[Federal Register Volume 71, Number 207 (Thursday, October 26, 2006)]
[Rules and Regulations]
[Pages 62560-62565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17984]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 222, and 252
RIN 0750-AF11
Defense Federal Acquisition Regulation Supplement; Combating
Trafficking in Persons (DFARS Case 2004-D017)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule with request for comments.
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SUMMARY: DoD has issued an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement DoD policy
prohibiting activities on the part of DoD contractors and contractor
employees that support or promote trafficking in persons. The rule
contains a clause for use in contracts performed outside the United
States.
DATES: Effective date: October 26, 2006.
Comment date: Comments on the interim rule should be submitted to
the address shown below on or before December 26, 2006, 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:
[cir] Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
[cir] E-mail: [email protected]. Include DFARS Case 2004-D017 in the
subject line of the message.
[cir] Fax: (703) 602-0350.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms. Amy
Williams, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301-3062.
[cir] Hand Delivery/Courier: Defense Acquisition Regulations
System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA
22202-3402.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule implements (1) a memorandum issued by the
Secretary of Defense on September 16, 2004, which states that
trafficking practices will not be tolerated in DoD contractor
organizations or their subcontractors in supporting DoD operations, and
(2) a memorandum issued by the Deputy Secretary of Defense on January
30, 2004, which 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 January 30, 2004, memorandum cites
National Security Presidential Directive/NSPD-22, which decrees that
all departments of the U.S. Government will take a ``zero tolerance''
approach to trafficking in persons.
DoD published a proposed rule at 70 FR 35603 on June 21, 2005, to
implement the DoD policy prohibiting trafficking in persons in all
contracts performed outside the United States. Two respondents
submitted comments on the proposed rule. Subsequently, on April 19,
2006 (71 FR 20301), an interim rule amending the Federal Acquisition
Regulation (FAR) was published to implement 22 U.S.C. 7104, as amended
by the Trafficking Victims Protection Reauthorization Act of 2003 (Pub.
L. 108-193) and the Trafficking Victims Protection Reauthorization Act
of 2005 (Public Law 109-164). The FAR rule contains a new Subpart
22.17, Combating Trafficking in Persons, with an associated contract
clause, and prohibits severe forms of trafficking in persons,
procurement of commercial sex acts, and the use of forced labor by
Government contractors or subcontractors or their employees. The FAR
rule applies to service contracts, other than commercial service
contracts awarded under FAR Part 12.
This interim DFARS rule supplements the interim FAR rule published
on April 19, 2006, and also contains changes made as a result of public
comments received on the proposed DFARS rule published on June 21,
2005. The DFARS rule extends the FAR prohibitions on severe forms of
trafficking in persons and use of forced labor to all DoD contracts
performed outside the United States, and extends the FAR prohibition on
the procurement of commercial sex acts to all DoD service and
construction contracts performed outside the United States.
Many of DoD's contracts performed outside the United States are
susceptible to trafficking in persons due to the difficult working
conditions (e.g., war zones, extreme climate). Also, DoD has
significant numbers and varying types of contracts and subcontracts
being performed outside the United States (e.g., supplies, food
services, logistics services, guard services, maintenance services,
construction) and seeks to prevent instances of trafficking in persons
in all such contracts. For example, if a contract or subcontract has
been awarded for cleaning services and the contracting officer
discovers that the contractor is using forced labor, DoD wants to be
able to take action against the contractor. As another example, if a
contractor employee working on a DoD logistics support contract
``purchases'' an individual (i.e., slavery/indentured servitude), DoD
wants the contractor to take action against that employee.
The DFARS text is included in Part 222, instead of the proposed
rule location of Part 225, for consistency with the location of the
corresponding FAR text. The new clause at DFARS 252.222-7006, Combating
Trafficking in Persons, requires DoD contractors performing outside the
United States to take appropriate action against employees who engage
in activities prohibited by the clause; to include the substance of the
clause in all subcontracts performed outside the United States; and to
include the substance of the clause in subcontracts performed in the
United States when both the contract and the subcontract are for
services (other than commercial services).
The following is a discussion of the public comments received in
response to the proposed rule published on June 21, 2005, and the
resulting changes included in this interim rule.
1. Comments Related to Policy and Clause Prescription
a. Comment: One respondent recommended that DoD withhold any
further action on this DFARS rule pending completion of the FAR rule on
this subject.
DoD Response: DoD has incorporated most of the language of the FAR
interim rule into this interim DFARS rule. The DFARS rule implements
DoD policy and has broader application than the FAR rule. Therefore, it
is not necessary for the FAR rule to be finalized prior to proceeding
with this DFARS rule.
b. Comment: One respondent expressed concerns about imposing the
``full brunt'' of the contract clause in all
[[Page 62561]]
commercial item and service procurements, and recommended narrowly
tailoring the clause and revising flow-down requirements for commercial
items.
DoD Response: DoD recognizes the difficulty in fully applying the
clause to the purchase of commercial items, and acknowledges the intent
of Public Law 103-355 to limit provisions and clauses in contracts for
commercial items to those implementing statute or Executive order.
However, DoD policy for zero tolerance requires application of the
clause to all contractors and subcontractors performing contracts
outside the United States, including those performing under contracts
for commercial items. DoD also believes that contracts for supplies or
services that rely upon unskilled labor, including contracts for
commercial items, present the greatest risk for severe forms of
trafficking in persons or use of forced labor. Therefore, the interim
rule prohibits contractors performing outside the United States from
engaging in trafficking and requires appropriate action against any
employee found to be in violation of the policy, but limits the mandate
to train and monitor the conduct of employees to those contractors
performing under service and construction contracts, since those
employees are generally providing direct support to DoD operations and
their behavior can more reasonably be monitored.
c. Comment: One respondent recommended that DoD clarify that the
scope of the rule extends beyond service contracts, specifically
referencing the memorandum of the Deputy Secretary of Defense that
addressed combating trafficking in overseas service contracts.
DoD Response: DoD developed the rule with the belief that the
intent of the Deputy Secretary's memorandum of January 30, 2004, was to
ensure adequate application of the policy to DoD service contract
employees, but not necessarily limit the application to service
contract employees. This belief was supported by National Security
Presidential Directive/NSPD-22 and the Secretary of Defense memorandum
of September 16, 2004, both of which indicate a broader application to
contracts performed outside the United States. The Secretary's
memorandum specifically states: ``* * * trafficking practices will not
be tolerated in DoD contractor organizations or their subcontractors in
supporting DoD operations.'' Therefore, the interim rule applies to all
contracts performed outside the United States.
d. Comment: One respondent questioned application of the rule to
non-U.S. contractors and subcontractors.
DoD Response: One of the examples leading to the development of the
DoD policy involved a non-U.S. subcontractor. Zero tolerance within DoD
extends to all contractors and subcontractors, whether or not based in
the United States. The application of the rule to both U.S. and non-
U.S. firms is necessary to fully implement the DoD policy.
2. Comments Related to Notification Requirements
a. Comment: One respondent recommended that the clause provide
flexibility in both the timing and the nature of the disclosure to be
required. Another respondent recommended that violations be reported to
the contracting officer and the Combatant Commander within 24 hours of
receiving or learning of any information relating to trafficking.
DoD Response: DoD recognizes the need to report infractions in a
timely manner, but is concerned with stating a specific time period.
While requiring that contractors report trafficking activities to the
contracting officer within a certain time period may assist in
promoting the U.S. policy, it may also raise issues with host nation
criminal or international laws (e.g., permitting 24 hours to elapse
before reporting a crime). Therefore, the clause has been amended to
require ``immediate'' notification by the contractor to the contracting
officer. The text at DFARS 222.1704-70 (previously DFARS 225.7404-3)
also has been amended to require the contracting officer to
``immediately'' notify the Combatant Commander.
b. Comment: One respondent requested inclusion of a requirement to
notify relevant law enforcement authorities.
DoD Response: DFARS 222.1704-70 requires the contracting officer to
immediately notify the Combatant Commander, who will handle alleged
violations in accordance with established theater policy and practices
and U.S. and host nation laws.
3. Comments Related to Procedures and Training
a. Comment: One respondent recommended deleting the requirement for
the contractor to obtain copies of referenced legal and regulatory
documents, and expressed concerns with requirements for providing legal
guidance and interpretations of non-U.S. host nation laws and policies
to employees regarding trafficking laws and regulations, especially for
small businesses and contractors providing commercial items.
DoD Response: Contractors operating overseas are expected to be
knowledgeable of a host nation's policies, laws, regulations, and
directives. DoD acknowledges that the intent of the clause is for
contractors operating in a foreign country to know (not necessarily
acquire copies of) host nation, as well as U.S., laws applicable to the
instant contract. Therefore, the clause has been revised, indicating a
requirement for the contractor to be knowledgeable (rather than obtain
copies) of policies, laws, regulations, and directives. However,
contractors performing under service and construction contracts must
provide employees with guidance on trafficking policies, laws,
regulations, and directives as part of efforts to increase awareness
and must ensure that employees do not engage in trafficking activities.
b. Comment: One respondent recommended clarifying the actions that
contractors must take relative to developing policy and procedures that
prohibit employee activities supporting or promoting trafficking in
persons.
DoD Response: DoD has revised the rule at 222.1703(2)(ii)
(previously 225.7404-2(b)) and in paragraph (d) of the clause to
incorporate the changes recommended by the respondent.
c. Comment: One respondent proposed that outside experts provide
the training specified in the contract clause.
DoD Response: The clause neither precludes nor requires the use of
outside experts in a training capacity. The clause has been drafted to
give contractors maximum flexibility to use those resources that are
deemed appropriate, based on location, workforce composition, and other
factors, to ensure adequate training.
d. Comment: One respondent recommended that the contractor be
permitted to tailor its training program to the size and nature of the
overseas work.
DoD Response: The clause has been revised to require only those
contractors (if other than an individual) performing service and
construction contracts to fully train and monitor employees regarding
severe forms of trafficking in persons, procurement of commercial sex
acts, and use of forced labor, since those employees are generally
providing direct support to DoD operations and their behavior can more
reasonably be monitored. However, all DoD contractors and
subcontractors are required to take action against any of their
employees who engage in severe
[[Page 62562]]
forms of trafficking activities or the use of forced labor, regardless
of the size or nature of the overseas work.
e. Comment: One respondent recommended deletion of the requirement
for the contractor to develop policy and training relating to the
Military Extraterritorial Jurisdiction Act (MEJA).
DoD Response: DoD has amended the rule to clarify this requirement.
Contractors must train their employees about MEJA, not every possible
felony committed in the host nation for which MEJA would confer
jurisdiction on the United States.
f. Comment: One respondent recommended revision of the phrase
``including removal'' to ``up to and including removal,'' to
demonstrate that there is a range of personnel actions that the
contractor could take if there is a violation.
DoD Response: Paragraph (d)(1) of the clause incorporates this
recommendation by stating ``Such actions may include, but are not
limited to * * *''.
g. Comment: One respondent expressed concern that the rule makes no
mention of whether employees terminated for trafficking may be rehired
or transferred to another location for additional service.
DOD Response: Existing laws and regulatory procedures address this
issue with regard to employees who are found to be guilty of
trafficking. For example, 10 U.S.C. 2408 provides for a fine of up to
$500,000 to be assessed against a contractor that employs (in certain
positions) a person convicted of fraud or any other felony arising out
of a DoD contract. These individuals are listed in the Excluded Parties
List System, available to the public at http://www.epls.gov/.
h. Comment: One respondent was concerned with the use of suspension
of payments as a remedy, and recommended that DFARS Procedures,
Guidance, and Information (PGI) address procedures that the contracting
officer must follow before concluding that there is a failure to
comply.
DOD Response: The authority to suspend payments is modeled after
the penalties in paragraph (d) of clause at FAR 52.223-6, Drug-Free
Workplace. Guidance for contracting officers regarding use of this
authority has been added at PGI 222.1704.
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 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 rule
applies only to contracts performed outside the United States, and
reinforces existing laws and policies prohibiting trafficking in
persons. 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
This interim rule contains DFARS policy to supplement the interim
FAR rule published at 71 FR 20301 on April 19, 2006. The interim FAR
rule established a new contract clause, 52.222-50, Combating
Trafficking in Persons, to implement 22 U.S.C. 7104(g), which requires
that Federal contracts provide for termination of a contract if the
contractor or a subcontractor engages in severe forms of trafficking in
persons, the use of forced labor, or procures a commercial sex act
during the period of contract performance. The FAR clause applies to
contracts for services (other than commercial service contracts under
FAR Part 12), and requires the contractor to notify the contracting
officer of any information alleging employee misconduct under the
clause and any resulting action taken against employees. Comments
concerning the information collection requirements of the FAR clause
were solicited in the preamble to the interim FAR rule published on
April 19, 2006, for submission to the FAR Secretariat in accordance
with the procedures specified at 71 FR 20301.
This interim rule contains a new clause at DFARS 252.222-7006,
Combating Trafficking in Persons, which expands the requirement for
contractors to notify the contracting officer of employee misconduct
and the resulting action, to all DoD contracts performed outside the
United States, including those for supplies, construction, and
commercial services. The Office of Management and Budget (OMB) has
approved the information collection requirements of the interim DFARS
rule for use through January 31, 2007, under OMB Control Number 0704-
0440, in accordance with the emergency processing procedures of 5 CFR
1320.13. DoD invites comments on the following aspects of the interim
DFARS rule: (a) Whether the 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 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.
The following is a summary of the additional information collection
requirements that will result from inclusion of the clause at DFARS
252.222-7006 in DoD contracts performed outside the United States for
supplies, construction, and commercial services.
Title: Defense Federal Acquisition Regulation Supplement (DFARS)
Subpart 222.17, Combating Trafficking in Persons.
Type of Request: New collection.
Number of Respondents: 30.
Responses Per Respondent: 2.
Annual Responses: 60.
Average Burden Per Response: 1 hour.
Annual Burden Hours: 60.
Needs and Uses: DoD contracting officers will use this information
to monitor contractor compliance with DoD policy for zero tolerance of
trafficking in persons.
Affected Public: Businesses or other for-profit and not-for-profit
institutions.
Frequency: On occasion.
Written comments and recommendations on the proposed information
collection should be sent to Ms. Hillary Jaffe at the Office of
Management and Budget, Desk Officer for DoD, Room 10236, New Executive
Office Building, Washington, DC 20503, with a copy to the Defense
Acquisition Regulations System, Attn: Ms. Amy Williams, OUSD (AT&L)
DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-
3062. Comments can be received from 30 to 60 days after the date of
this notice, but comments to OMB will be most useful if received by OMB
within 30 days after the date of this notice.
To request more information on this proposed information collection
or to obtain a copy of the proposal and associated collection
instruments, please write to Defense Acquisition Regulations System,
Attn: Ms. Amy Williams, OUSD (AT&L) DPAP (DARS),
[[Page 62563]]
IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to publish an
interim rule prior to affording the public an opportunity to comment on
the rule. This interim DFARS rule supplements the interim FAR rule
published in the Federal Register on April 19, 2006, regarding
combating severe forms of trafficking in persons, the use of forced
labor, and procurement of commercial sex acts by contractors performing
under Federal contracts for services (other than commercial services).
The supplemental DFARS coverage is needed to ensure that all DoD
contracts performed outside the United States, including those for
supplies, construction, and commercial services, address DoD zero-
tolerance policy regarding these prohibited activities and provide for
suitable penalties on contractors that fail to monitor the conduct of
their employees. Comments received in response to this interim rule
will be considered in the formation of the final rule.
List of Subjects in 48 CFR Parts 212, 222, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR parts 212, 222, and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 212, 222, and 252 continues
to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
2. Section 212.301 is amended by adding paragraph (f)(x) to read as
follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(f) * * *
(x) Use the clause at 252.222-7006, Combating Trafficking in
Persons, as prescribed in 222.1705.
PART 222--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
0
3. Subpart 222.17 is added to read as follows:
Subpart 222.17--Combating Trafficking in Persons
Sec.
222.1700 Scope of subpart.
222.1701 Applicability.
222.1702 Definitions.
222.1703 Policy.
222.1704 Violations and remedies.
222.1704-70 Notification to Combatant Commander.
222.1705 Contract clause.
Subpart 222.17--Combating Trafficking in Persons
222.1700 Scope of subpart.
This subpart also implements DoD policy for combating trafficking
in persons in contracts performed outside the United States.
222.1701 Applicability.
This subpart also applies to all DoD contracts performed outside
the United States.
222.1702 Definitions.
Combatant Commander, construction, employee, service contract,
severe forms of trafficking in persons, and United States, as used in
this subpart, have the meaning given in the clause at 252.222-7006,
Combating Trafficking in Persons.
222.1703 Policy.
(1) Contracts performed outside the United States shall--
(i) Prohibit any activities on the part of the contractor that
support or promote severe forms of trafficking in persons or use of
forced labor;
(ii) Impose suitable penalties on contractors that--
(A) Engage in activities that support or promote severe forms of
trafficking in persons or use forced labor; or
(B) Fail to take appropriate action against their employees and
subcontractors that engage in or support severe forms of trafficking in
persons or use forced labor.
(2) In addition to the prohibitions and penalties stated in
paragraph (1) of this section, contracts performed outside the United
States for services or construction shall--
(i) Prohibit any activities on the part of the contractor that
promote or support the procurement of commercial sex acts;
(ii) Require contractors to develop policy and procedures that
prohibit any activities on the part of contractor employees that
support or promote severe forms of trafficking in persons, procurement
of commercial sex acts, or use of forced labor; and
(iii) Impose suitable penalties on contractors that--
(A) Fail to monitor the conduct of their employees and
subcontractors with regard to severe forms of trafficking in persons,
procurement of commercial sex acts, or use of forced labor; or
(B) Fail to take appropriate action against their employees and
subcontractors that engage in or support the procurement of commercial
sex acts.
(3) See PGI 222.1703 for additional information regarding DoD
policy for combating trafficking in persons outside the United States.
222.1704 Violations and remedies.
(a) Violations.
(i) The Government may impose the remedies set forth in paragraph
(b) of this section if, during performance of the contract--
(A) The contractor or any contractor employee engages in severe
forms of trafficking in persons;
(B) The contractor or any contractor employee uses forced labor; or
(C) The contractor fails to comply with the requirements of the
clause at 252.222-7006, Combating Trafficking in Persons.
(ii) In addition to the violations stated in paragraph (a)(i) of
this section, the Government may impose the remedies specified in
paragraph (b) of this section if, during performance of a service or
construction contract, the contractor or any contractor employee
procures a commercial sex act.
(b) Remedies. After determining in writing that adequate evidence
exists to suspect any of the violations stated in paragraph (a) of this
section, the contracting officer may pursue any of the remedies
specified in paragraph (f) of the clause at 252.222-7006, Combating
Trafficking in Persons. These remedies are in addition to any other
remedies available to the Government (see PGI 222.1704 for procedures
and guidance regarding imposition of such remedies).
222.1704-70 Notification to Combatant Commander.
If the contracting officer receives information indicating that the
contractor or its subcontractors have failed to comply with paragraph
(c), (d), or (e) of the clause at 252.222-7006, the contracting officer
shall, through the contracting officer's local commander or other
designated representative, immediately notify the Combatant Commander
responsible for the geographical area in which the incident has
occurred (see PGI 222.1704-70 for assistance in contacting the
responsible Combatant Commander).
222.1705 Contract clause.
(1) Use the clause at 252.222-7006, Combating Trafficking in
Persons, in
[[Page 62564]]
solicitations and contracts when contract performance will be outside
the United States.
(2) Do not use the clause at FAR 52.222-50, Combating Trafficking
in Persons, in solicitations and contracts that include the clause at
252.222-7006, Combating Trafficking in Persons.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Section 252.222-7006 is added to read as follows:
252.222-7006 Combating Trafficking in Persons.
As prescribed in 222.1705, use the following clause:
Combating Trafficking in Persons (OCT 2006)
(a) Definitions. As used in this clause--
Coercion means--
(1) Threats of serious harm to or physical restraint against any
person;
(2) Any scheme, plan, or pattern intended to cause a person to
believe that failure to perform an act would result in serious harm
to or physical restraint against any person; or
(3) The abuse or threatened abuse of the legal process.
Commercial sex act means any sex act on account of which
anything of value is given to or received by any person.
Construction means construction, alteration, or repair
(including dredging, excavating, and painting) of buildings,
structures, or other real property. For purposes of this definition,
the terms ``buildings, structures, or other real property'' include,
but are not limited to, improvements of all types, such as bridges,
dams, plants, highways, parkways, streets, subways, tunnels, sewers,
mains, power lines, cemeteries, pumping stations, railways, airport
facilities, terminals, docks, piers, wharves, ways, lighthouses,
buoys, jetties, breakwaters, levees, canals, and channels.
Construction does not include the manufacture, production,
furnishing, construction, alteration, repair, processing, or
assembling of vessels, aircraft, or other kinds of personal
property.
Debt bondage means the status or condition of a debtor arising
from a pledge by the debtor of his or her personal services or of
those of a person under his or her control as a security for debt,
if the value of those services as reasonably assessed is not applied
toward the liquidation of the debt or the length and nature of those
services are not respectively limited and defined.
Employee means an employee of a contractor directly engaged in
the performance of work under a Government contract, including all
direct cost employees and any other contractor employee who has
other than a minimal impact or involvement in contract performance.
Individual means a contractor that has no more than one employee
including the contractor.
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
conditions, 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)).
Service contract means a contract that directly engages the time
and effort of a contractor whose primary purpose is to perform an
identifiable task rather than to furnish an end item of supply.
Service (other than commercial) means a service that does not
meet the definition of commercial item in section 2.101 of the
Federal Acquisition Regulation.
Severe forms of trafficking in persons means--
(1) Sex trafficking in which a commercial sex act is induced by
force, fraud, or coercion, or in which the person induced to perform
such act has not attained 18 years of age; or
(2) The recruitment, harboring, 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, peonage, debt bondage, or slavery.
Sex trafficking means the recruitment, harboring,
transportation, provision, or obtaining of a person for the purpose
of a commercial sex act.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Policy. It is the policy of the Department of Defense (DoD)
that trafficking in persons will not be facilitated in any way by
the activities of DoD contractors or contractor personnel. DoD will
not tolerate severe forms of trafficking in persons or use of forced
labor by DoD contractors, DoD subcontractors, or DoD contractor or
subcontractor personnel during the period of contract performance.
Furthermore, DoD will not tolerate the procurement of commercial sex
acts by DoD contractors, DoD subcontractors, or DoD contractor or
subcontractor personnel, during the period of performance of service
or construction contracts. As delineated in National Security
Presidential Directive 22, the United States has adopted a zero
tolerance policy regarding contractor personnel who engage in or
support trafficking in persons.
(c) Contractor compliance.
(1) During the performance of this contract, the Contractor
shall comply with the policy of DoD and shall not engage in or
support severe forms of trafficking in persons or use forced labor.
The Contractor is responsible for knowing and adhering to United
States Government zero-tolerance policy and all host nation laws and
regulations relating to trafficking in persons and the use of forced
labor.
(2) Additionally, if this contract is a service or construction
contract, the Contractor shall not engage in or support the
procurement of commercial sex acts during the performance of this
contract and is responsible for knowing and adhering to United
States Government policy and all host nation laws and regulations
relating thereto.
(d) Contractor responsibilities for employee conduct--service or
construction contracts. If this contract is a service or
construction contract, the Contractor, if other than an individual,
shall establish policies and procedures for ensuring that during the
performance of this contract, its employees do not engage in or
support severe forms of trafficking in persons, procure commercial
sex acts, or use forced labor. At a minimum, the Contractor shall--
(1) Publish a statement notifying its employees of the United
States Government policy described in paragraph (b) of this clause
and specifying the actions that will be taken against employees for
violations of this policy. Such actions may include, but are not
limited to, removal from the contract, reduction in benefits,
termination of employment, or removal from the host country;
(2) Establish an awareness program to inform employees
regarding--
(i) The Contractor's policy of ensuring that employees do not
engage in severe forms of trafficking in persons, procure commercial
sex acts, or use forced labor;
(ii) The actions that will be taken against employees for
violation of such policy; and
(iii) Laws, regulations, and directives that apply to conduct
when performance of the contract is outside the United States,
including--
(A) All host country Government laws and regulations relating to
severe forms of trafficking in persons, procurement of commercial
sex acts, and use of forced labor;
(B) All United States laws and regulations on severe forms of
trafficking in persons, procurement of commercial sex acts, and use
of forced labor 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) and 18 U.S.C. 3271, Trafficking in persons offenses
committed by persons employed by or accompanying the Federal
Government outside the United States; and
(C) 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
military listings of ``off-limits'' local establishments; and
(3) Provide all employees directly engaged in performance of the
contract with--
(i) Any necessary legal guidance and interpretations regarding
combating trafficking in persons policies, laws, regulations, and
directives applicable to performance in the host country; and
(ii) A copy of the statement required by paragraph (d)(1) of
this clause. If this contract is for services (other than
commercial), the Contractor shall obtain written agreement from the
employee that the employee shall abide by the terms of the
statement.
(e) Employee violations--notification and action. The Contractor
shall--
(1) Inform the Contracting Officer immediately of any
information it receives from any source (including host country law
enforcement) that alleges a contractor or subcontractor employee has
engaged in conduct that violates the policy in paragraph (b) of this
clause. Notification to the
[[Page 62565]]
Contracting Officer does not alleviate the Contractor's
responsibility to comply with applicable host nation laws;
(2) In accordance with its own operating procedures and
applicable policies, laws, regulations, and directives, take
appropriate action, up to and including removal from the host nation
or dismissal, against any of its employees who violate the policy in
paragraph (b) of this clause; and
(3) Inform the Contracting Officer of any actions taken against
employees pursuant to this clause.
(f) Remedies. In addition to other remedies available to the
Government, the Contractor's failure to comply with the requirements
of paragraphs (c), (d), (e), or (g) of this clause may render the
Contractor subject to--
(1) Required removal of a Contractor employee or employees from
the performance of the contract;
(2) Required subcontractor termination;
(3) Suspension of contract payments;
(4) Loss of award fee, consistent with the award fee plan, for
the performance period in which the Government determined Contractor
non-compliance;
(5) Termination of the contract for default, in accordance with
the Termination clause of this contract; or
(6) Suspension or debarment.
(g) Subcontracts.
(1)(i) The Contractor shall include the substance of this
clause, including this paragraph (g), in all subcontracts performed
outside the United States; and
(ii) If this contract is for services (other than commercial),
the Contractor shall include the substance of this clause, including
this paragraph (g), in all subcontracts performed in the United
States for the acquisition of services (other than commercial).
(2) If this contract is a service or construction contract, the
Contractor shall conduct periodic reviews of its service and
construction subcontractors to verify compliance with their
obligations pursuant to paragraph (d) of this clause.
(3) The Contractor shall--
(i) Immediately inform the Contracting Officer of any
information it receives from any source (including host country law
enforcement) that alleges a subcontractor has engaged in conduct
that violates the policy in paragraph (b) of this clause.
Notification to the Contracting Officer does not alleviate the
Contractor's responsibility to comply with applicable host nation
laws;
(ii) 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 pursuant to this clause; and
(iii) Inform the Contracting Officer of any actions taken
against subcontractors pursuant to this clause.
(End of Clause)
[FR Doc. E6-17984 Filed 10-25-06; 8:45 am]
BILLING CODE 5001-08-P