items and does not provide for criminal finding (D&F) that it would not be in the activities and implemented procedures or civil penalties. Therefore, under 41 best interest of the Federal Government to prevent any prohibited trafficking in U.S.C. 1906 the ETGCA does not apply to exempt contracts (or subcontracts persons activities. These requirements to acquisitions for commercial items under a contract) for the procurement of for a certification and compliance plan unless the FAR Council makes a written commercial items from the provision of apply to contracts and subcontracts, if determination that such application is law. If none of these conditions are met, any portion of the contract or in the best interest of the Federal the Federal Acquisition Regulation subcontract— Government. (FAR) is required to include the • Is for services to be performed In contrast to the ETGCA, E.O. 13627 statutory requirement(s) on a list of outside the United States; and applies the strengthened requirements provisions of law that are inapplicable • The estimated value exceeds described above to commercial items. to acquisitions of commercial items. $500,000. The final FAR rule mirrors the approach The ETGCA requires that the FAR The contractor must provide a copy of taken by E.O. 13627 and applies the must be amended to provide certain the plan to the contracting officer, upon restrictions and requirements described protections against trafficking in request, and post useful and relevant above to commercial item acquisitions. persons, including the following: contents of the plan on its Web site and By doing so, the rule, like the E.O., most 1. A clause that prohibits contractors at the workplace. Several months prior to the enactment effectively furthers the policy, including and subcontractors from engaging in the of the ETGCA, the President signed E.O. economy and efficiency in procurement, following types of trafficking-related 13627, Strengthening Protections described in the E.O. and quoted above activities: • Destroying, concealing, removing, Against Trafficking In Persons In and avoids creation of an exception that confiscating, or otherwise denying Federal Contracts (September 25, 2012). could undermine this policy and the access to the employee’s identity or The E.O. imposed similar requirements. ability to enforce the prohibition. immigration documents. However, there are some differences. The provisions listed above, except • Failing to provide return For example, the E.O. expressly for the requirements for a compliance transportation for an employee from a prohibits Federal contractors and plan and certification, will also apply to country outside the United States to the subcontractors from charging employees contracts and subcontracts in amounts tkelley on DSK3SPTVN1PROD with RULES2 country from which the employee was recruitment fees. not greater than the simplified recruited upon the end of employment Section 1 of E.O. 13627, explaining acquisition threshold and acquisitions unless the contractor is exempted from the government’s policy against for COTS items. Separate D&Fs outline the requirement or the employee is a trafficking in persons, states: The United the rationale for those additional victim of human trafficking and is States has long had a zero-tolerance determinations, as required in 41 U.S.C. seeking redress in the country of policy regarding Government employees 1905 and 1907, respectively. VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4985 C. Applicability of Contracts for the Federal agencies responsible for audits, and manufacture the goods procured by Acquisition of COTS Items investigations or corrective actions the United States. Pursuant to 41 U.S.C. 1907, relating to trafficking in persons. The In addition, the improved safeguards acquisitions of commercially available head of an executive agency must provided by this order to strengthen off the shelf (COTS) items will be ensure that any substantiated allegation compliance with anti-trafficking laws exempt from a provision of law unless in the report be included in the Federal will promote economy and efficiency in the law (i) contains criminal or civil Awardee Performance and Integrity Government procurement. These penalties; (ii) specifically refers to 41 Information System (FAPIIS) and the safeguards, which have been largely U.S.C. 1907 and states that the law contractor has an opportunity to modeled on successful practices in the applies to acquisitions of COTS items; respond. private sector, will increase stability, (iii) concerns authorities or 3. A requirement for a compliance productivity, and certainty in Federal responsibilities under the Small plan appropriate to the size and contracting by avoiding the disruption Business Act (15 U.S.C. 644) or bid complexity of the contract and a and disarray caused by the use of protest procedures developed under the certification, upon award and annually trafficked labor and resulting authority of 31 U.S.C. 3551 et seq., 10 thereafter, which provides that after investigative and enforcement actions. conducting due diligence the contractor The ETGCA is silent on the U.S.C. 2305(e) and (f), or 41 U.S.C. 3706 has implemented a plan to prevent any applicability of its requirements to and 3707; or (iv) the Administrator for prohibited trafficking in persons COTS items. In addition, the ETGCA Federal Procurement Policy makes a activities and implemented procedures does not provide for criminal or civil written determination and finding (D&F) to prevent any prohibited trafficking in penalties. Nor does it concern that it would not be in the best interest persons activities. These requirements authorities or responsibilities under the of the Federal Government to exempt for a certification and compliance plan Small Business Act or bid protest contracts for the procurement of COTS apply to contracts and subcontracts, if procedures. Therefore, the ETGCA does items from the provision of law. If none any portion of the contract or not apply to the acquisition of COTS, of these conditions are met, the Federal subcontract— pursuant to 41 U.S.C. 1907, unless the Acquisition Regulation (FAR) is • Is for services to be performed Administrator for Federal Procurement required to include the statutory outside the United States; and Policy makes a written determination requirement(s) on a list of provisions of • The estimated value exceeds that such application is in the best law that are inapplicable to acquisitions $500,000. interest of the Federal Government. of COTS items. The contractor must provide a copy of In contrast to the ETGCA, E.O. 13627 The ETGCA requires that the FAR the plan to the contracting officer, upon expressly applies its strengthened must be amended to provide certain request, and post useful and relevant requirements to all acquisitions, protections against trafficking in contents of the plan on its Web site and including those for commercial items persons, including the following: at the workplace. 1. A clause that prohibits contractors and COTS. In addition, the E.O. Several months prior to the enactment expressly excludes application of the and subcontractors from engaging in the of the ETGCA, the President signed E.O. following types of trafficking-related requirement for compliance plans and 13627, Strengthening Protections certifications to COTS. activities: Against Trafficking In Persons In • Destroying, concealing, removing, The final FAR rule mirrors the Federal Contracts (September 25, 2012). implementation approach taken by E.O. confiscating, or otherwise denying The E.O. imposed similar requirements, 13627 regarding the acquisition of COTS access to the employee’s identity or immigration documents. including a requirement for the products. Specifically, the rule applies • Failing to provide return development of compliance plans and the general prohibitions described in transportation for an employee from a certifications. There are some paragraphs 1 and 2 of section IV.C. of country outside the United States to the differences. For example, the E.O. this preamble to COTS but not the country from which the employee was expressly prohibits Federal contractors requirements for a compliance plan and recruited upon the end of employment and subcontractors from charging certification described in paragraph 3 of unless the contractor is exempted from employees recruitment fees. section IV.C. of this preamble. This the requirement or the employee is a Section 1 of E.O. 13627, explaining approach is reflected in FAR clause victim of human trafficking and is the government’s policy against 52.222–50 and 52.212–5. By applying seeking redress in the country of trafficking in persons, states: The United the general prohibitions, the rule, like employment or a witness in a human States has long had a zero-tolerance the E.O., most effectively furthers the trafficking enforcement action. policy regarding Government employees policy, including economy and • Soliciting a person for the purposes and contractor personnel engaging in efficiency in procurement, described in of employment, or offering employment any form of this criminal behavior. As the E.O. and quoted above and avoids by means of materially false or the largest single purchaser of goods and creation of an exception that could fraudulent pretenses, representations, or services in the world, the United States undermine this policy and the ability to promises regarding that employment. Government bears a responsibility to enforce the prohibition. At the same • Charging recruited employees ensure that taxpayer dollars do not time, by excluding the requirements for unreasonable placement or recruitment contribute to trafficking in persons. By providers of COTS items to develop a fees such as fees equal to or greater than providing our Government workforce compliance plan and execute a the employee’s monthly salary, or with additional tools and training to certification, the rule avoids the cost recruitment fees that violate the laws of apply and enforce existing policy, and and complexity that contractors selling by providing additional clarity to COTS may face tracing the origin of tkelley on DSK3SPTVN1PROD with RULES2 the country from which an employee is recruited; Government contractors and component parts in a global supply • Providing or arranging housing that subcontractors on the steps necessary to chain. fails to meet the host Country housing fully comply with that policy, this order The provisions listed above will apply and safety standards. will help to protect vulnerable to acquisitions for commercial items. 2. A requirement that contractors and individuals as contractors and They will also apply to contracts and subcontractors fully cooperate with any subcontractors perform vital services subcontracts not greater than simplified VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 4986 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations acquisition threshold, except for the requirements only apply to any portion of the Interested parties may obtain a copy requirements for a compliance plan and contract or subcontract that is for supplies of the FRFA from the Regulatory certification. Separate D&Fs outline the (other than COTS items) to be acquired Secretariat. The Regulatory Secretariat rationale for those additional outside the United States, or services to be has submitted a copy of the FRFA to the performed outside the United States; and if determinations, as required in 41 U.S.C. such portion has an estimated value that Chief Counsel for Advocacy of the Small 1905 and 1906, respectively. exceeds $500,000. Furthermore, if a Business Administration. V. Executive Orders 12866 and 13563 compliance plan is required, it shall be VII. Paperwork Reduction Act appropriate to the size and complexity of the Executive Orders (E.O.s) 12866 and contract or subcontract and the nature and The Paperwork Reduction Act (44 13563 direct agencies to assess all costs scope of the activities under the contract or U.S.C. Chapter 35) applies. The rule and benefits of available regulatory subcontract. contains information collection alternatives and, if regulation is Any entity of any size that violates the U.S. requirements. OMB has cleared this necessary, to select regulatory Government’s policy prohibiting trafficking information collection requirement approaches that maximize net benefits in persons will be impacted by this rule. New under OMB Control Number 9000–0188, (including potential economic, policies prohibit denying an employee access titled: Ending Trafficking in Persons. environmental, public health and safety to his/her identity or immigration documents; using misleading or fraudulent List of Subjects in 48 CFR Parts 1, 2, 9, effects, distributive impacts, and recruitment practices or charging recruitment 12, 22, 42, and 52 equity). E.O. 13563 emphasizes the fees; providing or arranging housing that fails importance of quantifying both costs to meet the host country housing and safety Government procurement. and benefits, of reducing costs, of standards; and failing to provide return Dated: January 22, 2015. harmonizing rules, and of promoting transportation or requiring payment for the William Clark, flexibility. This is a significant cost of return transportation for certain regulatory action and, therefore, was employees. There are also requirements for a Director, Office of Government-wide compliance plan and certification; this will Acquisition Policy, Office of Acquisition subject to review under section 6(b) of Policy, Office of Government-wide Policy. E.O. 12866, Regulatory Planning and impact only entities where the estimated Review, dated September 30, 1993. This value of supplies acquired or services to be Therefore, DoD, GSA, and NASA rule is not a major rule under 5 U.S.C. performed outside the United States exceeds amend 48 CFR parts 1, 2, 9, 12, 22, 42, $500,000. There is no requirement for a and 52 as set forth below: 804. compliance plan or certification if the ■ 1. The authority citation for 48 CFR VI. Regulatory Flexibility Act supplies to be furnished outside the United States involve solely commercially available parts 1, 2, 9, 12, 22, 42, and 52 DoD, GSA, and NASA have prepared off-the-shelf items. DoD, GSA, and NASA continues to read as follows: a Final Regulatory Flexibility Analysis anticipate that these certification and written Authority: 40 U.S.C. 121(c); 10 U.S.C. (FRFA) consistent with the Regulatory compliance plan exceptions will significantly chapter 137; and 51 U.S.C. 20113. Flexibility Act, 5 U.S.C. 601, et seq. The reduce the impact on small entities. FRFA is summarized as follows: Using Fiscal Year 2011 data from the PART 1—FEDERAL ACQUISITION Federal Procurement Data System (FPDS) REGULATIONS SYSTEM The objective of the final rule is to and Electronic Subcontractor Reporting strengthen protections against trafficking in System (eSRS), DoD, GSA, and NASA 1.106 [Amended] persons in Federal contracting by providing the Government workforce with additional estimate that about 1,622 of the entities impacted will be small entities. This number ■ 2. Amend section 1.106, in the table tools to enforce existing policy and provide following the introductory text, by additional clarity to Government contractors is the number of small businesses with a prime contract or subcontract of $500,000 or adding in numerical sequence, FAR and subcontractors on the steps necessary to comply with that policy. While the goal is to more that is performed outside the U.S. segments ‘‘22.17’’, ‘‘52.222–50’’, and implement the E.O. and statute to the The rule requires the following projected ‘‘52.222–56’’ and their corresponding maximum extent practicable in the FAR to reporting and recordkeeping burdens for OMB Control No. ‘‘9000–0188’’. strengthen protections against trafficking in access to information: persons, the FAR Council has taken steps to a. Compliance Plan: (1,622 recordkeepers × PART 2—DEFINITIONS OF WORDS minimize the burden associated with this 24 hours per record = 38,928 hours) AND TERMS rule. b. Certification: (1,622 respondents × 4 One respondent separately submitted hours per response = 6,488 hours) ■ 3. Amend section 2.101 in paragraph comments on the reporting burden to the For the certification process, DoD, GSA, (b)(2), in the definition ‘‘United States’’, Chief Counsel for Advocacy at the Small and NASA estimate that the respondents will by redesignating paragraphs (7) through Business Administration, in conjunction be high-level administrative/legal employees (11) as paragraphs (8) through (12), with comments that the information earning an average of approximately $83.00 an hour ($60.47 + 36.45% overhead). For the respectively, and adding a new collection requirements of the rule are understated. Another respondent compliance plan, DoD, GSA, and NASA paragraph (7) to read as follows: recommended that the FAR Council should estimate that the respondents will be high- 2.101 Definitions. conduct a thorough and complete regulatory level administrative/program manager flexibility analysis of the global reach of the employees earning an average of * * * * * proposed rule. approximately $68.00 per hour ($50.05 + (b) * * * DoD, GSA, and NASA conducted an 36.45% overhead). (2) * * * analysis of the burdens associated with this DoD, GSA, and NASA have taken steps in United States * * * rule that considers that global nature this rule to minimize the impact on small (7) For use in subpart 22.17, see the including the flowdown requirements of this entities by allowing contractors to tailor the definition at 22.1702. rule. Small business concerns cannot be compliance plan requirements to the tkelley on DSK3SPTVN1PROD with RULES2 excluded from the requirements of this rule, appropriate size and complexity of the * * * * * because violations of the trafficking in contract and subcontract and the nature and persons prohibitions often occur at the lower scope of the activities performed, including PART 9—CONTRACTOR subcontract tiers and frequently involve number of non-U.S. citizens expected to be QUALIFICATIONS small businesses. However, the rule does employed and the risk that these activities provide maximum flexibility to small will involve services or supplies susceptible ■ 4. Amend section 9.104–6 by revising businesses. The compliance and certification to trafficking in persons. paragraph (b) to read as follows: VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4987 9.104–6 Federal Awardee Performance Persons Compliance Plan, in Subcontractor means any supplier, and Integrity Information System. solicitations as prescribed at 22.1705(b). distributor, vendor, or firm that * * * * * * * * * * furnishes supplies or services to or for (b) The contracting officer shall a prime contractor or another ■ 7. Amend section 12.505 by adding subcontractor. consider all the information in FAPIIS paragraph (c) to read as follows: United States means the 50 States, the and other past performance information (see subpart 42.15) when making a 12.505 Applicability of certain laws to District of Columbia, and outlying areas. responsibility determination. For source contracts for the acquisition of COTS items. ■ 11. Amend section 22.1703 by— selection evaluations of past ■ a. Revising the introductory text and * * * * * performance, see 15.305(a)(2). paragraph (a); (c) Compliance Plan and Certification ■ b. Removing from the end of Contracting officers shall use sound Requirement, section 1703 of the judgment in determining the weight and paragraph (b) ‘‘; and’’ and adding ‘‘;’’ in National Defense Authorization Act for its place; relevance of the information contained Fiscal Year 2013 (Pub. L. 112–239), Title ■ c. Revising paragraph (c); and in FAPIIS and how it relates to the XVII, Ending trafficking in Government ■ d. Adding paragraphs (d) and (e). present acquisition. Contracting (see 52.222–50(h) and The revisions and additions read as (1) Since FAPIIS may contain 52.222–56). follows: information on any of the offeror’s previous contracts and information PART 22—APPLICATION OF LABOR 22.1703 Policy. covering a five-year period, some of that LAWS TO GOVERNMENT The United States Government has information may not be relevant to a ACQUISITIONS adopted a policy prohibiting trafficking determination of present responsibility, in persons, including the trafficking- e.g., a prior administrative action such ■ 8. Revise section 22.1700 to read as related activities below. Additional as debarment or suspension that has follows: information about trafficking in persons expired or otherwise been resolved, or 22.1700 Scope of subpart. may be found at the Web site for the information relating to contracts for Department of State’s Office to Monitor This subpart prescribes policy for and Combat Trafficking in Persons at completely different products or implementing 22 U.S.C. chapter 78 and http://www.state.gov/j/tip/. Government services. Executive Order 13627, Strengthening solicitations and contracts shall— (2) Because FAPIIS is a database that Protections Against Trafficking in provides information about prime (a) Prohibit contractors, contractor Persons in Federal Contracts, dated employees, subcontractors, contractors, the contracting officer posts September 25, 2012. subcontractor employees, and their information required to be posted about ■ 9. Revise section 22.1701 to read as agents from— a subcontractor, such as trafficking in follows: (1) Engaging in severe forms of persons violations, to the record of the trafficking in persons during the period prime contractor (see 42.1503(h)(1)(v)). 22.1701 Applicability. of performance of the contract; The prime contractor has the (a) This subpart applies to all (2) Procuring commercial sex acts opportunity to post in FAPIIS any acquisitions. during the period of performance of the mitigating factors. The contracting (b) The requirement at 22.1703(c) for contract; officer shall consider any mitigating a certification and compliance plan (3) Using forced labor in the factors posted in FAPIIS by the prime applies only to any portion of a contract performance of the contract; contractor, such as degree of compliance or subcontract that— (4) Destroying, concealing, by the prime contractor with the terms (1) Is for supplies, other than confiscating, or otherwise denying of FAR clause 52.222–50. commercially available off-the-shelf access by an employee to the * * * * * (COTS) items, to be acquired outside the employee’s identity or immigration United States, or services to be documents, such as passports or drivers’ PART 12—ACQUISITION OF performed outside the United States; licenses, regardless of issuing authority; COMMERCIAL ITEMS and (5)(i) Using misleading or fraudulent (2) Has an estimated value that practices during the recruitment of 12.103 [Amended] exceeds $500,000. employees or offering of employment, ■ 5. Amend section 12.103 by removing such as failing to disclose, in a format ■ 10. Amend section 22.1702 by adding, and language accessible to the worker, from the third sentence the words ‘‘; the in alphabetical order, the definitions basic information or making material components test of the Buy American ‘‘Agent’’, ‘‘Subcontract’’, misrepresentations during the statute, and the two recovered materials ‘‘Subcontractor’’, and ‘‘United States’’ to recruitment of employees regarding the certifications in subpart 23.4, do not read as follows: key terms and conditions of apply to COTS items’’. 22.1702 Definitions. employment, including wages and ■ 6. Amend section 12.301 by fringe benefits, the location of work, the redesignating paragraphs (d)(4) and (5) * * * * * living conditions, housing and as paragraphs (d)(5) and (6), Agent means any individual, associated costs (if employer or agent respectively, and adding new paragraph including a director, an officer, an provided or arranged), any significant (d)(4) to read as follows: employee, or an independent contractor, costs to be charged to the employee, authorized to act on behalf of the and, if applicable, the hazardous nature 12.301 Solicitation provisions and organization. tkelley on DSK3SPTVN1PROD with RULES2 contract clauses for the acquisition of of the work; * * * * * (ii) Using recruiters that do not commercial items. Subcontract means any contract comply with local labor laws of the * * * * * entered into by a subcontractor to country in which the recruiting takes (d) * * * furnish supplies or services for place; (4) Insert the provision at 52.222–56, performance of a prime contract or a (6) Charging employees recruitment Certification Regarding Trafficking in subcontract. fees; VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 4988 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations (7)(i)(A) Failing to provide return employee relocating. The employee’s (ii) The certification must state that— transportation or pay for the cost of work document shall include, but is not (A) The subcontractor has return transportation upon the end of limited to, details about work implemented a compliance plan; and employment, for an employee who is description, wages, prohibition on (B) After having conducted due not a national of the country in which charging recruitment fees, work diligence, either— the work is taking place and who was location(s), living accommodations and (1) To the best of the subcontractor’s brought into that country for the associated costs, time off, roundtrip knowledge and belief, neither it nor any purpose of working on a U.S. transportation arrangements, grievance of its agents, subcontractors, or their Government contract or subcontract, for process, and the content of applicable agents, has engaged in any such portions of contracts and subcontracts laws and regulations that prohibit activities; or performed outside the United States; or trafficking in persons. The contracting (2) If abuses relating to any of the (B) Failing to provide return officer shall consider the risk that the prohibited activities identified in transportation or pay for the cost of contract or subcontract will involve 52.222–50(b) have been found, the return transportation upon the end of services or supplies susceptible to subcontractor has taken the appropriate employment, for an employee who is trafficking in persons, and the number remedial and referral actions; not a United States national and who of non-U.S. citizens expected to be (4) Require the contractor to obtain was brought into the United States for employed, when deciding whether to annual certifications from the purpose of working on a U.S. require work documents in the contract; subcontractors during performance of Government contract or subcontract, if the contract, when a compliance plan * * * * * was required at the time of subcontract the payment of such costs is required (c) With regard to certification and a under existing temporary worker award; and compliance plan— (5) Require that any compliance plan programs or pursuant to a written (1)(i) Require the apparent successful agreement with the employee for or procedures shall be appropriate to the offeror to provide, before contract portions of contracts and subcontracts size and complexity of the contract and award, a certification (see 52.222–56) performed inside the United States; the nature and scope of its activities, that the offeror has a compliance plan except that— including the number of non-U.S. if any portion of the contract or (ii) The requirements of paragraph citizens expected to be employed and subcontract— (a)(7)(i) of this section do not apply to (A) Is for supplies, other than COTS the risk that the contract or subcontract an employee who is— items (see 2.101), to be acquired outside will involve services or supplies (A) Legally permitted to remain in the the United States, or services to be susceptible to trafficking in persons. country of employment and who performed outside the United States; The minimum elements of the plan are chooses to do so; or and specified at 52.222–50(h); (B) Exempted by an authorized (B) The estimated value exceeds (d) Require the contractor and official of the contracting agency, $500,000. subcontractors to— designated by the agency head in (ii) The certification must state that— (1) Disclose to the contracting officer accordance with agency procedures, (A) The offeror has implemented the and the agency Inspector General from the requirement to provide return plan and has implemented procedures information sufficient to identify the transportation or pay for the cost of to prevent any prohibited activities and nature and extent of an offense and the return transportation; to monitor, detect, and terminate the individuals responsible for the conduct; (iii) The requirements of paragraph contract with a subcontractor or agent (2) Provide timely and complete (a)(7)(i) of this section are modified for engaging in prohibited activities; and responses to Government auditors’ and a victim of trafficking in persons who is (B) After having conducted due investigators’ requests for documents; seeking victim services or legal redress diligence, either— (3) Cooperate fully in providing in the country of employment, or for a (1) To the best of the offeror’s reasonable access to their facilities and witness in an enforcement action related knowledge and belief, neither it nor any staff (both inside and outside the U.S.) to trafficking in persons. The contractor of its agents, proposed subcontractors, to allow contracting agencies and other shall provide the return transportation or their agents, has engaged in any such responsible Federal agencies to conduct or pay the cost of return transportation activities; or audits, investigations, or other actions to in a way that does not obstruct the (2) If abuses relating to any of the ascertain compliance with the victim services, legal redress, or witness prohibited activities identified in Trafficking Victims Protection Act (22 activity. For example, the contractor 52.222–50(b) have been found, the U.S.C. chapter 78), Executive Order shall also offer return transportation to offeror or proposed subcontractor has 13627, or any other applicable law or a witness at a time that supports the taken the appropriate remedial and regulation establishing restrictions on witness’ need to testify. This paragraph referral actions; trafficking in persons, the procurement does not apply when the exemptions at (2) Require annual certifications (see of commercial sex acts, or the use of paragraph (a)(7)(ii) of this section apply. 52.222–50(h)(5)) during performance of forced labor; and (8) Providing or arranging housing the contract, when a compliance plan (4) Protect all employees suspected of that fails to meet the host country was required at award; being victims of or witnesses to housing and safety standards; or (3)(i) Require the contractor to obtain prohibited activities, prior to returning (9) If required by law or contract, a certification from each subcontractor, to the country from which the employee failing to provide an employment prior to award of a subcontract, if any was recruited, and shall not prevent or contract, recruitment agreement, or portion of the subcontract— hinder the ability of these employees other required work document in (A) Is for supplies, other than COTS from cooperating fully with Government tkelley on DSK3SPTVN1PROD with RULES2 writing. Such written document shall be items (see 2.101), to be acquired outside authorities; and in a language the employee the United States, or services to be (e) Provide suitable remedies, understands. If the employee must performed outside the United States; including termination, to be imposed on relocate to perform the work, the work and contractors that fail to comply with the document shall be provided to the (B) The estimated value exceeds requirements of paragraphs (a) through employee at least five days prior to the $500,000. (d) of this section. VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4989 ■ 12. Revise section 22.1704 to read as administrative proceeding is the (2) The acquisition is not entirely for follows: suspending and debarring official, the commercially available off-the-shelf suspending and debarring official has items. 22.1704 Violations and remedies. the authority, at any time before or after (a) Violations. It is a violation of the the final determination as to whether PART 42—CONTRACT Trafficking Victims Protection Act of the allegations are substantiated, to use ADMINISTRATION AND AUDIT 2000, as amended, (22 U.S.C. chapter the suspension and debarment SERVICES 78), E.O. 13627, or the policies of this procedures in subpart 9.4 to suspend, subpart if— propose for debarment, or debar the ■ 14. Amend section 42.1503 by— (1) The contractor, contractor contractor, if appropriate, also ■ a. Removing from paragraph (h)(1)(iii) employee, subcontractor, subcontractor considering the factors at 22.1704(d)(2). ‘‘; or’’ and adding ‘‘;’’ in its place; employee, or agent engages in severe (d) Remedies. After a final ■ b. Removing from paragraph (h)(1)(iv) forms of trafficking in persons during determination in accordance with ‘‘convenience.’’ and adding the period of performance of the paragraph (c)(2)(ii) of this section that ‘‘convenience; or’’ in its place; contract; the allegations of a trafficking in persons ■ c. Adding a new paragraph (h)(1)(v); (2) The contractor, contractor violation are substantiated, the ■ d. Redesignating paragraphs (h)(2) and employee, subcontractor, subcontractor contracting officer shall— (3) as paragraphs (h)(3) and (4), employee, or agent procures a (1) Enter the violation in FAPIIS (see commercial sex act during the period of respectively; and 42.1503(h)); and ■ e. Adding a new paragraph (h)(2). performance of the contract; (2) Consider taking any of the (3) The contractor, contractor The additions read as follows: remedies specified in paragraph (e) of employee, subcontractor, subcontractor the clause at 52.222–50, Combating 42.1503 Procedures. employee, or agent uses forced labor in Trafficking in Persons. These remedies * * * * * the performance of the contract; or (4) The contractor fails to comply are in addition to any other remedies (h) * * * with the requirements of the clause at available to the United States (1) * * * 52.222–50, Combating Trafficking in Government. When determining the (v) Receives a final determination Persons. appropriate remedies, the contracting after an administrative proceeding, in (b) Credible information. Upon receipt officer may consider the following accordance with 22.1704(d)(1), that of credible information regarding a factors: (i) Mitigating factors. The contractor substantiates an allegation of a violation violation listed in paragraph (a) of this of the trafficking in persons prohibitions section, the contracting officer— had a Trafficking in Persons compliance plan or awareness program at the time in 22.1703(a) and 52.222–50(b). (1) Shall promptly notify, in (2) The information to be posted in accordance with agency procedures, the of the violation, was in compliance with the plan at the time of the violation, and accordance with this paragraph (h) is agency Inspector General, the agency information relating to contractor debarring and suspending official, and if has taken appropriate remedial actions for the violations, that may include performance, but does not constitute a appropriate, law enforcement officials reparation to victims for such violations. ‘‘past performance review,’’ which with jurisdiction over the alleged (ii) Aggravating factors. The would be exempted from public offense; and (2) May direct the contractor to take contractor failed to abate an alleged availability in accordance with section specific steps to abate the alleged violation or enforce the requirements of 3010 of the Supplemental violation or enforce the requirements of a compliance plan, when directed by a Appropriations Act, 2010 (Pub. L. 111– its compliance plan. contracting officer to do so. 212). Therefore, all such information (c) Receipt of agency Inspector ■ 13. Revise section 22.1705 to read as posted in FAPIIS will be publicly General report. (1) The head of an follows: available, unless covered by a disclosure executive agency shall ensure that the exemption under the Freedom of contracting officer is provided a copy of 22.1705 Solicitation provision and Information Act (see 9.105–2(b)(2)). contract clause. * * * * * the agency Inspector General report of an investigation of a violation of the (a)(1) Insert the clause at 52.222–50, trafficking in persons prohibitions in Combating Trafficking in Persons, in all PART 52—SOLICITATION PROVISIONS 22.1703(a) and 52.222–50(b). solicitations and contracts. AND CONTRACT CLAUSES (2)(i) Upon receipt of a report from the (2) Use the clause with its Alternate agency Inspector General that provides I when the contract will be performed ■ 15. Amend section 52.212–5 by— support for the allegations, the head of outside the United States (as defined at ■ a. Revising the date of the clause; the executive agency, in accordance 22.1702) and the contracting officer has ■ b. Removing paragraph (a)(2); with agency procedures, shall delegate been notified of specific U.S. directives ■ c. Redesignating paragraphs (a)(3) and to an authorized agency official, such as or notices regarding combating (4) as paragraphs (a)(2) and (3), the agency suspending or debarring trafficking in persons (such as general respectively; official, the responsibility to— orders or military listings of ‘‘off-limits’’ ■ d. Redesignating paragraphs (b)(33) (A) Expeditiously conduct an local establishments) that apply to through (53) as paragraphs (b)(34) administrative proceeding, allowing the contractor employees at the contract through (54), respectively; contractor the opportunity to respond to place of performance. ■ e. Adding a new paragraph (b)(33); the report; (b) Insert the provision at 52.222–56, ■ f. Revising paragraph (e)(1)(x); and Certification Regarding Trafficking in tkelley on DSK3SPTVN1PROD with RULES2 (B) Make a final determination as to Persons Compliance Plan, in ■ g. Amending Alternate II by— whether the allegations are substantiated; and solicitations if— ■ i. Revising the date of the Alternate; (C) Notify the contracting officer of (1) It is possible that at least $500,000 and the determination. of the value of the contract may be ■ ii. Revising paragraph (e)(1)(ii)(I). (ii) Whether or not the official performed outside the United States; The revisions and additions read as authorized to conduct the and follows: VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 4990 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 52.212–5 Contract Terms and Conditions information with regard to applicable supplies or services to or for a prime Required to Implement Statutes or directives or notices: Document title(s), contractor or another subcontractor. Executive Orders—Commercial Items. source for obtaining document(s), and United States means the 50 States, the * * * * * contract performance location outside the District of Columbia, and outlying areas. United States to which the document applies. (b) Policy. The United States Government Contract Terms and Conditions Required To has adopted a policy prohibiting trafficking Implement Statutes or Executive Orders- * * * * * in persons including the trafficking-related Commercial Items (March 2, 2015) ■ 17. Amend section 52.222–50 by— activities of this clause. Contractors, * * * * * ■ a. Removing from the introductory contractor employees, and their agents shall (b) * * * paragraph ‘‘22.1705(a)’’ and adding not— ll(33)(i) 52.222–50, Combating ‘‘22.1705(a)(1)’’ in its place; (1) Engage in severe forms of trafficking in Trafficking in Persons (March 2, 2015) (22 persons during the period of performance of ■ b. Revising the date of the clause; U.S.C. chapter 78 and E.O. 13627). the contract; ■ c. Adding to paragraph (a), in ll(ii) Alternate I (March 2, 2015) of (2) Procure commercial sex acts during the 52.222–50 (22 U.S.C. chapter 78 and E.O. alphabetical order, the definitions period of performance of the contract; 13627). ‘‘Agent’’, ‘‘Commercially available off- (3) Use forced labor in the performance of the-shelf (COTS) item’’, ‘‘Subcontract’’, the contract; * * * * * (e)(1) * * * ‘‘Subcontractor’’, and ‘‘United States’’; (4) Destroy, conceal, confiscate, or ■ d. Revising paragraphs (b) through (e); otherwise deny access by an employee to the (x) ll(A) 52.222–50, Combating ■ e. Removing paragraph (f); employee’s identity or immigration Trafficking in Persons (March 2, 2015) (22 ■ f. Redesignating paragraph (g) as documents, such as passports or drivers’ U.S.C. chapter 78 and E.O. 13627). paragraph (f); licenses, regardless of issuing authority; ll(B) Alternate I (March 2, 2015) of ■ g. Revising the newly designated (5)(i) Use misleading or fraudulent 52.222–50 (22 U.S.C. chapter 78 and E.O. practices during the recruitment of 13627). paragraph (f); employees or offering of employment, such * * * * * ■ h. Adding new paragraphs (g), (h), and as failing to disclose, in a format and Alternate II (March 2, 2015).* * * (i); and language accessible to the worker, basic ■ i. Amending Alternate I by— information or making material * * * * * (e)(1) * * * ■ i. Revising the date of the Alternate, misrepresentations during the recruitment of (ii) * * * introductory paragraph, and paragraph employees regarding the key terms and (I) ll (1) 52.222–50, Combating (i)(A); and conditions of employment, including wages Trafficking in Persons (March 2, 2015) (22 ■ ii. Removing from paragraph (i)(B), in and fringe benefits, the location of work, the U.S.C. chapter 78 and E.O. 13627). the table, third column, ‘‘Applies living conditions, housing and associated ll (2) Alternate I (March 2, 2015) of Performance to in/at’’, and adding costs (if employer or agent provided or 52.222–50 (22 U.S.C. chapter 78 and E.O. ‘‘Applies to performance in/at’’ in its arranged), any significant cost to be charged 13627). to the employee, and, if applicable, the place, and removing in the bracketed hazardous nature of the work; * * * * * text, ‘‘U.S.’’ and adding ‘‘United States’’ (ii) Use recruiters that do not comply with ■ 16. Amend section 52.213–4 by— in its place. local labor laws of the country in which the ■ a. Revising the date of the clause; The revision and addition read as recruiting takes place; ■ b. Removing paragraph (a)(1)(iv); follows: (6) Charge employees recruitment fees; ■ c. Redesignating paragraphs (a)(1)(v) (7)(i) Fail to provide return transportation 52.222–50 Combating Trafficking in or pay for the cost of return transportation through (vii) as paragraphs (a)(1)(iv) Persons. upon the end of employment— through (vi), respectively; ■ d. Revising paragraph (a)(2)(viii); * * * * * (A) For an employee who is not a national Combating Trafficking in Persons (March 2, of the country in which the work is taking ■ e. Redesignating paragraphs 2015) place and who was brought into that country (b)(1)(viii) through (xiv) as paragraphs for the purpose of working on a U.S. (b)(1)(ix) through (xv), respectively; and * * * * * Government contract or subcontract (for ■ f. Adding a new paragraph (b)(1)(viii). (a) * * * portions of contracts performed outside the The revision and addition read as Agent means any individual, including a United States); or follows: director, an officer, an employee, or an (B) For an employee who is not a United independent contractor, authorized to act on States national and who was brought into the 52.213–4 Terms and Conditions— behalf of the organization. United States for the purpose of working on Simplified Acquisitions (Other Than Commercially available off-the-shelf a U.S. Government contract or subcontract, if Commercial Items). (COTS) item means— the payment of such costs is required under * * * * * (1) Any item of supply (including existing temporary worker programs or construction material) that is— pursuant to a written agreement with the Terms and Conditions-Simplied Acquisitions (i) A commercial item (as defined in (Other Than Commercial Items) (March 2, employee (for portions of contracts paragraph (1) of the definition at FAR 2.101); performed inside the United States); except 2015) (ii) Sold in substantial quantities in the that— * * * * * commercial marketplace; and (ii) The requirements of paragraphs (b)(7)(i) (a) * * * (iii) Offered to the Government, under a of this clause shall not apply to an employee (2) * * * contract or subcontract at any tier, without who is— (viii) 52.244–6, Subcontracts for modification, in the same form in which it (A) Legally permitted to remain in the Commercial Items (March 2, 2015) is sold in the commercial marketplace; and country of employment and who chooses to * * * * * (2) Does not include bulk cargo, as defined do so; or (b) * * * in 46 U.S.C. 40102(4), such as agricultural (B) Exempted by an authorized official of (1) * * * products and petroleum products. the contracting agency from the requirement tkelley on DSK3SPTVN1PROD with RULES2 (i) * * * * * * * * to provide return transportation or pay for (viii)(A) 52.222–50, Combating Trafficking Subcontract means any contract entered the cost of return transportation; in Persons (March 2, 2015) (22 U.S.C. chapter into by a subcontractor to furnish supplies or (iii) The requirements of paragraph (b)(7)(i) 78 and E.O. 13627) (Applies to all services for performance of a prime contract of this clause are modified for a victim of solicitations and contracts). or a subcontract. trafficking in persons who is seeking victim (B) Alternate I (applies if the Contracting Subcontractor means any supplier, services or legal redress in the country of Officer has filled in the following distributor, vendor, or firm that furnishes employment, or for a witness in an VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations 4991 enforcement action related to trafficking in paragraphs (c), (d), (g), (h), or (i) of this clause (iii) Restrict the Contractor from— persons. The contractor shall provide the may result in— (A) Conducting an internal investigation; return transportation or pay the cost of return (1) Requiring the Contractor to remove a or transportation in a way that does not obstruct Contractor employee or employees from the (B) Defending a proceeding or dispute the victim services, legal redress, or witness performance of the contract; arising under the contract or related to a activity. For example, the contractor shall not (2) Requiring the Contractor to terminate a potential or disclosed violation. only offer return transportation to a witness subcontract; (h) Compliance plan. (1) This paragraph (h) at a time when the witness is still needed to (3) Suspension of contract payments until applies to any portion of the contract that— testify. This paragraph does not apply when the Contractor has taken appropriate (i) Is for supplies, other than commercially the exemptions at paragraph (b)(7)(ii) of this remedial action; available off-the-shelf items, acquired outside clause apply. (4) Loss of award fee, consistent with the the United States, or services to be performed (8) Provide or arrange housing that fails to award fee plan, for the performance period in outside the United States; and meet the host country housing and safety which the Government determined (ii) Has an estimated value that exceeds standards; or Contractor non-compliance; $500,000. (9) If required by law or contract, fail to (5) Declining to exercise available options (2) The Contractor shall maintain a provide an employment contract, recruitment under the contract; compliance plan during the performance of agreement, or other required work document (6) Termination of the contract for default the contract that is appropriate— in writing. Such written work document or cause, in accordance with the termination (i) To the size and complexity of the shall be in a language the employee clause of this contract; or contract; and understands. If the employee must relocate to (7) Suspension or debarment. (ii) To the nature and scope of the activities perform the work, the work document shall (f) Mitigating and aggravating factors. to be performed for the Government, be provided to the employee at least five days When determining remedies, the Contracting including the number of non-United States prior to the employee relocating. The Officer may consider the following: citizens expected to be employed and the risk employee’s work document shall include, but (1) Mitigating factors. The Contractor had that the contract or subcontract will involve is not limited to, details about work a Trafficking in Persons compliance plan or services or supplies susceptible to trafficking description, wages, prohibition on charging an awareness program at the time of the in persons. recruitment fees, work location(s), living violation, was in compliance with the plan, (3) Minimum requirements. The accommodations and associated costs, time and has taken appropriate remedial actions compliance plan must include, at a off, roundtrip transportation arrangements, for the violation, that may include reparation minimum, the following: grievance process, and the content of to victims for such violations. (i) An awareness program to inform applicable laws and regulations that prohibit (2) Aggravating factors. The Contractor contractor employees about the trafficking in persons. failed to abate an alleged violation or enforce Government’s policy prohibiting trafficking- (c) Contractor requirements. The the requirements of a compliance plan, when related activities described in paragraph (b) Contractor shall— directed by the Contracting Officer to do so. of this clause, the activities prohibited, and (1) Notify its employees and agents of— (g) Full cooperation. (1) The Contractor the actions that will be taken against the (i) The United States Government’s policy shall, at a minimum— employee for violations. Additional prohibiting trafficking in persons, described (i) Disclose to the agency Inspector General information about Trafficking in Persons and in paragraph (b) of this clause; and information sufficient to identify the nature examples of awareness programs can be (ii) The actions that will be taken against and extent of an offense and the individuals found at the Web site for the Department of employees or agents for violations of this responsible for the conduct; State’s Office to Monitor and Combat policy. Such actions for employees may (ii) Provide timely and complete responses Trafficking in Persons at http:// include, but are not limited to, removal from to Government auditors’ and investigators’ www.state.gov/j/tip/. the contract, reduction in benefits, or requests for documents; (ii) A process for employees to report, termination of employment; and (iii) Cooperate fully in providing without fear of retaliation, activity (2) Take appropriate action, up to and reasonable access to its facilities and staff inconsistent with the policy prohibiting including termination, against employees, (both inside and outside the U.S.) to allow trafficking in persons, including a means to agents, or subcontractors that violate the contracting agencies and other responsible make available to all employees the hotline policy in paragraph (b) of this clause. Federal agencies to conduct audits, phone number of the Global Human (d) Notification. (1) The Contractor shall investigations, or other actions to ascertain Trafficking Hotline at 1–844–888–FREE and inform the Contracting Officer and the compliance with the Trafficking Victims its email address at help@befree.org. agency Inspector General immediately of— Protection Act of 2000 (22 U.S.C. chapter 78), (iii) A recruitment and wage plan that only (i) Any credible information it receives E.O. 13627, or any other applicable law or permits the use of recruitment companies from any source (including host country law regulation establishing restrictions on with trained employees, prohibits charging enforcement) that alleges a Contractor trafficking in persons, the procurement of recruitment fees to the employee, and employee, subcontractor, subcontractor commercial sex acts, or the use of forced ensures that wages meet applicable host- employee, or their agent has engaged in labor; and country legal requirements or explains any conduct that violates the policy in paragraph (iv) Protect all employees suspected of variance. (b) of this clause (see also 18 U.S.C. 1351, being victims of or witnesses to prohibited (iv) A housing plan, if the Contractor or Fraud in Foreign Labor Contracting, and activities, prior to returning to the country subcontractor intends to provide or arrange 52.203–13(b)(3)(i)(A), if that clause is from which the employee was recruited, and housing, that ensures that the housing meets included in the solicitation or contract, shall not prevent or hinder the ability of host-country housing and safety standards. which requires disclosure to the agency these employees from cooperating fully with (v) Procedures to prevent agents and Office of the Inspector General when the Government authorities. subcontractors at any tier and at any dollar Contractor has credible evidence of fraud); (2) The requirement for full cooperation value from engaging in trafficking in persons and does not foreclose any Contractor rights (including activities in paragraph (b) of this (ii) Any actions taken against a Contractor arising in law, the FAR, or the terms of the clause) and to monitor, detect, and terminate employee, subcontractor, subcontractor contract. It does not— any agents, subcontracts, or subcontractor employee, or their agent pursuant to this (i) Require the Contractor to waive its employees that have engaged in such clause. attorney-client privilege or the protections activities. tkelley on DSK3SPTVN1PROD with RULES2 (2) If the allegation may be associated with afforded by the attorney work product (4) Posting. (i) The Contractor shall post more than one contract, the Contractor shall doctrine; the relevant contents of the compliance plan, inform the contracting officer for the contract (ii) Require any officer, director, owner, no later than the initiation of contract with the highest dollar value. employee, or agent of the Contractor, performance, at the workplace (unless the (e) Remedies. In addition to other remedies including a sole proprietor, to waive his or work is to be performed in the field or not available to the Government, the Contractor’s her attorney client privilege or Fifth in a fixed location) and on the Contractor’s failure to comply with the requirements of Amendment rights; or Web site (if one is maintained). If posting at VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2 4992 Federal Register / Vol. 80, No. 19 / Thursday, January 29, 2015 / Rules and Regulations the workplace or on the Web site is (1) Is for supplies, other than commercially ACTION: Final rule. impracticable, the Contractor shall provide available off-the-shelf items, to be acquired the relevant contents of the compliance plan outside the United States, or services to be SUMMARY: DoD, GSA, and NASA are to each worker in writing. performed outside the United States; and issuing a final rule amending the (ii) The Contractor shall provide the (2) Has an estimated value that exceeds Federal Acquisition Regulation (FAR) to compliance plan to the Contracting Officer $500,000. implement a recommendation to upon request. (c) The certification shall state that— (5) Certification. Annually after receiving strengthen guidance on service (1) It has implemented a compliance plan an award, the Contractor shall submit a to prevent any prohibited activities identified acquisitions on uncompensated certification to the Contracting Officer that— in paragraph (b) of the clause at 52.222–50, overtime. (i) It has implemented a compliance plan Combating Trafficking in Persons, and to DATES: Effective: March 2, 2015. to prevent any prohibited activities identified monitor, detect, and terminate the contract at paragraph (b) of this clause and to monitor, with a subcontractor engaging in prohibited FOR FURTHER INFORMATION CONTACT: Mr. detect, and terminate any agent, subcontract activities identified at paragraph (b) of the Michael O. Jackson, Procurement or subcontractor employee engaging in clause at 52.222–50, Combating Trafficking Analyst, at 202–208–4949 for prohibited activities; and in Persons; and clarification of content. For information (ii) After having conducted due diligence, (2) After having conducted due diligence, pertaining to status or publication either— either— schedules, contact the Regulatory (A) To the best of the Contractor’s (i) To the best of the Offeror’s knowledge knowledge and belief, neither it nor any of Secretariat Division at 202–501–4755. and belief, neither it nor any of its proposed Please cite FAC 2005–80, FAR Case its agents, subcontractors, or their agents is agents, subcontractors, or their agents is engaged in any such activities; or 2014–008. engaged in any such activities; or (B) If abuses relating to any of the SUPPLEMENTARY INFORMATION: (ii) If abuses relating to any of the prohibited activities identified in paragraph prohibited activities identified in 52.222– I. Background (b) of this clause have been found, the 50(b) have been found, the Offeror or Contractor or subcontractor has taken the proposed subcontractor has taken the Section 865 of the Ike Skelton appropriate remedial and referral actions. (i) Subcontracts. (1) The Contractor shall appropriate remedial and referral actions. National Defense Authorization Act include the substance of this clause, (End of provision) (NDAA) for Fiscal Year (FY) 2011 (Pub. including this paragraph (i), in all L. 111–383) directed the Secretary of ■ 19. Amend section 52.244–6 by subcontracts and in all contracts with agents. Defense to submit, in consultation with The requirements in paragraph (h) of this revising the date of the clause and the Office of Federal Procurement clause apply only to any portion of the paragraph (c)(1)(ix) to read as follows: Policy (OFPP) and all other relevant subcontract that— Federal agencies, a review of the Federal (A) Is for supplies, other than 52.244–6 Subcontracts for Commercial commercially available off-the-shelf items, Items. Acquisition Regulation (FAR) and acquired outside the United States, or * * * * * Defense Federal Acquisition Regulations services to be performed outside the United Supplement (DFARS), to ensure that Subcontracts for Commercial Items (March 2, States; and 2015) they have appropriate guidance for (B) Has an estimated value that exceeds service acquisitions. As a result, the $500,000. * * * * * regulatory drafting teams for the FAR (2) If any subcontractor is required by this (c)(1) * * * (i) * * * and DFARS reviewed current clause to submit a certification, the Contractor shall require submission prior to (ix)(A) 52.222–50, Combating Trafficking regulations related to services and the award of the subcontract and annually in Persons (March 2, 2015) (22 U.S.C. chapter considered the extent to which thereafter. The certification shall cover the 78 and E.O. 13627). improvements might be needed. items in paragraph (h)(5) of this clause. (B) Alternate I (March 2, 2015) of 52.222– In November 2011, DoD issued a 50 (22 U.S.C. chapter 78 and E.O. 13627). report entitled DoD Report to Congress (End of clause) on Federal Acquisition Regulation * * * * * Alternate I (March 2, 2015). As prescribed [FR Doc. 2015–01524 Filed 1–28–15; 8:45 am] (FAR) and Defense Federal Acquisition in 22.1705(a)(2), substitute the following BILLING CODE 6820–EP–P Regulations Supplement (DFARS) paragraph in place of paragraph (c)(1)(i) of Review Regarding Services Acquisition. the basic clause: (i)(A) The United States Government’s This Report to Congress includes a policy prohibiting trafficking in persons DEPARTMENT OF DEFENSE series of recommendations on issues for described in paragraph (b) of this clause; and strengthening existing guidance on GENERAL SERVICES services acquisition through addition, * * * * * ADMINISTRATION clarification, or expansion. ■ 18. Add section 52.222–56 to read as follows: NATIONAL AERONAUTICS AND II. Analysis and Discussion SPACE ADMINISTRATION This FAR case implements a 52.222–56 Certification Regarding recommendation to create a definition Trafficking in Persons Compliance Plan. 48 CFR Parts 37 and 52 of uncompensated overtime. As prescribed in 22.1705(b), insert the Accordingly, the existing definitions of following provision: [FAC 2005–80; FAR Case 2014–008; Item II; Docket No. 2014–0008; Sequence No. 1] ‘‘uncompensated overtime’’ and Certification Regarding Trafficking in Persons ‘‘uncompensated overtime rate’’ at FAR Compliance Plan (March 2, 2015) RIN 9000–AM84 52.237–10(a) have been incorporated at (a) The term ‘‘commercially available off- FAR 37.101, with the defined term the-shelf (COTS) item,’’ is defined in the Federal Acquisition Regulation; ‘‘uncompensated overtime rate’’ tkelley on DSK3SPTVN1PROD with RULES2 clause of this solicitation entitled Management and Oversight of the Acquisition of Services changing to ‘‘adjusted hourly rate ‘‘Combating Trafficking in Persons’’ (FAR clause 52.222–50). (including uncompensated overtime).’’ (b) The apparent successful Offeror shall AGENCY: Department of Defense (DoD), Additionally, the definition of the new submit, prior to award, a certification, as General Services Administration (GSA), term ‘‘adjusted hourly rate (including specified in paragraph (c) of this provision, and National Aeronautics and Space uncompensated overtime)’’ clarifies that for the portion (if any) of the contract that— Administration (NASA). the proposed hours per week include VerDate Sep<11>2014 18:45 Jan 28, 2015 Jkt 235001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\29JAR2.SGM 29JAR2