2013-23501. Defense Federal Acquisition Regulation Supplement: Further Implementation of Trafficking in Persons Policy

AGENCY:

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

ACTION:

Proposed rule.

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:

○ 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.

○ Email: [e-mail]. Include DFARS Case 2013-D007 in the subject line of the message.

○ Fax: [phone].

○ 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 [phone].

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 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.

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:

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

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

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

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

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

6. Section 252.203-7004 is amended by—

a. Removing the word “Fraud” from the section heading;

b. Removing the word “Fraud” from the clause title;

c. Removing the clause date “(DEC 2012)” and adding in its place “(DATE)”;

d. Redesignating paragraph (c) as paragraph (e) and adding new paragraphs (c) and (d); and

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)

7. Section 252.204-7007 is amended by—

a. Removing the provision date “(MAY 2013)” and adding in its place “(DATE)”; and

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.

* * * * *

8. Section 252.222-70XX is added as follows:

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)

9. Section 252.225-7040 is amended by—

a. Removing the clause date “(FEB 2013)” and adding in its place “(DATE)”; and

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.

* * * * *