Federal Acquisition Regulation: Combating Trafficking in Persons-Definition and Agency Responsibilities
| Published date | 18 July 2024 |
| Record Number | 2024-15565 |
| Citation | 89 FR 58323 |
| Court | General Services Administration,National Aeronautics And Space Administration |
| Section | Proposed rules |
Federal Register, Volume 89 Issue 138 (Thursday, July 18, 2024)
[Federal Register Volume 89, Number 138 (Thursday, July 18, 2024)]
[Proposed Rules]
[Pages 58323-58326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15565]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 22 and 52
[FAR Case 2024-004, Docket No. FAR-2024-0004, Sequence No. 1]
RIN 9000-AO72
Federal Acquisition Regulation: Combating Trafficking in
Persons--Definition and Agency Responsibilities
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement statutory updates to a
definition and to agency responsibilities associated with combating
trafficking in persons in Federal contracts.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at the address shown below on or before
September 16, 2024 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FAR Case 2024-004 to the
Federal eRulemaking portal at https://www.regulations.gov by searching
for ``FAR Case 2024-004''. Select the link ``Comment Now'' that
corresponds with ``FAR Case 2024-004''. Follow the instructions
provided on the ``Comment Now'' screen. Please include your name,
company name (if any), and ``FAR Case 2024-004'' on your attached
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the point of contact in the FOR
FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
Instructions: Please submit comments only and cite ``FAR Case 2024-
004'' in all correspondence related to this case. Comments received
generally will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided. Public comments may be submitted as an individual, as an
organization, or anonymously (see frequently asked questions at https://www.regulations.gov/faq). To confirm receipt of your comment(s),
please check https://www.regulations.gov, approximately two to three
days after submission to verify posting.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Jennifer Hawes, Procurement Analyst, at 202-969-7386 or by email at
[email protected]. For information pertaining to status,
publication schedules, or alternate instructions for submitting
comments if https://www.regulations.gov cannot be used, contact the
Regulatory Secretariat Division at 202-501-4755 or [email protected].
Please cite FAR Case 2024-004.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to revise the FAR to implement the
following statutory amendments to a definition and to agency
responsibilities associated with combating trafficking in persons in
Federal contracts:
Section 108 of the Justice for Victims of Trafficking Act
of 2015 (Pub. L. 114-22) amended the definition of ``sex trafficking''
at 22 U.S.C. 7102 to clarify the range of conduct considered sex
trafficking.
Section 2 of the End Human Trafficking in Government
Contracts Act of 2022 (Pub. L. 117-211) amended 22 U.S.C. 7104b(c)(1)
to require that, upon receipt of an Inspector General's report
substantiating an allegation of violations by a contractor or
subcontractor, the agency head refer the matter to the agency
suspending and debarring official.
II. Discussion and Analysis
A. Definition
DoD, GSA, and NASA are proposing amendments to FAR subpart 22.17,
Combating Trafficking in Persons, and the clause at FAR 52.222-50,
Combating Trafficking in Persons, to align the definition of ``sex
trafficking'' with the statutory definition of this term at 22 U.S.C.
7102. This proposed rule would clarify the definition of ``sex
trafficking'' at FAR 22.1702 and paragraph (a) of the clause at FAR
52.222-50 to also include ``patronizing'' or ``soliciting'' a person
for the purpose of a commercial sex act, in accordance with Federal
law.
The term ``sex trafficking'' is used in the definition of ``severe
forms of trafficking in persons'' in the same FAR section and clause;
therefore, the proposed revisions to the definition of ``sex
trafficking'' in the section and clause will affect the definition of
``severe forms of trafficking in persons.'' The proposed revisions have
the effect of clarifying that patronizing or soliciting a person for
the purpose of a commercial sex act, where the 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, is a ``severe form
of trafficking in persons.''
Conforming changes are also proposed to update the date of FAR
clause 52.222-50 where it is referenced in the clauses at FAR 52.212-5,
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Products and Commercial Services; FAR
52.213-4, Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Products and Commercial Services); and FAR 52.244-6,
Subcontracts for Commercial Products and Commercial Services.
B. Agency Responsibilities
DoD, GSA, and NASA are also proposing to update agency
responsibilities to align with the statutory requirements at 22 U.S.C.
7104b(c)(1). Currently, FAR
[[Page 58324]]
22.1704(c)(2)(i) requires that, upon receipt of a report from an agency
Inspector General that provides support for allegations of a violation
of the trafficking in persons prohibitions, the head of the Executive
agency delegate to an authorized agency official, such as the agency
suspending or debarring official, the responsibility to conduct an
administrative proceeding and make a final determination regarding
whether the allegations have been substantiated. DoD, GSA, and NASA are
proposing to update FAR 22.1704(c)(2)(i) by adding to the agency head's
responsibilities the requirement to refer the matter to their agency
suspending and debarring official, as required by 22 U.S.C.
7104b(c)(1).
Conforming amendments are proposed at FAR 22.1704(d) to clarify
that the contracting officer procedures in the subordinate paragraphs
apply when a final determination is made in accordance with FAR
22.1704(c)(2)(i)(B), instead of FAR 22.1704(c)(2)(ii). This proposed
rule would also update FAR 22.1704(d)(2) to clarify that the remedies
that may be taken by the contracting officer after such a determination
are limited to those listed in paragraphs (e)(1) through (6) of the
clause at FAR 52.222-50; the remedy at paragraph (e)(7) of the clause
to suspend or debar a contractor is available to the suspending and
debarring official.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items), or for Commercial Services
This rule amends the clause at FAR 52.222-50 to update the
definition of ``sex trafficking.'' However, this rule does not impose
any new requirements on contracts or subcontracts valued at or below
the SAT or for commercial products and commercial services, including
COTS items. The clause continues to apply to contracts and subcontracts
valued at or below the SAT and to acquisitions for commercial products
and commercial services, including COTS items.
IV. Expected Impact of the Rule
A. Definition
Paragraph (b) of the clause at FAR 52.222-50, Combating Trafficking
in Persons, prohibits a contractor and its employees and agents from
engaging in severe forms of trafficking in persons during the period of
performance of the contract. ``Severe forms of trafficking in
persons,'' as defined in 22 U.S.C. 7102 and paragraph (a) of the FAR
clause, includes ``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.'' Paragraph (c) of
the FAR clause requires the contractor to notify their employees,
subcontractors, and agents of this prohibition and take appropriate
actions against employees, subcontractors, and agents who violate this
prohibition. Paragraph (d) of the FAR clause requires the contractor to
inform the contracting officer and Inspector General immediately of any
credible information they receive that alleges an employee,
subcontractor, subcontractor employee, or agent has violated the
prohibition. Contractors are required to flow the substance of the
clause down to their subcontractors, to ensure subcontractors at all
tiers are subject to the same prohibition and compliance requirements
(see FAR 52.222-50(i)(1)).
This proposed rule, if finalized, would not change these existing
notification or compliance requirements, except to clarify (pursuant to
22 U.S.C. 7102) that ``patronizing'' or ``soliciting'' of a person for
the purpose of a commercial sex act, where such act is induced by
force, fraud, or coercion or the person induced to perform such act has
not attained 18 years of age, is a ``severe form of trafficking in
persons.'' When notifying their employees, subcontractors, and agents
of the Government's prohibition on engaging in ``severe forms of
trafficking in persons'' during performance of the contract,
contractors and subcontractors will need to ensure their notification
reflects the revised definition of ``sex trafficking.'' In addition,
the proposed changes to the definition of ``sex trafficking'' to add
``patronizing'' and ``soliciting'' are not expected to have a
substantial impact on the interpretation of what constitutes ``sex
trafficking'' since the definition already includes ``recruitment. .
.of a person for the purpose of a commercial sex act.''
B. Agency Responsibilities
FAR 22.1704(c)(2)(i) requires the agency head to delegate to an
authorized official, such as the agency suspending and debarring
official, the responsibility to conduct an administrative proceeding
and make a final determination regarding whether the allegations of a
violation of trafficking in persons in the agency Inspector General
report are substantiated. This proposed rule, if finalized, will not
have a significant impact on agencies that already delegate the
responsibility to conduct administrative proceedings to their agency
suspending and debarring official, as currently suggested at FAR
22.1704(c)(2)(i). Those agencies that do not currently delegate to
their suspending and debarring official will need to adjust their
internal procedures to also refer the matter to the agency suspending
and debarring official. This change will ensure that the agency
suspending and debarring official is made aware of the Inspector
General report while the agency is conducting the administrative
proceeding. Paragraph (e) of FAR clause 52.222-50 already puts the
contractor on notice that suspension or debarment is a potential remedy
for violations under the contract, so this change to Government
procedures is not anticipated to have a significant impact on
contractors; however, it is expected that contractors will take note of
the direct referral to the suspending and debarring official and may
choose to validate procedures they already have in place to combat
trafficking in persons.
V. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 (as amended by E.O. 14094) and 13563
direct agencies to assess 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 not a significant regulatory action and,
therefore, was not subject to review under Section 6(b) of E.O. 12866,
Regulatory Planning and Review, dated September 30, 1993.
VI. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this proposed rule, if finalized,
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.
601-612, because the updates to the statutory definitions and
clarification of agency procedures are not substantive. However, an
Initial Regulatory Flexibility Analysis (IRFA) has been performed and
is summarized as follows:
DoD, GSA, and NASA are proposing to revise the FAR to implement
the following statutory amendments to a definition and agency
responsibilities associated with combating trafficking in persons in
Federal contracts:
[[Page 58325]]
Section 108 of the Justice for Victims of Trafficking
Act of 2015 (Pub. L. 114-22) amended the definition of ``sex
trafficking'' at 22 U.S.C. 7102 to clarify the range of conduct
considered sex trafficking.
Section 2 of the End Human Trafficking in Government
Contracts Act of 2022 (Pub. L. 117-211) amended 22 U.S.C.
7104b(c)(1) to require that, upon receipt of an Inspector General's
report substantiating an allegation of violations by a contractor or
subcontractor, the agency head refer the matter to the agency
suspending and debarring official.
Requirements for combating trafficking in persons on Government
contracts are implemented in FAR subpart 22.17, Combating
Trafficking in Persons, and the clause at FAR 52.222-50, Combating
Trafficking in Persons. This proposed rule, if finalized, would
amend FAR 22.1702 and paragraph (a) of FAR clause 52.222-50 to
revise the definition of ``sex trafficking.'' This proposed rule, if
finalized, would also revise FAR 22.1704(c)(2) to require that, upon
receipt of an agency Inspector General report that provides support
for allegations of violations of trafficking in persons
prohibitions, the agency head refer the matter to the agency
suspending or debarring official. Promulgation of the FAR is
authorized by 40 U.S.C. 121(c); 10 U.S.C. chapter 137 legacy
provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113.
The clause at FAR 52.222-50 continues to be prescribed for use
in all solicitations and contracts. Therefore, this rule will apply
to any small business competing on Government contracts. As of
November 2023, there were approximately 362,000 entities registered
in the System for Award Management who reported that they are a
small business for at least one North American Industry
Classification System code.
Paragraph (b) of the clause at FAR 52.222-50 prohibits a
contractor and its employees and agents from engaging in severe
forms of trafficking in persons during the period of performance of
the contract. ``Severe form of trafficking in persons,'' as defined
in 22 U.S.C. 7102 and paragraph (a) of the FAR clause, includes
``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.'' Contractors and their
subcontractors are required to notify their employees and agents of
the prohibition in paragraph (b) of the FAR clause and to take
appropriate actions against employees or agents who violate the
prohibition (see FAR 52.222-50(c) and (i)(1)). They are also
required to inform the contracting officer and Inspector General
immediately of any credible information they receive that alleges an
employee, subcontractor, subcontractor employee, or agent has
violated the prohibition (see FAR 52.222-50(d) and (i)(1)).
This proposed rule does not propose any changes to these
existing notification or compliance requirements for small
businesses, except to clarify (pursuant to 22 U.S.C. 7102) that
``patronizing'' or ``soliciting'' of a person for the purpose of a
commercial sex act, where such act is induced by force, fraud, or
coercion or the person induced to perform such act has not attained
18 years of age, is a ``severe form of trafficking in persons.''
When notifying their employees, subcontractors, and agents of the
Government's prohibition on engaging in ``severe forms of
trafficking in persons'' during performance of the contract,
contractors and subcontractors will need to ensure their
notification reflects the revised definition of ``sex trafficking.''
In addition, the proposed changes to the definition of ``sex
trafficking'' to add ``patronizing'' and ``soliciting'' are not
expected to have a substantial impact on the interpretation of what
constitutes ``sex trafficking'' since the definition already
includes ``recruitment . . . of a person for the purpose of a
commercial sex act.''
The proposed amendments to require referral to the agency
suspending and debarring official do not create any additional
reporting or compliance requirements for small businesses. Paragraph
(e)(7) of the clause at FAR 52.222-50 already puts contractors and
subcontractors on notice that suspension and debarment are potential
remedies for substantiated violations.
The proposed rule, if finalized, would not duplicate, overlap,
or conflict with other Federal rules.
There are no significant alternatives to the rule. This rule
will not have a significant economic impact on small entities.
The Regulatory Secretariat Division has submitted a copy of the
IRFA to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the IRFA may be obtained from the Regulatory
Secretariat Division. DoD, GSA, and NASA invite comments from small
business concerns and other interested parties on the expected impact
of this proposed rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2024-004),
in correspondence.
VII. Paperwork Reduction Act
This rule affects the information collection requirements in the
clause at FAR 52.222-50, currently approved under Office of Management
and Budget (OMB) Control Number 9000-0188, Combating Trafficking in
Persons, in accordance with the Paperwork Reduction Act (44 U.S.C.
3501-3521). The impact, however, is negligible, because the changes to
the definition are not expected to impact the number of respondents,
responses, or burden per response.
List of Subjects in 48 CFR Parts 22 and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 22 and
52 as set forth below:
0
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 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C.
20113.
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
22.1702 [Amended]
0
2. Amend section 22.1702 in the definition of ``Sex trafficking'' by
removing ``or obtaining'' and adding ``obtaining, patronizing, or
soliciting'' in its place.
0
3. Amend section 22.1704 by--
0
a. Revising paragraph (c)(2);
0
b. Removing from paragraph (d) introductory text ``(c)(2)(ii)'' and
adding ``(c)(2)(i)(B)'' in its place;
0
c. Removing from paragraph (d)(2) introductory text ``paragraph (e)''
and adding ``paragraphs (e)(1) through (6)'' in its place.
The revision reads as follows:
22.1704 Violations and remedies.
* * * * *
(c) * * *
(2) (i) Upon receipt of a report from the agency Inspector General
that provides support for the allegations, the head of the executive
agency shall--
(A) Refer the matter to the agency suspending and debarring
official; and
(B) In accordance with agency procedures, delegate to an authorized
agency official, who may also be the agency suspending or debarring
official, the responsibility to--
(1) Expeditiously conduct an administrative proceeding, allowing
the contractor the opportunity to respond to the report;
(2) Make a final determination as to whether the allegations are
substantiated; and
(3) Notify the contracting officer of the determination.
(ii) Whether or not the official authorized to conduct the
administrative proceeding described in paragraph (c)(2)(i)(B) of this
section is the suspending and debarring official, the suspending and
debarring official
[[Page 58326]]
has the authority, at any time before or after the final determination
as to whether the allegations are substantiated, to use the suspension
and debarment procedures in subpart 9.4 to suspend, propose for
debarment, or debar the contractor, if appropriate, also considering
the factors in paragraph (d)(2) of this section.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (b)(39)(i) ``(NOV 2021)'' and adding
``(DATE)'' in its place;
0
c. Removing from paragraph (e)(1)(xvi)(A) ``(NOV 2021)'' and adding
``(DATE)'' in its place;
0
d. In Alternate II:
0
i. Revising the date of the Alternate;
0
ii. Removing from paragraph (e)(1) introductory text ``(c),'' and
adding ``(c)'' in its place;
0
iii. Removing from paragraph (e)(1)(ii)(O)(1) ``(NOV 2021)'' and adding
``(DATE)'' in its place; and
0
iv. Removing from paragraph (e)(1)(ii)(O)(2) ``(Mar 2015)'' and adding
``(MAR 2015)'' in its place.
The revisions read as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Products and Commercial Services.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Products and Commercial Services (DATE)
* * * * *
Alternate II (DATE). * * *
* * * * *
0
5. Amend section 52.213-4 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (a)(2)(vii) ``(FEB 2024)'' and adding
``(DATE)'' in its place; and
0
c. Removing from paragraph (b)(1)(ix)(A) ``(NOV 2021)'' and adding
``(DATE)'' in its place.
The revision reads as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Products and Commercial Services).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Products and Commercial Services) (DATE)
* * * * *
0
6. Amend section 52.222-50 by--
0
a. Revising the date of the clause; and
0
b. In paragraph (a) in the definition of ``Sex trafficking'' by
removing ``or obtaining'' and adding ``obtaining, patronizing, or
soliciting'' in its place.
The revision reads as follows:
52.222-50 Combating Trafficking in Persons.
* * * * *
Combating Trafficking in Persons (DATE)
* * * * *
0
7. Amend section 52.244-6 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (c)(1)(xvii)(A) ``(NOV 2021)'' and adding
``(DATE)'' in its place.
The revision reads as follows:
52.244-6 Subcontracts for Commercial Products and Commercial Services.
* * * * *
Subcontracts for Commercial Products and Commercial Services (DATE)
* * * * *
[FR Doc. 2024-15565 Filed 7-17-24; 8:45 am]
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