Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2741 

There were no significant issues raised by 

the public comments in response to the 

initial regulatory flexibility analysis. 

As of June 2008, seven of the twenty-seven 

vendors who have registered products on the 

EPEAT Product Registry reported that they 

are small businesses. Data are not available 

on how many small businesses are reselling 

personal computer products to the 

Government, but according to the EPA’s 

Office of Small Disadvantaged Business 

Utilization, at the time of publication of the 

interim rule, there were approximately 613 

Service Disabled Veteran Owned Small 

Businesses (SDVOSBs) selling IT hardware to 

the Federal Government. These small 

businesses were not manufacturers of IT 

hardware, but resold IT hardware 

manufactured by other companies to the 

Federal Government. Many of the products 

these resellers sold could meet the IEEE 1680 

Standard, and the manufacturers of these 

products had the option of getting these 

products EPEAT registered to verify that they 

do meet this standard. 

Because manufacturers are the parties 

responsible for determining if their products 

meet the IEEE 1680 Standard or not, there 

will be little to no impact on small 

businesses selling IT products to the Federal 

Government, who are selling EPEATregistered products. In addition, the EPEAT 

Product Registry has been designed to 

encourage small business manufacturer 

participation. There is a sliding scale for the 

annual EPEAT registration fee vendors pay to 

have their products EPEAT registered based 

on the annual revenue of the vendor. 

The rule does not duplicate, overlap, or 

conflict with any other Federal rules. 

The FAR Secretariat has submitted a 

copy of the FRFA to the Chief Counsel 

for Advocacy of the Small Business 

Administration. A copy of the FRFA 

may be obtained from the FAR 

Secretariat. The Councils will consider 

comments from small entities 

concerning the affected FAR Parts 11, 

23, 39, and 52 in accordance with 5 

U.S.C. 610. Interested parties must 

submit such comments separately and 

should cite 5 U.S.C. 601, et seq. (FAR 

case 2006–030), in correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the changes to the 

FAR do not impose information 

collection requirements that require the 

approval of the Office of Management 

and Budget under 44 U.S.C. 3501, et 

seq. 

List of Subjects in 48 CFR Parts 11, 23, 

39, and 52 

Government procurement. 

Dated: December 24, 2008 

Edward Loeb, 

Acting Director, Office of Acquisition Policy. 

Interim Rule Adopted as Final 

Without Change 

Accordingly, the interim rule 

amending 48 CFR parts 11, 23, 39, and 

52 which was published in the Federal 

Register at 72 FR 73215 on December 

26, 2007, is adopted as a final rule 

without change. 

[FR Doc. E9–549 Filed 1–14–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 12, 22, and 52 

[FAC 2005–30; FAR Case 2005–012; Item 

VII; Docket 2006–0020; Sequence 25] 

RIN 9000–AK31 

Federal Acquisition Regulation; FAR 

Case 2005–012, Combating Trafficking 

in Persons 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed to adopt as final, 

with changes, the second interim rule 

published in the Federal Register at 72 

FR 46335, August 17, 2007, amending 

the Federal Acquisition Regulation 

(FAR) to implement 22 U.S.C. 7104(g). 

This statute requires that contracts 

include a provision that authorizes the 

department or agency to terminate the 

contract, if the contractor or any 

subcontractor engages in trafficking in 

persons. 

DATES: Effective Date: February 17, 

2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Ernest Woodson, Procurement Analyst, 

at (202) 501–3775 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the Regulatory Secretariat at (202) 501– 

4755. Please cite FAC 2005–30, FAR 

case 2005–012. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The Trafficking Victims Protection 

Reauthorization Act (TVPRA) of 2003, 

as amended by TVPRA of 2005, 

addresses the victimization of countless 

men, women, and children in the 

United States and abroad. In order to 

implement the law, DoD, GSA, and 

NASA published a second interim rule 

in the Federal Register at 72 FR 46335, 

August 17, 2007 with request for 

comments by October 16, 2007. Five 

respondents submitted comments on the 

second interim rule. Those comments, 

summarized as follows, were considered 

by the Councils in the formation of this 

final rule: 

1. Applicability to Commercial Items. 

Four comments were received from 

three different respondents regarding 

the applicability of the rule to 

commercial items. 

(a) One respondent is concerned that 

although the FAR Matrix indicates that 

FAR clause 52.222–50 is not applicable 

to commercial items, FAR 52.212–5 

includes 52.222–50 as a clause that the 

contracting officer may mark as being 

applicable to commercial items. 

Response: The Councils concur with 

the respondent’s concern and agrees to 

indicate in the FAR clause matrix that 

clause 52.222–50 is required. 

(b) One respondent believes that by 

making the rule applicable to 

commercial items, the Councils 

misinterpreted the separate Federal 

crimes created under Chapter 77 of Title 

18, United States Code, as providing the 

necessary criminal or civil penalties for 

the contract violations to which the 

Federal Acquisition Streamlining Act 

was meant to apply. The respondent 

requests the Councils to reconsider the 

applicability to commercial items. 

Response: The Councils note that 

application of the rule to all contracts 

for supplies and services, including 

those for commercial items, is 

consistent with the broad scope of the 

statutory directive and is in compliance 

with the Federal Acquisition 

Streamlining Act’s (FASA) provision 

concerning commercial contracts. 

Specifically, the statutory language at 22 

U.S.C. 7104(g) contained no exceptions 

or limitations with regard to its 

application to Federal contracts. While 

FASA governs and limits the 

applicability of laws to commercial 

items, it also provides that if a provision 

of law contains criminal or civil 

penalties, or if the Federal Acquisition 

Regulatory Council determines that it is 

not in the best interest of the Federal 

Government to exempt commercial item 

contracts, then the provision of law will 

apply to contracts for commercial items. 

(c) Another respondent asked the 

Councils to give further consideration to 

not applying the rule to commercial 

items (subcontracts), indicating that the 

application will give rise to unintended 

consequences and create an effect 

inconsistent with Federal acquisition 

goals. 

Response: The Councils believe that 

the TVPRA of 2003 and 2005 reflects 

Congress’s intent to allow for the 


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termination of all U.S. contracts when 

specified prohibited acts take place. 

Although the intent of the Federal 

Acquisition Streamlining Act and the 

Clinger-Cohen Act is to limit the 

applicability of laws to commercial 

items and commercially available offthe-shelf (COTS) items, these laws also 

provide that if a provision of law 

contains criminal or civil penalties, then 

commercial items are not to be 

exempted. The Councils believe the rule 

corresponds to these laws and the 

mandate of the TVPRA. 

(d) The respondent further 

commented that if the rule’s 

applicability to commercial items is to 

be retained, that it be listed in FAR 

52.244–6, Subcontracts for Commercial 

Items. 

Response: The Councils agree with 

the respondent’s comment to add FAR 

52.222–50 at 52.244–6(c)(1), requiring 

flow-down to subcontracts for 

commercial items. 

2. Exemption. One respondent 

recommended creating a general 

exemption from the rule where the 

Federal Government affirmatively 

contracts for services to support frontline intervention activities domestically 

or internationally. The respondent states 

that many contractors that are involved 

in both the health and international 

development arena may directly or 

indirectly be involved in front-line 

intervention contracts and even 

advocacy programs to increase 

awareness of these and related 

activities. 

Response: The Councils note the 

respondent’s concern as it relates to 

‘‘front-line’’ intervention contracts. 

However, the councils are not aware of 

any conflict that this rule may present 

in relation to those efforts. The terms 

used throughout the rule reflect the 

terms used in the statute. Actions taken 

to help trafficking victims do not violate 

the rule. Therefore, the Councils do not 

believe that an exemption is necessary 

and the final rule remains unchanged. 

3. Contractor Employees. Three 

comments were received regarding 

employees. 

(a) One respondent is concerned with 

the term ‘‘minimal impact or 

involvement in contract performance’’ 

in the definition of employee. The 

respondent believes that in the 

acquisition of commercial items 

(commercially available off the shelf 

supplies), a contractor may not know 

which employees had a minimal impact 

on contract performance. The 

respondent suggests that a commercial 

item supplier make a ‘‘good faith 

determination’’ regarding the minimal 

impact requirement. 

Response: The Councils agree that the 

contractor should make a first good faith 

determination of the employee’s 

involvement. The Councils do not agree 

that use of the term ‘‘minimal impact or 

involvement in contract performance’’ is 

ambiguous. The term narrows the scope 

of the definition of employee and leaves 

the determination of impact/ 

involvement to the contractor. The 

Councils do not agree that a contractor 

cannot determine if an employee had a 

‘‘minimal impact or involvement in 

contract performance’’ in the acquisition 

of commercial items. The contractor is 

in the best position to know and 

determine what role an employee plays 

in the performance of a contract, major 

or minor. The contractor is responsible 

for work production as well as work 

assignments. In the case of a violation 

of the clause, the contractor can 

determine the employee’s duties under 

the contract and associate those duties 

with performance under the contract. 

(b) One respondent is concerned that 

as written, the rule fails to achieve the 

contractor-accountability provisions of 

the TVPRA of 2005 and requests that the 

Councils reinsert the requirements for 

contractors to obtain written notification 

of understanding of polices and 

procedures to combat human trafficking. 

Response: As written, the rule 

requires the contractor to notify its 

employees and take appropriate action 

against employees that violate policies 

and procedures to combat human 

trafficking. The Councils appreciate the 

respondent’s concern for ensuring that 

contractor employees who engage in 

trafficking are appropriately held 

accountable. However, the Councils do 

not believe that requiring the contractor 

to obtain written notification of 

employees’ understanding of policies 

and procedures to combat human 

trafficking will ensure that no violations 

occur. In fact, such a requirement may 

impose an undue and unnecessary 

burden on the contractor and taxpayer. 

The requirement for the contractor to 

notify its employees of the prohibited 

trafficking and other behaviors, as well 

as the actions that may be taken for 

violations, satisfies the requirements of 

22 U.S.C. 7104(g), to hold those engaged 

in trafficking accountable. 

(c) Two respondents are concerned 

that the rule is directed to contractor 

employees not the contractor and 

requests that the rule be revised to limit 

it to the contractor and its employees 

during the performance of the contact, 

not to employee behavior outside work. 

Response: As written, the rule reflects 

the statutory language prohibiting 

severe forms of trafficking in persons or 

the procurement of a commercial sex act 

during the period of performance of the 

contract. The Councils believe that 

limiting the rule in the manner 

suggested by the respondent would 

inadequately implement the statute 

since employee violations are more 

likely to occur after working hours. 

Furthermore, contractor employees are 

often perceived as representing the 

Government, and their actions reflect 

upon the Government’s integrity and 

ethics. Therefore, to ensure that U.S. 

Government contractors do not 

contribute to trafficking in persons, the 

rule requires the contractor to notify its 

employees (as defined in the clause) of 

the U.S. zero tolerance policy, and take 

action against those employees who 

violate the U.S. policy. 

4. Scope of Contractor’s Obligation. 

One respondent suggested that the text 

of the clause at FAR 52.222–50 be 

revised to further elaborate on the scope 

of the contractor’s obligations regarding 

what actions it may take against 

employees and subcontractors who 

violate the policy. 

Response: The Councils do not 

believe that further elaboration is 

necessary. The clause is clear that 

contractors must notify their employees 

regarding the policy and the actions that 

may be taken for violations. The clause 

lists examples of actions that contractors 

may take, but does not limit the actions 

to only those listed. Furthermore, the 

clause already provides contractors with 

flexibility as to what actions they may 

choose to impose against either 

employees or subcontractors in 

subparagraph (c)(2) by stating that the 

contractor shall take ‘‘appropriate’’ 

action. 

5. Reporting Allegations and 

Employment. Three comments were 

received regarding the procedures for 

reporting allegations and employment 

issues. 

(a) One respondent objected to the 

obligation in the FAR clause 52.222– 

50(d)(1), which requires contractors to 

notify the contracting officer 

immediately when they learn of 

allegations that the policy has been 

violated. The respondent proposed that 

contractors be obligated to notify only 

when they have ‘‘adequate evidence’’ of 

a violation. 

Response: The Councils believes that 

it is important for the contracting officer 

to learn immediately of alleged 

violations of U.S. trafficking policy. 

Many such allegations become a subject 

of interest quickly, and it is important 

in those situations that the contracting 

officer be informed. The Councils 

further believes that the ‘‘adequate 

evidence’’ standard contained in FAR 

22.1704(b) properly limits the 


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contracting officer’s ability to exercise 

the available remedies with respect to 

allegations of conduct that violate U.S. 

policy. 

(b) One respondent is concerned that 

the rule does not provide guidance on 

how employees found to have engaged 

in trafficking will be prevented from 

working on another Government 

contract. The respondent believes that 

some ‘‘stop-gap’’ measure is required 

until the Government deals with the 

investigations and prosecution issue. 

Response: The Councils disagree that 

the rule should provide guidance on 

how employees found to have engaged 

in trafficking are to be prevented from 

working on another Government 

contract. Providing such guidance 

would be outside the scope of the rule. 

Each acquisition carries its own unique 

and special contract requirements and 

terms and conditions for which the 

contractor is responsible and liable. 

This responsibility and liability 

includes the contractor’s hiring of 

responsible employees and 

subcontractors that meet the 

performance requirements, and terms 

and conditions specified in the 

acquisition. This responsibility may 

include the contractor’s responsibility to 

conduct appropriate background 

investigations prior to hiring its 

employees and subcontractors. 

(c) Another respondent is concerned 

that the rule provides the potential for 

wrongful discharge filings and 

collective bargaining issues. 

Response: A contractor may need to 

update the employment contracts it 

forms (whether with unions or nonunionized employees) to reflect the antitrafficking statute, which is intended to 

have an impact on the behavior of 

Government contractor employees. 

6. Prescriptive Language 

Applicability. One respondent noted 

that the prescriptive language at FAR 

22.1703 and 22.1704(a) provides that 

‘‘Government contracts shall prohibit 

contractors, contractor employees, 

subcontractors and subcontractor 

employees’’ from taking the listed 

actions. However, the clause at FAR 

52.222–50(b) is limited to ‘‘contractor 

and contractor employees.’’ The 

prescriptive language and clause 

language should be reconciled. 

Response: It should be noted that 

provisions and clauses are directed to 

the offeror or contractor. The term 

‘‘contractor and contractor employees’’ 

refers to the prime contractor only. 

When a prime contractor issues a 

subcontract, the clause would then be 

applicable to the subcontractor using 

the term ‘‘contractor and contractor 

employees.’’ However, the prescriptive 

language provides all conditions, 

requirements, and instructions for using 

the provision or clause and is applicable 

to both contractors and subcontractors. 

The Councils recommends that the final 

rule remain unchanged. 

7. Administrative Issues. One 

respondent recommended several 

administrative changes, as follows: 

(a) FAR 22.1703 uses the word ‘‘and’’ 

while FAR 52.222–50(b) uses the word 

‘‘or.’’ This should be reconciled; 

(b) Move the reference to FAR clause 

52.222–50 from FAR 52.212–5(b)(24)(i) 

and (ii) to FAR 52.212–5(a) because the 

clause applies to all contracts; 

(c) FAR 52.212–5(e)(1)(vii) needlessly 

cites a reason for listing the flow-down 

clause. By incorporating the clause in 

paragraph (e), by definition the clause 

flows down to subcontractors; and 

(d) FAR 52.222–50(e) should be 

reworded to remove awkwardness. 

Responses: 

(a) FAR language at 22.1703(a)(2) has 

been changed to read ‘‘or’’ instead of 

‘‘and.’’ All other conjunctions are used 

correctly throughout the rule. 

(b) FAR clause 52.222–50 has been 

moved to 52.212–5(a). 

(c) FAR language at 52.212–5(e)(1)(vii) 

has been revised to remove the reason 

for flow-down. 

(d) FAR 52.222–50(e) has been revised 

to remove awkward wording of 

remedies. 

8. Clarification of Definitions. Two 

respondents recommended further 

revisions regarding definitions. One 

respondent recommended adding a 

definition for ‘‘forced labor’’ as defined 

in the criminal statute at 18 U.S.C. 

§ 1589, and another recommended more 

elaboration to the definitions of ‘‘sex 

act’’ and ‘‘employee’’ and offered 

suggested language as well. 

Response: The Councils concur that a 

definition of ‘‘forced labor’’ should be 

added. The statute prohibits severe 

forms of trafficking in persons and, 

separately, forced labor. While forced 

labor is a severe form of trafficking in 

persons, as defined in 22 U.S.C. 7102, 

the Councils agree that defining the 

specific term ‘‘forced labor’’ would add 

more clarity. Therefore, a definition of 

‘‘forced labor’’ has been added to 

22.1702 and the clause at 52.222–50. 

Because the FAR rule reflects the 

definition of ‘‘commercial sex act’’ in 

accordance with 22 U.S.C. 7102, the 

Councils believe that the statutory 

definition of commercial sex acts should 

remain as stated in the rule without 

further elaboration. 

Lastly, a respondent requested 

clarifications in the definition of 

‘‘employee’’ to more clearly outline 

what is meant by ‘‘directly engaged’’ 

and ‘‘minimal impact or involvement’’. 

The original rule issued on April 19, 

2006 (71 FR 20301) used the phrase 

‘‘including all direct cost employees’’ in 

the definition of ‘‘employee’’, similar to 

the language used in FAR 23.503 

implementing the Drug-Free Workplace 

Act. The Councils subsequently 

removed this phrase in the second 

interim rule based on public comment 

that the phrase caused confusion since 

the term ‘‘direct cost’’ appeared to refer 

to cost-reimbursement contracts only. 

The phrase ‘‘minimal impact or 

involvement’’ is also used in the 

definition of ‘‘employee’’ under FAR 

23.503 and is not further defined. The 

Councils are not aware that the lack of 

more definitive elaboration has caused 

any problems in the implementation of 

the drug-free workplace requirements. 

Also see the discussion under Paragraph 

3. 

9. Facilitation of Investigations and 

Prosecutions. One respondent suggested 

the creation of an anti-trafficking hotline 

that would link directly to the 

Department of Justice to allow 

contractor employees to report 

trafficking allegations. 

Response: This comment goes beyond 

the statutory requirements of the Act, 

which requires only that contracts 

contain provisions allowing for 

termination if the contractor or 

subcontractor engages in conduct that 

violates U.S. policy on trafficking. 

However, the Councils recommend 

adding a link to the Department of 

State’s Office to Monitor and Combat 

Trafficking in Persons’ (DOS G/TIP) 

(http://www.state.gov/g/tip) at FAR 

22.1703 for further information on 

human trafficking and links to other 

Government websites. 

10. One respondent suggested making 

a distinction between trafficking abuses 

and the procurement of a commercial 

sex act. The respondent further states 

that trafficking in persons is a felony 

while procurement of a commercial sex 

act is not covered by Federal law and is 

treated in most states as a misdemeanor, 

unless it involves a child. The lack of 

distinction in the rule heightens 

confusion and becomes difficult to 

implement. 

Response: The statute requires that 

the Government have the authority to 

terminate a contract in cases where the 

contractor or subcontractor engages in 

severe forms of trafficking in persons, or 

in cases involving the procurement of a 

commercial sex act. The rule seeks to 

implement both statutory directives and 

remains unchanged. 

11. Enforcement Issues Where 

Commercial Sex Acts are Legal. One 

respondent was concerned that certain 


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types of sex acts are legal in several 

jurisdictions of the U.S. and in some 

foreign countries and urged that careful 

attention be given to how the remedies 

in this rule intersect with otherwise 

lawful conduct. 

Response: The Councils recognize the 

challenges contractors face in 

monitoring employee actions during 

non-work hours. However, contractors 

and their employees need to understand 

that procuring commercial sex acts is an 

unacceptable behavior that carries 

penalties. The Councils do not believe 

that a change in the language to 

distinguish enforcement actions for 

‘‘unlawful commercial sex acts’’ and 

‘‘lawful commercial sex acts’’ is 

consistent with the statute and therefore 

the final rule remains unchanged. 

12. Investigation and Punishment of 

Violators. One respondent submitted 

two comments regarding the 

investigation of trafficking violators. 

(a) The respondent recommends 

revising the text to include specific 

procedures governing the investigation 

and punishment of contractors for 

violating the rule. The respondent also 

questions whether there is a 

requirement for the contractor to 

investigate if the company learns that an 

employee may have been involved in a 

commercial sex act. 

Response: Violations of the rule 

should be handled in the same manner 

that the contractor handles other 

allegations of employee misconduct. 

(b) The respondent also suggests 

creating a decision-tree for contracting 

officers attempting to apply the rule. 

Response: In cases where trafficking is 

alleged, the FAR is clear on what 

actions the contracting officer may take. 

After making a determination in writing 

that adequate evidence exists to suspect 

any of the violations in paragraph (a) of 

FAR 22.1704, the contracting officer 

may pursue any of the remedies 

specified in paragraph (e) of FAR clause 

52.222–50. 

13. Public Meeting. One respondent 

requested that the Councils seek an 

active dialogue with the contractor 

community in developing the final rule. 

Response: The Councils have solicited 

the public several times for comments to 

assist with the development of this rule. 

Public comments were solicited on 

April 16, 2006 and August 17, 2007. 

This is a significant regulatory action 

and, therefore, was subject to review 

under Executive Order 12866, 

Regulatory Planning and Review, dated 

September 30, 1993. This rule is not a 

major rule under 5 U.S.C. 804. 

B. Regulatory Flexibility Act 

The Department of Defense, the 

General Services Administration, and 

the National Aeronautics and Space 

Administration certify that this final 

rule will not 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., because the 

impact will be minimal unless the 

contractor or its employees or 

subcontractors engage in forms of 

trafficking in persons, use forced labor, 

or procure commercial sex acts that are 

illegal within the U.S. Although not 

considered significant, additional 

impact may be associated with contract 

performance in counties/states and 

locations outside the U.S. where certain 

commercial sex acts are legal. However, 

the termination authorities at 22 U.S.C. 

7104(g) apply to Government contracts 

performed in these areas. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act (Pub. 

L. 104–13) applies because the final rule 

contains information collection 

requirements. Accordingly, the 

Regulatory Secretariat will forward a 

request for approval of a new 

information collection requirement to 

the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. Public 

comments concerning this request will 

be invited through a subsequent Federal 

Register notice. 

List of Subjects in 48 CFR Parts 12, 22, 

and 52 

Government procurement. 

Dated: December 24, 2008 

Edward Loeb, 

Acting Director, Office of Acquisition Policy. 

■ Accordingly, the interim rules 

published in the Federal Register at 71 

FR 20301, April 19, 2006, and at 72 FR 

46335, August 17, 2007, are adopted as 

a final rule with the following changes: 

■ 1. The authority citation for 48 CFR 

parts 22 and 52 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 42 U.S.C. 2473(c). 

PART 22—APPLICATION OF LABOR 

LAWS TO GOVERNMENT 

ACQUISITIONS 

■ 2. Amend section 22.1702 by adding, 

in alphabetical order, the definition 

‘‘Forced Labor’’ to read as follows: 

22.1702 Definitions. 

* * * * * 

Forced labor means knowingly 

providing or obtaining the labor or 

services of a person— 

(1) By threats of serious harm to, or 

physical restraint against, that person or 

another person; 

(2) By means of any scheme, plan, or 

pattern intended to cause the person to 

believe that, if the person did not 

perform such labor or services, that 

person or another person would suffer 

serious harm or physical restraint; or 

(3) By means of the abuse or 

threatened abuse of law or the legal 

process. 

* * * * * 

■ 3. Amend section 22.1703 by revising 

the introductory paragraph; and by 

removing from the end of paragraph 

(a)(2) ‘‘and’’ and adding ‘‘or’’ in its 

place. The revised text reads as follows: 

22.1703 Policy. 

The United States Government has 

adopted a zero tolerance policy 

regarding trafficking in persons. 

Additional information about trafficking 

in persons may be found at the website 

for the Department of State’s Office to 

Monitor and Combat Trafficking in 

Persons’ at http://www.state.gov/g/tip. 

Government contracts shall— 

* * * * * 

■ 4. Amend section 22.1704 in 

paragraph (b) by adding a new sentence 

after the first sentence to read as 

follows: 

22.1704 Violations and remedies. 

* * * * * 

(b) * * * The contracting officer may 

take into consideration whether the 

contractor had a Trafficking in Persons 

awareness program at the time of the 

violation as a mitigating factor when 

determining the appropriate remedies. * 

* * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 5. Amend section 52.212–5 by— 

■ a. Revising the date of the clause; 

■ b. Redesignating paragraphs (a)(1) and 

(a)(2) as (a)(2) and (a)(3), respectively; 

and adding a new paragraph (a)(1); 

■ c. Removing paragraph (b)(25); and 

redesignating paragraphs (b)(26) through 

(b)(42) as (b)(25) through (b)(41), 

respectively; and 

■ d. Revising paragraph (e)(1)(viii) to 

read as follows: 

52.212–5 Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders—Commercial Items. 

* * * * * 

CONTRACT TERMS AND 

CONDITIONS REQUIRED TO 

IMPLEMENT STATUTES OR 

EXECUTIVE ORDERS—COMMERCIAL 

ITEMS (FEB 2009) 

(a) * * * 


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(1) 52.222–50, Combating Trafficking in 

Persons (FEB 2009) (22 U.S.C. 7104(g)). 

llAlternate I (Aug 2007) of 52.222–50 

(22 U.S.C. 7104(g)). 

* * * * * 

(e)(1) * * * 

(viii) 52.222–50, Combating Trafficking in 

Persons (FEB 2009) (22 U.S.C. 7104(g)). 

llAlternate I (Aug 2007) of 52.222–50 

(22 U.S.C. 7104(g)). 

* * * * * 

■ 6. Amend section 52.213–4 by 

revising the date of the clause and 

paragraph (a)(1)(iv); and removing from 

paragraph (a)(2)(vi) ‘‘(DEC 2008)’’ and 

adding ‘‘(FEB 2009)’’ in its place to read 

as follows: 

52.213–4 Terms and Conditions— 

Simplified Acquisitions (Other Than 

Commercial Items). 

* * * * * 

TERMS AND CONDITIONS— 

SIMPLIFIED ACQUISITIONS (OTHER 

THAN COMMERCIAL ITEMS (FEB 

2009) 

(a) * * * 

(1) * * * 

(iv) 52.222–50, Combating Trafficking in 

Persons (FEB 2009) (22 U.S.C. 7104(g)). 

* * * * * 

■ 7. Amend section 52.222–50 by— 

■ a. Revising the date of the clause; 

■ b. Adding, in alphabetical order, the 

definition ‘‘Forced Labor’’; 

■ c. Removing from the introductory 

text of paragraph (e) ‘‘render the 

Contractor subject to’’ and adding 

‘‘result in’’ in its place; and revising 

paragraphs (e)(1) and (e)(2); and 

■ d. Adding paragraph (g) to read as 

follows: 

52.222–50 Combating Trafficking in 

Persons. 

* * * * * 

COMBATING TRAFFICKING IN 

PERSONS (FEB 2009) 

(a) * * * 

* * * * * 

Forced Labor means knowingly providing 

or obtaining the labor or services of a 

person— 

(1) By threats of serious harm to, or 

physical restraint against, that person or 

another person; 

(2) By means of any scheme, plan, or 

pattern intended to cause the person to 

believe that, if the person did not perform 

such labor or services, that person or another 

person would suffer serious harm or physical 

restraint; or 

(3) By means of the abuse or threatened 

abuse of law or the legal process. 

* * * * * 

(e) * * * 

(1) Requiring the Contractor to remove a 

Contractor employee or employees from the 

performance of the contract; 

(2) Requiring the Contractor to terminate a 

subcontract; 

* * * * * 

(g) Mitigating Factor. The Contracting 

Officer may consider whether the Contractor 

had a Trafficking in Persons awareness 

program at the time of the violation as a 

mitigating factor when determining remedies. 

Additional information about Trafficking in 

Persons and examples of awareness programs 

can be found at the website for the 

Department of State’s Office to Monitor and 

Combat Trafficking in Persons at http:// 

www.state.gov/g/tip. 

(End of clause) 

■ 8. Amend section 52.244–6 by 

revising the date of the clause; by 

redesignating paragraph (c)(1)(vii) as 

paragraph (c)(1)(viii); and adding a new 

paragraph (c)(1)(vii) to read as follows: 

52.244–6 Subcontracts for Commercial 

Items. 

* * * * * 

SUBCONTRACTS FOR 

COMMERCIAL ITEMS (FEB 2009) 

* * * * * 

(c)(1) * * * 

(vii) 52.222–50, Combating Trafficking in 

Persons (FEB 2009) (22 U.S.C. 7104(g)). 

* * * * * 

[FR Doc. E9–548 Filed 1–14–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 22, 25, and 52 

[FAC 2005–30; FAR Case 2007–016; Item 

VIII; Docket 2008–0001; Sequence 3] 

RIN 9000–AK89 

Federal Acquisition Regulation; FAR 

Case 2007–016, Trade Agreements— 

New Thresholds 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on a final rule 

amending the Federal Acquisition 

Regulation (FAR) to incorporate 

increased thresholds for application of 

the World Trade Organization 

Government Procurement Agreement 

and the Free Trade Agreements, as 

determined by the United States Trade 

Representative. 

DATES: Effective Date: January 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Meredith Murphy, Procurement 

Analyst, at (202) 208–6925, for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the FAR Secretariat 

at (202) 501–4755. Please cite FAC 

2005–30, FAR case 2007–016. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DoD, GSA, and NASA published an 

interim rule in the Federal Register at 

73 FR 10962 on February 28, 2008, to 

implement the biannual changes 

specified by the United States Trade 

Representative (USTR) to the trade 

agreements thresholds. A correction was 

published in the Federal Register at 73 

FR 16747, March 28, 2008. 

No comments were received by the 

close of the public comment period on 

April 28, 2008. Therefore, the Councils 

agreed to convert the interim rule to a 

final rule without change. 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

B. Regulatory Flexibility Act 

The Department of Defense, the 

General Services Administration, and 

the National Aeronautics and Space 

Administration certify that this final 

rule will not 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., because the 

dollar threshold changes are designed to 

keep pace with inflation and thus 

maintain the status quo. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act (Pub. 

L. 104–13) applies because the final rule 

contains information collection 

requirements that affect the 

prescriptions for use of the certifications 

at FAR 52.225–4 (OMB Control No. 

9000–0130) and FAR 52.225–6 (OMB 

Control No. 9000–0025) and the clauses 

at FAR 52.225–9 and 52.225–11 (OMB 

Control No. 9000–0141), which contain 

information collection requirements 

approved under the specified OMB 

control numbers by the Office of 

Management and Budget under 44 

U.S.C. 3501, et seq. However, there is no 

impact on the estimated burden hours, 

because the threshold changes are in 


sroberts on PROD1PC70 with RULES