[Federal Register Volume 70, Number 118 (Tuesday, June 21, 2005)]
[Proposed Rules]
[Pages 35603-35605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12099]
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DEPARTMENT OF DEFENSE
48 CFR Parts 212, 225, and 252
[DFARS Case 2004-D017]
Defense Federal Acquisition Regulation Supplement; Combating
Trafficking in Persons
AGENCY: Department of Defense (DoD).
ACTION: Proposed rule with request for comments.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement policy prohibiting
activities on the part of DoD contractor employees that support or
promote trafficking in persons.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before August 22, 2005, to be considered
in the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2004-D017,
using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Defense Acquisition Regulations Web Site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. Follow the instructions for
submitting comments.
E-mail: [email protected]. Include DFARS Case 2004-D017 in the
subject line of the message.
Fax: (703) 602-0350.
Mail: Defense Acquisition Regulations Council, Attn: Ms.
Amy Williams, OUSD (AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301-3062.
Hand Delivery/Courier: Defense Acquisition Regulations
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA
22202-3402.
All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.
SUPPLEMENTARY INFORMATION:
A. Background
A memorandum issued by the Deputy Secretary of Defense on January
30, 2004, states as an objective that, consistent with U.S. and host-
nation law, provisions should be incorporated in overseas service
contracts that prohibit any activities on the part of contractor
employees that support or promote trafficking in persons and that
impose suitable penalties on contractors who fail to monitor the
conduct of their employees. The memorandum cites National Security
Presidential Directive/NPSD-22, which decrees that all departments of
the U.S. Government will take a ``zero tolerance'' approach to
trafficking in persons. NSPD-22 utilizes the definitions in Public Law
106-386, Victims of Trafficking and Violence Protection Act of 2000,
codified at 22 U.S.C. 7102. This proposed DFARS rule contains an
implementing clause for use in contracts that require performance
outside the United States. The proposed clause requires contractors to
establish policy and procedures for combating trafficking in persons
and to notify the contracting officer of any violations and the
corrective action taken. The clause also requires the contractor to
effectively manage its subcontractors and to take remedial action
against any subcontractor that violates policy regarding trafficking in
persons.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this proposed 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.,
because the proposed clause applies only to contracts that require
performance outside the United States. Therefore, DoD has not performed
an initial regulatory flexibility analysis. DoD invites comments from
small businesses and other interested parties. DoD also will consider
comments from small entities concerning the affected DFARS subparts in
accordance with 5 U.S.C. 610. Such comments should be submitted
separately and should cite DFARS Case 2004-D017.
C. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies, because
the proposed rule contains information collection requirements. These
requirements will increase the burden hours currently approved by the
Office of Management and Budget (OMB)
[[Page 35604]]
under Control Number 0704-0229; DFARS Part 225, Foreign Acquisition,
and related clauses. DoD invites comments on: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of DoD, including whether the information will have
practical utility; (b) the accuracy of the estimate of the burden of
the proposed information collection; (c) ways to enhance the quality,
utility, and clarity of the information to be collected; and (d) ways
to minimize the burden of the information collection on respondents,
including the use of automated collection techniques or other forms of
information technology.
Needs and Uses: DoD contracting officers will use this information
to monitor contractor compliance with National Security Presidential
Directive 22 and DoD policy that decrees ``zero tolerance'' for
trafficking in persons.
Affected Public: Businesses or other for-profit and not-for-profit
institutions.
Annual Burden Hours: 60.
Number of Respondents: 30.
Responses Per Respondent: 2.
Annual Responses: 60.
Average Burden Per Response: 1 hour.
Frequency: On occasion.
Summary of Information Collection
Paragraphs (g) through (i) of the proposed clause require the
contractor to notify the contracting officer of any alleged violations
of policy concerning trafficking in persons and the actions taken by
the contractor in response to the violations. This information
collection will increase, by 60 hours, the 352,380 burden hours
currently approved under OMB Control Number 0704-0229 for use through
May 31, 2007.
List of Subjects in 48 CFR Parts 212, 225, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
Therefore, DoD proposes to amend 48 CFR Parts 212, 225, and 252 as
follows:
PART 212--ACQUISITION OF COMMERCIAL ITEMS
1. The authority citation for 48 CFR Parts 212, 225, and 252
continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
2. Section 212.301 is amended by adding paragraph (f)(ix) to read
as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(f) * * *
(ix) Use the clause at 252.225-70XX, Combating Trafficking in
Persons, as prescribed in 225.7404-3.
PART 225--FOREIGN ACQUISITION
3. Sections 225.7404 through 225.7404-3 are added to read as
follows:
225.7404 Combating trafficking in persons.
See related information at PGI 225.7404.
225.7404-1 Policy.
Contracts that require performance outside the United States
shall--
(a) Prohibit any activities on the part of contractor employees
that support or promote trafficking in persons, as defined in the
clause at 252.225-70XX;
(b) Require contractors to develop procedures to combat trafficking
in persons; and
(c) Impose suitable penalties on contractors that fail to monitor
the conduct of their employees and subcontractors with regard to
trafficking in persons.
225.7404-2 Notification to combatant commander.
If the contracting officer receives information in accordance with
paragraph (g), (h), or (i) of the clause at 252.225-70XX, the
contracting officer shall notify the combatant commander through the
local commander or other designated representative.
225.7404-3 Contract clause.
Use the clause at 252.225-70XX, Combating Trafficking in Persons,
in solicitations and contracts that require performance outside the
United States.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Section 252.225-70XX is added to read as follows:
252.225-70XX Combating Trafficking in Persons.
As prescribed in 225.7404-3, use the following clause:
Combating Trafficking in Persons (XXX 2005)
(a) Definitions. As used in this clause--
Combatant Commander means the commander of a unified or
specified combatant command established in accordance with 10 U.S.C.
161.
Commercial sex act means any sex act on account of which
anything of value is given to or received by any person (22 U.S.C.
7102(3)).
Debt bondage means the status or condition of a debtor arising
from a pledge by the debtor for his or her personal services, or of
those of a person under his or her control, as security for a debt,
if--
(1) The value of those services as reasonably assessed is not
applied toward the liquidation of the debt; or
(2) The length and nature of those services are not respectively
limited and defined (22 U.S.C. 7102(4)).
Employee means an employee of the Contractor that is working
outside the United States in the performance of this contract.
Involuntary servitude includes a condition of servitude induced
by means of--
(1) Any scheme, plan, or pattern intended to cause a person to
believe that, if the person did not enter into or continue in such
condition, that person or another person would suffer serious harm
or physical restraint; or
(2) The abuse or threatened abuse of the legal process (22
U.S.C. 7102(5)).
Sex trafficking means the recruitment, harboring,
transportation, provision, or obtaining of a person for the purpose
of a commercial sex act (22 U.S.C. 7102(9)).
Trafficking in persons means--
(1) The recruitment, transportation, provision, or obtaining of
a person for labor or services, through the use of force, fraud, or
coercion for the purpose of subjection to involuntary servitude,
debt bondage, or slavery; and
(2) Sex trafficking, including pimping, pandering, or
maintaining brothels.
(b) As delineated in National Security Presidential Directive
22, the United States has adopted a zero tolerance policy regarding
contractor employees who engage in or support trafficking in
persons.
(c) During the performance of this contract, the Contractor
shall ensure that its employees do not engage in or support
trafficking in persons.
(d) The Contractor is responsible for obtaining copies of the
policies, laws, regulations, and directives referenced in paragraph
(f) of this clause, as well as for providing any necessary legal
guidance and interpretations for its personnel regarding such
policies, laws, regulations, and directives.
(e) The Contractor shall establish policy and procedures for
combating trafficking in persons.
(f) The Contractor shall provide training to make its employees
aware of the following:
(1) The United States Government zero-tolerance policy described
in paragraph (b) of this clause.
(2) All host nation laws and regulations relating to trafficking
in persons.
(3) All United States laws and regulations on trafficking in
persons that may apply to its employees' conduct in the host nation,
including those laws for which jurisdiction is established by the
Military Extraterritorial Jurisdiction Act of 2000 (18 U.S.C. 3261-
3267).
(4) Directives on trafficking in persons from the Combatant
Commander, or the Combatant Commander's designated representative,
that apply to contractor employees, such as general orders and
[[Page 35605]]
military listings of ``off-limits'' local establishments.
(g) The Contractor shall inform the Contracting Officer of any
information it receives from any source (including host country law
enforcement) that alleges a contractor employee or subcontractor has
engaged in conduct that violates United States Government policy
concerning trafficking in persons.
(h)(1) In accordance with its own operating procedures and
applicable policies, laws, regulations, and directives, the
Contractor shall take appropriate employment action, including
removal from the host nation or dismissal, against any of its
employees who engage in sex trafficking, or any other activity that
may support trafficking in persons, or who otherwise violate a
policy, law, regulation, or directive described in paragraph (f) of
this clause.
(2) The Contractor shall inform the Contracting Officer of any
such action.
(3) Upon direction of the Contracting Officer, the Contractor
shall replace any such employee.
(i)(1) The Contractor shall ensure that its subcontractors
comply with the mandates of this clause, as included in subcontracts
pursuant to paragraph (k) of this clause. The Contractor shall take
appropriate action, including termination of the subcontract, when
the Contractor obtains sufficient evidence to determine that the
subcontractor is in non-compliance with its contractual obligations
regarding trafficking in persons.
(2) The Contractor shall inform the Contracting Officer of any
such action.
(j) In addition to other remedies available to the Government,
the Contractor's failure to comply with paragraph (g), (h), or (i)
of this clause may render the Contractor subject to--
(1) Suspension of contract payments;
(2) Loss of award fee, consistent with the award fee plan, for
the performance period in which the Government determined that the
Contractor is in non-compliance;
(3) Termination of the contract for default or cause; and
(4) Suspension or debarment.
(k) The Contractor shall include the substance of this clause,
including this paragraph (k), in all subcontracts that require
performance outside the United States.
(End of clause)
[FR Doc. 05-12099 Filed 6-20-05; 8:45 am]
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