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

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

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

[DFARS Case 2013-D007]
RIN 0750-AH93

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

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

ACTION: Proposed rule.

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

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

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

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

SUPPLEMENTARY INFORMATION:

I. Background

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

[[Page 59326]]

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

II. Discussion and Analysis

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

III. Executive Orders 12866 and 13563

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

IV. Regulatory Flexibility Act

    DoD does not expect this rule to have a significant economic impact 
on a substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. However, an initial 
regulatory flexibility analysis has been performed and is summarized as 
follows:
    This rule proposes to amend the Defense Federal Acquisition 
Regulation Supplement to improve awareness, compliance, and enforcement 
of DoD policies on combating trafficking in persons. This rule proposes 
the display of hotline posters on combating trafficking in persons and 
whistleblower protection for contracts that exceed $5 million (for 
performance both inside and outside the United States), display of a 
contractor employee bill of rights when the contract includes the DFARS 
clause 252.225-7040, Contractor Personnel Authorized to Accompany the 
U.S. Armed Forces Deployed Outside the United States, and a 
representation with regard to hiring policies that goes in all DoD 
solicitations and contracts that exceed the simplified acquisition 
threshold.
    The legal basis for the rule is 41 U.S.C. 1303.
    In total, there are about 57,760 small entities that do business 
with DoD. The mandatory disclosure requirements and the hotline poster 
requirements only apply to small business concerns with DoD contracts 
or subcontracts that exceed $5 million (except for commercial items). 
The representation regarding hiring practices applies to all small 
business concerns that respond to solicitations with an estimated value 
exceeding the simplified acquisition threshold. The requirement to 
display the contractor employee bill of rights only applies to 
contracts that authorize contractor personnel to accompany the U.S. 
Armed Forces deployed outside the United States in contingency 
operations, humanitarian or peacekeeping operations, or other military 
operations or exercises, when designated by the combatant commander. 
None of these requirements is expected to impose a significant economic 
burden on small business concerns.
    There are no requirements in this proposed rule that represent an 
information collection requirement.

[[Page 59327]]

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

V. Paperwork Reduction Act

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

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

    Government procurement.

Manuel Quinones,
Editor, Defense Acquisition Regulations System.

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

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

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

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

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

203.1004  Contact clauses.

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

PART 204--ADMINISTRATIVE MATTERS

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

204.1202  Solicitation provision.

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

PART 212--ACQUISITION OF COMMERCIAL ITEMS

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

PART 222--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

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

222.1770  Procedures.

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

222.1771  Solicitation provision.

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

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

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

252.203-7004  Display of Hotline Poster(s)

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

(End of clause)

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

252.204-7007  Alternate A, Annual Representations and Certifications.

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

[[Page 59328]]

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

    As prescribed in 222.1771, use the following provision:

REPRESENTATION WITH REGARD TO COMBATING TRAFFICKING IN PERSONS

(DATE)

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

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

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

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

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